Free movements of persons Free movement is important for the EU internal markets, to expand business, for skilled labour

r to move around more easily and to show a stronger link between MS and EU and EU citizens.

Gaining the right to move freely The importance of EU citizenship o In the past free movement depended on the status of the individual such as employed or self-employed but now free movement is possible regardless of the status. o The importance of EU citizenship Article 21 states Every citizen of the Union shall have the right to move and reside freely. Furthermore article 21 states that this right is subject to limitations and conditions.

o Who can be considered as the citizen of the EU?

Article 21 states Every person holding the nationality of a Member State shall be a citizen of the Union and can access to benefits and rights. Non-EU citizen can access their rights through the EU citizen (sometimes referred to piggy back rule. It is important here to note that the EU citizen must has access their right first before the family member can use indirect means to access rights- Metock (C-127/08)

o What about non-EU citizens who are not family? Their rights depend on the national law of the MS not EU law o Citizens rights to move freely Once the person has decided that they want to use their right to freely move then three things are important to concentrate on: The exact nature The exact source And their status o Free movements of economically active persons There are different articles of TFEU governing the categories of economically active persons namely: Employment/workers rights- arts 45-48 rights to take up work, salary and to permanently reside in a host state. Self-employed/establishment rights- arts 49-55 right to set up a permanent base in a host state Service providers- arts 56-62 right to enter a host state and provide services without setting up permanently Furthermore TFEU provides further protection through articles such as article 18 prohibits discrimination.

Workers rights Article 45-48 TFEU The governing secondary legislation in this field is Directive 2004/28 and Regulation 1612/68. The meaning of worker (the TFEU and the Secondary legislations are silent on this): o Hoekstra (nee Unger) v BBDA (75/63) worker is a union concept and the court alone can define the term (this shows that MS cant stop anyone one under any narrow definition) and it was also stated that a worker who has lost his job but was capable of finding another should also be considered as a worker o Levin v Staatssecretaris (53/81) a part-time employee should be considered as worker, provided the work is real or genuine work of an economic nature and not nominal or minimal o Kempf v Staatssecretaris Van Justitie (139/85) - a part-time music teacher (from Germany), even though in receipt of supplementary benefit (in the Netherlands) to bring his wage up to minimum levels came within the term o Steymann v staatssecretaris Van Justite (196/87) a member of a religious community provided with his keep and pocket money, but not formal wages, was held to be a worker o Bettray v staatssecretaris Van Justite (344/87) an important case to demonstrates the limits of the term worker. It was held that, as the position was artificially created by the government as part of a drug rehabilitation programme, he could not be considered to be engaged in economic activity of a genuine nature. Job seekers o A person seeking for work and has a genuine chance of finding work should be allowed to stay for three months providing he has a valid passport or a valid ID card- Article 6 of Directive 2004/38 (R v immigration Appeal tribunal ex p Antonissen (C-292/89)) o Article 14 of directive 2004/38 states as long as they do not become an unreasonable burden on the social assistance system of the host Member State. This show job seekers dont have as much protection.

Basic rights afforded to workers by TFEU Article 45 states that, worker have: o The right to accept employment actually made and to move freely within the host state for this purpose; o The right to reside in the host country for the purpose of employment under the same rules as enjoyed by nationals; and o The right to remain in the host state after having been employed in that state(following retirement or incapacity) The right to exit, entry and residence of workers

o Article 4 and 5 of Directive 2004/38 concerns with rights of exiting a home state and entering a host state o Article 4 states that a home state can allow a migrant to leave the state with a passport and a host state cannot make it difficult for a migrant to enter the state by asking for a visa or other documents o If declared to an office of registry the right to remain as a worker seeking work can be extended. (article 8 of Directive 2004/38) o The right to become a permanent residence is available if resided for more than a continuous 5 years. (continuous meaning being out of the state for more than 6 months) o The right may be lost if there is a continuous absence of more than two years The right to be treated equally to nationals o Art 45 (3) (c) TFEU reiterates Arts 1 and 2 of Regulation 1612/68 which states that migrants must not discriminated against on the basis of their employment, nationality, remuneration and other conditions of work and employment. This is also stated in article 18 of TFEU. o Article 7 9 of Directive 1612/68 state that worked should be treated equally outside their area of employment such as provision of social advantages, access to vocational training and housing. o Whilst it is clearly outlawed discrimination on basis of nationality it is recognised, especially in article 3 of Regulation 1612/68, that some posts of jobs will require a certain barrier such as linguistic skill. This was seen in the case of Groener v Ministry of education (379/87) which stated that a teacher had to know Gaelic in order for them to be hired. This was a requirement for both nationals and internationals. This was seen as lawful criteria. o This is also supported in art24 of Directive 2004/38 The approach of ECJ in relation to equal treatment o The court on numerous occasions been called upon to clarify the position of social advantages. This is not interpreted restrictively. o Ministere Public and Evens ONPTS (207/78) the court developed a formula (AKA Even Formula) and stated that a social advantage is a benefit not directly linked to a contract of employment but granted to worker because of their status or as a result of their residency. o Netherland v Reed (59/85) stated that an unmarried migrant worker could enjoy the presence of his partner (who had failed the right of residence independently) as long as this same right was given to nationals of the host state. This is now incorporated in Art 3 of Directive 2004/38. Although article 2 (b) of the same directive states that in order to be someones partner one need to be registered.

o In the past it was seen only the residing could claim social advantages however two cases have illustrated that this position has changed: Collins (C138/02) stated that job seekers allowance could be claimed by an EU national seeking employment. Bidar (C209-03) states that subsidiary student loan could be claimed by the person with sufficiently integraty

Further development of rules on discrimination o Indirect Discrimination OFlynn v Adjudication office (C-237/94) in which a burial grant could be given to workers so far as the burial was held in UK, was held as indirect discrimination.

Access to employment market o The ECJ is prepared to go beyond merely prohibiting measures that actually discriminate and has highlighted that any measures free discouraging movement will prohibited. o Union Royale Belge des Societes de Football Association ASBL v Boseman (C-415/93) states that a movement of footballers from one state of the union to another seen as an obstacle to free movement. Justification of indirect discrimination and restrictive measures o In the case of Gebhard (C-55/94) the court gave reasons for when a hinder to free movement can be objectively justified. These are: The rules must be applied in a non-discriminatory manner They must be justified by imperative requirements in the general interest They must be suitable for securing the attainment of the objective which they pursue They must go beyond what is necessary to attain it (proportionality) The right for workers to remain even after employment has ceased o Article 45 (d) TFEU and Art 17 of directive 2004/38 allow the worker to remain in the host state even after retirement or when they become permanently incapacitated. o Art 16 states that in order to receive permanent residency the worker must reside there for a continuous time of five years o Furthermore one can retire and reside in the host state if: If they worked in the state for more than 12 months prior to retirement Have resided there continuously for more than 3 years

o Similarly if a worker is permanently incapacitated due to an industrial injury then they are allowed to reside irrespective of their time period o Finally if the worker becomes ill due to another injury then they must have resided there for a continuous time period of two years. Right of workers who live in one state but work in another o If the worker can demonstrate that : 3 years of continuous residence and employment in the territory of a host state where they wish to remain and They returned there at least once a week They will have the right of permannat residency in the state in which they are domiciled, after ceasing work in the second host state (art 17 directive 2004/38) Rights of workers families o Article 2 and 3 of Directive 2004/38 states that a family member includes: a) The spouse; (b) The partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) The direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b); (e) Any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen; (f) The partner with whom the Union citizen has a durable relationship, duly attested. Rights to be enjoyed by workers families o Where family members are citizens of one of the countries of the EU then they can enjoy their rights. (Art 20 TFEU) and (directive 2004/38) Rights of family member to enter exit of reside

o If family member are EU citizen they can enjoy same rights as the worker. o If the family member in a non-EU citizen then they might be required to provide an entry visa or valid residence card (Art 5 directive 2004/38) o Article 6 and 7 of Directive 2004/38 states that the family members have the right to reside with the worker for three month whilst the worker is looking for a job. In the case of non-EU citizens they will need to require residency cards. o Once the family member has been residence of the host state for more than 5 years then they will have the right to reside permanently. (Article 16, 17, 18 for non-EU citizen nations Directive 2004/38) Families and the right to take up employment o Art 45 TFEU gives right to family member take up employment and in doing so they will have independent rights. Art 23 Directive 2004/38 gives the same right to non EU family member. Families and the right to education o Under Art 12 Reg 1612/68 children of workers residing in the host state will have the right to access general education, apprenticeship and vocational training schemes. This includes right to education grants Michel S (76/72). In the case of R v London Borough of Ealing and SS for education and skills ex p Bidar (C209/03) the ECJ interpreted Art 24 of Directive 2004/38 in line with art 12 of Reg 1612/68. o In the case of Echternach and Moritz v Netherlands Ministry for Education and Science (389 and 390/87) the ECJ stated that the child of the migrant worker could stay in the host state to finish their education even when the parents had left. In Gaal (C-7/94) the child was allowed to finish the course even when they had reached an independent age of 21. o It isnt clear whether the spouse/partnerships would be allowed such wide rights of education however it is clear from art 18 of TFEU and Art 24 of Directive 2004/38 [for non-EU families] that their rights have been applied equally. Families and right to remain; death or divorce o Directive 2004/38 states that the residency of the family is unchanged if the worker dies or leaves the country, however a non-EU citizen will need to reside for 12 months (Art 12 of Directive 2004/38) in order to access this right. o Christini SNCF (32/75) Confirms that surviving family of a deceased will continue to enjoy equal treatment.

o Divorce, annulment or termination of a registered partnership should also not affect the right of family members to reside Art 13 of Direct 2004/38 Free movement: Limitations on Workers rights Restriction on entry, exit or residence on grounds of public policy, public security and health o Article 45 (3) TFEU states that a state can deny entrance to an EU citizen or his family on reasons of public policy, public security and health o Secondary legislation and the limitation of rights Art 27 of Directive 2004/38 states the doctrine stated in Art 45 (3) of TFEU and expands and by saying these measures must not be invoked to serve economic ends. These measure must be proportional and be based exclusively on personal conduct (previous convictions do not automatically all the state to deny a worker his right of entry). The personal conduct must be 1) genuine, 2) present and 3) sufficient serious threat - Rutili v Ministre de Iterieur (36/75) The host state has 3 months to request information from a home state on an individual and a home state then has 2 months to reply. Should a host state expel an individual then the home state must allow that individual entry. o Procedural safeguards Article 28, Directive 2004/38 provides what considerations a host state must take into account when making a decision to expel an individual. These include: his/her age, state of health, family and economic situation, social and cultural integrations into the host state His/her link to the country of origin An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) have resided in the host Member State for the previous ten years; or (b) are a minor, (for the best interests of the child) Art 30, Directive 2004/38 states that states that any expulsion must be in full and writing Art 31, Directive 2004/38 state that there must be an appeal procedure

Art 32, Direct 2004/38 state that the person who is expelled can bring an action for the expulsion to be lifted after a reasonable time which is no longer than 5 years.

o The approach of the ECJ to restriction on entry, exit or residence The decision to expel a person must be proportional and objectively justified. The personal conduct must be 1) genuine, 2) present and 3) sufficient serious threat - Rutili v Ministre de Iterieur (36/75) This was extended in the case of R v Boucherea (30/77) the court provided that the threat must affect one of the fundamental interest of the state Adoui and Cornuaille V Belgian state (115 and 116/81) (the French prostitute case) the court held that excluding someone on the basis of providing an immoral standard was not proportional. Previous convictions must not be on the grounds of expulsion unless they provide present threat: In the case of R v Boucherea (30/77 it was held that past conduct alone may not suffice however it may be sufficient to constitute a present threat if the conduct can be considered to be sufficiently serious. Bonsignore v Oberstadtdirektor of the city of Cologne (67/74) in which it was held that general preventive measure was not reasonable to expel someone. Restrictions on employment in the public health service o Art 45 (3) TFEU states that article 45 do not cover public service. Therefore the limitations does not include right to entry etc. o Public sector isnt defined in the treaty but is defined in the courts; In the case of Sotgui v Deutsche Bundespost (152/73) it was held that art 45(4) MS in relation to the terms and conditions of employment as it applies only to access to employment. In Commission v Belgium (RE Public Employees) (149/79) stated that all post of Belgium public service, irrespective of duties preformed, was outside the scope of Art 45 (4) TFEU. To become within the ambit of art 45 (5), the court held that employment must involve direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the state or of other public authorities while higher post are more likely to hold sensitive information and fall under art 45(4) TFEU lower posts such as cleaners and night-watchmen who sensitive information may also hear it can also fall under art 45 (4). Some examples of these include the armed forces, police, judiciary, tax authorities and high-ranking civil servants. The commission in1988 (ON no 72/2) provided some guidance to which would be unlikely to be covered: Public health services

Teaching in state education establishments Research for non-military purpose in public establishment Public bodies responsible for administrating commercial services EU recognises the MS the need to preserve their own identity however it is not prepared to allow them to do this to the detriment of free movement.