LL.

B (Hons) Full-time EU Law SEMINARS (2009/2010)

European Citizenship / Free Movement of Workers

in the EU
Advise Thierry and his family as to their rights under EU
law

General propositions: Citizens

• Any person holding the nationality of a Member State is a Citizen of the Union
(Article 17 EC).
• As such they have rights of movement to and residence in the territory of any
other Member State (Article 18 EC). These rights are directly effective
(Baumbast) and do not depend on economic activity.
• It follows that any EU Citizen can invoke Citizenship rights, including children
(Zhu & Chen), students (Grzelczyk, Bidar, Morgan & Bucher, Förster), the
unemployed (Martinez Sala, De Cuyper, Collins) and the retired (Pusa,
Turpeinen).
• Dual nationals can invoke Citizenship status (Micheletti, Garcia Avello, Collins).
• Article 18 EC can be combined with Article 12 EC allowing a Citizen of the Union
to challenge any nationality-based discrimination falling within the scope of the
Treaty (Martinez Sala, Grzelczyk, Bidar).
• Article 18 EC can also be used on its own to challenge any national legislation
which places EU Citizens “at a disadvantage” because they have invoked their
free movement rights by moving to another EU Member State (Pusa, De Cuyper,
Turpeinen).
• Art. 6(1) of Directive 2004/38 confers a right of residency on all EU Citizens
without any formalities; but this right only lasts for three months. For residency
rights after three months, Art. 7(1) of Directive 2004/38 states that Citizens need
to (a) be working or self-employed, or (b) have sufficient resources, or (c) be
students.

General propositions: Family Members

• Citizens’ family members include ‘spouse’, ‘registered partner’, ‘direct

descendants’ and dependent relatives in the ascending line (Art. 2(2) of Directive
2004/38). The word ‘spouse’ is not defined in Art. 2. In Reed it was held to apply
to married persons only. “Marriages of convenience” do not count (Akrich). The
location of the marriage is irrelevant (Metock & Others).
• Member States must also facilitate entry and residence of ‘other family
members’ and ‘partners in a durable relationship’ (Art. 3(2) of Directive
2004/38).
• Art. 23 of Directive 2004/38 confers the right to work on ‘family members’,
irrespective of their nationality (Gül, Mattern & Cikotic). Family members can also
pursue self-employment, irrespective of their nationality.
• Art. 24 of Directive 2004/38 allows a Citizen’s family members to claim ‘equal
treatment’ with the nationals of the host Member State. This is very similar to
Art. 7(2) of Regulation 1612/68 – the entitlement of workers and their family
members to equal access to ‘social advantages’. Art. 7(2) has been interpreted
very widely (Cristini, Mutsch, Meeusen). It is likely that Art. 24 will also be
interpreted widely although there is no case law on it yet.

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LL.B (Hons) Full-time EU Law SEMINARS (2009/2010)

General propositions: Workers

• The word ‘worker’ is not defined in EU legislation but in case law. A person must
provide services, for and under the direction of another in return for “monetary
reward” or “remuneration” (Lawrie-Blum, Trojani).
• These services must amount to “genuine and effective” activities (Levin).
• The part-time nature of work is irrelevant (Levin, Kempf, Ninni-Orasche).
• Article 39(2) EC prohibits all discrimination (direct or indirect) on grounds of
nationality against workers.
• Under Art. 3 of Regulation 1612/68, Member States may not exclude foreign
nationals from employment, except where “linguistic knowledge” is required by
nature of “the post” to be filled, e.g. teaching (Groener) or banking (Angonese).
• ‘Public service’ employment is exempted by Article 39(4) EC. However, the ECJ
has given Article 39(4) EC a very narrow scope. First, it only allows Member
States to deny access to ‘public service’ employment in the first place – it does
not authorize discrimination within employment (Sotgui). Second, Commission v
Belgium and Lawrie-Blum require that the post in question involves the exercise
of “public law powers”, responsibility for safeguarding the “general interests” of
the State, and a “special relationship of allegiance to” the State.
• Under Art. 12 of Regulation 1612/68, the ‘child’ of a worker is entitled to be
admitted to ‘general education’ and ‘vocational training courses’ under the same
conditions as nationals. Case law has extended Art. 12 to include funding for
education (Casagrande, Di Leo, Gaal). Art. 12 covers University education
(Echternach & Moritz, Di Leo, Gaal). The fact that a person is an adult is
irrelevant, they may still be regarded as a ‘child’ (Di Leo, Gaal). Art. 12 also
confers on the child’s “primary carer” a right of residence even where the carer
is not an EU Citizen (Baumbast, Zhu & Chen). This right lasts whilst the child is in
education but ceases on the child reaching the age of majority (18 in the UK)
unless there is a continued need for support from the carer (Ibrahim & Teixeira).

Thierry
• Thierry is a French national and hence Citizen of the EU (Article 17 EC). He has
rights to enter and reside in the UK (Article 18 EC), subject to the provisions of
Directive 2004/38.

• As Thierry arrived in the UK “last year” he has been resident for more than three
months and so his right of residence depends on Art. 7(1) of Directive 2004/38.
He will probably need to establish ‘worker’ status.

• Whether Thierry qualifies as a ‘worker’ in his capacity either as a college

governor and/or as a swimming teacher depends on application of the case law.

• The refusal to employ him as a full-time teacher is prohibited by Art. 3 of

Regulation 1612/68, unless the post requires ‘linguistic knowledge’.

• The refusal of employment is theoretically justifiable on grounds of ‘public

service’ employment in Article 39(4) EC, but teaching has been explicitly
excluded from ‘public service’ employment in Lawrie-Blum, Allue & Coonan and
Bleis.

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LL.B (Hons) Full-time EU Law SEMINARS (2009/2010)

Melissa
• Melissa is a Canadian national and hence not a Citizen of the EU.

• Melissa is Thierry’s “partner” and therefore, as they are not married, she is not a
‘spouse’.

• However, under Art. 2(2)(b) of Directive 2004/38, she could try to claim
residence if she has a ‘registered partnership’ (presumably under French law)
although this may fail unless UK law recognises registered partnerships as
‘equivalent to marriage’. However, if she were to be recognized as a ‘family
member’ she would have the right to work under Art. 23 of Directive 2004/38.

• One solution might be for Thierry and Melissa to marry, as she would then
become his ‘spouse’, provided it was not regarded as a “marriage of
convenience”.

• Another possibility is to provide evidence that Thierry and her are in a ‘durable
relationship’ under Art. 3(2)(b) of Directive 2004/38. The fact that they have a
17-year-old son should provide strong evidence of that. This would give her the
right to join Thierry in the UK.

• Finally, she may be able to claim residence rights as Charles’s “primary carer”.
This right would cease on him reaching the age of 18 unless there was evidence
that he needed continued support beyond that age.

• If Melissa qualifies as a ‘spouse’, ‘partner’, ‘carer’, etc., then her nationality is

irrelevant.

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LL.B (Hons) Full-time EU Law SEMINARS (2009/2010)

Charles
• As a dual French-Canadian national, Charles is nevertheless an EU Citizen (Article
17 EC). His dual nationality is irrelevant. He can invoke his Citizenship status to
claim residence in the UK (Article 18 EC) and to challenge any discrimination on
grounds of nationality (Article 12 EC).

• The fact that he would be claiming Citizenship status as a student in irrelevant.

• As a student enrolled on a ‘course of study’ at a college in the UK, Charles would

satisfy Article 7(1)(c) of Directive 2004/38 and so he definitely has a right of
residence in the UK.

• In addition, given that he is only 17, Charles is also the ‘direct descendant’ of a
Citizen under Art. 2(2)(c) of Directive 2004/38 and therefore has rights of
residence in the UK using that provision. As he is under 21 there would be no
need to establish dependency (this only applies to descendants who are 21 or
older).

• By combining Article 18 and 12 EC, he can challenge the extra fees as being
direct discrimination on grounds of nationality.

• Furthermore, under Art. 12 of Regulation 1612/68, Charles is the ‘child’ of a

worker and so can use that provision as well. He is entitled to be admitted to
‘vocational training courses’ under the same conditions as UK nationals. Art. 12
includes funding for higher education. The fact that Charles will be at least 18
when he starts his degree and therefore an adult is irrelevant – he is still
regarded as Thierry’s ‘child’. The £2000 extra fees are therefore not payable.

• Yet another possibility would be for him to invoke Art. 24 of Directive 2004/38,
which allows a Citizen’s family members to claim ‘equal treatment’ with the
nationals of the host Member State.

• Finally, he could use the entitlement of equal access to ‘social advantages’ in

Art.7(2) of Regulation 1612/68, on the basis that education is a ‘social
advantage’.