EU law - Free movement of persons problem question

This Prezi has been designed to give you guidance on how to answer a typical problem question on the free movement of persons. You should note however, that this is simply one approach of which many are valid.

The question we'll use is a typical undergraduate problem question on this area. This is a question I drafted for an examination some time ago for second and third year EU law students (levels 5 and 6 respectively). It incorporates many of the issues you would expect to be addressed in such a question.

As a little extra - there is a theme to the question - see if you can identify it (just for fun)

Please note that whilst this Prezi focuses on a problem style question, you should be aware that this topic may also or alternatively be assessed by way of an essay style question. My view has always been that a student who is properly prepared for an EU law assessment has nothing to fear from either style of question, but I appreciate that some students may prefer one style over another.

Thomas is a Spanish national who has decided he would like to live and work in France. However, he has faced some difficulty. His first employment application was rejected on the basis that the company concerned only employed a certain number of non-nationals and that they were currently ‘up to quota’. In relation to his next employment application, he was rejected on the basis that the position concerned was a ‘public service post’. Thomas was unclear as to what this meant, pointing out that the post merely involved working on the railways. However, he was told by the recruiters that ‘public service’ meant ‘whatever the government decided it meant’.

Not to be deterred, Thomas then considered travelling to France in order to seek work. However, he was informed that France placed a six month time limit on residence in such circumstances and given the upheaval to his life, Thomas considered this too risky.

In any event, last week Thomas was delighted to find he had been offered a part time post with a railway museum.

Thomas is therefore in the process of making arrangements for his move to France and considering the impact this will have on his family. His wife Emily (a Chinese national), is very anxious about the move. She was hoping to return to work following a career break in order to bring up their daughter Rosie and is unsure as to whether she will be allowed to work in France.

One further concern for Thomas is his elderly father Gordon. Gordon is a Spanish national himself, but has little money and his health has deteriorated greatly over recent years. As such, he has become ever more reliant upon Thomas. Thomas would like to take Gordon to France with him, but is not sure whether he will be allowed to do so.

Advise Thomas as how EU law on the free movement of persons might affect the family’s plans.

Introductions in problem style questions should be kept to a minimum. The focus should be on addressing the issues raised and the examiner will not be looking to give credit for an over elaborate introduction. However, to simply launch into the issues without some reference to context would be wrong.

Thus, in a question such as this, attention should be drawn to the importance of the free movement of persons to the effective and successful operation of the internal market as one of the four fundamental freedoms. Reference should be made to Article 26 TFEU.

Structure

Many of the answers I mark in this area of law are let down not by a lack of knowledge or understanding, but by a lack of structure. Thus, a tendency to jump around from character to character and issue to issue. Furthermore, whilst knowledge of relevant law is usually sound (much of it is, after all, handily available in the accessible secondary legislation), answers can be let down by a failure to apply the law to the facts given.

As always, there's more than one way to tackle a question such as this but the following approach is suggested as one way forward:

Identify the relevant characters and deal with each in turn...

...picking out the relevant issues...

...and addressing those issues by stating and applying relevant law (with authority).

Thomas

Start with his basic Treaty rights - Thomas is a Spanish national (Spain is a Member State) and he therefore enjoys citizenship rights of free movement - Articles 20 & 21 TFEU.

These rights of free movement are expanded upon in the secondary legislation - See Directive 2004/38 which give Thomas:

• a right to leave the territory of a Member State (MS) with a valid ID card or passport to travel to another MS (such as France) (Article 4)

• a right to enter the territory of another MS (Article 5)

• a right to stay there for up to 3 months (Article 6).

Having dealt with his basic rights as an EU citizen, consideration should then be given to the other issues raised. It usually makes sense to address these in the order they are raised in the question. Usually, but not always, so have the confidence to your use academic judgment.

The question raises issues pertaining to a fundamental principle - the principle of non-discrimination. Specifically with regard to access to employment.

As such, reference should be made to relevant authority. As before, start with the Treaty provisions.

Thus, Article 18 TFEU which sets out the broad principle and Article 45 TFEU which has specific application to workers.

Consideration should then be given to the secondary legislation in addressing the detail. Thus, reference to Regulation 492/2011.

Rejection on basis of quota:

See Regulation 492/2011 Article 4- MS may not restrict the employment of foreign nationals by number or percentage.

See also Commission v France (French Merchant Seamen) (Case 167/73) [1974] ECR 359 - Here there was a French restriction imposing a ratio of three French to one non French crew members on ships of the French merchant fleet.

Rejection on basis of public service post

This is a little more complex. Whilst it is true that EU citizens are free from discrimination based upon their nationality as regards access to employment, an exception exists as regards public service posts.

In this regard, reference should be made to Article 45(4) TFEU.

However, whilst the exception exists, it is not for the MS to determine its meaning. It is clear from case law that the concept has a Union meaning.

Indeed, such posts were defined in Commission v Belgium (Public employees) (Case 149/79) [1980] ECR 3881 as those posts involving‘the exercise of power conferred by public law’ where there was a ‘responsibility for safeguarding the general interests of the State’.

Apply - Very unlikely that the post in question would satisfy this. Note that the exception is interpreted narrowly. Indeed, even if part of the post satisfies the Commission v Belgium test, the particular activities that safeguard the interests of the state or that require special allegiance to the state must amount to more than a minor part of the post activities - Anker, Ras and Snoek v Germany (Case C-47/02) [2004] 3 CMLR 14.

Six month time limit to find work

In Procureur du Roi v Royer (case 48/75) [1975] ECR 497 the CJEU established that migrant’s workers rights of entry include a right to enter to search for work, but not indefinitely.

In Ex Parte Antonissen (Case C-292/89) {1991] ECR 1-745 the UK lawfully deported after 6 months. No time limit had been laid down though and the Court indicated that a person would be entitled to remain beyond 6 months if they were able to show they were making genuine efforts to find work and that there was a real chance of finding it.

In Commission v Belgium (Case C-344/95) [1997] ECR 1-1035, the CJEU made it clear that an attempt by a MS to stipulate the period in national law conflicts with Union law.

This is all now codified within Directive 2004/38 in Article 14(4)(b).

Apply - Thomas could not have been expelled for as long as he could provide evidence that he was continuing to seek work and had a genuine chance of being engaged.

The next issue raised in relation to Thomas is whether his part time post changes his status and associated rights.

In this regard, consideration needs to be given to the rights of workers. The Treaty basis for these is Article 45 TFEU with the detail of the associated rights being found in Directive 2004/38 and Regulation 492/2011.

However, first it needs to be established whether Thomas would actually acquire worker status.

Remember, the concept of 'worker' is not defined in the Treaty and has a Union, rather than a national meaning (see Hoekstra(nee Unger) v Bestur der Bedriffsvereniging voor Detail en Ambachten (Case 75/63) [1964] ECR 177).

According to Lawrie-Blum v Land Badenwurttemberg (Case 66/85) [1986] ECR 2121, the “essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration”.

Also of relevance is Levin v Staatssecretaris van Justitie (Case 53/81) [1982] ECR 1035; [1982] 2 CMLR 454. This case concerned a part time worker whose income did not provide sufficient means of support and who fell below the nationally recognised minimum subsistence level. However, his work was ‘effective and genuine’ and not on such a small scale as to be ‘purely marginal and ancillary’.

Apply - Thomas would be a worker for the purposes of Union free movement law and would be entitled to a right of residence for longer than 3 months (Article 7(1)(a) Directive 2004/38). He is providing services under the direction of another for which he presumably receives pay. Although it is only a part time post, it is clear that this can still afford worker status so long as the work is effective and genuine on not on such a small scale is to be purely marginal and ancillary. On the facts provided, there is nothing to suggest that this is the case.

In addition to his extended rights of residence, the extensive rights contained within Regulation 492/2011 would also be afforded.

The issues pertaining to Thomas have now been identified and addressed. With a conclusion on each inherent in the application of the law, we can now move onto the other, more peripheral characters.

Again, start by considering whether basic Treaty rights exist - Emily is a Chinese national (China is not an EU Member State) and therefore she does not enjoy her own citizenship rights of free movement.

Thus, any rights Emily does have must necessarily be derived rights from the Union citizen - Thomas.

The detail is found in Directive 2004/38. The previously referenced Articles 4, 5, 6 and 7 each provide rights for 'family members'.

However, consideration needs to be given as to whether Emily actually is a family member.

This is defined in Article 2 and includes (Article 2(2)(a)) 'the spouse'.

Applying this to Emily, she would have the right (with a valid passport) to leave Spain (Article 4(1)), to enter France (Article 5(1)) and a right of residence for up to 3 months (Article 6(2)). Furthermore, she would have the right to reside for longer than 3 months under Article 7(2).

The question also raises the issue of whether a non- national family member of a Union citizen has a right to work in the host state.

This question arose in Gul v Regierungsprasident Dusseldorf (Case 131/85) [1986] ECR 1573 where a Cypriot doctor married a British woman living in Germany. The Court of Justice held that the refusal of the German authorities to allow Gul to work was an infringement of free movement rights holding that there was a right to take up employment under the same conditions as nationals of the host State.

This is now codified in Directive 2004/38 Article 23 which is clear that irrespective of nationality, the family members of a Union citizen who have a right of residence are entitled to take up employment in that MS.

Thus, applying this to Emily, she would be entitled to work.

Again, start with the basic Treaty rights - Rosie is a Spanish national (Spain is a Member State) and therefore enjoys her own citizenship rights of free movement - Articles 20 & 21 TFEU.

As before, these rights of free movement are expanded upon in the secondary legislation - see Directive 2004/38. However, these have already been explained in relation to Thomas and therefore there is no need to repeat the same material. Merely state that as a Union citizen, Rosie would be entitled to the same basic rights as Thomas under Articles 4, 5 and 6 of Directive 2004/38.

It should be noted that the question doesn't clarify the age of Rosie, although it rather hints that she is still a minor. As such, this should be commented upon.

The question is unclear for a reason. I was looking for students to demonstrate their thorough consideration of the facts.

From the facts then, it is unclear whether Rosie has a right to stay for longer than 3 months (provided for in Directive 2004/38 Article 6).

Consideration should turn to derived rights once more. Reference to Article 2 Directive 2004/38 should be made. If under the age of 21, she would be a 'family member' and, as discussed in relation to Emily, would be entitled to a right to stay for longer than 3 months, derived from Thomas (see Directive 2004/38 Article 7(1)(d)). Further to this, she would be entitled to be admitted to the local school under the conditions as nationals of the host state (see Regulation 492/2011 Article 10).

Of course, even if not under the age of 21, Rosie, may still derive rights from Thomas as a 'family member' under Directive 2004/38 Article 2 if she is dependant upon him. It should be noted that the status of ‘dependance’ is not concerned with the need for support, but involves an objective assessment of the facts to determine whether or not Thomas is actually providing support. See Centre Public d’Aide Sociale de Courcelles v Lebon (Case 316/85) [1987] ECR 2811.

Brief consideration may also be given as to whether Rosie has a right to remain in excess of 3 months on any other basis (such as a student for example under Directive 2004/38 Article 7(1)(c)).

However, there is nothing on the facts to suggest that this is the case and whilst it is good to show an awareness of such things and to demonstrate that you're on the lookout for them, avoid speculating and reading things in and instead, focus on the issues raised (there will still be plenty to fill your time).

Again, start with the basic Treaty rights - Gordon is a Spanish national (Spain is a Member State) and he therefore enjoys his own citizenship rights of free movement - Articles 20 & 21 TFEU.

As before, these rights of free movement are expanded upon in the secondary legislation - See Directive 2004/38. However, once more, these have already been explained in relation to Thomas and therefore there is no need to repeat the same material. Merely state that as a Union citizen, Gordon would be entitled to the same basic rights as Thomas under Articles 4, 5 and 6 of Directive 2004/38.

From the facts then, it is clear that Gordon does not have the right to stay for longer than 3 months on the basis of independent rights. Note, he does not have sufficient resources to fall within Article 7(1)(b) Directive 2004/38.

Consideration should turn to derived rights once more. Reference to Directive 2004/38 Article 2 should be made. Specifically, Article 2(2)(d) in relation to dependent direct relatives in the ascending line. Thus, Gordon, may derive rights from Thomas as a 'family member' if he is dependant upon him. Once more, reference should be made to Centre Public d’Aide Sociale de Courcelles v Lebon (Case 316/85) [1987] ECR 2811.

If a 'family member', Gordon would be entitled to a right to stay for longer than 3 months, derived from Thomas (see Article 7(1)(d) Directive 2004/38).

The final issue raised is whether Gordon could be refused entry on the basis of his health problems.

Again, return to the overriding Treaty provisions. It is clear from Article 21 TFEU that free movement rights are subject to limitations and conditions.

The detail of the limitation in relation to health is found in Directive 2004/38 Article 29. This states that the only diseases justifying measures restricting freedom of movement are diseases with epidemic potential as defined by the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host state.

Without knowing more detail of Gordon's complaints, it is impossible to assess whether this is satisfied or not. The suggestion is that it is not.

The nature of this topic and the fact that so many individual issues have been addressed is such that a conclusion attempting to summarise everything that precedes it would be quite unwieldy. As such, a simple, succint conclusion to finish the piece will suffice.

And that's all there is to it...

Except...did you guess the theme? (just for fun)

Thomas...Gordon...Rosie...Emily...

This Prezi was created by Matthew J. Homewood,

Head of Department at

Nottingham Law School.

@mjhomewood

matthew.homewood@ntu.ac.uk

#EUlawrocks

EU law - answering a problem question on the free movement of persons

Conclusion

Introduction

Gordon

Rosie

Emily

Thomas

Gordon

The Question

Having addressed the issues raised in relation to Thomas, focus should now turn to the other characters.

Note, there may be other points that could be made in relation to the rights afforded to Thomas, but it s my view that the focus is upon those addressed.

Rosie

Emily