Free Movement of Workers in EU Law PDF

**Chapter 22: Free movement of workers** 1. **Central issues** **The four fundamental freedoms of EU law:** - Free movement of goods - Free movement of establishment/services - Free movement of capital - **Free movement of workers** 2. **Article 45: Direct effect** Article 45: Free movement for workers shall be secured within the Union - It is set to represent an application of the general principle in Article 18 TFEU prohibiting discrimination on grounds of nationality. - [Case laws on this provision:] - ***Walrave and Koch:*** 1. The ECJ held that Article 45 would apply even where the work was done outside the EU as long as the legal relationship of employment was entered within the EU. 2. The Court ruled in this case and **Bosman** that the provisions of article 45 are not just of 'vertical' direct effect. The rules challenged in these cases were made by international sporting associations concerning cycling and football, respectively, which were neither public nor state bodies. The Court ruled that Article 45 nevertheless applied. - ***Boukhalfa:*** Article 45 was held applicable where the employment of an EU national was entered into and primarily performed in a non-member country in which the national resided, at least for aspects of the employment relationship governed by the legislation of the employing MS. - ***Petersen:*** The Court ruled that EU law would apply professional activities pursued outside the territory of the EU as long as the employment relationship retains a sufficiently close link with the European Union including a sufficiently close link between the employment relationship and the law of the member state. - ***Angonese:*** Article 45 is horizontally applicable to the actions of individuals who, unlike the associations in Walrave, Bosman and Olympique Lyonnais do not have the power to make rules regulating gainful employment, such as an individual employer who refuses to employ someone on the ground of their nationality. 3. **Article 45: Worker and the scope of protection** Article 46 TFEU provides for the Parliament and Council to adopt secondary legislation to bring about the freedoms set out in Article 45. **A range of directives and regulations were adopted under this provision, many of which were consolidated by Directive 2004/38 on the free movement and residence of EU citizens and their families:** - Directive 2004/38 introduced the right of permanent residence for EU nationals and their families after five years of continuous legal residence in another Member state. - Regulation 492/2011: It was adopted to codify and replace Regulation 1612/68 which fleshes out the basic equal treatment principle and specifies many of the substantive rights and entitlements of workers and their families. A. **Definition of 'worker': An EU concept** Any person who pursues employment activities which are effective and genuine, to the exclusion of activities on such a small scale as to be regarded as "purely marginal and ancillary" is to be treated as a worker. For economic activity to qualify as employment under Article 45, rather than self-employment under Article 49 TFEU, there must be a relationship of subordination. However, the EU concept of workers varies according to the EU law context in which It arises and the purpose for which the term is invoked. B. **Definition of 'worker': Minimum income and working-time requirements** A number of cases have been concerned with the interplay between the economic aspect of free movement, as reflected by the level of remuneration received for work done, and the social aspect underlying free-movement policy in terms of its improvement of the quality of life of the individual concerned. **Case law: Levin** The Levin case is a landmark ruling in EU law that clarified the concept of a \'worker\' within the context of EU law and, specifically, the principle of free movement of workers. **Key Points from the Case:** 1. **Part-time Workers and EU Law:** The case centered around a part-time worker who argued for the right to reside in the Netherlands. 2. **Broad Interpretation of \'Worker\':** The ECJ ruled that the concept of a \'worker\' should not be interpreted restrictively. This means that part-time workers are included, provided their employment is genuine and effective. 3. **Minimum Wage Not a Prerequisite:** The Court emphasized that the enjoyment of free movement rights should not be tied to a specific minimum wage level. 4. **Genuine Economic Activity:** While part-time work is included, it must constitute a genuine economic activity and not be marginal or ancillary. **Implications of the Levin Case:** The Levin case has significant implications for EU law and policy: - **Protection of Part-time Workers:** It ensures that part-time workers enjoy the same rights as full-time workers, including the right to reside and work in other EU countries. - **Flexibility in the Labor Market:** It promotes flexibility in the labor market by recognizing the value of part-time work. - **Wider Scope of Free Movement:** It broadens the scope of the principle of free movement of workers, making it more inclusive. **In essence, the Levin case established a more inclusive understanding of the concept of a \'worker\' under EU law, ensuring that part-time workers are not excluded from the benefits of free movement.** **Case law: Kempf** The Kempf case is a significant landmark in the interpretation of the term \'worker\' within the context of EU law. It underscores the Court of Justice of the European Union\'s (CJEU) expansive approach to this concept, particularly in relation to part-time work and economic activities that may not constitute traditional employment. **Key Points from the Kempf Case:** a. **Part-time Work and Social Assistance:** The Court held that a part-time worker, even if their earnings were below the subsistence level, could still be considered a \'worker\' under EU law. This was regardless of whether they received supplementary income from social assistance. b. **Genuine Economic Activity:** The Court emphasized that the work must be genuine and effective, but it did not require full-time employment or income above a certain threshold. c. **Member State Discretion:** While Member States can impose conditions on access to social assistance, they cannot exclude part-time workers from the status of \'worker\' solely on the basis of their income level or reliance on social benefits. **Implications for the Definition of a \'Worker\':** The Kempf case has had far-reaching implications for the definition of a \'worker\' under EU law. It has broadened the scope of the concept to include a wider range of activities and employment situations. Some of the key implications are: - **Part-time Workers:** The case has strengthened the rights of part-time workers, ensuring that they are entitled to the same benefits and protections as full-time workers. - **Low-Paid Workers:** It has recognized that even low-paid workers can be considered \'workers\' under EU law, provided they are engaged in genuine economic activity. - **Economic Activity:** The Court has adopted a broad interpretation of economic activity, including activities such as sport, which may not be traditionally considered employment. However, it\'s important to note that while the Kempf case has expanded the definition of a worker, it has also led to concerns about potential abuse of social benefits. Member States have sought to address these concerns through various measures, including stricter eligibility criteria for social assistance and increased checks on the authenticity of work activities. In conclusion, the Kempf case represents a significant step forward in the protection of workers\' rights within the EU. It has established a more inclusive definition of a \'worker,\' ensuring that a wider range of individuals can benefit from EU law. However, the ongoing debate about the balance between worker rights and the prevention of social benefit abuse remains a complex issue. **Case law: Lawrie-Blum** - The Court was asked to rule on the compatibility of German measures restricting access for non-nationals to the preparatory service stage that was necessary for qualification as a secondary school teacher. - Addressing the question of whether a trainee teacher at this stage would qualify as a 'worker' interest for the relevant Treaty provisions, the Court provided a more elaborate three-part definition of the term. - The Court ruled that a trainee teacher qualified as a worker since, during the period of preparatory service, these three conditions would be fulfilled: 1. She would perform services of economic value 2. These would be done under the direction of the school in question 3. They would receive a measure of remuneration in return. **Case law: Steynmann** The Steymann case is a significant landmark in European Union law, particularly in the context of economic activity and the free movement of workers. It expanded the traditional notion of \"economic activity\" to encompass activities that might not be considered traditional employment. **Key Points from the Case:** a. **Economic Activity:** The ECJ held that economic activity is not limited to traditional employment relationships with monetary remuneration. It can also include activities within a community where members contribute to the community\'s economic well-being, and in return, receive essential goods and services. b. **Indirect Quid Pro Quo:** The Court recognized that the provision of essential goods and services to community members in exchange for their work can be considered an indirect form of remuneration, even if it\'s not direct monetary payment. c. **Value of Services:** The Court emphasized that the value of the services provided by the individual, in this case, plumbing work and general household duties, was essential to the community\'s functioning. d. **Community Living and Economic Activity:** The case blurred the lines between community living and economic activity. It suggested that participation in a community, even one based on religious or philosophical beliefs, can involve economic activity if it involves the provision of services and the receipt of goods and services in return. **Implications of the Steymann Case:** - **Broadened Definition of Economic Activity:** The case has led to a more expansive interpretation of economic activity, encompassing a wider range of activities that might not traditionally be considered as such. - **Impact on Free Movement of Workers:** This broader definition has implications for the free movement of workers, as it may allow individuals participating in such communities to claim rights under EU law. - **Challenges in Application:** While the Steymann case provides a flexible approach, it can be challenging to apply in specific cases, as it requires a careful assessment of the nature of the activities, the level of remuneration, and the overall context. In essence, the Steymann case highlights the complex interplay between individual rights, community living, and economic activity within the European Union. It underscores the Court\'s willingness to adapt traditional legal concepts to the evolving realities of modern society. C. **Definition of "worker": Purpose of the employment** This passage discusses the complex issue of determining whether a person qualifies as a \'worker\' under EU law, particularly in cases where the employment has a social or rehabilitative purpose. Key points: - **Genuine and effective employment:** The general principle is that the motive or purpose of the employment is not relevant, as long as it is genuine and not marginal. - **Bettray case:** The ECJ considered that work under a social employment program designed for rehabilitation and reintegration was not a genuine economic activity, as its primary purpose was not to meet a genuine economic need. - **Trojani case:** The ECJ distinguished Bettray, emphasizing that the person in that case had been unable to work under normal conditions for an indefinite period due to addiction. In Trojani, the person was part of a reintegration program but was performing services that could be considered part of the normal labor market. - **Brown case:** The ECJ acknowledged that someone who engages in genuine work before starting a course of study is a worker, but they may not be entitled to all social advantages if the work was primarily intended to prepare for the course rather than employment. - **Ninni-Oraschi case:** The ECJ clarified that factors like motive and conduct are not relevant for determining worker status, and the focus should be on objective criteria such as hours worked and remuneration. In conclusion, while the primary purpose of employment is generally not a determining factor, the ECJ has made exceptions in cases where the work is primarily for rehabilitation or reintegration and not intended to meet a genuine economic need. However, the specific circumstances of each case are crucial in determining whether the employment qualifies as genuine and effective. D. **Definition of 'worker': The job seeker** **A Deeper Dive into EU Citizens\' Right to Seek Work** **The Core Right: Article 45 TFEU** Article 45 of the Treaty on the Functioning of the European Union (TFEU) is the cornerstone of the EU\'s free movement of workers principle. It grants EU citizens the right to: - **Move freely within the EU:** This includes traveling to and residing in other Member States. - **Seek employment:** EU citizens can actively look for work in any Member State. - **Take up and pursue employment:** Once a job offer is accepted, EU citizens can start working without needing a work permit. - **Equal treatment:** EU citizens have the right to equal treatment with nationals of the host Member State regarding access to employment, working conditions, and social and tax advantages. **The Rights of Job Seekers: A Closer Look** While Article 45 primarily concerns employed workers, it also extends certain rights to those actively seeking employment. Key points to consider: - **Right to Stay:** EU citizens can stay in another Member State to seek employment for a reasonable period. However, this right is not indefinite and may be subject to conditions imposed by the host Member State. - **Limited Social Benefits:** Job seekers generally do not have the same access to social benefits as employed workers. They may not be eligible for unemployment benefits or other social security entitlements. - **Access to Job Seeker\'s Allowance:** In some cases, job seekers may be entitled to a job seeker\'s allowance under the same conditions as nationals of the host Member State, particularly if they have a genuine link to the labor market of that country. - **Non-Discrimination:** Job seekers are protected from discrimination on grounds of nationality when seeking employment. **The Role of the CJEU** The Court of Justice of the European Union (CJEU) has played a crucial role in interpreting and enforcing Article 45. Through its case law, the CJEU has clarified the rights of job seekers and ensured that Member States comply with EU law. **Key CJEU Cases:** - **Antonissen:** This landmark case established the right of EU citizens to move freely within the EU to seek employment, even without a prior job offer. - **Collins:** The CJEU ruled that job seekers may be entitled to a job seeker\'s allowance under certain conditions, such as having a genuine link to the labor market of the host Member State. - **Ioannidis and Prete:** The Court clarified that job seekers may be eligible for a \"tide-over allowance\" to support them during their job search, especially those transitioning from education to work. **Challenges and Limitations** While Article 45 provides significant rights to EU citizens seeking work, there are still challenges and limitations. Member States may impose certain conditions on job seekers, such as requiring them to register with public employment services or demonstrate a genuine link to the labor market. Additionally, the scope of social benefits available to job seekers may be limited. It\'s essential for EU citizens seeking work to be aware of their rights and to consult with relevant authorities or legal experts to ensure that their rights are protected. 4. **Article 45: Discrimination, market access and justification** Rules that directly discriminate on the grounds of nationality will be caught by Article 45. It is equally clear that indirect discrimination and even impediments to market access which do not depend on a showing of unequal impact, can also lead to infringement of article 45. Discrimination, whether direct or indirect, will, however, be found only where two groups which are comparable in relevant ways are treated differently, or where groups which are not comparable are treated in the same way. A. **Direct discrimination** **Direct Applicability of Article 45 TFEU:** - **Direct Effect:** The Court has affirmed that Article 45 TFEU is directly applicable in the legal systems of all Member States. This means that individuals can rely on its provisions directly before national courts to challenge discriminatory national laws. - **Supremacy:** National laws that conflict with Article 45 TFEU are inapplicable, even if they are enacted after the Treaty provisions. **Direct Discrimination on Grounds of Nationality:** - **Broad Scope:** Discrimination can occur not only by public authorities but also by public bodies, such as public universities. - **Strict Scrutiny:** Cases involving direct discrimination on grounds of nationality require a strong justification. The burden of proof lies with the Member State to demonstrate that the discriminatory measure is necessary and proportionate to achieve a legitimate aim. **Limitations and Justifications:** - **National Security Exception:** Article 346(1)(b) TFEU allows Member States to take measures necessary to protect essential security interests. However, such measures must be strictly necessary and proportionate. - **Burden of Proof:** The Member State invoking the national security exception bears the burden of proving that the discriminatory measure is justified. **Conclusion:** Article 45 TFEU plays a crucial role in ensuring the free movement of workers within the EU. The Court has consistently interpreted this provision broadly to combat direct discrimination on grounds of nationality. While national security can be a legitimate justification for certain restrictions, it must be narrowly construed and subject to rigorous judicial scrutiny. B. **Indirect discrimination** The provided text delves into the concept of indirect discrimination within the context of EU law, specifically Article 45 of the Treaty on the Functioning of the European Union (TFEU), which guarantees the free movement of workers. **Key Points on Indirect Discrimination:** a. **Definition:** Indirect discrimination occurs when a seemingly neutral provision, criterion, or practice puts persons of a particular nationality at a particular disadvantage compared with others. b. **Burden of Proof:** The ECJ has relaxed the burden of proof for indirect discrimination. It is no longer necessary to show that a higher proportion of foreign workers are affected; it is sufficient to demonstrate that the measure is \"intrinsically liable\" to have a discriminatory impact. c. **Common Forms of Indirect Discrimination:** - **Residence, Place-of-Origin, or Place-of-Education Requirements:** These can disproportionately affect non-nationals. - **Language Requirements:** These can create obstacles for non-nationals, especially if they are not proportionate to the job requirements. - **Social Security Systems:** Disparities between Member States\' social security systems can lead to indirect discrimination. - **Taxation:** Discriminatory tax rules can affect the free movement of workers. **Case Law Highlights:** - **O\'Flynn:** Established the relaxed burden of proof for indirect discrimination. - **Ugliola:** Highlighted the importance of equal treatment, even in seemingly neutral provisions. - **Sotgiu:** Illustrated the prohibition of indirect discrimination in social benefits. - **Commission v Belgium:** Demonstrated the prohibition of \"double-burden\" regulatory requirements. - **Groener and Las:** Explored the limits of language requirements and their potential discriminatory impact. - **Erzberger and Zyla:** Emphasized that Article 45 does not guarantee social security neutrality across Member States. **Conclusion:** The EU has developed a robust framework to combat indirect discrimination, ensuring that the free movement of workers is not hindered by discriminatory practices. The ECJ\'s case law has played a crucial role in shaping this framework and providing guidance to Member States. C. **Obstacles to access to the employment market** The provided text delves into the complex interplay between national measures and EU law, specifically Article 45 TFEU, which guarantees the free movement of workers within the EU. A key point to emerge is that even non-discriminatory national measures can infringe upon this fundamental freedom if they constitute an excessive obstacle to it. **Key Points:** a. **Non-Discriminatory Barriers:** Article 45 TFEU is not limited to discriminatory measures. Even non-discriminatory national rules can be challenged if they hinder or render less attractive the exercise of free movement rights. b. **The Bosman Case:** This landmark case established the principle that even rules that apply equally to domestic and cross-border situations can be caught by Article 45 if they impede the free movement of workers. c. **Subsequent Case Law:** Cases like *Terhoeve*, *Commission v Denmark*, *Van Lent*, *Federspiel*, and *Graf* further solidified the principle that non-discriminatory obstacles can be challenged under Article 45. d. **The Internal Situation:** Article 45 generally does not apply to situations that are purely internal to a Member State. However, there have been attempts to extend its reach through Article 21 TFEU, which grants EU citizenship rights. **Conclusion:** The provided text highlights the expansive scope of Article 45 TFEU. It demonstrates that EU law not only prohibits direct discrimination but also indirectly discriminatory and non-discriminatory measures that can hinder the free movement of workers. This expansive interpretation ensures that EU citizens can fully enjoy their right to move freely within the EU and seek employment opportunities across borders. D. **Internal situations** **Understanding Article 45 TFEU and its Limitations** **Article 45 TFEU** is a cornerstone of EU law, guaranteeing the free movement of workers within the EU. It prohibits discrimination on grounds of nationality between workers of Member States. However, it is essential to note that this right is not absolute and is subject to certain limitations, one of which is the \"wholly internal situation\" doctrine. **The \"Wholly Internal Situation\" Doctrine** This doctrine essentially means that Article 45 does not apply to situations that are entirely internal to a single Member State. In such cases, national law, rather than EU law, governs the rights and obligations of individuals. **Circumventing the \"Wholly Internal Situation\"** While the \"wholly internal situation\" doctrine can limit the applicability of Article 45, there are strategies to potentially overcome this limitation: 1. **Reliance on Article 21 TFEU:** This article grants EU citizens the right to move and reside freely within the territory of the Member States. In certain cases, this right can be used to challenge discriminatory national legislation, even in wholly internal situations. 2. **Exploiting the \"No Longer Wholly Internal\" Situation:** If a worker has previously exercised their right to free movement by working in another Member State, subsequent discriminatory treatment in their home country can be challenged under Article 45, as the situation is no longer considered wholly internal. **Key Takeaways** - Article 45 TFEU is a powerful tool for protecting the rights of EU workers, but its application is subject to limitations. - The \"wholly internal situation\" doctrine can restrict the scope of Article 45, particularly in cases involving solely domestic matters. - However, creative legal strategies, such as relying on Article 21 TFEU or exploiting changes in circumstances, can sometimes be used to extend the reach of Article 45. It\'s important to note that the specific application of Article 45 and the \"wholly internal situation\" doctrine can be complex and often depends on the specific facts of each case. Consulting with legal experts is advisable for a comprehensive understanding of one\'s rights in a particular situation. E. **Objective justfication** **1. General Principles of Indirect Discrimination in EU Law:** - Indirect discrimination occurs when a seemingly neutral provision, criterion or practice puts persons of a particular origin, nationality or sex at a particular disadvantage compared with others. - Such discrimination can be justified if the provision, criterion or practice is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. **2. ECJ\'s Approach to Justifications:** - The ECJ scrutinizes justifications closely. - The justification must be legitimate and based on objective factors. - The measure must be necessary to achieve the legitimate aim. - The measure must be proportionate, meaning it should not go beyond what is necessary to achieve the aim. **3. Common Rejected Justifications:** - **Cohesion of the tax system:** The ECJ has consistently rejected arguments based on the need to maintain the internal coherence of a national tax system. - **Supervision of taxation or prevention of tax avoidance:** These justifications have also been frequently rejected. - **Purely economic grounds:** The ECJ has held that economic considerations alone are not sufficient to justify discriminatory measures. **4. Significance of the *Olympique Lyonnais* Case:** - The case highlights the ECJ\'s rigorous approach to assessing justifications. - It demonstrates that even legitimate aims, such as encouraging the training of young footballers, can be undermined by disproportionate measures. - The ECJ emphasized that any justification must be necessary and proportionate to the aim pursued. - The decision underscores the importance of balancing the interests of individual workers and the broader objectives of EU law. **In conclusion,** the ECJ has developed a robust framework for assessing justifications for indirect discrimination. It requires a careful balancing of interests and a rigorous examination of the measures in question. The *Olympique Lyonnais*case serves as a powerful example of the Court\'s willingness to scrutinize even seemingly reasonable justifications. 5. **Article 45(4): The Public-Service exception** ### Detailed Analysis of Article 45(4): The Public Service Exception #### 1. ECJ's Restrictive Approach The European Court of Justice (ECJ) has consistently limited the application of the public-service exception under Article 45(4) TFEU. This clause allows Member States to reserve specific public-sector jobs for their nationals. However, the ECJ has sought to prevent its misuse by: - Emphasizing a **functional test** over an **institutional one**. - Ensuring the exception serves only its original purpose: safeguarding positions directly tied to the state's core functions, such as sovereignty, public authority, and safeguarding national interests. #### 2. Meaning Determined by the ECJ - **Hermeneutic Monopoly**: In *Sotgiu*, the ECJ established that it alone determines the meaning of \"employment in the public service,\" rejecting national legislatures\' subjective designations. - **Irrelevance of Legal Form**: Whether a job is categorized under public or private law is irrelevant. Similarly, the titles given to positions (e.g., clerk, official, or workman) do not determine whether the role qualifies as public service. - **Unity of EU Law**: The Court prioritizes EU law\'s consistency, dismissing national constitutional rules that might impose nationality conditions on posts in public service. #### 3. The ECJ's Test for Public Service To qualify for the Article 45(4) exception, a post must satisfy **two cumulative criteria this was established by the case law Commission v Belgium**: - **(a) Involvement in Powers Conferred by Public Law**: - The role must involve the **exercise of powers conferred by public law**, such as decision-making, enforcing laws, or directly influencing citizens\' rights and obligations. - This encompasses duties requiring public authority and the capacity to compel obedience, as outlined by Advocate General Mancini. - **(b) Safeguarding the General Interests of the State**: - The post must protect or serve the **state\'s general interests** or ensure the functioning of its core services, such as security or governance. The ECJ\'s interpretation is restrictive, meaning both conditions must be satisfied. The Court\'s focus is functional, examining the nature of duties performed rather than the employing institution. #### 4. Application of the Test The ECJ's functional approach has been applied in several landmark cases: - **Case 149/79 Commission v Belgium**: - The Belgian government required nationality for jobs like railway workers and hospital nurses. The ECJ ruled these roles did not meet the criteria, as they lacked both public law powers and state interest functions. - **Italian Researchers Case**: - Researchers at the National Research Council (CNR) were excluded from security-of-tenure protections for non-nationals. The ECJ found that only managerial or advisory positions involving public law powers met the criteria, rejecting Italy's broad claims that all research served state interests. - **Spanish Merchant Ships Case**: - The roles of master and chief mate on Spanish ships were examined. The Court required that public law powers (e.g., police authority aboard ships) be exercised **regularly** and not as a minor part of the job. - **Progression in Roles**: - The ECJ rejected arguments that initial posts could qualify for the exception based on potential career progression. For example, entry-level positions leading to managerial roles do not automatically fall under Article 45(4). #### 5. Prohibition of Discrimination in Conditions of Employment - The exception allows Member States to restrict access to certain jobs but does not permit **discriminatory treatment** of non-nationals already employed. - **Sotgiu Case**: - Germany attempted to justify unequal separation allowances for non-national postal workers under Article 45(4). The ECJ ruled this impermissible, stating that admitted workers must be treated equally, as their admission demonstrates the absence of sovereignty-related concerns. #### 6. Challenges in Interpretation and Enforcement Despite the ECJ\'s strict criteria, Member States have repeatedly attempted to broaden the exception. The reasons include: - **Economic Pressures**: In times of unemployment, governments see the public sector as a reservoir of jobs to protect national workers. - **Sovereignty Concerns**: Governments view public service as inherently tied to state sovereignty. The ECJ\'s **functional approach** counters these trends, ensuring free movement rights are upheld. For example, it prevents countries from blanket-designating public-sector jobs as exempt from EU law. #### 7. Clarification and Oversight - **Lack of Secondary Legislation**: - No formal EU legislation defines the scope of the public-service exception. An attempt by the Commission to draft clarifying legislation was abandoned due to concerns about undermining case law and limiting judicial flexibility. - **Commission Guidance**: - The Commission published guidelines in 1988, categorizing roles likely to qualify (e.g., armed forces, judiciary, tax authorities) and those that do not (e.g., nursing, teaching). - **Ziller Report**: - A comprehensive review of national compliance with ECJ case law found general adherence but identified persistent issues in certain Member States. #### 8. Conclusion Article 45(4)'s public-service exception exemplifies the tension between national sovereignty and EU principles of free movement and non-discrimination. The ECJ's functional approach has established a clear, narrow framework that balances these interests. While enforcement challenges remain, ongoing oversight by the Commission and adherence to ECJ case law continue to shape the practical application of this exception. 6. **Directives 2004/38: Right of entry and residence of workers and their families** ### 1. Formal Requirements for Entry and Residence (Directive 2004/38) #### Initial Provisions: - **Article 6:** Grants EU citizens and their families the right to enter and reside in another Member State for up to three months without any formal conditions except for holding a valid ID or passport. - This right applies equally to job-seekers as recognized in the Directive\'s preamble and ECJ case law. - **Article 8:** - For residence exceeding three months, citizens must register with local authorities by presenting proof of employment and identity. - Non-EU family members receive a specific \"residence card\" under Articles 9 and 10. #### Exit and Entry Rights: - **Article 4:** - Ensures the right to leave any Member State with valid ID or passport, eliminating the requirement for exit visas. - Documentation provided must be valid for a minimum of five years and usable throughout the EU. - **Article 5:** - Mirrors Article 4's provisions for entry, ensuring simplicity. - Non-EU family members may require visas, but: - These must be free of charge. - Issued promptly. - Exempted entirely if the individual holds a valid residence card from another Member State. #### Flexibility in Formalities: - Member States cannot revoke entry/residence rights for failure to fulfill administrative formalities alone (ECJ case law reinforced by Articles 5(5), 8(2), and 9(3)). - **Article 5(4):** - Even in cases where documentation is missing, Member States must provide individuals with the opportunity to prove their rights by other means, supporting the right to movement. ### 2. Key Judicial Interpretations #### ECJ Case: Metock and Others v. Minister for Justice (2008): - Non-EU family members' rights under Directive 2004/38 do not depend on prior lawful residence in another Member State. - Article 3(1) states the Directive applies to: - EU citizens who move to or reside in another Member State. - Their family members (as defined in Article 2) who accompany or join them. - Articles 5, 6(2), and 7(2) confirm that non-EU family members derive rights of entry and residence regardless of prior residence status. ##### Impact of the Ruling: - The decision overturned previous rulings (*Akrich*) that made these rights conditional upon prior lawful residence. - Asserted that Member States cannot impose national immigration laws that contradict EU-wide freedom of movement principles. - Highlighted the political tensions between Member States and the ECJ's rights-focused vision. ### 3. Status of Workers and Job-Seekers #### Workers: - **Article 7(3):** - Protects the status of former workers in cases such as: - Temporary inability to work due to illness or accident. - Involuntary unemployment after more than one year of employment (if registered as a job-seeker). - Employment of less than one year, granting worker status for at least six months. - Vocational training: Status is retained if training relates to prior employment. - **ECJ Rulings:** - Workers temporarily leaving the workforce for genuine reasons retain their status, extending to maternity leave (*Saint Prix*). #### Job-Seekers: - *Antonissen Case:* Job-seekers retain residence rights as long as they: - Continue to seek employment actively. - Have genuine prospects for employment. - The period for seeking work is flexible, provided evidence supports ongoing efforts. ### 4. Right of Permanent Residence #### Eligibility Criteria: - **Five-Year Rule (Article 16):** - EU citizens and their families gain permanent residence after five years of lawful, continuous residence. - Temporary absences are allowed but must not exceed two consecutive years to retain rights. - **Special Circumstances (Article 17):** - Shorter qualifying periods apply in cases of: - Retirement. - Incapacity. - Death. #### Non-EU Family Members: - After five years of lawful residence, they are issued a renewable \"permanent residence card.\" - Valid for ten years, renewable automatically. - Absences under two years do not affect validity. #### Judicial Considerations: - *Dias Case:* Residence periods that do not meet lawful criteria under EU law do not count toward permanent residence. - However, short unlawful gaps (under two years) are treated leniently. ### 5. Administrative and Employment Rights #### Administrative Provisions: - Articles 19--21 ensure: - Certification of permanent residence for EU citizens. - Automatic renewal of non-EU family members\' residence cards. #### Employment Rights: - Article 23 extends the right to work to EU and non-EU family members alike, aligning with prior regulations under Regulation 1612/68. #### Equal Treatment: - EU citizens and their families are guaranteed equal treatment with nationals, especially in accessing employment and social benefits. 7. **Regulation 492?2011: Substantive Rights and Social Advantages** A. **Regulation 492/2011** **Positive Rights of EU Workers:** - **Freedom of Movement:** EU workers have the right to seek employment in any EU Member State under the same conditions as nationals. - **Equal Treatment:** EU workers are entitled to equal treatment with nationals in terms of employment conditions, social advantages, tax benefits, and access to vocational training. - **Family Rights:** Family members of EU workers, including spouses, dependent children, and certain other family members, have rights to reside and work in the host Member State. **There are three titles within *Chapter I* of the Regulation:** - Section 1 (Articles 1--6) on eligibility for employment - Section 2 (Articles 7--9) on equality of treatment within employment - Section 3 (Article 10) on workers' families. ***Chapter II* of the Regulation contains detailed provisions that require cooperation:** - Amongst the relevant employment agencies of the Member States - Between the Member States' agencies, the Commission, and the European Coordination Office, n applications for employment and the clearance of vacancies. ***Chapter III* of the Regulation established** an Advisory Committee and a Technical Committee made up of Member States' representatives, to ensure close cooperation on matters concerning free movement of workers and employment. Chapters II and III of the Regulation have attracted comparatively little legal attention: - They can, however, be very significant for a worker seeking to move to another Member State to find employment. - Member States' authorities are required to provide information on vacancies, working conditions, and the national labour market, and to cooperate with the Commission in conducting studies on various matters. Chapter I of Regulation 492/2011 has been the subject of most comment and litigation: - **Article 1** sets out the right of Member State nationals to take up employment in another Member State under the same conditions as its nationals. - **Article 2** prohibits discrimination against such workers in concluding and performing contracts of employment. - **Articles 3 and 4** prohibit certain directly or indirectly discriminatory administrative practices, such as reserving a quota of posts for national workers, restricting advertising or applications, or setting special recruitment or registration procedures for nationals of other Member States, but with an exception for genuine linguistic requirements. - **Article 5** guarantees the same assistance from employment offices to non-nationals as well as to nationals. - **Article 6** prohibits discriminatory vocational or medical criteria for recruitment and appointment. - **Article 7** fleshes out Article 45(2) of the Treaty by providing for the same social and tax advantages for nationals and non-nationals for equal access to vocational training and declares void any discriminatory provisions of collective or individual employment agreements. - **Article 8** provides for equality of trade union rights with nationals. - **Article 9** for the same access to all rights and benefits in matters of housing. **Key Articles and Regulations:** - **Regulation 1612/68:** This regulation established the right of workers to move freely within the EU and provided certain rights to their family members. - **Directive 2004/38:** This directive significantly expanded the rights of EU citizens and their family members, including workers and their families. - **Regulation 492/2011:** This regulation consolidated and updated various provisions related to the free movement of workers, including provisions on family rights. **Key Points:** 1. **Family Rights Before Directive 2004/38:** - Regulation 1612/68 primarily recognized rights for spouses and dependent children. - A limited number of other family members, such as dependent parents, were also included. 2. **Expansion of Family Rights by Directive 2004/38:** - **Registered Partnerships:** The directive extended rights to partners in registered partnerships, provided the host Member State recognizes them. - **Durable Relationships:** It introduced a new category of partners in durable relationships, requiring host states to assess individual circumstances. - **Dependent Family Members:** The directive facilitated the entry and residence of dependent family members, regardless of nationality. - **Family Members Requiring Care:** It extended rights to family members needing personal care due to health issues. 3. **Right to Work for Family Members:** - All family members covered by the directive have the right to work in the host Member State. 4. **Equal Treatment:** - The directive ensures equal treatment for all lawfully resident EU nationals and their families. 5. **Litigation and Evolution of Rights:** - Article 7 of Regulation 1612/68 (and its successor, Article 7 of Regulation 492/2011) has been a significant source of litigation and has led to the expansion of rights for workers and their families. B. **Article 7(2) of Regulation 492/2011** ##### Scope and Evolution of Interpretation - **Initial Restrictive Interpretation**: In *Michel S*, the ECJ limited Article 7(2) to benefits directly connected to employment. - **Expanded Scope**: The ECJ later ruled that Article 7(2) includes **all social and tax advantages**, whether or not attached to an employment contract. These advantages also extend to **family members of workers** if they indirectly benefit the worker. ##### ##### Key Judgments 1. **Reina**: - **Facts**: An Italian couple in Germany claimed a childbirth loan granted to German nationals. - **Ruling**: The loan qualified as a \"social advantage\" under Article 7(2) because it alleviated financial burdens, aligning with the principle of worker mobility. 2. **Even**: - **Facts**: Belgian preferential retirement pensions for those with wartime service were challenged. - **Ruling**: Wartime pensions were not social advantages as they were granted based on national recognition, not worker status. 3. **de Vos vs. Ugliola**: - **de Vos**: Employer pension contributions during military service were state compensation for service obligations, not linked to employment. - **Ugliola**: Recognizing military service for seniority at work was deemed a valid social advantage since it ensured employment conditions were preserved. - **Comparison**: The distinction lies in whether the benefit is tied to employment (as in *Ugliola*) or compensates for national duties (as in *de Vos*). ##### ##### Indirect Discrimination and Residency Requirements - The ECJ has struck down residency conditions for social benefits where they disproportionately disadvantage migrant workers: - **Giersch**: Luxembourg\'s residence-based higher education aid breached Article 7(2). Frontier workers' children could demonstrate sufficient attachment to the country. C. **Article 7(3) of Regulation 492/2011: Educational Rights for Workers** ##### **Core Provisions** Article 7(3) ensures equal access to vocational training and retraining for EU workers, under the same conditions as nationals. ##### ##### Interpretation and Limitations - **Lair**: - **Ruling**: Universities are not vocational schools (limited to institutions closely linked to occupational activities, e.g., apprenticeships). - **Expansion**: Workers may claim broader educational benefits under Article 7(2) for professional advancement (e.g., maintenance grants). - **Link Between Work and Study**: Workers must demonstrate a continuity between past work and education unless retraining is required due to involuntary unemployment (*Directive 2004/38, Article 7(3)(d)*). - **Brown**: - **Abuse of Rights**: - Member States can deny benefits for fraudulent or abusive claims under *Directive 2004/38, Article 35*. However, the ECJ has rarely confirmed abuse, other than sham marriages (*Akrich*, *Chen*). ##### ##### Key Case Example: Ninni-Orasche A short-term employment before university studies did not negate a worker\'s status. However, circumstances (e.g., immediacy of enrolling post-employment) could indicate the primary aim was to gain educational benefits. D. **Article 10 of Regulation 492/2011: Educational rights for children** #### ##### **Scope** Article 10 grants the children of migrant workers equal access to general, vocational, and apprenticeship education under the same conditions as nationals. This includes financial aid for studies. ##### ##### Key Developments - **Expansion Beyond Access**: - **Casagrande**: Article 10 includes \"general measures to facilitate educational attendance,\" such as grants. - **Gaal**: Educational rights apply to children over 21 or non-dependent, provided they started studies while living with the worker-parent. - **Right to Remain for Education**: - **Echternach and Moritz**: Children may remain in the host state to complete their education even if their worker-parent leaves. - **Baumbast and R**: Educational rights are unaffected by: - Parental divorce. - Parents' loss of migrant worker status. - Child\'s lack of EU citizenship. - **Caregiver's Derivative Rights**: - **Teixeira**: The child's right to education ensures the primary caregiver's right to reside, irrespective of *Directive 2004/38* conditions. ##### Key Limitations - A worker's return to their home state terminates the obligation of the host state to finance the child's education, as clarified by subsequent case law. E. **Rights of Families as Parastic on the Workers' rights** The provided text delves into the complex interplay between EU law and the rights of EU citizens and their family members, particularly regarding social advantages and residence rights. Here are the key points: **Social Advantages:** - **Broad Interpretation:** The ECJ has interpreted \"social advantages\" broadly, extending beyond traditional worker benefits. - **Eligibility:** Only workers and their family members covered by Directive 2004/38 can claim social advantages. - **Case-Specific:** The interpretation of social advantages is often case-specific, as seen in cases like *Lebon* and *Reed*. - **Job Seekers:** Lawfully resident job seekers are entitled only to social advantages specifically provided for job seekers. **Rights of Residence:** - **Family Members:** EU citizens and their family members, including non-EU spouses, have specific rights of residence. - **Directive 2004/38:** This directive has significantly expanded the rights of family members, including registered partners and companions in durable relationships. - **Post-Divorce Rights:** Even after divorce, non-EU spouses may retain residence rights under certain conditions, such as child custody or difficult circumstances. - **Permanent Residence:** Non-EU spouses can acquire permanent residence under specific conditions, including work, self-employment, or sufficient resources. **Key Themes:** - **Expanding Rights:** The ECJ has consistently expanded the rights of EU citizens and their family members. - **Case-Specific Approach:** The interpretation of EU law often relies on case-specific analysis. - **Balancing Interests:** The Court balances the rights of EU citizens and their families with the interests of host Member States. **Overall, the text highlights the evolving nature of EU law and its impact on the lives of EU citizens and their families. The ECJ\'s broad interpretation of social advantages and its efforts to protect the rights of family members, even in complex situations, are significant developments in EU law.** F. **Family members in an internal situation** G. **Directive 2014/54** Directive 2014/54 was enacted to bridge the gap between the theoretical rights of EU migrant workers and their practical realization. It aims to enhance the enforcement of these rights by introducing three key strategies: a. **Strengthening Enforcement Mechanisms:** - **Judicial Procedures:** The Directive ensures that migrant workers can pursue legal action on equal footing with national workers, with support from designated national bodies. - **National Bodies:** Member States are required to establish national bodies to provide assistance, legal advice, and act as a liaison point for cooperation between different Member States. b. **Improving Information and Awareness:** - **Information Dissemination:** The Directive promotes better information about the rights conferred by EU law and their application in domestic contexts. - **Social Dialogue:** It encourages dialogue with social partners and NGOs to ensure effective information dissemination and address specific concerns. c. **Preventing Discrimination and Ensuring Equal Treatment:** - **Anti-Discrimination Measures:** By borrowing from EU anti-discrimination directives, the Directive aims to prevent discrimination against migrant workers and ensure their equal treatment. **Implications for EU Migrant Workers:** The Directive offers several benefits to EU migrant workers: - **Enhanced Legal Protection:** Migrant workers can now more easily enforce their rights through judicial procedures and seek assistance from designated national bodies. - **Improved Access to Information:** Clear and accessible information about their rights empowers migrant workers to understand and claim their entitlements. - **Reduced Discrimination:** The Directive\'s focus on anti-discrimination measures helps to create a more inclusive and equitable environment for migrant workers. 8. **Directives 2004?38: Public Policy, security and health restriction** Directive 2004/38 outlines the restrictions that Member States may impose on the rights of EU nationals and their families regarding entry and residence on the grounds of public policy, public security, and public health. These restrictions are detailed in **Articles 27--33** and categorize three levels of protection against expulsion. A. **Three Levels of Protection** **Directive 2004/38 introduces three levels of protection:** 1. **General Protection**:\ Applicable to all individuals covered by EU law. Restrictions must comply with proportionality and personal conduct considerations. 2. **Enhanced Protection**:\ Granted to individuals with permanent residence in a Member State. Expulsion can occur only on \"serious grounds\" of public policy or security. 3. **Super-Enhanced Protection**:\ Applies to minors and those who have resided in a host Member State for at least 10 years. Expulsion is allowed only on \"imperative grounds\" of public security. B. **Article 27: General Principles** - **Proportionality and Personal Conduct**:\ Measures must be proportionate and based solely on the individual's personal conduct. Past criminal convictions cannot automatically justify expulsion unless they indicate a genuine and present threat. - **Exclusion Criteria**:\ General preventive measures or automatic expulsions are not permissible. The principle was affirmed in cases like *Bouchereau* and *Calfa*. - **Exchange of Information**:\ Host states may request police records within a specific timeframe after entry but cannot do so routinely. - **Re-admittance Obligations**:\ Expelled individuals must be re-admitted to their country of origin. C. **Article 28: Expulsion Protections** 1. **Factors Considered in Expulsion**:\ Member States must consider: - Length of residence. - Age, health, family, and economic circumstances. - Social and cultural integration. - Links to the country of origin. 2. **Enhanced Protection (Permanent Residents)**:\ Expulsion permitted only on "serious grounds" of public policy or security. 3. **Super-Enhanced Protection (Minors and Long-Term Residents)**:\ Expulsion requires \"imperative grounds\" of public security, an exceptional threshold. - **Case Law (Tsakouridis)**: - \"Imperative grounds\" imply extreme seriousness, such as threats to state security or public safety. - Expulsion requires individual assessment, balancing societal interests and the individual's rights. D. **Article 29: Public Health Restrictions** 1. **Health Conditions Justifying Measures**:\ Only diseases with epidemic potential or contagious conditions with protective measures for nationals qualify as grounds for restriction. 2. **Limitations**:\ Diseases arising after three months of residence cannot justify expulsion. 3. **Medical Examinations**:\ Allowed within the first three months of arrival, but not as a routine practice. E. **Article 30: Notification of Decisions** - Individuals must be notified in a comprehensible manner and informed of: - The grounds for the decision (unless it endangers public security). - The process to appeal, time limits for appeal, and the minimum time to leave the state (at least one month, except in urgent cases). F. **Article 31: Procedural Safeguards** 1. **Access to Redress**:\ Judicial or administrative review must be available to ensure legality, factual accuracy, and proportionality of the decision. 2. **Automatic Suspension**:\ Expulsion enforcement is suspended pending an interim appeal unless urgent circumstances apply. 3. **Participation in Defense**:\ Individuals must be allowed to submit their defense in person unless this poses serious public-policy risks. G. **Articles 32--33: Exclusion Orders and Expulsion Duration** 1. **Duration of Exclusion Orders**: - Individuals can request lifting an exclusion order after a reasonable period, no later than three years post-enforcement. - Host states must reassess applications within six months. 2. **Conditions for Expulsion Orders**: - Expulsions cannot serve as penalties or legal consequences of imprisonment unless conditions of Articles 27--29 are met. - For orders enforced after two years, authorities must reassess the individual's current threat level and circumstances. 9. **Free movement: Political and economic tensions** The provided text highlights the complex interplay between the economic benefits and social challenges associated with the free movement of workers within the EU. While it has been a cornerstone of the European project, recent years have seen increasing strain on this principle, driven by economic downturns, political pressure, and societal anxieties. **Key Points:** 1. **Economic Benefits and Social Challenges:** - **Economic Benefits:** Free movement has contributed to economic growth, increased labor market flexibility, and a more integrated European economy. - **Social Challenges:** Concerns about potential negative impacts on domestic labor markets, social security systems, and public services have emerged, particularly during economic downturns. 2. **Political Backlash and Policy Responses:** - **Political Pressure:** The UK\'s decision to leave the EU was partly motivated by concerns about immigration and free movement. - **Policy Responses:** The EU has sought to balance the need for flexibility with the preservation of core principles of free movement. The 2016 Decision, though never implemented, illustrated the tension between these objectives. 3. **Future Challenges and Opportunities:** - **Global Trends:** Globalization, technological advancements, and demographic changes are reshaping labor markets and social protection systems across the EU. - **Non-Standard Work:** The rise of non-standard forms of employment poses challenges for social protection and income security. - **Social Welfare Reform:** Rethinking social welfare systems to support individuals throughout their life course is crucial to adapt to these changes. **Conclusion** The future of free movement of workers within the EU is uncertain. While it remains a fundamental principle, it will require careful consideration and adaptation to address the evolving economic and social landscape. Striking a balance between economic integration and social cohesion will be essential to ensure the long-term sustainability of the EU project. **Potential Future Directions:** - **Targeted Reforms:** Implementing targeted reforms to address specific challenges, such as those related to non-standard work and social protection. - **Enhanced Social Dialogue:** Fostering social dialogue between governments, employers, and workers to develop effective solutions. - **International Cooperation:** Collaborating with other countries to address global challenges and promote fair labor practices. By carefully navigating these challenges and seizing opportunities, the EU can continue to harness the benefits of free movement while mitigating its potential drawbacks. 10. **Conclusions** The EU\'s commitment to the free movement of workers is a cornerstone of its integration project. This principle, enshrined in Article 45 of the Treaty on the Functioning of the European Union (TFEU), has been significantly expanded through both legislation and the European Court of Justice (ECJ) jurisprudence. **Key Developments:** - **Directive 2004/38:** This directive consolidated and strengthened the rights of EU citizens, including workers, by expanding the scope of family members, tightening restrictions on Member States\' ability to derogate from free movement rights, and introducing the right of permanent residence. - **ECJ Case Law:** The ECJ has played a crucial role in shaping the contours of free movement law. It has consistently interpreted the Treaty and secondary legislation in a purposive manner, expanding the rights of workers and their families. - **Commission Initiatives:** The Commission has taken various initiatives to address challenges related to the implementation of free movement, such as \"closing the enforcement gap\" and improving social security coordination. **Challenges and Tensions:** - **Member State Resistance:** Some Member States have expressed concerns about the potential costs and social implications of free movement, particularly in the context of economic downturns and migration crises. - **Balancing National Interests and EU Law:** The tension between national sovereignty and EU law has often surfaced in debates on free movement. Member States have sought to limit the impact of EU law on their domestic policies, while the EU institutions have insisted on the primacy of EU law. **Future Trends:** - **Strengthening Enforcement:** The EU is likely to continue its efforts to improve the enforcement of free movement rights, particularly through targeted measures and increased cooperation between Member States. - **Addressing Social Challenges:** The EU will need to address the social challenges associated with free movement, such as social security coordination, access to healthcare, and integration of migrant workers. - **Adapting to Future Challenges:** As the EU faces new challenges, such as digitalization and climate change, it will need to adapt its free movement policies to ensure that they remain relevant and effective. **Conclusion** The free movement of workers is a fundamental principle of the EU, and its implementation has had a significant impact on the lives of millions of people. While challenges remain, the EU\'s commitment to this principle is likely to endure, as it is seen as essential for the economic and social well-being of the Union. **Chapter 24 -- Citizenship of the European Union** 1. **Central Issue** The ECJ's rulings on EU citizenship have been important in several ways: 1. First, the Court established that the Treaty provisions on citizenship create autonomous rights, independent of other Treaty provisions governing movement and residence. 2. Secondly, the ECJ linked the provisions on citizenship with the prohibition on discrimination on grounds of nationality to strengthen the rights and entitlement of EU nationals and their families, in host Member States and in their own, on matters such as social benefits, taxation, criminal procedures, and dual- nationality situations. 3. However, the Court has been responsive to Member State concerns in its rulings on access to education for EU citizens in other Member States, and on so-called 'benefits tourism' involving claims made by non-economically active EU citizens to access social welfare benefits in other Member States. 2. **Citizenship: Rationale and Treaty Union** A. **Rationale** [The Maastricht Treaty first introduced the legal concept of citizenship into EU law. There are three reasons which motivated the introduction of citizenship into the Maastricht Treaty:] a. The first is that it resonated with initial ideas concerning broader European political integration that date from the post-war period. b. The second rationale which is related to the first, is that the Maastricht Treaty provisions fostered the idea that citizenship did not have to be tied exclusively to the nation-state. c. The third reason that drove the Treaty to recognition of citizenship was that it connected with the desire for greater democratization within the EEC. An **issue** which remains with EU citizenship is that it has become the primary legal status under EU law for MS nationals. B. **Treaty Foundations** **Articles 20--25 TFEU** contain the Treaty provisions on citizenship: - Article 20 TFEU is the foundational provision and summarizes the main elements of EU citizenship. EU citizenship is "**additional"** to national citizenship. It does not displace the centrality of national citizenship in Europe. EU citizenship is contingent upon the possession of MS nationality. **Does the loss or revocation of an MS nationality acquired by deception fall within the scope of EU law or remains purely a matter of national law?** The Rottmann case has had far-reaching implications for EU citizenship law: - **Strengthening EU Citizenship:** It reinforced the concept of EU citizenship as a fundamental status that confers significant rights and protections. - **Limiting National Discretion:** It imposed limits on Member States\' discretion to revoke nationality, particularly when such decisions could lead to statelessness or the loss of EU citizenship. - **Promoting Consistency and Fairness:** It encouraged Member States to adopt a consistent and fair approach to nationality matters, taking into account EU law principles. - **Enhancing Judicial Review:** It empowered national courts to scrutinize nationality decisions and ensure compliance with EU law. 3. **Citizenship: The rights of free movement and residence** A. **Article 21: Right to free movement** Article 21 =\> Every citizen of the Union shall have the right to move and reside freely within the territory of the Member state. B. **Directive 2004/38: Right to free movement and residence** Directive 2004/38: - It consolidated virtually all legislation on the free movement of persons in a single instrument. - It created a single legal regime for free movement and residence within the context of citizenship of the Union while maintaining the acquired rights of workers. - It implemented a fundamental Treaty-based right of residence for citizens rather than merely a legislative right. - The main provisions apply to all EU citizens and not just those who are employed or self-employed. **The CJEU ruled in McCarthy that:** - Directive 2004/38 provides for the right of residence of an EU citizen and a derived right of residence for his or her privileged family members. - However, this was only where that citizen has ***exercised the right of freedom of movement by becoming established* in a Member State other than the Member State of nationality.** - Articles 20 and 21 TFEU may, in certain circumstances, protect the right of residence of a citizen in his or her own state, together with the derived right of her family. **Some provisions of the directives and what they establish:** - **Article 7(1)(b) and (c):** It establishes the conditions for the right of residence of EU citizens, who are neither workers nor self-employed persons - **Article 7(1)(b)**: It stipulates that citizens: - They must have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence. - They must have comprehensive sickness insurance cover in the host state. - **Article 7(1)(c)** governs students and provides that EU citizens shall enjoy a right of residence where: - They are enrolled at a recognized educational establishment for the purposes of study - They have comprehensive sickness insurance - They can provide an assurance, whether by declaration or otherwise, that they have sufficient resources to avoid becoming a burden on the social assistance scheme. - **Article 8(4)** elaborates further on the requirement of sufficient resources: - The MS cannot law down a fixed amount. - It must not be higher than the eligibility threshold for social assistance or the minimum state social security pension. - The personal situation of that person must be taken into account. - **Article 12** concerns the acquisition of the right of permanent residence by the family members of an EU citizen who is deceased, or departs from the Member State: - The period of time required for acquiring the right of permanent residence has been considered by the ECJ. - Art.12(2) provides that before acquiring the right of permanent residence, the persons in question, if they are not workers or self-employed, remain subject to the requirement of sufficient resources and adequate sickness insurance. - The right of residence of such family members exists '**exclusively on a personal basis'.** - **Article 13:** It governs the right of family members to remain and to gain permanent residence in the event of divorce, annulment or termination of a registered partnership and It contains similar conditions to those in Article 12. - **Article 14**: It governs the general initial three-month right of residence for all EU citizens: - It subjects it to one condition: that they do not become an unreasonable burden on the social assistance scheme of the host. - It codifies the case law in Grzelcyk and Trojani the effect that expulsion cannot be an automatic consequence of a person's recourse to the social assistance scheme of host state (Article 14(3)). - **Article 24:** - §1 =\> It governs the right to equal treatment of all EU citizens in a host Member State. - §2 =\> It provides by way of derogation that host states are not obliged to confer entitlement to social assistance during the first three months of residence, nor in the case of job seekers during the longer period to which a job-seeker is entitled to reside in search of work. - **Article 35:** - It provides that states may, subject to the procedural safeguards set out in Articles 30 and 31, adopt measures to refuse, terminate, or withdraw any right conferred by the Directive 'in the case of abuse of rights of fraud, such as marriages of convenience'. - In *McCarthy*, the CJEU ruled that measures adopted under Article 35 must be based on an individual examination of each case. The UK could not invoke Article 35 to justify a measure with a general preventative objective, namely to protect against an alleged risk of systemic abuse or fraud post-*Metock*,which required family members of an EU citizen holding a valid residence card under Article 10 of the Directive to obtain an additional entry permit under national law. **The Court held that proof of abuse requires objective and subjective elements:** - The objective element is that the purpose of the rules formally followed by the individual has not been achieved. - The subjective element is the intention to obtain an advantage from the EU rule by artificially creating the conditions laid down to obtain it. 4. **EU citizenship law: Impact** A. **Article 20: An autonomous and directly effective right of movement and residence** The Treaty rights of movement and residence of EU citizens set out in Article 21(1) TFEU were 'subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect'. There were two such conditions: - The first concerned Treaty provisions enabling Member States to adopt restrictive measures on grounds of public policy, security, and health. - The second concerned the financial and health insurance conditions in Article 7(1)(b)--(d) of Directive 2004/38, on students and other non- economically active persons, following an initial three-month period of unconditional residence provided by Article 6 of the same directive. Article 20 TFEU has significantly expanded the rights of movement and residence of EU citizens compared to the previous legal framework. Prior to its introduction, these rights were primarily tied to specific categories such as workers, self-employed persons, and students. **Key Changes Brought About by Article 20 TFEU:** 1. **Directly Effective Right of Residence:** **Baumbast case:** - It established that article 20(1) TFEU grants EU citizens a directly effective right of residence, independent of their economic activity. This means that citizens can reside in any EU Member State, regardless of whether they are employed, self-employed, or economically inactive. - This right is subject to limitations and conditions, but these must be interpreted and applied in a proportionate manner, as demonstrated in the *Baumbast* case. - The ECJ confirmed that Article 20(1) TFEU confers a directly effective right of residence on EU citizens who do not fall within any other existing EU status category, since the citizen in question in this case was a newly born baby. - There were three key issues raised by the case: 1. The first was whether the child enjoyed a directly effective right to movement and residence based solely on EU citizenship derived from her Irish nationality. 2. The second was whether the circumstances amounted to an abuse of rights. 3. The third was whether the resources of the mother could be taken into account in determining whether the child had sufficient resources not to become a burden on the social assistance scheme of the state. - The Court held that a refusal to grant a right of residence to the parent, whether an EU national or not, who is the carer of a child possessing EU citizenship, and enjoying sufficient resources and health insurance, 'would deprive the child's right of residence of any useful effect'. - It confirms the *Baumbast* ruling in two ways: 3. First, the rights of movement and residence deriving from EU citizenship under Article 20(1) are directly effective, autonomous, and do not depend on possession of any previously existing EU status category. 4. Secondly, the conditions and limitations that a state may impose on these rights must be interpreted and applied in a proportionate manner, which does not unduly restrict their exercise. 2. **Broader Scope of Rights:** - The concept of EU citizenship, as enshrined in Article 20 TFEU, has broadened the scope of rights beyond traditional economic activities. - It encompasses a wide range of rights, including the right to vote and stand as a candidate in local and European Parliament elections, the right to consular protection, and the right to petition the European Parliament. 3. **Enhanced Protection for Non-Economically Active Citizens:** - Article 20 TFEU provides stronger protection for non-economically active citizens, such as students, retirees, and family members. - The *Baumbast* and *Chen* cases illustrate how the Court has interpreted the limitations and conditions on the right of residence in a way that safeguards the interests of non-economically active citizens. **Implications for EU Citizens:** - **Greater Freedom of Movement:** EU citizens enjoy greater freedom to move and reside within the EU, without being tied to specific economic activities. - **Enhanced Protection:** The Court\'s interpretation of Article 20 TFEU ensures that EU citizens\' rights are protected, even in cases where they do not fall into traditional categories of EU law. - **Challenges for Member States:** Member States must balance the rights of EU citizens with their legitimate interests, such as public order, public security, and public health. This requires a careful and proportionate application of any limitations and conditions. In conclusion, Article 20 TFEU has significantly strengthened the rights of EU citizens to move and reside freely within the EU. This has far-reaching implications for both individuals and Member States, and it will continue to shape the development of EU law in the years to come. B. **Article 20: An autonomous and directly effective right of movement and residence** **Historical Context:** Traditionally, the ECJ maintained that EU law could not be invoked in situations that were purely internal to a Member State, meaning cases where there was no cross-border element. This limited the application of EU citizenship rights in many scenarios. **Shift in Interpretation: The** ECJ has gradually shifted its interpretation, recognizing that EU citizens can assert their rights even in situations that appear wholly internal. This change reflects a broader understanding of EU citizenship as a status that transcends national boundaries. i. **Disincentives to free movement imposed by a Member State on its nationals** The ECJ\'s interpretation of Article 21 TFEU, as illustrated in the *Kohll* case, demonstrates a commitment to ensuring the full effectiveness of the EU\'s fundamental freedoms. While the traditional understanding of Article 21 focuses on cross-border situations, the Court has expanded its scope to encompass situations where a Member State\'s domestic law may indirectly hinder the exercise of free movement rights. **Key Points:** 1. **Symmetrical Interpretation:** The ECJ interprets Article 21 symmetrically, meaning it applies both to situations where an EU citizen faces restrictions in another Member State and to situations where they face dissuasive measures from their own Member State. 2. **Indirect Restrictions:** The Court recognizes that even indirect restrictions on free movement, such as penalizing citizens for exercising their rights in another Member State, can undermine the effectiveness of the Treaty\'s provisions. 3. **Preventive Effect:** The Court\'s interpretation aims to prevent Member States from enacting laws that could discourage citizens from exercising their right to free movement. 4. **Full Effectiveness of the Treaty:** The Court emphasizes that the opportunities offered by the Treaty can only be fully effective if citizens are not hindered by domestic laws that penalize the exercise of their rights. **Implications:** This interpretation has significant implications for Member States\' domestic legislation. It requires them to ensure that their laws do not create obstacles to free movement, even if they are not directly targeted at cross-border situations. Member States must carefully consider the potential impact of their laws on EU citizens\' right to move and reside freely within the Union. ii. **Dual Nationality** The cases of *Garcia Avello* and *Runevicˇ-Vardyn* represent significant developments in the understanding of EU citizenship rights, particularly in relation to the concept of a \"cross-border element.\" In both instances, the individuals involved were primarily concerned with issues within their home Member State, yet the ECJ found that EU law applied due to their dual nationality or the potential for future cross-border movement. **Key Points:** 1. **Cross-Border Element:** - **Garcia Avello:** The ECJ found a cross-border element in the fact that the individuals were dual nationals and that their Spanish nationality could potentially be relevant in other EU Member States. - **Runevicˇ-Vardyn:** The Court identified a potential cross-border element in the couple\'s move to Belgium and the potential inconvenience they might face due to the different spellings of their names on official documents. 2. **Discrimination and Fundamental Rights:** - **Garcia Avello:** The Court held that the Belgian law discriminating against the individuals based on their dual nationality violated their rights under Articles 18 and 20 TFEU. - **Runevicˇ-Vardyn:** The Court acknowledged the potential for inconvenience and discrimination but balanced this against Lithuania\'s interest in preserving its national language and culture. It ultimately left it to the national court to determine whether the refusal to amend the marriage certificate was disproportionate. **Implications for EU Citizenship Rights:** - **Broader Scope of EU Law:** These cases demonstrate that EU law can apply to situations that may appear purely internal to a Member State. - **Protection of Fundamental Rights:** The ECJ has emphasized the importance of protecting fundamental rights, including the right to non-discrimination, even in cases where the individuals have not physically moved across borders. - **Balancing National Interests and EU Law:** The Court has shown a willingness to balance the interests of Member States with the rights of EU citizens, particularly in cases involving cultural and linguistic diversity. **Conclusion:** The *Garcia Avello* and *Runevicˇ-Vardyn* cases have expanded the scope of EU citizenship rights and have highlighted the complex interplay between national law and EU law. These decisions underscore the importance of ensuring that national laws are compatible with EU law and do not discriminate against EU citizens. iii. **Family reunification claims** The jurisprudence around EU citizenship rights, particularly as they intersect with family reunification and derivative rights for non-EU family members, highlights the evolving interpretation of the Treaty on the Functioning of the European Union (TFEU) and the scope of \"wholly internal situations.\" Here\'s a breakdown of the key points and case developments: **Key Principles from Ruiz Zambrano** - **Substance of Citizenship Rights**: Article 20 TFEU prevents national measures that deprive EU citizens of the genuine enjoyment of the substance of their citizenship rights. This includes situations where an EU citizen might be compelled to leave the EU entirely due to a denial of residency or work rights for a non-EU family member. - **Dependency and Vulnerability**: The Court emphasized the importance of protecting dependent EU citizens, particularly minor children, whose fundamental rights as EU citizens could be undermined if their non-EU parent were forced to leave. **Limitations and Narrowing in Subsequent Cases** 1. **McCarthy Case**: - Distinguished from Zambrano because the EU citizen, who never exercised her free movement rights, was not forced to leave the EU if her spouse was denied residency. - The Court found no deprivation of the \"substance\" of her citizenship rights since her situation did not meet the dependency and vulnerability criteria highlighted in Zambrano. 2. **Dereci Case**: - Reiterated that deprivation of citizenship rights arises only when an EU citizen would be compelled to leave the EU entirely. Economic or family preferences do not suffice to establish a violation of Article 20 TFEU. 3. **KA and Others**: - Further clarified dependency: For adults, only in \"exceptional cases\" would dependency justify derivative rights. For minors, a nuanced assessment of the best interests of the child and specific emotional and physical ties is required. **Expansion Beyond Purely Internal Situations** The Court recognized circumstances that, while not purely internal, were nonetheless closely tied to EU law: - **S & G**: Regular cross-border movement for work was sufficient to invoke Treaty freedoms. - **Alokpa**: A non-EU parent\'s right of residence depended on whether the denial would deprive EU citizen children of their substantive rights. - **O & B**: Previous exercise of free movement rights by an EU citizen created a sufficient link to EU law, even after returning to their home Member State. **Refinement of Criteria** - The **Zambrano test**: Focused on whether a denial of residency to a non-EU family member would force an EU citizen to leave the EU, effectively losing their citizenship rights. - Relationship of dependency: Assessed differently for adults and minors, with the Court placing greater emphasis on the best interests and well-being of minors. **Impact on Migration and National Sovereignty** These cases demonstrate the tension between: - EU citizenship rights as a unifying and expansive concept. - Member States\' desire to retain control over migration and residency policies, particularly concerning third-country nationals. **Conclusion** The jurisprudence shows a gradual broadening of EU law\'s reach into areas traditionally considered internal. However, the CJEU has also shown restraint, avoiding an overly expansive interpretation of Articles 20 and 21 TFEU. Dependency and the genuine impact on the substance of EU citizenship rights remain the linchpins of its analysis, ensuring that only cases with a clear and substantial connection to EU law are brought within its purview. C. **Articles 20-21: Citizens who are neither economically active nor economically self-sufficient** #### 1. Introduction This document focuses on the rights granted to EU citizens under Articles 20 and 21 of the Treaty on the Functioning of the European Union (TFEU). These provisions establish the foundation of EU citizenship, granting the right to move and reside freely across Member States. However, these rights are not unconditional and are subject to limits and conditions, particularly through Directive 2004/38, which introduces economic criteria such as sufficient resources and sickness insurance. #### 2. Non-Economically Active Persons This section explores the rights of citizens who are neither working nor self-sufficient. It categorizes legal challenges and rulings into four main groups: ##### 2.1 Access to Social Assistance - **Martínez Sala Case**: - A Spanish national residing lawfully in Germany claimed a child-raising allowance. - The European Court of Justice (ECJ) ruled that, as a lawfully resident EU citizen, she was entitled to equal treatment under Articles 18 and 20 TFEU, regardless of her economic inactivity. - This established the principle of non-discrimination for lawful residents. - **Trojani Case**: - A French national in Belgium sought social assistance while participating in a Salvation Army reintegration program. - The ECJ confirmed that lawful residents can claim equal treatment for benefits. However, states can revoke residence permits if the citizen becomes a burden, provided this is done proportionally and after assessing individual circumstances. - **Dano Case**: - Marked a shift in case law. The ECJ ruled that a Romanian national residing in Germany without sufficient resources could be denied access to benefits. - This ruling emphasized the host state\'s right to deny social assistance if the individual does not meet the conditions for lawful residence under Directive 2004/38. ##### 2.2 Access to Educational and Social Assistance for Students - **Grzelczyk Case**: - A French student in Belgium successfully claimed access to social assistance, arguing that the EU citizenship provisions allowed non-discrimination. - The ECJ ruled that temporary financial difficulties could not automatically disqualify a student from social assistance, recognizing \"a certain degree of financial solidarity.\" - **Bidar Case**: - A French student in the UK claimed a maintenance loan. - The ECJ ruled that while EU law supported his claim, Member States could impose integration requirements, such as prior residence, to limit access to such benefits. ##### 2.3 Access to Job-Seeker Allowances - **Collins Case**: - A US-Irish dual citizen in the UK sought job-seeker benefits. - The ECJ expanded the rights of job-seekers, recognizing that benefits facilitating labor market access are protected under EU law. - However, states may require proof of a genuine link to their labor market. - **Vatsouras Case**: - The ECJ reaffirmed that benefits intended to facilitate labor market access are not classified as \"social assistance\" and thus cannot be denied under Article 24(2) of Directive 2004/38. ##### 2.4 Rights of Permanent Residents - **Lassal Case**: - Confirmed that five years of continuous legal residence in a host state grants EU citizens the right to permanent residence. - This status provides near-complete equality with nationals in terms of access to social benefits. #### 3. Students This section analyzes the impact of EU citizenship on students\' rights in host states. ##### 3.1 Early Developments - **Gravier Case**: - A French national studying in Belgium challenged a fee discrimination policy. - The ECJ ruled that access to vocational training is protected under EU law, and Member States cannot impose discriminatory fees on non-nationals. - **Lair and Brown Cases**: - Distinguished between grants for tuition (protected under non-discrimination) and maintenance grants (initially excluded from this protection). ##### 3.2 Post-Citizenship Expansion - **Grzelczyk Case**: - Marked a shift, allowing students to claim limited social benefits under EU citizenship rights. - **Bidar Case**: - Maintenance grants were deemed within the scope of EU law, provided that the student met integration requirements, such as a period of prior residence in the host state. ##### 3.3 Proportionality and Restrictions - **Förster Case**: - Allowed Member States to impose conditions like a five-year prior residence requirement for maintenance grants, balancing individual rights and state concerns over financial burdens. - **Morgan and Bucher Cases**: - Prohibited rules that unnecessarily restricted study finance for courses abroad, emphasizing proportionality. #### 4. Job-Seekers This section elaborates on the evolution of job-seekers' rights: ##### 4.1 Expansion of Benefits - **D'Hoop Case**: - A Belgian national who completed secondary education in France was denied a tideover allowance in Belgium. The ECJ ruled this was discriminatory as it penalized the exercise of free movement rights. - **Collins Case**: - Extended equal treatment to benefits aimed at facilitating labor market access, but allowed for proportionate integration measures. ##### 4.2 Limitations Under Directive 2004/38 - While job-seekers can access labor-market benefits, Article 24(2) of the Directive allows Member States to deny general social assistance during the initial three-month residence period. D. **Articles 20-21: Challenge to restrictive Member state measures** This section examines how EU citizenship counters restrictive actions by Member States. ##### 5.1 Non-Discrimination - Cases like *Bickel & Franz* upheld the principle of non-discrimination, ensuring that EU citizens are treated equally in legal and administrative processes. ##### 5.2 Protections Against Expulsion - **Tsakouridis Case**: - Clarified that \"imperative grounds of public security\" must justify expulsion for long-term residents, emphasizing proportionality and individual circumstances. - **MG Case**: - Confirmed that imprisonment interrupts the continuity of residence required for enhanced expulsion protections. ##### 5.3 Limits on Travel Restrictions - **Byankov Case**: - Prohibited restrictions on citizens leaving a state solely due to private debts, as this violated the principle of free movement under Article 21 TFEU. E. **Conception of citizenship** - **Broader Understanding of Citizenship:** The concept of EU citizenship has evolved to encompass not only legal rights but also a sense of belonging to a European community. This broader conception includes social, political, and economic dimensions, reflecting the integration of EU citizens into the fabric of the Union. - **Social Cohesion and Solidarity:** EU citizenship promotes social cohesion and solidarity among Member States, encouraging individuals to engage with EU institutions and participate in cross-border activities. This sense of belonging is essential for fostering a unified European identity. - **Impact on National Policies:** The evolving conception of citizenship influences national policies regarding immigration, social welfare, and integration. Member States are increasingly required to align their laws with EU standards, which can lead to reforms aimed at enhancing the rights of EU citizens and ensuring non-discrimination. - **Political Rights:** The conception of citizenship also extends to political rights, allowing EU citizens to participate in the democratic processes of their host Member States, including voting in local and European elections. This section compares two theoretical models of EU citizenship: ##### Residence Model - Advocates equal treatment based purely on residence, emphasizing inclusivity and solidarity in host states. ##### Integration Model - Prioritizes social cohesion, requiring active integration and the fulfillment of conditions (e.g., sufficient resources) for equal treatment. F. **Summary** #### Summary of Impacts of EU Citizenship 1. **Rights Expansion**: - Broader movement and residence rights. - Increased access to social and educational benefits, subject to conditions. - Enhanced procedural protections. 2. **Balancing State Concerns**: - States retain the ability to impose conditions, such as integration requirements, to manage financial burdens. 3. **Evolving Jurisprudence**: - Early liberal rulings have been tempered by later decisions (*Dano*), reflecting a balance between individual rights and Member State interests. 5. **Citizenship: Political rights** Articles 22-25 TFEU outline a range of rights for EU citizens, primarily designed to enhance their political participation and protection within and outside the EU. While these rights hold significant symbolic value, their practical impact has been somewhat limited. **[Key Rights and Their Impact:]** 1. **Electoral Rights (Article 22):** - **Right to Vote and Stand in Municipal and European Parliament Elections:** This right aims to foster political participation of EU citizens in their host Member States. However, low voter turnout and procedural hurdles have hindered its full realization. - **Equal Treatment Principle:** The ECJ has clarified that EU citizens should be treated equally to nationals in terms of electoral rights, ensuring fairness and non-discrimination. 2. **Diplomatic Protection (Article 23):** 3. **Citizens\' Initiative (Article 24):** 4. **Right to Petition and Apply to the Ombudsman (Article 24):** 5. **Right to Receive and Send Documents in Official Languages (Article 24):** 6. **Obligations of the Commission (Article 25)** It requires the Commission to report every three years on the application of these provisions on citizenships. 6. **Conclusions** - The status of EU citizenship created by EU law has been criticized on various grounds, including: - The thinness of the rights created and their economic focus - The conditions to which they are subject - The reinforcement of the distinction between third-country nationals and EU nationals, the limited impact of the new electoral rights, and the reluctant pace of implementation. - The legal rights of citizenship have been expanded by the ECJ, often in the face of Member State opposition in cases like *Metock* and *Ruiz Zambrano*, although the Court has responded

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