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53 Cards in this Set
- Front
- Back
Directive 2004/38 elaborates on TFEU 45, covering union citizens
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article 3(1)
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Drug addict on a rehab scheme put on for him is not a worker
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Bettray
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Unpaid worker for a religious community if:
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Steymann
– Contributes to economic activity of community – Receives benefit for his contribution, ie indirect |
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A part time worker is still a worker, even if he supplements his income with state benefits or other lawful sources
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Kempf
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Part-time workers also count as long as:
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Levin v Staatssecretaris
– “effective and genuine” – not on such a small scale as to be marginal and ancilliary |
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All union citizens have a right of residence for three months
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Dir. 2004/38, 6(1)
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If you can provide evidence you are looking for work and have a genuine chance, you may not be expelled
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Dir. 2004/38, 14(4)(b)
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Someone looking for work also comes under the scope of TFEU 45
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Ex p Antonissen
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A worker is a person who:
– Performs services for another person – Under the control of that other person – receives remuneration |
Lawrie Blum v land Baden Wurtttemburg
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Free movement of workers shall be secured within the community
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TFEU 45(1)
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Migrant workers must not suffer discrimination based on nationality as regards employment, remuneration and other conditions of work
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TFEU 45(2)
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National law where nationality claimed decisive in deciding nationality
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Micheletti
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2004/38 Article 2 "family member"?
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– Spouse
– Registered partner – Direct descendants who are under 21 or dependants, plus those of spouse/partner – Direct dependant relatives in the ascending line plus those of spouse/partner |
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2004/38, 3(2) others with entry/residence right?
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Other individuals with with entry/residence rights
– Other family members who are part of household or dependent on one with primary right – Partner with whom union member has a stable and durable relationship, duly attested |
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Right of exit
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Article 4
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Right of entry (check for visa/passport requirements) subject to document requirements
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2004/38 Article 5
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2004/38 Right of residence
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Rights of residence:
Right of residence for up to three months 6(1) Don't have to be pursuing economic activity 6(2) Including non-Union family members |
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RoR for > 3 months if
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2004/38, article 7
– Worker/self-employed – Sufficient resources + sickness insurance – Students declaring sufficient resources and having sickness insurance – Non-union family member accompanying/joining a union citizen satisfying one of the above |
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Permanent residence after 5 years continuous legal residence
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2004/38, Article 16
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Permanent residence prior to 5 years if retired or permanently incapable of work
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2004/38, 17-18
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Where no kids, departure to home MS will mean non Union spouse will lose RoR in host MS (only persuasive in other jurisdictions)
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Sandhu
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Citizen's death/departure shall not affect RoR of Union family members
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2004/38, 12(1)
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If family members are non-union, must live in MS for 1 year prior to death
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2004/38, 12(2)
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Departure will not affect RoR of children/parent with custody (if kids at school long term)
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2004/38, 12(3)
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Returning migrant workers can bring non-Union spouses with them
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Surinder Singh
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Divorce will not affect RoR of Union family members
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2004/38, 13(1)
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Divorce: If non-Union family, not affected provided:
– marriage lasted 3 years prior to divorce, one in host state – Spouse/partner has custody of Union citizen's children – Suffered difficult circumstances e.g. abuse – Partner has right of access to a minor child (still subject to 12(2)) – Still need work/self-support |
2004/38, 13(2)
– marriage lasted 3 years prior to divorce, one in host state – Spouse/partner has custody of Union citizen's children – Suffered difficult circumstances e.g. abuse – Partner has right of access to a minor child (still subject to 12(2)) – Still need work/self-support |
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Senegalese woman married Frenchman and moved to Germany
– Don't have to leave if just separated – No need for spouse to live in same accommodation as worker |
Diatta
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Documents for exit:
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2004/38, 4
– Union, ID/Passport; non-Union family, passport |
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Document for RoR < 3 months
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2004/38, 6
RoR < 3 months; valid ID or passport only (for all) |
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Document for RoR .> 3 months
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2004/38, 8
RoR > 3 months; registration may be required, with certificate |
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Permanent residence docs
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2004/38, 18-20
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Reg 1612/68, Article 1
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The right to take up employment in foreign MS with same priority as MS nationals
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Reg 1612/68, Article 3
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Only conditions of linguistic knowledge may bar the regulations from applying
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Reg 1612/68, Article 5
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Must receive the same benefits as nationals of the MS
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Reg 1612/68, Article 6
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Recruitment must have no discriminatory tests unless undertaken by all staff
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Reg 1612/68, Article 7
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No discrimination on nationality re conditions/remuneration/hours of work, including social advantages
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Social advantages could include “large family fare reduction card” and discrimination here is unlawful.
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Cristini v SNCF
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Family members of a Union citizen have the right to take up employment or self-employment regardless of nationality
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2004/38, 23
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Social security rights:
EU migrant workers have right to same social security benefits as nationals of host state; contributions to be treated the same too. |
Regulation 1408/71
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TFEU Exceptions in 45(3)
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Very narrowly interpreted
– Public policy (more common) – Public security (hard) – Public health |
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Direct discrimination can only be justified by TFEU treaty exceptions (very narrowly interpreted)
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Commission v France
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2004/38 restrictions on treaty exceptions for direct discrimination
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Article 27 confirms grounds in 45(3) but:
– Not for economic ends – Proportionality; no more than necessary for the end – Based exclusively on conduct of the individual |
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Past convictions only relevant if a present and serious threat
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R v Bouchereu
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Can base on association with groups if “socially harmful” (Scientologist)
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Van Duyn
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Previous convictions only OK insofar as showing reoffending
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R v Bouchereu
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Prior criminal convictions not sufficient “in themselves”
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2004/38, 27(2)
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For public health, only “epidemic potential” (by WHO), or subject to controls for member state nationals
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2004/38, 29(1)
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Cannot use conduct not repressed against member states own nationals
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Adouie and Cornuaille v Belgian State
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Employment in public service
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TFEU 45(4) - Rights do not apply in public service
---- Exercise of powers conferred by public law ---- Safeguarding the interests of the state |
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"Public service" very narrowly defined
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Commission v Belgium
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Cassis approach for movement of people:
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Bosman
Measures justified if they: – Pursue a legitimate aim compatible with the treaty and justified by pressing reasons of public interest. |
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Proportionality for discrimination
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Bosman
- ensure it achieves aim in question - No more than necessary |