Summary Free Movement (-Last 10 Pages)

Freedom of movement – Notes Chapter 1 Article 26 TFEU (internal market provision) --> enacted with the Single European Act of 1986 --> 1992 Union citizenship was introduced [bulk of rights granted regardless of economic activity] Free movement of persons includes (scope): 1. Free movement of workers 2. Freedom of establishment 3. Freedom to provide and receive services 4. Rights derived from Union citizenship Legal basis of free movement = several provisions in TFEU, secondary law, and case law. Provisions TFEU: - 18 (non discrimination on nationality--> only applies to EU citizens, not to TCN) means that comparable situations must not be treated differently and different situations must not be treated in the same way. So, this means that if there are objective differences, a state may rightfully impose different rules. - Title 4 (Free movement of persons, services and capital), Members are not allowed to do anything that hinders individuals from going to work in another Member State, establishing a business in another Member State, providing a service or receiving a service in another member state. [Arts 45, 49, 56 TFEU--> have direct effect.] These provisions also stipulate specific prohibitions on discrimination on grounds of nationality against migrant workers, self-employed persons and suppliers/recipients of services (in addition to art 18 TFEU). - 20-25 (Union citizenship) Secondary law = f.e. Residence directive (2004/38/EC) Transitional arrangements = enactment of free movement of workers in phases instead of immediately. (f.e. Austria did that, England did not) C:is the right to equal treatment laid down by Art 18 TFEU infringed by a clause that makes holders of diplomas awarded in another MS, which are deemed to be equivalent, subject to conditions which are not imposed on Austrian students? YES (Access to Austrian Uni's) C: Can discrimination on grounds of nationality be justified by the objective of maintaining a balanced high quality medical service open to all (to protect public health)? YES (Bressol) The ECJ consistently ruled that national measures are an infringement of the treaty provisions on free movement if they are liable to hinder or make less attractive the exercise of fundamental freedoms --> obviously higher applicability than Article 18 TFEU. A national measure that is liable to hinder or make less attractive the exercise of fundamental freedoms is only justified if it fulfills the Gebhard-formula: 1. it is applied in a non-discriminatory manner 2. it is justified by imperative requirements in the general interest 3. it is suitable for maintaining the objective pursued 4. it does not go beyond what is necessary in order to attain the objective. Free movement is not an exclusive Union competence and therefore, in accordance with Subsidiarity (article 5(3) TEU) shall only act if the objectives cannot sufficiently be achieved by the MS, but better at Union level.

Schengen 1985 = Schengen Agreement was signed by EU Founding states except for Italy --> aim was the gradual abolition of controls of persons at the common borders. 1990 = Schengen Implementation Convention = removal of internal border controls, intensification of police and judicial cooperation (external border controls) --> in force since 1995. 1999 = Integration of Schengen into EU by Protocol 2 to the TEU. Now = All EU MS (besides UK, Ireland, Cyprus, Bulgaria, Romania), Norway and Iceland, Switzerland. --> New MS (Romania, Bulgaria and Cyprus still have to join) have to control their borders effectively. EU Fundamental freedoms. Free movement of: 1. good 2. capital 3. services 4. people. Direct effect: a provision confers rights directly upon individuals which they can enforce in national courts against MS. A provision has direct effect if: 1. its sufficiently clear and precise 2. unconditional 3. confers a specific right upon citizens. Chapter 2 – Union Citizenship Idea emerged in the 70's (Paris Summit of '72 and '74) --> Further developed by Tindemans Report (1975) which argued for a passport union [still not in force] and political rights --> Picked up again in the 80's by Delors --> Adonnino Committee (1985) made recommendations --> Commission (1988) used this for measures promoting awareness of European identity --> In 1990, the European Council declared willingness to aim for a closer political Union, part of the agenda was to amend treaties to include and extend Community citizenship --> In December 1990, the Intergovernmental Conference (IGC) was launched to negotiate treaty changes leading to the Maastricht Treaty (in force 1993) The Maastricht treaty officially introduced Union citizenship, which applies to all MS-nls irrespective of their economic activity. This was added later than the fundamental freedoms and sometimes overlap with them, usually complements. The ECJ has explained (Rottmann) that Union citizenship is intended to be the fundamental status of nationals of member states. Legal provisions = Article 20-25 TFEU What is the difference between Art 20 and Arts 21-24 TFEU? Art 20 creates and defines the status of Union citizen. 21-24 bestow specific rights on everybody who is a Union citizen. Which rights do Union citizens have? 1. Rights granted by the treaty (arts 21-24 TFEU) 2. Rights granted by secondary legislation 3. Rights developed by the ECJ based on Union Citizenship provisions. These rights can be enforced against MS (horizontal rights, 20-23) and the Union(vertical rights,24) Article 21(1) [the right to move and reside freely in MS] is held directly effective by the ECJ (Baumbast), economic activity is since then thus not necessary anymore to hold a right of movement and residence as an EU citizen.

This right of 21(1) is not unconditional. MS may limit by: 1. requirement to have comprehensive health coverage 2. requirement to have sufficient resources so as to not become an unreasonable burden on the public finances of the host MS 3. public order 4. certain degree of integration into the community (Bidar) C: Is a person allowed to a jobseeker's allowance even though he has been out of the MS for 17 years? NO (Collins) C: Is a child, who is a national of a MS, and her mother, a TCN, entitled to a residence permit? YES (Zhu and Chen) When the requirements cease to be fulfilled (e.g. Loses health coverage) in principle the MS can deport the individual. In practice, this is strongly restricted by the ECJ, and cases are evaluated on an individual basis. Social advantages Initially, the entitlement to certain social advantages were developed under the umbrella of free movement provisions (so only for workers). The ECJ extended these rights to Union Citizens, who are thus entitled to certain social advantages on the same term as nationals if they are lawful residents. C: Can a MS require nationals from other MS to produce a formal residence permit – which nationals of that MS do not need- in order to receive a child-raising allowance? NO (Sala) C:Does assistance provided to students lawfully resident in the host MS, whether in the form of subsidized loans or grants, fall within the scope of the application of the Treaty for the purposes of the prohibition of discrimination laid down in Art 18 TFEU? YES (Bidar) C: It is, however, a legitimate aim that an applicant for assistance needs to demonstrate a certain degree of integration into the society of that MS. (Bidar) The ECJ has developed a rule allowing MS to limit access of non-citizens to social advantages. (Grzelczyk) The Court argued that in principle MS must show a certain degree of financial solidarity with nationals of other MS. However, MS are allowed to ensure that student maintenance costs do not become an unreasonable burden that has consequences on the general level of assistance granted by that MS. C: Is a MS allowed to give a maintenance grant to an individual only after 5 years of residence in the country? YES (Forster) How does Bidar differ from Forster? In Bidar, the requirement was virtually impossible to meet for a non-national. So, contrary to EU law. In Forster, the requirement could very well be met. The Residence Directive 2004/38/EC Directive 2004/38/EC aimed at replacing all different directives and regulations with a single, comprehensive act. Additionally, it codifies parts of the case law on movement and residence rights. The Residence Directive covers the rights of workers , the self-employed, people with sufficient financial means, retirees and of their family members.

The Residence Directive provides a graduated system of rights and responsibilities: 1. Union citizens staying in host MS less than 3 months [have right of residence without necessity of being economically active, do not need comprehensive health coverage or sufficient financial means, no equal treatment in soc.ben.] 2. Union citizens staying in host MS more than 3 months [right of residence if they: engage in a gainful activity, OR have comprehensive health coverage and sufficient financial means. Have equal treatment as nationals with regard to social benefits, excluding student benefits.] 3. Union citizens staying in host MS more than 5 years [Right of permanent residence, without necessity of being economically active, equal treatment in regard to social benefits (including student benefits)] The Residence Directive also provides for equal treatment in the host MS, and protection against expulsion (very difficult and procedurally extensive). Rights of family members under Residence directive Family members under directive are: spouses, partner in registered partnership, children of Union citizens who are under 21 or dependent, parents/grandparents of Union citizens if they are dependent. Family members do not have an originary right of residence: their right of residence is derived from (and dependent on) the rights of the Union citizen. TCN: 1. Generally same rights as the Union citizen with regard to residence rights [if the citizen they join satisfies the conditions for residence his family may stay longer than 3 months, family gains permanent right of residence after 5 years, once they have right of permanent residence they may take up employment and are entitled to equal treatment with nationals.] 2. They only need to have an entry visa (no need to have an additional residence permit) 3. In case the Union citizens they are joining moves away, dies, or divorces, they may obtain an originary right of residence if they meet certain criteria. C: Doest he Residence Directive permit MS to require a prior lawful residence requirement?NO (Metock and Others) Chapter 3 – Free Movement of Workers (Arts 45-48 TFEU) There is no definition of 'worker' in Union law so the ECJ elaborated upon the concept extensively in case law. C: Does the concept of a 'worker' have a supranational meaning, one that is not defined by the legislation of each MS? YES (Hoekstra) The essential features of a 'worker' 1. A person performs services which are effective and genuine, to the exclusion of marginal and ancillary (= supporting) activities (Levin) 2. Under the direction of another person [if not, its freedom of establishment=Art 49 TFEU] 3. In return renumeration is received Self employed persons and students are not covered by Art 45 TFEU. --> self employed persons are regulated by 49 TFEU (right to establishment) and Residence Directive. Students by rights on Union citizenship (21(1) TFEU) and the Residence Directive. Is the concept of 'worker' in Article 45 TFEU applicable to part-time jobs that do not even pay minimum wage? YES (Levin)

Job seekers Job seekers have the right of entry into a MS and the right to move freely within MS. MS may deny residence to EU national if he has not found employment within a certain period of time, unless he is continuing to search and has a genuine chance to get a job. C: Can national legislation limit the length of stay for job seekers? YES (Antonissen) Scope of Free Movement of Workers Provisions are applicable to workers and employers who wish to hire a national of another MS (Clean car), including private-sector recruitment agencies. There must have been a cross-border element (Moser) and to fall within the scope the individual must have used his right to free movement (Morson and Jhanjan) C: Does Art 45 TFEU also grant the right to an employer to hire a non-national? YES (Clean Car) C: Can a plaintiff argue against his home country, relying on EU law provisions on free movement of workers, that the MS's denial may in the future derive him of the possibility to work in another MS? NO (Moser) C: Can a MS refuse to allow relatives of their own nationals who also work in this MS to enter and reside in their territory? YES (Morson and Jhanjan) Exceptions to the right of FMW (justifiable restrctions) The Union aims at providing the right to FMW as widely as possible, but FMW can be restricted on grounds of ordre public (45 (3) TFEU) [necessary for the public interest], justifications of restrictions by overriding requirements of the general interest, or that employment in the public sector is excluded from the FMW rights. (45(4). The ECJ has interpreted these exceptions very narrowly. Only a genuine and sufficiently serious threat may be invoked (Bouchereau) C: Can a MS deport another MS nls after a conviction for the purpose of deterring other foreing nls from similar offenses? NO (Bonsignore) C: Can an Individual rely directly on the provision that restrictions to FMW on the ground of public policy must be exclusively based on personal conduct? YES (Van Duijn) C: Can the membership in an organization which is considered contrary to the public good, but is not prohibited, be taken into account as a matter of personal conduct? YES (Van Duijn) Van Duijn case law was included in the Residence Directive, stating that measures on public policy should comply with principle of proportionality and based on the personal conduct of the individual. Furthermore, previous criminal convictions do not themselves constitute grounds for such measures. The public service exception is handled with a functional interpretation; the nature of each task shall be considered, not only the formal job situation. Not every sector that is owned or managed by the State is automatically covered by the exception of public service. C: Can nationals from another MS be generally excluded from all areas connected to the state? NO (Commission v Belgium) C: Is the job of a trainee teacher covered by the exception of 45(4) TFEU? NO (Lawrie-Blum) Overriding requirements by the general interests Provisions of FMW do not only prohibit (in)directly discriminatory measures, but also prohibit national measures regulating the market access that are indistinctly (= both) applicable to non-nls and nls.. but are liable to hinder or render less attractive the intra-union movement of workers. (since Bosman).

(in)directly discriminatory measures can generally only be justified by the express derogations provided by the Treaty. Indistinctly applicable measures can also be justified on grounds of 'overriding requirements of the general interest' + the measures must be proportional. This is because a lot of measures can be challenged because they potentially hinder the FMW, but are in practice reasonable as a result of regulatory interests by the MS. C: Does Article 45 TFEU preclude the application of rules laid down by sporting associations, under which a professional footballer who is a nls of on MS may not, on the expiry of his contract with a club, be employed by a club of another MS unless the latter club has paid to the former a transfer, training or development fee? YES (Bosman) C: Can the measure be justified on the ground of overriding requirements of the general interest? In principle YES, in this case NO (Bosman) Regulation 1612/68 Is one of the earliest pieces of legislation on FMW--> was amended a number of times. Part 1 = the most important--> gives substance to the workers' rights of free movement. Consists of: 1. Eligibility for employment The right to work in other MS's, no discrimination in contracts, quota for foreign employees don't apply to EU nationals, etc.. C: Can the requirement for a teacher to know the Irish language be justified, although such knowledge is not required to fulfill the duties attached to the job?YES (Groener) 2. Equality of treatment in employment A worker may not be treated differently from national workers in respect of any conditions of employment and work. (e.g. Social advantages, tax advantages, collective agreements,Union rights,houwing, etc.) C: Can a MS legislate that a provision taking into account time spent in the military for calculating seniority only apply to own nls? NO (Ugliola) C: Does Union Law preclude a clause that does not take into account the time spent in a similar employment in another MS? YES (Schonig-Kougebetopoulou) The provision stating that migrant workers from other MS shall enjoy the same social and tax advantages has been interpreted broadly by the ECJ; family members can even invoke this provision, provided the advantage is of some advantage to the worker and not merely the family member. C: Does national legislation granting an allowance for handicapped adults also apply to an EU national handicapped adult who has never worked in this state but is dependent on his working father? YES (Inzirillo) Indirect discrimination regarding tax advantages on the grounds of residence can be permissible where its objectively justified: e.g. On the basis of preserving the cohesion of a fiscal system, for the effectiveness of fiscal supervision, because the situations of the national and the migrant worker are not comparable. (Bachmann, Schumacker, Geschwind) C: Does Article 8 of Regulation 1612/68 preclude national legislation refusing foreign workers to elect representatives in a representative organization to which they are compulsory member and must pay contributions? YES (ASTI) 3. Education of the workers' children Provision regarding education is only provision left in this part because Article 10 and 11 have been repealed by the Residence Directive. a. Rights of workers and students to study finance--> Lair, Grzelczyk, Bidar b. Rights of workers and students to vocational training--> Gravier, Blaizot, Lair, Brown c. Rights of children of migrant workers C: Does EU law preclude a MS from refusing a study grant to the child of a EU worker studying abroad? YES (Di leo)

Chapter 4 – Right of Establishment (RTE) (art 49-54 TFEU) There is no definition of 'establishment' in the Treaty. The ECJ defined it in the Gebhard case (very important!)--> 'the concept of establishment within the meaning of the Treaty is very broad, allowing a Union national to participate, on a stable and continuous basis, in the economic life of a MS other than his MS of origin and to profit therefrom, so contributing to economic and social interpenetration within the Union in the sphere of activities and self-employed persons.' Self employed does not only relate to persons, but also legal persons--> excluding non-profit making undertakings. Gebhard in short: his activity is based on the right of establishment, not the freedom to provide services, as he pursues his activities 'on a stable and continuous basis'. Italy may prescribe certain preconditions for lawyers, but it also needs to take diplomas and other qualifications into account that a non-national has acquired in another MS. See Gebhard formula above. Distinction between Right to Establishment (49-55 TFEU) and Freedom to Provide Services (56-62 TFEU)--> Both are carried out by self-employed persons--> Establishment includes economic or professional activities which are carried out on a stable and continuous basis, for an indefinite period of time--> Services are temporary or occasional in character [determine: duration, regularity, periodicity and continuity]--> it is possible in for services to set up some form of infrastructure in the host MS. (so f.e. Being permanently present = not necessary that you are established there). Like Art 46 and 56 TFEU (other cases), Article 49 TFEU is directly effective (Reyners) Generally, the RTE grants same rights as the FMW provisions (see Residence Directive). Additional rights from Art 49 are, f.e., the right to establish a branch office (Klopp) and the recognition of qualifications (Thieffry, Patrick, Heylens, Vlassopoulou) The most important principles regarding the recognition of qualifications [important because the recognition is SO important for the exercise of fundamental freedoms) are: 1. The holder of a degree recognized as equivalent to a national degree must be admitted to the same professional organizations as the holder of a national degree (Thieffry) 2. The holder of a degree recognized as equivalent to a national degree must not be made subject to additional authorization requirement. (Patrick) 3. In the absence of directives on the recognition of diplomas, a MS must nonetheless assess objectively the qualifications held by a nls of another MS (Heylens) 4. Principle of mutual recognition of qualifications applies (Vlassopoulou) [MS rely on the assumption that there is, more or less, the same standard in qualifications in all EU countries] The Professional Qualifications Directive (2005/36/EC) 1970's the EU started tackling issue of mutual recognition of qualifications --> took 'vertical approach' = harmonization with a specific directive profession per profession--> resulted in 12 different directives for specific economic sectors. Content was that once an individual had completed training and acquired qualification, the recognition is automatic. The host MS can then not require other things than those laid down in the directive. --> New 'horizontal' (applicable to all economic sectors) approach was sought for untouched sectors, based on the principle of mutual recognition derived from Vlassopoulou--> 3 general directives were enacted between '89 and '99--> Directive 2005/36/EC replaced all vertical directives (except for the one on lawyers) and the horizontal directives and deals with mutual recognition of qualification--> affects both individuals providing Services and individuals falling under Establishment so there are rules for both with different systems. The directive has 3 chapters in regard to individuals who establish themselves in another MS: 1. General system for the recognition of professional qualifications. Based on the system of mutual recognition. If a profession in the host state requires a qualification and the profession is also regulated in the individual's home state--> then the individual has the

right to work in host state if he hold qualification roughly equivalent to qualification required by host state. [13(1)]. If the profession is not regulated in home state--> has right to work in host state if he has 2 years of working experience in the job + some sort of document providing formal qualifications/competences. The authorities in host state must allow and to and pursuit of the profession under same conditions as for nationals. This chapter functions as fall back for professions not covered by chapters 2 and 3. 2. System of automatic recognition of qualifications attested by professional experience Concerns industrial, craft and commercial activities listed in annex to directive. If the access to or pursuit of these activities is dependent on possession of general, commercial or professional knowledge, the host MS has to recognize professional experience as proof of such knowledge--> subject to conditions, in general that you need to have some years of professional experience and some years of experience as a self-employed or in an executive position or some years of formation. 3. System of automatic recognition for specific professions In these areas, the minimum qualification is coordinated among the MS. So they all fulfill a common minimum standard in all MS thus each MS must automatically recognize diplomas from other MS--> e.g doctors, nurses, architects. Provisions on service providers The prerequisite for service providers are much weaker than those for individuals who establish themselves in another MS--> principle: MS shall not restrict, for any reason relating to professional qualifications, the free provision of services in another MS. E.g. No minimum qualification requirements apply if the service provider does not physically cross the border, no minimum requirements apply if the profession or the education leading to the profession is regulated in the home state, etc. Establishment of Companies (art 54 TFEU) Companies registered or established in a MS shall by RTE be treated in the same way as natural persons who are nls of a MS--> Non profit making undertakings are excluded. --> Article 49 and 54 TFEU cover the right to form a company in another MS (primary establishment), and to set up agencies, branches or subsidiaries of an existing company in another MS (secondary establishment) Why does the ECJ allow restrictions on exit in Daily Mail but is radically opposed to restrictions on entry in Centros? The Court explained the differences on the grounds that the first case concerned relations between a company and the MS in which it had been incorporated, whilst Centros concerned the situation of a company exercising its freedom of establishment in another MS. Exception to freedom of establishment 1. public policy, public security, public health 2. exercise of official authority