Question 6 2022 Zone B

Free Movement of Persons European Union
Question 6 2022 Zone B

Marek is a Polish national and has two Polish national daughters with his German wife.
The daughters are two and five years old. At the end of 2020, the family moved to
Germany and since then the children have attended school there. Marek was working in
a restaurant but was subsequently dismissed for consuming cannabis during working
hours. The police were called and following a court procedure, Marek was expelled from
the territory of Germany for a period of fifteen years on grounds of public security.
Marek wants to challenge the German court decision and seeks your advice.
Answer Guideline
1
 Merek needs an advice pertaining his deportation order.
 It should be noted that Marek is a Polish national and hence EU citizen.
 According to Article 6 of Directive 2004/38, a union citizen can stay in another EU
member state for 3 months with
1) Identity Card OR
2) Passport
 According to Article 7 of Directive 2004/38, a union citizen may reside in other
union country, if:
1) Worker/ Self Employed OR
2) Have sufficient resources for themselves and family members + Not to become
unnecessary burden to social assistance system + Comprehensive insurance
coverage OR
3) Student + Not an unreasonable burden + Comprehensive insurance coverage
OR
4) Family member of accompanying EU citizen
 Marek can remain in the territory of EU in another country such as Germany for 3
months with ID or passport or more than 3 months if he is a worker.
 On the fact, the question indicated that he was a worker before being expelled
and hence he had a prima facie right to stay in Germany as long as he is
considered to be a worke and governed by Article 45 of TFEU
Deportation
Public Security
 Art 45(3) stated that member states can derogate from Art 45 under 3
circumstances:
1) Public Policy
2) Public Security
3) Public Health
 By following Art 27 of 2004/38, in order to deport a person based on Public Policy
or Public Security:
(1) The grounds should not be invoked to serve economic ends
(2) It must be Proportionate
Sharavanaa Mahendran sara@atc2u.edu.my

(3) It must be based exclusively on personal conduct

(4) Previous criminal convictions shall not be the sole reason for deportation
(5) The threat concerned must be genuine, present and sufficiently serious
 Article 28
Protection against expulsion
1. Before taking an expulsion decision on grounds of public policy or public security, the host
Member State shall take account of considerations such as how long the individual concerned
has resided on its territory, his/her age, state of health, family and economic situation, social
and cultural integration into the host Member State and the extent of his/her links with the
country of origin.
2 2. The host Member State may not take an expulsion decision against Union citizens or their
family members, irrespective of nationality, who have the right of permanent residence on its
territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is
based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous ten years
(b) Minor
 C-145/09 Land of Baden-Württemberg v Panagiotis Tsakouridis (2010)
Mr Tsakouridis, a Greek national born in Germany and having spent
most of his life there, was the subject of an expulsion measure to
Greece on 28 August 2007, after being sentenced to imprisonment of
more than five years for dealing in narcotics as part of an organised
group
The Administrative Court of Stuttgart annulled this decision,
considering that Mr Tsakouridis qualified for the "enhanced" protection
provided for under Article 28(3) of Directive 2004/38/EC of 29 April
2004 on the right of citizens of the Union and their family members to
move and reside freely within the territory of the Member States, which
prohibits an expulsion measure being taken against a Union citizen
who has resided in the host Member State for the previous 10 years,
except if the decision is based on "imperative grounds of public
security".
Court of Justice of European Union:
1) Enhanced Protection.
 Court states that the decisive criterion is whether this citizen
has lived in the Member State in question for the 10 years
preceding the expulsion decision
 To ascertain this, all the relevant factors must be taken into
consideration in each individual case, in particular the
1) Duration of each period of absence from the host
Member State,
2) The cumulative duration and the frequency of those
absences,
3) Reasons why the person concerned left the host Member
State
4) Which are of a nature to ascertain whether or not those
absences involve the transfer to another State of the
centre of personal, family or occupational interests.

2) Imperative Grounds of Public Security

 The Court first of all emphasises that this concept
presupposes not only the existence of a threat to public
security, but also that such a threat is of a particularly high
degree of seriousness.
 It adds however that the conduct of the person concerned
must represent a genuine and present threat and that the
expulsion measure cannot be based on the existence of
previous criminal convictions or considerations of general
prevention.
3  The national authorities must undertake an individual
examination of the specific case, in which they must assess:
1) Whether the measure contemplated is proportionate to
the aim pursued, in the light in particular of the nature
and seriousness of the offence committed,
2) The duration of residence of the person concerned in the
host Member State,
3) The period which has passed since the offence was
committed
4) The conduct of the person concerned during that period,
and the solidity of the social, cultural and family ties with
the host Member State.
 The Court points out that in the case of a Union citizen who
has lawfully spent most or even all of his childhood and
youth in the host Member State, very good reasons would
have to be put forward to justify the expulsion measure.
 On the fact, Marek was caught with marijuana and hence facing deportation
order. It should be noted that this deportation order was not made to serve
economic end.
 The question never indicate how many years he has stayed in Germany as if he
has stayed for minimum 10 years, he may be entitled for enhanced protection.
Relying on Child Rights

 Marek may rely on his children rights to challenge deportation as minor’s interest
is in stake here.
 Zambrano Case(2011)
Mr and Ms Zambrano, of Colombian nationality, had applied to benefit from
refugee status in Belgium. The Belgian authorities refused them this status,
In 2003 and 2005, Mr and Ms Zambrano had two children which acquired
Belgian nationality. The competent authorities refused to accede to Mr and
Ms Zambrano’s application to regularise their situation and to take up
residence as ascendants of Belgian nationals. Mr Zambrano was also
refused the right to unemployment benefit.

In its judgment, the Court firstly recalls that Article 20 TFEU confers the
status of citizen of the Union on every person holding the nationality of a
Member State. The two Zambrano children who have acquired Belgian
nationality enjoy that status.
According to the Court, Article 20 TFEU precludes national measures which
have the effect of depriving citizens of the Union of the genuine enjoyment
of the substance of the rights conferred by virtue of their status as citizens
of the Union, irrespective of the previous exercise by these citizens of their
right of free movement
For the Court, the refusal by a Member State to grant the right of residence
4 and a work permit to a third-country national with dependent minor children
who are themselves nationals of that Member State would have the
consequence of depriving the children in question of the substance of the
rights conferred on them by virtue of their status as citizens of the Union. In
fact, such a refusal would lead to a situation where those children would
have to leave the territory of the Member State in question in order to
accompany their parents.
 Case C-256/11 Dereci and others v Bundesministerium für Inneres (2011)
The Court considered the scope of its decision in Zambrano. The
circumstances of the litigants were somewhat different from those of the
Zambrano family.
There were a number of litigants whose cases were linked in the referral.
All were third-country nationals and had their applications for residence
permits in Austria refused. They were all, in one way or another, the ‘family
members’ of Austrian nationals.
The facts of Mr Dereci’s case are the most relevant: Mr Dereci, a Turkish
national, entered Austria illegally and married an Austrian national with
whom he had three children who are Austrian nationals and who are still
minors. Mr Dereci lived with his family.
Crucially, the difference between this case and that of Zambrano was that
there was no possibility of the Austrian nationals, of whom the litigants were
family members, being deprived of their means of subsistence (see para
32) and having to leave the EU if the rights of residence of the litigants were
not recognised.
The Court held that the issue boiled down to whether or not the denial of
residence permits to Mr Dereci and the other litigants would have the effect
of depriving Union citizens of the genuine enjoyment of the substance
of the rights conferred by virtue of that status.
The Court decided that this depended on whether the Austrian nationals
would, if a right of residence was not accorded to their family members,
have to leave the EU altogether (para 66) and that the litigants did not meet
this test.
 On the fact the children are of Polish nationality and by virtue of Art 20 and 21 of
TFEU, have right to free movement.

 However, sending them away from Germany by deporting the father to Poland may
not amount to refusal of free movement since the mother is a German national and
even if they move to Poland back it is still a EU
 The Test: Depriving citizens of the Union of the genuine enjoyment of the
substance of the rights conferred by virtue of their status as citizens of the
Union.
 Such a right granted by the court by combining Art 20 TFEU + Art 8 of ECHR (Right
to privacy) + Article 7 of COFR (Respect for private and family life).
5  Case C-133/15 Chávez-Vílchez and Others
The Chávez-Vílchez and Others decision concerns eight different
applicants, all of whom share important commonalities.
The applicants were TCN (third country national) mothers residing in the
Netherlands with their Dutch national children. None of them had a valid
residence permit, however no deportation measures were taken against
any of them.
The children had received their nationality through their fathers. Thus, in all
cases, the minor had a TCN mother and an EU citizen father.
Stats
(1) Seven out of the eight minor EU citizens had never made use of their
EU free movement rights, i.e. had never left the Netherlands.
(2) Five of the families received no financial support from the father.
(3) The other three fathers contributed financially to the children’s care,
however the mothers were still the primary, day-to-day carers of the
children.
(4) The relationships with the father varied slightly from case to case:
from no contact with the father (the Chávez-Vílchez, García Pérez,
and Uwituze families) to almost daily contact (Guerrero Chávez).
(5) The case of the Chávez-Vílchez family differs from the others, as the
family had resided in Germany for a couple of years before returning
to the Netherlands. It is thus the only case in which the daughter –
the EU citizen – had previously made use of her free movement
rights.
(6) In all cases, the applications for social assistance and child benefits
were denied on the basis that the mothers did not have a lawful
residence status in the Netherlands and thus did not have the right
to receive social benefits
 Judgment:
what compels the child to be forced to leave with their TCN carer? First, one has to assess who
the primary carer is. In this respect, it is important to consider who has custody of the child
and on whom the child is legally, financially, or emotionally dependent. This assessment
must take into account Article 7 of the Charter of EU Fundamental Rights – the right to
respect for family life – and give special consideration to the best interests of the child (para.
70). The Court conceded that the fact that the EU citizen father is able and willing to take care
of the child is a relevant element. This, however, is not sufficient to conclude that there is
no relationship of dependency between the child and the TCN mother. Even with an EU citizen
father present, the child can still be compelled to leave the EU if the TCN mother is denied a right

to reside. Here the child’s best interests, age, physical and emotional development and the extent
of his or her emotional ties to both parents have to be considered.
 On the fact, the court may still have to look at to whom the children are
emotionally dependent as there is a deviation from the Zambrano principle in the
case of Chavez.

2022 Zone A Question 6
Hannah is the only daughter of a same-sex couple of Bulgarian nationals established in

Spain. She has a Spanish birth certificate including, as parents, the names of her two
mothers. When they apply for a passport for their daughter, the two mothers are rejected
as Bulgarian birth certificates can only mention one mother and one father, for reasons
of public order. The consequence is that Hannah cannot be delivered a Bulgarian
passport.
Advise Hannah’s mothers whether EU citizenship law can help their case.
7 Answer Guideline
 Hannah’s mothers needs advice pertaining their right to include the name of two
mothers in the birth certificate.
 Hannah has a Spanish birth certificate with both mothers’ name mentioned
however Bulgaria refused to the name of two mothers in the passport.
 Hannah’s mothers may argue that this is in violation of Art 20 and 21 of TFEU as
a violation of Hanna’s Free Movement rights.
 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrӑri and Others
(Case C-673/16)(2018)
Mr Relu Adrian Coman, a Romanian national and Mr Robert Clabourn
Hamilton, an American national, lived together in the United States for four
years before getting married in Brussels in 2010.
In December 2012, Mr Coman and his husband contacted the Romanian
authorities to request information on the procedure and conditions under
which Mr Hamilton, in his capacity as a member of Mr Coman’s family, could
obtain the right to reside lawfully in Romania for more than three months.
That request was based on the directive on the exercise of freedom of
movement, which allows the spouse of an EU citizen who has exercised
that freedom to join his husband in the Member State in which the husband
is living
In response to that request, the Romanian authorities informed Mr Coman
and Mr Hamilton that the latter only had a right of residence for three
months, on the ground, in particular, that he could not be classified in
Romania as a ‘spouse’ of an EU citizen as that Member State does not
recognise marriage between persons of the same sex (‘homosexual
marriage’).
CJEU:
 The Court notes that, in the directive on the exercise of freedom of
movement the term ‘spouse’, which refers to a person joined to
another person by the bonds of marriage, is gender-neutral and may
therefore cover the same-sex spouse of an EU citizen.
 Nevertheless, the Court states that a person’s status, which is
relevant to the rules on marriage, is a matter that falls within the
competence of the Member States, and EU law does not detract from

that competence, the Member States being free to decide whether

or not to allow homosexual marriage.
 The Court nonetheless considers that the refusal by a Member State
to recognise, for the sole purpose of granting a derived right of
residence to a national of a non-EU state, the marriage of that
national to an EU citizen of the same sex lawfully concluded in
another Member State may interfere with the exercise of that citizen’s
right to move and reside freely within the territory of the Member
States.
 That could have the effect that freedom of movement from one
8 Member State to another would vary depending on whether or not
provisions of national law allow marriage between persons of the
same sex.
 The obligation for a Member State to recognise a homosexual
marriage concluded in another Member State in accordance with the
law of that state, for the sole purpose of granting a derived right of
residence to a national of a non-EU state, does not undermine the
institution of marriage in the first Member State.
 On the fact by relying on co-man case, a member state’s refusal to grant the
request to include the names of both mothers in the passport which was
recognized in another member state (Spain) may interfere with the exercise of that
citizen’s right to move and reside freely within the territory of the Member States.
 Garcia Avello (Case C-148/02 (2003))
Mr Garcia Avello, a Spanish national, and Ms I. Weber, a Belgian
national, are resident in Belgium. They married in 1986 and have two
children Esmeralda and Diego who have dual Belgian and Spanish
nationality. Children, pursuant to Belgian law, have the surname of
their father.
Parents requested, in their capacity as the legal representatives of
their two children, that
“their children’s patronymic surname be changed to “Garcia Weber” , pointing out
that, in accordance with well-established usage in Spanish law, the surname of
children of a married couple consists of the first surname of the father followed by
that of the mother.”
This application was rejected on the ground that, in Belgium, children
bear only father’s surname.
CJEU stated that:
 The CJEU reiterated that the citizenship of the Union is destined
to be the fundamental status of nationals of the Member states
(Baumbast) and that the nationals enjoy same treatment
(Grzelczyk).
 It was held that
“the rules governing a person’s surname are matters coming within the
competence of the Member States, the latter must none the less, when
exercising that competence, comply with Community law in particular the
Treaty provisions on the freedom of every citizen of the Union to move and
reside in the territory of the Member States.”

 Moreover, European Union citizens cannot suffer any

discrimination on grounds on nationality in regard to the rules
governing their surname. It was also pointed out by the
Advocate General that
“discrepancy in surnames is liable to cause serious inconvenience for those
concerned at both professional and private levels.”
 Even though the Belgian State contended that the principle of
the immutability of surnames is a founding principle of social
order, the CJEU held that
“art.12 EC and 17 EC must be construed as precluding, in circumstances
9 such as those of the case in the main proceedings, the administrative
authority of a Member State from refusing to grant an application for a
change of surname made on behalf of minor children resident in that State
and having dual nationality of that State and of another Member State, in the
case where the purpose of that application is to enable those children to bear
the surname to which they are entitled according to the law and tradition of
the second Member State.”

By following the case laws above, one may argue that the right
to receive assistance is one of the fundamental right and more
than that for the sake of the infant child, the financial assistance
has to be given as refusing it will amount to depriving the child
of his/her Free movement of citizenship principles.
 However today one may need to reply on Charter of
Fundamental rights cases too.
 One may see on the above case, the court recognized prospective discrimination
and grants the right to include both parents name in the birth certificate.
 The case of Garcia Avello is very similar to the facts of the question and it is
possible to draw a similar analogy here.
 Moreover, one must look at the Charter of Fundamental Rights article below
concerning children rights as well.
Charter of Fundamental rights
 Article 7
Respect for private and family life Everyone has the right to respect for his or her private and
family life, home and communications.
 Article 24
The rights of the child
1. Children shall have the right to such protection and care as is necessary for their well-being.
They may express their views freely. Such views shall be taken into consideration on matters which
concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the
child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct
contact with both his or her parents, unless that is contrary to his or her interests.
 Article 34

1. The Union recognises and respects the entitlement to social security benefits and social services
providing protection in cases such as maternity, illness, industrial accidents, dependency or old
age, and in the case of loss of employment, in accordance with the rules laid down by Community
law and national laws and practices.
2. Everyone residing and moving legally within the European Union is entitled to social security
benefits and social advantages in accordance with Community law and national laws and practices.
3. In order to combat social exclusion and poverty, the Union recognises and respects the right to
social and housing assistance so as to ensure a decent existence for all those who lack sufficient
resources, in accordance with the rules laid down by Community law and national laws and
practices.
10
 Case C-34/09 Zambrano v ONEm (2011)
The claimant and his wife were Colombian nationals. They applied for
asylum in Belgium. That was refused, but while they were in Belgium they
had two children who acquired Belgian nationality – ie, under the relevant
Belgian law.
They applied to take up residence as ascendants of a Belgian national; Mr
Zambrano also applied for unemployment benefit. Both applications were
rejected. That decision was the subject of a further appeal, and was referred
to the ECJ.
The ECJ allowed the claimant’s appeal. The Court held that Article 20 of the
Treaty on the Functioning of the European Union precluded national
measures which have the effect of depriving citizens of the Union of the
genuine enjoyment of the substance of the rights conferred by virtue of their
status as citizens of the Union.
Regarding the facts of this case, the Court said: ‘a refusal to grant a right of
residence to a third country national with dependent minor children in the
Member State where those children are nationals and reside...has such an
effect’ (paragraph 43). That was because, said the Court,
‘it must be assumed that such a refusal would lead to a situation where those children,
citizens of the Union, would have to leave the territory of the Union in order to accompany
their parents...In those circumstances, those citizens of the Union would, as a result, be
unable to exercise the substance of the rights conferred on them by virtue of their status
as citizens of the Union’ (paragraph 44).
 On the fact, if Hannah’s mothers could able to prove deprivation of genuine
enjoyment of substance of EU rights by the refusal to put both mothers’ names,
violation of citizenship rights will be established.

2022 October Zone B Question 7

Mira, who is a Moroccan national, married Pedro, a Spanish national, in 2020. In 2021
their twin children, Lela and Pablo, were born. Unfortunately, this supposedly happy event
plunged Pedro into a state of depression. He decided to leave his family, leaving them
with no support. In 2022, Mira submitted an application for a residence permit to the
competent national authority on the basis that she is a family member of an EU citizen
and mother of two EU citizens, but the competent authority rejected her application taking
the view that she has insufficient financial resources to remain in Spain.
Mira wants to challenge the decision and seeks your assistance
11
Answer Guideline
 Mira needs an advice pertaining her rights to remain in the EU territory particularly
Spain.
1) Identity Card OR
2) Passport
union country, if:
coverage OR
OR
 On the fact, Morocco is not a EU country. However even in the presence of Pedro,
she may not able to rely of Art 7 of 2004/38 as a family member of accompanying
EU citizen to remain indefinitely in the territory of EU since Pedro has not moved
from Spain and hence this will be a purely internal situation.
 Needless to say, now, Pedro has left and she may struggle to remain in the territory
of EU.
 However she may able to rely on her child right to free movement as their twin
children, Lela and Pablo, were born in Spain and if she had to leave the territory
of Spain, she may need to bring them to Morocco (Non-EU country)
 Case C-413/99 Baumbast and R. (2002)
Mr Baumbast, a German married a Colombian with two children. He worked
in the UK with his family for three years, and left to work in Asia and Africa.
He provided for his family, who stayed in the UK. They got German health
insurance.
The Home Office refused to renew his family's permits. The UK court found
that Mr Baumbast was neither a worker nor a person covered by

the Citizenship Directive 2004/38, and that sickness insurance did not cover
emergency treatment in the UK.
In a joined case, R were the children of an American woman and a French
husband who worked in the UK. They were divorced, the children living with
the mother.
The ECJ held that:
 Mr Baumbast and his family were not a burden on the UK state, so it
would be disproportionate to refuse to recognise his Treaty-based
right of residence simply because sickness insurance did not cover
12
emergency treatment.
 Furthermore, the mother had a right to remain, because Regulation
Art 10 492/11(ex-Article 12 of 1612/68) , read in the light of ECHR
art 8, 'necessarily implies' that the children are accompanied by their
primary carer, even if the carer does not have independent rights
under EU law.
 In Baumbast, the father was still providing for children and the children were
studying.
 Hence in Baumbast, the court could able to rely on Art 12 of 1612/68 (now Art 10
of 492/2011)
 However on the fact, we are unsure whether the children studying or not.
 Even if they were studying Baumbast could be distinguished since on the fact of
Baumbast, the father was a German national working in UK.
 On the fact of the question, the father was a Spanish national working in Spain and
hence Baumbast is distinguished and it may not be possible to grant Mira ‘primary
carer’ status based on Baumbast.

and a work permit to a third-country national with dependent minor children
 Zhu and Chen Case (2004)
13 Ms Chen, a Chinese national travelled to Belfast in order to give birth to her
daughter Catherine on the island of Ireland (i.e. in Northern Ireland or the
Republic). The child was immediately registered as an Irish citizen as
provided for under the Irish Constitution as it then stood.
The family wished to reside in the UK but was refused permission to do so
by the Home Office. To the Chinese government the child was an Irish
national. As a foreigner she could apply to stay in the country of her parents
for not more than 30 days at a time and then only with the permission of the
authorities. The expulsion of Ms. Chen from the UK would therefore lead to
the separation of mother and daughter.
The Court held that denying Ms. Chen the right to reside in the UK to be
with her daughter, who enjoyed such a right, would be “manifestly” contrary
to her daughter’s interests and would be contrary to Article 8 of the
European Convention on Human Rights on the right to respect for family
life.
Ms Chen had to be able to invoke a right of residence deriving from that of
her young child because the contrary would result in entirely depriving her
daughter’s right to reside in the UK of any effectiveness.
 On the fact the children are of Spanish nationality and by virtue of Art 20 and 21 of
TFEU, have right to free movement. Sending them away to Romania by deporting
the mother will be tantamount to stripping their Art 20 and 21 rights.
Union.
 Hence most likely Alina and Mario will be offered right to residence in France.
 The court also explained the test of deprivation of genuine enjoyment of substance
of the rights in other recent cases.

 Case C-133/15 Chávez-Vílchez and Others

any of them.
Stats
14 (1) Seven out of the eight minor EU citizens had never made use of their
children.
rights.
residence status in the Netherlands and thus did not have the right to
receive social benefits
 Judgment:
 Alokpa C-86/12
The applicant in this case was a Togolese national who since 2006 had
been unsuccessfully seeking international protection in Luxembourg. In
2008 she gave birth to twins who were French nationals through their
father. Mrs Alokpa sought to establish a right of residence in Luxembourg
on the basis that she was the mother and sole carer of two French
children. As she had not had the right to work due to her precarious

immigration status prior to the birth of the children, she was relying on
public funds for support. She had a job offer in Luxembourg and needed
confirmation of her right of residence before she could accept the offer.
The CJEU has ruled that in order to establish a right of residence
derived from relationship to the EU national children, the third
country national had to demonstrate that the children, as well
as other family members, were self-sufficient – or had sufficient
resources to maintain themselves without recourse to public
assistance during the period of residence. A job offer could not be
15 viewed as assurance of future self-sufficiency. Thus, Luxembourg was
within their right to refuse Mrs Alokpa the right of residence.
The Court also noted that it was open to Mrs Alokpa to move with the
children to France, which was the country of their nationality even though
they were born in Luxembourg. It was held that it was a question of fact
whether refusal of the residence permit would in effect amount to
expulsion of the family outside the European union and would
thus deprive the children of enjoyment of citizenship of the European
Union. That issue would need to be addressed on a case by case basis
before decisions refusing residence rights to parents of EEA national
children are made.
 One should note that although on the facts of Alokpa, the court stated that the third
country nationals must have sufficient resources to remain in EU if they were
relying on the rights of their children, in Alokpa, deporting the mother will land them
in France which is another EU country but on the facts of the question, the children
will be brought to third country and as such, primary care status must be given to
the mother.

Question 7 2022 October Zone A
Safir, who is a Moroccan national, married Maria, a Spanish national, in 2020. Maria is
an EU citizen. However, she has never exercised her freedom of movement within the
EU. The spouses live together in Pamplona (Spain), with Maria’s father, who is the owner
of several hotels in the area. In 2021 Safir submitted an application for a residence permit
to the competent national authority on the basis that he is a family member of an EU
citizen, but the competent authority rejected his application taking the view that Safir’s
wife (Maria) had not demonstrated that her personal financial resources were sufficient
to meet the needs of her husband, as required by that provision. Safir wants to challenge
16 such a decision and seeks your assistance.
Advise Safir.
Answer Guideline
 Safir needs advice pertaining his right to remain in Spain.
 It should be noted that Safir is a Moroccan national and hence not a EU citizen.
 Furthermore he may not able to rely on Art 7 of 2004/38 since Maria has not
moved from out of Spain which is a pre-requisite for EU law to be applicable
and this situation will be classified as purely internal situation
 In purely internal situation, member state may impose the law as per their
state’s requirement since EU law is not applicable and as such the requirement
for Maria to establish sufficient personal financial resources may be valid.
 Maria may try to rely on Zambrano.

 One should note that the test here is deprivation genuine enjoyment of
substance.
 Although this test was applied to third country nationals who has children born
in Belgium and the children never moved from a member state to another
member state as a pre-requisite for the applicability of EU law, the law was
applied flexibly in order to not to negate the right of free movement of children
17 in reliance to Art 20 and 21 of TFEU (free movement rights).
 However the law is applicable differently when it comes to purely adult situation.
 McCarthy C-202/13 (2011)
Following on from the broad interpretation of Article 20 in the Zambrano
case is the decision of the ECJ in McCarthy v SSHD.
The applicant was a dual British and Irish citizen who was born and always
lived in the UK.
She never worked and received state benefits. In 2002 she married a
Jamaican citizen who had no valid leave to remain in the state. After her
marriage she acquired an Irish passport and sought to assert her and her
husband’s right to free movement within the EU.
The two questions referred to the ECJ were whether a dual British/Irish
citizen who lived her whole life in the UK is a beneficiary of Directive
2004/38.
The second question was where such a person has not satisfied the
relevant part of the directive whether they could still be residing legally
under Article 16 (i.e. to have established a right to permanent residence).
The ECJ found that Mrs McCarthy was not a beneficiary under Article 3 of
the Directive because she had never moved to another member state nor
could her husband derive similar rights. The ECJ declined to answer the
second question.
The court distinguished this case from Zambrano as the national measures
taken against Mrs McCarthy had not deprived her of the genuine enjoyment
of her EU rights.
The denial of access to her EU rights as an adult did not have the same
effect as a similar measure did on the Zambrano children as it did not oblige
her to leave EU territory as a negative decision would have done in
Zambrano. In summary the court found that McCarthy’s case fell outside
EU law and was a matter of purely internal law within the UK.

It is arguable that McCarthy should be limited to its facts as Mrs McCarthy

had never worked or been self-sufficient and so could not rely on her free
movement rights.
It is arguable that dual British/Irish nationals residing in Northern Ireland can
be distinguished from Mrs McCarthy if they are workers, self-employed or
self-sufficient.
 On the fact, in line with the case above, on the fact, Maria never moved from a
state to another state to exercise EU law principles.
 Hence it will not be a deprivation of her genuine enjoyment of substance to
18 refuse to grant residence permit to her husband

Question 4 2021 Zone A

Alina and Mario, both of Albanian nationality, are married and have both resided in France
since 2017. In 2019 their twin girls Lilly and Jean were born and they have French
nationality. Since 2017 Alina and Mario have pursued various occupational activities,
including as a restaurant worker and cleaner but without either of them having any regular
contract. The family has never moved to or resided in an EU Member State other than
France. After the birth of the twins, Alina and Mario applied for permanent residence cards
but their application was rejected. The French authorities simply declared that they were
illegally residing in France and subsequently their case was referred to the police. The
19
family, fearing deportation, seeks your advice on whether EU law can protect them.
Answer Guide
 Alina and Mario needs advice pertaining their right to remain in France.
 It should be noted that Alina and Mario are both not EU nationals. (Albania is not
part of EU)
 Hence it will be impossible for them to rely on Art 6 and 7 of 2004/38 directive as
the directive is only applicable to EU citizens.
 Hence Alina and Mario may have to rely on their children to establish the right to
remain in France.
 It should be noted at this point that Alina and Mario pursuing various occupational
activities also will not bring them under the realm of EU Law (Regulation 494/2011)
since the regulation is generally only applicable for migrant EU workers who are
EU citizens.
Relying on Children rights
 The children on the fact are EU citizens since both of them are born in France.
 Hence Alina and Mario may rely on their children rights to establish their right to
remain in France.
insurance.
the mother.

The ECJ held that:

20
under EU law.
 On the fact of the case above, Mr.Baumbast was a EU national since he was a
German national.
 However on the fact, both parents are Albanian nationals. Hence even of the kids
are studying in France, it will not confer primacy carer status on Alina and Mario.
 However Alina and Mario may rely on Zambrano (2011) and Zhu and Chen case
(2004)

 Zhu and Chen Case (2004)

Ms Chen, a Chinese national travelled to Belfast in order to give birth to her
21 for not more than 30 days at a time and then only with the permission of the
life.
 On the fact the children are of French nationality and by virtue of Art 20 and 21 of
TFEU, have right to free movement. Sending them away to Albania by deporting
the parents will be tantamount to stripping their Art 20 and 21 rights.
Union.
 Hence most likely Alina and Mario will be offered right to residence in France.
 The court also explained the test of deprivation of genuine enjoyment of substance
of the rights in other recent cases.
any of them.
Stats

(1) Seven out of the eight minor EU citizens had never made use of their EU free
movement rights, i.e. had never left the Netherlands.
(3) The other three fathers contributed financially to the children’s care, however the
mothers were still the primary, day-to-day carers of the children.
(4) The relationships with the father varied slightly from case to case: from no contact
with the father (the Chávez-Vílchez, García Pérez, and Uwituze families) to almost
daily contact (Guerrero Chávez).
(5) The case of the Chávez-Vílchez family differs from the others, as the family had
resided in Germany for a couple of years before returning to the Netherlands. It is
22 thus the only case in which the daughter – the EU citizen – had previously made
use of her free movement rights.
(6) In all cases, the applications for social assistance and child benefits were denied
on the basis that the mothers did not have a lawful residence status in the
Netherlands and thus did not have the right to receive social benefits
 Judgment:
 Alokpa C-86/12
The applicant in this case was a Togolese national who since 2006 had
been unsuccessfully seeking international protection in Luxembourg. In
2008 she gave birth to twins who were French nationals through their
father. Mrs Alokpa sought to establish a right of residence in Luxembourg
on the basis that she was the mother and sole carer of two French
children. As she had not had the right to work due to her precarious
immigration status prior to the birth of the children, she was relying on
public funds for support. She had a job offer in Luxembourg and needed
confirmation of her right of residence before she could accept the offer.
The CJEU has ruled that in order to establish a right of residence derived
from relationship to the EU national children, the third country national
had to demonstrate that the children, as well as other family members,
were self-sufficient – or had sufficient resources to maintain themselves
without recourse to public assistance during the period of residence. A job
offer could not be viewed as assurance of future self-sufficiency. Thus,
Luxembourg was within their right to refuse Mrs Alokpa the right of
residence.

The Court also noted that it was open to Mrs Alokpa to move with the
children to France, which was the country of their nationality even though
they were born in Luxembourg. It was held that it was a question of fact
whether refusal of the residence permit would in effect amount to
expulsion of the family outside the European union and would
thus deprive the children of enjoyment of citizenship of the European
Union. That issue would need to be addressed on a case by case basis
before decisions refusing residence rights to parents of EEA national
children are made.
23


Josephine is a French national, who moved from France to Portugal some years ago and
is working as a secretary in a private firm. In January 2021, a permanent position with a
generous salary opens at the town hall of Coimbra, her city of residence. Josephine
applies, but is rejected for this public sector job as she is neither Portuguese, nor
educated in Portugal. Discuss whether EU free movement law can assist Josephine in
this case
Answer Guideline
24
 Josephine is a French national and hence EU national.
 She is protected by Art 20 and 21 of TFEU concerning free movement of
person and all other protections against discrimination given by EU.
 The union element to apply EU law is satisfied since she has moved from
France to Portugal.
Worker
 Art 45:
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on
nationality between workers of the Member States as regards employment, remuneration
and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public
security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the
provisions governing the employment of nationals of that State laid down by law, regulation
or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State,
subject to conditions which shall be embodied in regulations to be drawn up by the
Commission.
4. The provisions of this Article shall not apply to employment in the public service.
 The definition of worker was stated in the case of Lawrie-Blum (1986)

1) Person obliged to provide services to another
2) For remuneration
3) Subject to direction & Control of another
4) For certain period of time
 On the fact, she was working as a secretary in a private firm. The question is
unclear whether she is working in full time or part time position.

 If she could able to prove the requirements under Lawrie-Blum, she could be
considered as a worker. However, if she is working in a part time or low paid
position, she had to refer to the cases below.
Part Time and Low Paid employees
 Levin (1982), the court stated the following requirements for part time worker:
1) Effective and
2) Genuine employment
3) Should not be marginal or ancillary
25  What matters to the ECJ is that a basic qualitative threshold of work has been
met.
 Levin – Chamber maid in Dutch Hotel 20 hours a week & paid 25 pounds was
considered to be worker regardless of her purpose to take the job was to
qualify as a worker to receive social security benefit
 Kempf – 12 hours a week work as music teacher was considered to be a
worker regardless of below minimum wages salary
 Nini-orasche – 2 and ½ month of work over the period of 3 years - The national
court still has to see whether it is an effective and genuine employment.
 It should be noted that as long as it is genuine and effective, they may be
considered as workers
Art 45(4) Derogation
 Art 45(4) TFEU.
The provisions of this article shall not apply to employment in the public service.
 Member states are permitted to exclude foreign nationals from working in the
public service by following Art 45(4).
 By following apparent danger of exploitation of this article by member states, it has
been interpreted restrictively.
 It should be noted that it is only applicable to access to employment, not conditions
of employment after access is granted. (Sotgiu v Deutsche Bundespost) (Case
152/73) (1974)
 Commission v Belgium (Case 149/79) (1980)
“Classification depends on whether or not the posts in question are typical of the specific activities
of the public service in so far as the exercise of powers conferred by public law and responsibility
for safe guarding the general interests on the state are vested in it “
 Lawrie-Blum (1986)
 ECJ held that the derogation only applied to those posts which required ‘a
special relationship of allegiance to the state on the part of persons
occupying them and reciprocity of rights and duties which form the
foundation of the bond of nationality’.
 Colegio de officiales de la Marina Mercante Espanola (Case C-405/01) (2003)
“The court stated that Art 45(4) must be limited to what is strictly necessary for safeguarding
the general interests of the member state concerned, which cannot be imperiled if rights under
powers conferred by public law are exercised only sporadically, veen exceptionally, by nationals of
other member states”

 On the fact,In January 2021, a permanent position with a generous salary opens
at the town hall of Coimbra, her city of residence. Josephine applies, but is
rejected for this public sector job as she is neither Portuguese, nor educated in
Portugal.
 It should be noted that member state couldn’t derogate from general principles by
using Art 45(4) for any public service position.
 It must be a position that requires special allegiance to the state.
 On the fact, it is unclear what is the position is all about
26


Kaspar is an Estonian national, residing in Romania since birth. Kaspar has never entered
into a formal employment contract with anyone, but has carried out odd jobs from time to
time and relied on family funds. In 2018, while attending an English language course, he
fell in love with the tutor, Helen, and married her in 2019. Helen is an American national
who entered the country on a tourist visa in 2016 and never left. In 2020 Kaspar was
arrested for drug possession, but was released shortly afterwards. In 2021 he was again
arrested for drug possession, and an expulsion order was issued in his name. Helen has
received an expulsion order as well, on the grounds that, as a third country national she
27
can only remain in the country if her husband, an EU national, is eligible to stay there.
Advise Kaspar and Helen whether EU law can be of assistance in their case
Answer Guideline
 Kaspar may challenege the deportation order by relying on his EU workers rights.
 Since he is EU national (Estonia is part of EU) and moved to Romania (part of
EU), therefore the union element is satisfied.
Worker
 On the fact, the question stated that Kaspar has no formal employment but
carried out odd jobs from time to time.
2) For remuneration
 On the fact, if Kaspar is just working from time to time, he maybe considered as
part time or low paid employee.
 Case C-456/02 Trojani (2004)
Michael Trojani, a French national, had gone to live in Belgium in 2000. He
lived for a time on a campsite and later stayed in a youth hostel. By early
2002 he was living in a Salvation Army hostel, and in return for board and
lodging and ‘some pocket money’ he did ‘various jobs for about 30 hours
per week as part of a personal socio-occupational reintegration
programme’.
The ECJ took a more generous view with what was described as ‘a personal
socio-occupational reintegration programme’.
ECJ held: this was, in principle, capable of being regarded as falling within
the scope of Article 45 of the TFEU, although ultimately it was a question
for the national court.
The Court stated:
Neither the sui generis nature of the employment relationship under national law, nor the
level of productivity of the person concerned, the origin of the funds from which the
remuneration is paid or the limited amount of the remuneration can have any consequence
in regard to whether or not the person is a “worker” for the purposes of [EU] law.…The

national court must ascertain whether the services actually performed are capable of being
regarded as forming part of the normal labour market
 On the fact, by following Trojani, if the work is effective and genuine, he will be
considered as worker.
Deportation
 Art 27 of TFEU:
Subject to the provisions of this Chapter, Member States may restrict the freedom of movement
and residence of Union citizens and their family members, irrespective of nationality, on grounds
of public policy, public security or public health. These grounds shall not be invoked to serve
28 economic ends.
 Art 27(2)
Measures taken on grounds of public policy or public security shall comply with the principle of
proportionality and shall be based exclusively on the personal conduct of the individual
concerned.
Previous criminal convictions shall not in themselves constitute grounds for taking such
measures. The personal conduct of the individual concerned must represent a genuine, present
and sufficiently serious threat affecting one of the fundamental interests of society. Justifications
that are isolated from the particulars of the case or that rely on considerations of general prevention
shall not be accepted.
 By following Art 27, in order to deport a person based on Public Policy or Public
Security:
(4) Previous criminal convictions shall not be the sole reason for
deportation
(5) The threat concerned must be genuine, present and sufficiently
serious.
 Art 28(1) Directive 2004/38
Before taking an expulsion decision on grounds of public policy or public security, the host Member
State shall take account of considerations such as how long the individual concerned has
resided on its territory, his/her age, state of health, family and economic situation, social
country of origin.
 An expulsion decision may not be taken against Union citizens, except if the decision is based
on imperative grounds of public security, as defined by Member States, if they:
a. have resided in the host Member State for the previous ten years; or
b. are a minor, except if the expulsion is necessary for the best interests of the
child, as provided for in the United Nations Convention on the Rights of the Child
of 20 November 1989.
 By following Art 28(1) Directive 2004/38 the following factors must be taken into
account before deportation:
(1) How long the individual concerned has resided on its territory
(2) His/her age
(3) State of health
(4) Family and economic situations

(5) Social/cultural integration into the host state

(6) His/her links with the country of origin
 By following Art 28(3) of Directive 2004/38, expulsion decision may not be taken
against an individual if:
(1) He/she is a minor
(2) He/she has stayed in the host member state for the previous ten
years
29 most of his life there, was the subject of an expulsion measure to
group.
security".
Member State,
absences,
State
 The Court first of all emphasises that this concept


prevention.
 The national authorities must undertake an individual
host Member State,
30 3) The period which has passed since the offence was
committed
 On the fact, the deportation order must be based exclusively on personal
conduct.
 Since Kaspar is staying in Romania since his birth, he will come within the
realm of enhanced protection under Art 28(3)
 It may be difficult to deport him since he was staying in Romania since birth
has no link with the country he has born.
 The court will analyses the factors above before making decision.
Helen
 On the fact, Helen has received an expulsion order as well, on the grounds that,
as a third country national she can only remain in the country if her husband, an
EU national, is eligible to stay there
union country, if:
coverage OR
OR
 If Helen were to stay with her husband, she could only do that by virtue of being
a family member.
 However the pre-requisite for that is the union citizen must be present with her
and that union citizen must be either a worker or student or not an unreasonable
burden.
 The court had departed from this precedent in Zambrano case. However
Zambrano could be distinguished in this case since there is no children for the
couple here.


Belgian law.
to the ECJ.
31 Treaty on the Functioning of the European Union precluded national
 McCarthy C-202/13 (2011)
lived in the UK.
2004/38.
second question.

of her EU rights.
32 It is arguable that McCarthy should be limited to its facts as Mrs McCarthy
movement rights.
self-sufficient.
Zambrano family.
not recognised.
of the rights conferred by virtue of that status.
this test.
However, a recent opinion of the Advocate General (AG), in case (Case C-
40/11 Iida), shows that the issue of whether or not residence rights need to
be accorded to the primary carer of a British child may not depend solely on
whether or not that British child would otherwise have to leave the EU.

 Analysing the cases above, one may see how the deprivation of genuine
enjoyment of substance test is applicable on the fact.
 On the fact, in the absence of children, Helen’s case will be dealt by Mccarthy.
 Therefore Helen could not argue for deprivation of genuine enjoyment of
substance since her situation is different from the children in Zambrano and
Dereci. This is because :
(1) She is a TCN citizen
(2) She is not in a situation comparable to the children in Zambrano and Dereci
since EU law prima facie is not applicable to her.
33  Although Helen is a worker, she may only able to get benefits under EU law by
virtue of her husband.


Jamie is an Irish national with a doctorate in English from University College Dublin.
During his studies, he married his classmate, Zelda. After graduation, they moved to her
home country, Hungary. Jamie applied for a job as an English teacher in a high school in
Budapest, but he was rejected as, following the interview, it emerged that his knowledge
of Hungarian was only upper intermediate. Jamie has followed an advanced course in
Hungarian and has a certificate from University College Dublin. Yet, according to
Hungarian law, all teachers working in the national education need to have an excellent
level of Hungarian, which is assessed by the employer during an interview. Discuss
34
whether EU free movement law can assist Jamie in this case.
Answer Guideline
 Jamie needs an advice pertaining his legal rights under EU.
 It should be noted that Jamie is a Irish citizen and moved to Hungary, both are EU
countries and Jamie is a EU citizen. Union element is satisfied here.
3) Identity Card OR
4) Passport
union country, if:
coverage OR
OR
 It should be noted that since he is married to Zelda, he may rely on family member
provision under Article 7 of 2004/38 or since he is a EU citizen he may rely on
other provision under Art 7 of 2004/28 if he can satisfy those things.
Job Seeker
 On the fact, Jamie is finding work in Hungary and hence he could be considered
as job seeker.
 Antonissen (1991), the court stated that Job-seekers are entitled for the
protection of workers if they:
1) Continue to seek employment
2) Have genuine chance of success
 On the fact, as long as he continue to search for employment, he will always
have a genuine chance of success and a reason to stay in Hungary

Language Requirement
 On the fact, Jamie applied for a job as an English teacher in a high school in
Budapest, but he was rejected as, following the interview, it emerged that his
knowledge of Hungarian was only upper intermediate.
 Jamie has followed an advanced course in Hungarian and has a certificate from
University College Dublin. Yet, according to Hungarian law, all teachers working in
the national education need to have an excellent level of Hungarian, which is
assessed by the employer during an interview
35
 Case 379/87 Groener v Minister for Education (1989)
Anita Groener, a Dutch national, applied for a job teaching art at the College
of Marketing and Design in Dublin. Even though the classes were to be
taught in English, Irish law required all teachers to have a certificate of
proficiency in Irish which, under the Irish Constitution, is the national and
first official language or Ireland.
Miss Groener failed a proficiency test in Irish and was thus denied the job.
She appealed and the case was referred to the ECJ.
Court held: Irish law was justified under Article 3(1).
The Court stated:
Teachers have an essential role to play, not only through the teaching which they provide
but also by their participation in the daily life of the school and the privileged relationship
which they have with their pupils. In those circumstances, it is not unreasonable to require
them to have some knowledge of the first national language
 On the fact, although the judgment above stated that language proficiency is
important, it should be noted that Jamie has advanced qualification in Hungarian
language.
 Therefore there may not be a reason to deny him the job.
Public Service Derogation
 On the fact, one may have to consider whether the job was refused for Jamie due
to Public service exemption under Art 45(4) of TFEU.
 Art 45(4) TFEU.
152/73) (1974)

 It should be noted that by following the case law above, to refuse a job based on
Art 45(4), there must be a special allegiance to the state. This may be difficult to
prove on the fact as it was just a teacher position.
36

Question 5 October 2020 Zone B

Pierre, a French national, and his partner, Elena, a Romanian national, have been living
in Paris since 2014. Pierre was unemployed at the time, and Elena was working in a small
shop selling spices and herbal remedies. Elena was deported back to Romania in 2019
after the police raided the shop and found on stock a considerable quantity of cannabis.
Pierre followed Elena to Bucharest shortly after. Pierre applied for a residence permit but
he was rejected on the grounds that only workers or married couples are allowed in
Romania.
Advise Pierre and Elena as to their rights under EU law in relation to both Elena’s
37 deportation and Pierre’s right to reside in Romania
Answer Guideline
Deportation
 Elena may wish to challenge her deportation back to Romania.
 It should be noted that Elena is a EU citizen by virtue of that she has right to free
movement.
5) Identity Card OR
6) Passport
union country, if:
coverage OR
OR
 On the fact, Elena was working and hence considered to be worker.
 On the fact, French authorities may rely on Public Policy exception in order to
deport her.
 Art 27 of TFEU:
economic ends.
 Art 27(2)
concerned.

Security:
deportation
38
serious.
country of origin.
a. have resided in the host Member State for the previous ten years; or
b. are a minor, except if the expulsion is necessary for the best interests of the
child, as provided for in the United Nations Convention on the Rights of the
Child of 20 November 1989.
(2) His/her age
(3) State of health
years
 On the fact, Elena was staying in France 5 years prior to her deportation and as
such she may not be qualified under 10 years enhanced protection assurance.
 However the authorities must ensure the threat is genuine, sufficient and present.
 On the fact, police raided the shop and found on stock a considerable quantity of
cannabis
 Based on the fact, it was not proven that she was in possession of cannabis.
 It should be noted that deportation must be exclusively based on personal conduct.
 Therefore she may challenge her deportation order.

Pierre’s Right to reside

 Pierre, a French national, and his partner, Elena, a Romanian national.
 Pierre is now in Romania staying with Elena.
 It should be noted that Pierre is an EU national by virtue of being French Citizen.
 As an EU national, he may reside in any EU member states for 3 months (Article
6 2004/38)
39 union country for more than 3 months, if:
coverage OR
OR
 On the fact, he is not a worker and may rely on Family member provision of
2004/38.
 By following Article 2 of Directive 2004/38, family member means:
1) Spouse
2) Registered partnership equivalent to marriage (in accordance with laws of the
member states)
3) Direct descendants under the age of 21
4) Dependents of self/spouse/partner
5) Dependents of self/spouse/ partner in ascending line
6) Durable relationship duly attested (Article 3(2)(b))
 In the light of differences in national family and matrimonial laws, the question has
been raised as to whether same sex partners can and should enjoy this right on
an equal footing with heterosexual ones. While the Directive is silent on the
problem, MS differ in their attitudes towards same-sex unions entered into in other
MS.
 On the fact, the question indicated that P is the partner of E. However it is unclear
whether it is a registered partnership and whether Romania recognizes such a
partnership in accordance with their existing national laws.
 Anti- discrimination provisions (P may rely)
1. Directive 2000/78
Article 1
Purpose The purpose of this Directive is to lay down a general framework for combating
discrimination on the grounds of religion or belief, disability, age or sexual orientation as
regards employment and occupation, with a view to putting into effect in the Member States
the principle of equal treatment.
2. Charter of Fundamental Rights
Article 9

Right to marry and right to found a family The right to marry and the right to found a family shall
be guaranteed in accordance with the national laws governing the exercise of these rights.
Article 21(1) of the Charter
Any discrimination based on any ground such as sex, race, colour, ethnic or social origin,
genetic features, language, religion or belief, political or any other opinion, membership of a
national minority, property, birth, disability, age or sexual orientation shall be prohibited
3. Treaty of Functioning of European Union
Article 19
1. Without prejudice to the other provisions of the Treaties and within the limits of the powers
conferred by them upon the Union, the Council, acting unanimously in accordance with a
special legislative procedure and after obtaining the consent of the European Parliament, may
40 take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation.
 It should be noted that the Charter Article providing the right to marry (Article 9)
‘neither prohibits nor imposes the granting of the status of marriage to unions
between people of the same sex.
 However, prohibiting same sex couples in the territory is certainly against Art 21(1)
of the Charter and it may even lead to a situation where the EU citizen will leave
the territory, thus, depriving their rights of free movement of person (Zambrano)
 It should be noted that the majority of the eastern European countries do not offer
legal recognition to same-sex relationships and, in fact, a handful of them have –
or have recently introduced – a constitutional ban on same-sex marriage (of the
EU Member States, these are Bulgaria, Croatia, Hungary, Latvia, Lithuania,
Poland and Slovakia)
 Netherlands v Reed (Case 59/85)(11986)
‘In the absence of any indication of a general social development which would justify a
broad construction, and in the absence of any indication to the contrary on the
legislation, it must be held the term “spouse” refers to maritial relationship only’
 On the fact, therefore, Piere and Emily could not be considered as spouse
 Article 2(2)(b) confers rights to family members in relation to Registered
Partnership. But this must be construed narrowly.
1) Who have contracted a registered partnership, on the basis of the
legislation of a member state
2) Where the legislation of the host member state treats registered
partnerships as equivalent to marriage
 Relu Adrian Coman and Others v Inspectoratul General pentru Imigrӑri and Others
(Case C-673/16)(2018)
Mr Relu Adrian Coman, a Romanian national and Mr Robert Clabourn
Hamilton, an American national, lived together in the United States for four
years before getting married in Brussels in 2010.
In December 2012, Mr Coman and his husband contacted the Romanian
authorities to request information on the procedure and conditions under
which Mr Hamilton, in his capacity as a member of Mr Coman’s family, could
obtain the right to reside lawfully in Romania for more than three months.
That request was based on the directive on the exercise of freedom of
movement,1 which allows the spouse of an EU citizen who has exercised

that freedom to join his husband in the Member State in which the husband
is living
In response to that request, the Romanian authorities informed Mr Coman
and Mr Hamilton that the latter only had a right of residence for three months,
on the ground, in particular, that he could not be classified in Romania as a
‘spouse’ of an EU citizen as that Member State does not recognise marriage
between persons of the same sex (‘homosexual marriage’).
CJEU:
 The Court notes that, in the directive on the exercise of freedom of
movement the term ‘spouse’, which refers to a person joined to
41 another person by the bonds of marriage, is gender-neutral and may
therefore cover the same-sex spouse of an EU citizen.
 Nevertheless, the Court states that a person’s status, which is
relevant to the rules on marriage, is a matter that falls within the
competence of the Member States, and EU law does not detract from
that competence, the Member States being free to decide whether or
not to allow homosexual marriage.
 The Court nonetheless considers that the refusal by a Member State
to recognise, for the sole purpose of granting a derived right of
residence to a national of a non-EU state, the marriage of that
national to an EU citizen of the same sex lawfully concluded in
another Member State may interfere with the exercise of that citizen’s
right to move and reside freely within the territory of the Member
States.
 That could have the effect that freedom of movement from one
Member State to another would vary depending on whether or not
provisions of national law allow marriage between persons of the
same sex.
 The obligation for a Member State to recognise a homosexual
marriage concluded in another Member State in accordance with the
law of that state, for the sole purpose of granting a derived right of
residence to a national of a non-EU state, does not undermine the
institution of marriage in the first Member State.
 In particular, that obligation does not require that Member State to
provide, in its national law, for the institution of homosexual marriage
 Article 3(2)(b) (Directive 2004/38)
2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
 B&C v Home Secretary (2012)
High Court accepted that a Swedish man and his Bolivian girl friend were in
durable relationship.
The couple had been together in London for over six years, they had lived
together for most of the time.
The couple had a five year old daughter together.

 On the fact P and E may also consider invoking Article 3(2)(b) to prove their
relationship is durable.
 P and E may also rely on Co-man. However it is unclear from the fact whether they
have registered their partnership in any EU country that recognises them.
42

Question 5 October 2020 (Zone A)
Colin, an Irish national, has cohabited with Priscilla, an Italian citizen, in Germany for over
a year now. Colin is constantly looking for paid employment and periodically works as a
wedding singer for a small number of hours a month. Priscilla is a part-time singing
teacher and trains to be a yoga teacher for 10 hours a week. Priscilla and Colin take part
in a peaceful, yet unauthorised protest to protect the environment. While blocking one of
the main avenues in their town, the police intervened and arrested Priscilla and Colin. A
deportation order was issued in their names.
Advise Colin and Priscilla as to their rights under EU law.
43
Answer Guideline
 Priscilla and Collin are EU nationals and hence they have free movement within
EU as per 2004/38
 In order to challenge their deportation order, it will be easier if they can prove
they are workers.
1) Identity Card OR
2) Passport
union country for more than 3 months, if:
coverage OR
OR
 On the fact, they may have to prove that they are workers.
Worker
 Art 45:

Commission.

44 6) For remuneration
 On the fact, both of them may face trouble in construing them as workers due
to irregular nature of work in terms of hours and remuneration.
 Colin is constantly looking for paid employment and periodically works as a
wedding singer for a small number of hours a month. Priscilla is a part-time
singing teacher and trains to be a yoga teacher for 10 hours a week
 C and P may try to construe themselves as part time or low paid employees
4) Effective and
 What matters to the ECJ is that a basic qualitative threshold of work has been
met.
 Nini-orasche – 2 and ½ month of work over the period of 3 years - The national
court still has to see whether it is an effective and genuine employment.
 On the fact, Colin is constantly looking for paid employment and periodically
works as a wedding singer for a small number of hours a month. Priscilla is a
part-time singing teacher and trains to be a yoga teacher for 10 hours a week
 It should be noted that as long as it is genuine and effective, they may be
considered as workers
Job Seeker
 On the fact, Collin may be qualified to be a job seeker as well since he is
actively finding while working as wedding singer periodically.


 On the fact, as long as he continue to search for employment, he will always
have a genuine chance of success and a reason to stay in Germany.
Deportation
 Priscilla and Colin take part in a peaceful, yet unauthorised protest to protect the
environment. While blocking one of the main avenues in their town, the police
intervened and arrested Priscilla and Colin. A deportation order was issued in their
names.
45  Art 27 of TFEU:
economic ends.
 Art 27(2)
concerned.
Security:
deportation
(10) The threat concerned must be genuine, present and
sufficiently serious.
country of origin.
c. have resided in the host Member State for the previous ten
years; or
d. are a minor, except if the expulsion is necessary for the best
interests of the child, as provided for in the United Nations
Convention on the Rights of the Child of 20 November 1989.

(2) His/her age
(3) State of health
46 (2) He/she has stayed in the host member state for the previous ten
years
group.
security".
Member State,
absences,
State
 the Court first of all emphasises that this concept


prevention.
47 the aim pursued, in the light in particular of the nature
host Member State,
committed
 On the fact, the deportation order must be based exclusively on personal
conduct.
 It is unclear whether the principle of enhanced protection applicable here
since the question is vague as to the number of years they have stayed in
Germany.

2020 May Question 7
Sabin is a Spanish national who moved to France in August 2018 to work as a project
manager in the software company “CalTech”. His appointment was on a fixed-term
contract of six months. One month before the expiry of the term, “CalTech” informed Sabin
of its decision not to renew his contract. He then started looking for jobs in France. At the
end of March 2019, he received invitation to an interview for a similar position in the
software company “Pynchon”, based in Paris. After the interview, the company told Sabin
that they could not hire him because of a specific piece of French legislation. This provides
that employment in software companies must be granted exclusively to persons who have
48 resided in France for the previous four years, or who have an engineering degree from a
French university.
Sabin seeks your advice as to any violations of EU law.
Answer Guideline
Worker
 Art 45:
Commission.

2) For remuneration
 It should be noted that Sabin satisfied all the requirements above when he
was a project manager.
 As such he is a worker as per Art 45 TFEU.
Previously Employed
 Sabin’s appointment was on a fixed-term contract of six months.

 One month before the expiry of the term, “CalTech” informed Sabin of its
decision not to renew his contract.
 Directive 2004/38 Article 7(3) stated that a worker may still retain his
classification as worker if the loss of job is involuntary in the following
circumstances:
(a) He is temporarily unable to work due to sick/injury
(b) He has worked for more than 12 months + Registered as a job
seeker
(c) He has worked on a fixed term contract of lesser than a year
or involuntary employment recorded within first 12 months +
49 Registered as a job seeker– Worker classification retained for
6 months
(d) He went on to pursue education (Continuity requirement may
be applicable)
 On the fact, since Sabin was employed lesser than 6 months and his
unemployment is involuntary, he may retain the status of worker for 6 months
provided he registered as a job seeker.
 Case C-413/01 Ninni-Orasche (2003)
An Italian worker had applied for a maintenance grant for a higher education
course in languages at an Austrian university after losing her job as a
waitress.
Her waitressing job had been on a fixed-term basis, and she had known this
from the outset. It was argued that, because she knew before she took the
job that she would subsequently lose it, her unemployment was in a sense
chosen and thus ‘voluntary’.
The ECJ rejected this:
While a contract of employment is generally the result of negotiations, it is nonetheless true
that cases in which the worker has no influence over the terms and type of contract of
employment which he may conclude with an employer are not unusual…in some
occupations it is common practice to conclude fixed-term contracts of employment and
there are various reasons for this such as the seasonal nature of the work, the fact that the
relevant market is sensitive to economic fluctuations or the possible inflexibility of national
employment law.
 On the fact, even if Sabin knew about the nature of his fixed term contract, he could
be still considered as involuntarily unemployed worker.
Restrictions imposed by French legislation
Residing in France for 4 years

 Since Sabin still retain the classification as a worker, he may challenge this rule
in line with Regulation 492/2011.
 Articles 3 and 4 – Eligibility for Employment
Article 3(1): Under this Regulation, provisions laid down by law, regulation or administrative action
or administrative practices of a Member State shall not apply:
where they limit application for and offers of employment, or the right of foreign nationals to take
up and pursue employment or subject these to conditions not applicable in respect of their own
nationals; or

where, though applicable irrespective of nationality, their exclusive or principal aim or effect is to
keep nationals of other Member States away from the employment offered.
 On the fact, it is an indirect discrimination since it was stated that you must reside
in France for 4 years prior to employment in software companies.
 This requirement though applicable irrespective of nationality, will be easier for
nationals of France to comply with.
 Case C-237/94 O’Flynn v Adjudication Officer (1996)
UK social security legislation provided for a benefit to cover the cost of
burial or cremation of deceased persons incurred by the person taking
responsibility for the arrangements – but only if the burial had taken
50 place in the UK.
O’Flynn, an Irish national working in the UK, was denied this benefit
which he claimed for the cost of his father’s burial because that was to
take place in Ireland.
ECJ stated:
β A greater proportion of UK nationals than nationals of other EU
MS would satisfy the burial requirement and thus it was indirectly
discriminatory.
 Case 152/73 Sotgiu v Deutsche Bundespost
The German Post Office paid a separation allowance to all employees
forced by work to live away from their families: 10 DM (German
deutschmark) per day was paid to workers who family home was in
Germany; 7.5 DM per day was paid to all other employees.
ECJ Stated
β German nationals were far more likely to qualify for the higher
allowance than migrant workers.
Engineering Degree from French University
Qualification Directive 2005/36
Article 2(2)
Each Member State may permit Member State nationals in possession of evidence
of professional qualifications not obtained in a Member State to pursue a regulated
profession within the meaning of Article 3(1)(a) on its territory in accordance with its
rules. In the case of professions covered by Title III, Chapter III, this initial recognition shall
respect the minimum training conditions laid down in that Chapter.
Article 3(1)(a) defined ‘regulated profession’:
‘regulated profession’: a professional activity or group of professional activities, access to
which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or
indirectly, by virtue of legislative, regulatory or administrative provisions to the possession
of specific professional qualifications; in particular, the use of a professional title limited by
legislative, regulatory or administrative provisions to holders of a given professional
qualification shall constitute a mode of pursuit. Where the first sentence of this definition
does not apply, a profession referred to in paragraph 2 shall be treated as a regulated
profession;
It follows that a ‘profession’ may be regulated in some member states but
not necessarily all of them.

It depends on whether access to the profession is subject in any given state

to the possession of qualifications.
Aranitis (Case C-164/94) (1996)
 The applicant had higher-education qualifications in geology
awarded in Greece.
 However when he purported to rely upon these in Germany the was
told that the profession of geology was un regulated in Germany and
hence the Directive did not apply.
Burbaud (Case C-285/01
51  The case involved a Portuguese national who wished to reply upon
her hospital administrator’s qualification awarded by the University of
Lisbon in order to secure a managerial position within the French
national health service.
 The French authorities refused, insisting upon possession of specific
French qualifications.
 The court however rejected the French Government’s arguments
and held that the definition of regulated profession was a matter of
EU law.
 Indeed, it had to be otherwise national legislatures could arbitrarily
and unilaterally determine what was within the scope of the EU
legislation on qualifications.
Article 3(2) of the Qualifications Directive adds that a profession practiced
by the members of an association or organization listed in Annex 1 shall be
treated as regulated profession.
Chapter 1 of 2005/36 applied to all regulated professions not covered by
chapter 2 or Chapter 3. It divided professional competence into 5 levels:
Level 1 Attestation of Competence

 Issued by a competent authority in the home state on
the basis of a training course not forming part of a
certificate or diploma, or three years’ full time
professional experience, or general primary or
secondary education, attesting that the holder has
acquired ‘general knowledge’ (Art 11(a))
Level 2 Certificate
 Attesting to successful completion of a secondary
course which is either ‘general’ or technical or
professional’ in character, and which in either case is
supplemented by a course of study or professional
training (Art 11(b))
Level 3 Diploma
Certifying either

(i) Successful completion of training at post-secondary

level of at least one year’s duration (full time) or the
equivalent part-time duration, or
(ii) Training with a special structure which provides a
comparable professional standard and which
prepares the trainee for a comparable level of
responsibilities and functions (Art 11(C))
Level 4 Diploma
Certifying successful completion of a training at post-secondary
level of at least three and not more than four years duration (full
52 time), or the equivalent part time duration, at a University or
equivalent establishment, plus any additional professional
training which may be required. (Art 11(d))
Level 5 Diploma
Certifying successful completion of a post-secondary course of
at least four years’ duration (full time), or the equivalent part
time duration, at a University or establishment, plus successful
completion of any additional professional training required.
(Art11(e))
Art 13
1. If access to or pursuit of a regulated profession in a host Member State is
contingent upon possession of specific professional qualifications, the competent
authority of that Member State shall permit access to and pursuit of that profession,
under the same conditions as apply to its nationals, to applicants possessing the
attestation of competence or evidence of formal qualifications required by another
Member State in order to gain access to and pursue that profession on its territory.
Attestations of competence or evidence of formal qualifications shall satisfy the following
conditions:
(a) they shall have been issued by a competent authority in a Member State,
designated in accordance with the legislative, regulatory or administrative provisions
of that Member State;
(b) they shall attest a level of professional qualification at least equivalent to the
level immediately prior to that which is required in the host Member State, as
described in Article 11.
2. Access to and pursuit of the profession, as described in paragraph 1, shall also be
granted to applicants who have pursued the profession referred to in that paragraph on a
full-time basis for two years during the previous 10 years in another Member State
which does not regulate that profession, providing they possess one or more
attestations of competence or documents providing evidence of formal qualifications.
Attestations of competence and evidence of formal qualifications shall satisfy the following
conditions:

level immediately prior to that required in the host Member State, as described in
Article 11;
(c) they shall attest that the holder has been prepared for the pursuit of the
profession in question.
53 Summary of Article 13
 First Step: Find out how the professional qualification is obtained in
the member states concerned.
 For example: Imagine that Germany requires 5 years’ study at
University for a given profession, while the UK merely requires three
years. The German qualification will be at level 5 and the British at
Level 4.
 Germany cannot reject the British qualification as the Qualifications
Directive requires member states to accept qualifications obtained
in other member states at least equivalent to the level immediately
below that which is required in the host state.
 Germany must accept a level 4 qualification, though may impose
compensation measures.
Article 14
Article 13 does not preclude the host Member State from requiring the applicant to
complete an adaptation period of up to three years or to take an aptitude test if:
(a) the duration of the training of which he provides evidence under the terms of
Article 13, paragraph 1 or 2, is at least one year shorter than that required by
the host Member State;
(b) the training he has received covers substantially different matters than those
covered by the evidence of formal qualifications required in the host Member State;
Colegio de Ingenieros de Caminos, Canales y Puertos (Case C-
330/03)(2006)
 The court concluded that just because a host member state was
entitled to require an applicant from another state to satisfy one of
the measures before being allowed to practice a profession in the
host state, it did not follow that it was obliged to do so.
 Instead the court created the possibility of partial recognition of an
applicant’s qualifications, allowing him or her to practice in the
areas in which they were actually qualified.
Adaptation period: Article 3(1)(g)

adaptation period’: the pursuit of a regulated profession in the host Member State under
the responsibility of a qualified member of that profession, such period of supervised
practice possibly being accompanied by further training. This period of supervised
practice shall be the subject of an assessment. The detailed rules governing the
adaptation period and its assessment as well as the status of a migrant under supervision
shall be laid down by the competent authority in the host Member State.
Aptitude Test: Article 3(1)(h)
‘aptitude test’: a test limited to the professional knowledge of the applicant, made by the
competent authorities of the host Member State with the aim of assessing the ability of
54
the applicant to pursue a regulated profession in that Member State. In order to permit
this test to be carried out, the competent authorities shall draw up a list of subjects which,
on the basis of a comparison of the education and training required in the Member State
and that received by the applicant, are not covered by the diploma or other evidence of
formal qualifications possessed by the applicant.
Obligation to assess equivalence

 If the applicant does not possess a diploma, they may unlikely fall
under Art 11 or Art 13 of Directive 2005/36.
 However the court have imposed an obligation to assess
equivalence in two possibilities:
1) Applicant does not have Diploma
2) Where a profession is unregulated in the host state.
 Under Obligation to assess equivalence: (Vlassopoulou)(Case C-
340/89) (1991)
1) The host state must compare the candidate’s qualifications with
those awarded in the host state in order to establish whether or
not they were equivalent.
2) The person concerned must be given reasons why their
qualifications are not deemed to be equivalent.
(a) Full Equivalence
(b) Partial equivalence (aptitude test; adaptation period)
(c) No equivalence
3) The decision must be subject to judicial review.
 On the fact, if engineering is a regulated profession in France and Spain in line
with Article 3(2)(b), Sabin’s degree will be recognised in France provided he
satisfies Article 11.
 Aptitude or Adaptation tests maybe requested to ensure compliance.

Question 7 2020 May (Zone A)

Alberto trained as a chef in his home country Italy and worked in various Italian and other
European countries before settling in Paris, France, with his family. Throughout his
career, Alberto has always been an active member of different trades unions, fighting for
workers’ rights. Since his relocation to Paris, Alberto has become much more active and
has published a series of articles in the French and foreign press, denouncing abuses
towards staff in the hospitality industry across Europe. Three years ago, he initiated a
pan-European protest, whereby 5,000 cooks around Europe went on strike for a day
claiming better wages for temporary staff. Alberto has applied for a position as executive
55 chef at the Elysée Palace, to lead the kitchen feeding the President of the Republic. He
was not even interviewed, and Philippe, a less-qualified French national, got the job. The
feedback Alberto received from the panel was that, as a foreigner, he was not eligible for
this job. Moreover, given his profile, he would qualify as a threat to the president. Alberto
wonders if EU law can help him challenge the decision of the panel.
Answer Guideline
 Alberto may challenge the refusal of job application to be an executive chef Elysée
Palace, to lead the kitchen feeding the President of the Republic
 French government has given 2 reasons for the refusal:
(1) Foreigners are ineligible for the job
(2) His profile is a threat to the president.
Foreigners ineligible for the job
 Art 45(4) TFEU.

 The provisions of this article shall not apply to employment in the public service.
152/73) (1974)

 On the fact, the position is executive chef for the president and definitely it involves
special allegiance to the state.
Threat to President
 On the fact:
(1) Alberto has always been an active member of different trades unions, fighting
for workers’ rights.
(2) Published a series of articles in the French and foreign press, denouncing
56 abuses towards staff in the hospitality industry across Europe.
(3) Initiated a pan-European protest, whereby 5,000 cooks around Europe went
on strike for a day claiming better wages for temporary staff
 It should be noted that member states may use the reasons above to negate the
job offer by indicating public policy and public security as grounds for refusal
(Article 45(3) TFEU).
 One could draw analogy to Art 27 of directive 2004/38 for guidance as to the
derogations
 By following Art 27 of 2004/38, in order to deport a person based on Public Policy
or Public Security:
(4) Previous criminal convictions shall not be the sole reason for deportation
(5) The threat concerned must be genuine, present and sufficiently serious
 Although on the fact, deportation is not an issue, the similar factors could be taken
into account to decide refusal of job offer due to public policy and public security.
 It was stated in the requirements above that the threat must be genuine, present
and sufficiently serious.
 On the fact, Alberto was merely fighting for the rights of workers especially staff in
hospitality industry.
 It should be noted that Alberto may use the following rights in Charter of
Fundamental Rights to put forth his defence:
(1) Article 12 - Freedom of assembly and of association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association at all
levels, in particular in political, trade union and civic matters, which implies the right of everyone
to form and to join trade unions for the protection of his or her interests.
2. Political parties at Union level contribute to expressing the political will of the citizens of the
Union
(2) Article 28 - Right of collective bargaining and action
Workers and employers, or their respective organisations, have, in accordance with
Community law and national laws and practices, the right to negotiate and conclude collective
agreements at the appropriate levels and, in cases of conflicts of interest, to take collective
action to defend their interests, including strike action
2019 Re-sit Question 3

John, an Irish national with a degree in the History of Art and Architecture (from a
prestigious Irish university), lives in Ireland, but travels often to other states of the
European Union whenever he obtains a contract to carry out work as an independent
tourist guide. He has just found out that a major French travel agent wants to conclude
several important contracts with him. However, the French state refuses to grant him the
necessary authorisation. In France, all tourist guides are considered to provide public
services, and they have to either reside permanently in France or be French nationals. In
Italy, the private travel company, Pluto, refuses to employ him, as they consider his
knowledge of Italian to be inadequate. Advise John whether EU law can assist him.
57
Answer Guideline
 John needs an advise pertaining
(1) His job status as tourist guide
(2) Refusal by Pluto based on John’s qualification.
 Since John is an Irish national and Ireland is part of EU, John may rely on his
citizenship rights first.
union country, if:
coverage OR
3) Student + Not an unreasonable burden + Comprehensive insurance
coverage OR
 John can stay for 3 months in Italy and if he intended to stay more than 3 months,
he needs to satisfy the above requirements.
 Since John is an independent tourist guide, he may rely on Art 49 of TFEU on Free
Movement of establishment as a self-employed person.
 Art 49 of TFEU:
Within the framework of the provisions set out below, restrictions on the freedom of
establishment of nationals of a Member State in the territory of another Member State shall
be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies,
branches or subsidiaries by nationals of any Member State established in the territory of any
Member State.
Freedom of establishment shall include the right to take up and pursue activities as
self-employed persons and to set up and manage undertakings, in particular companies
or firms within the meaning of the second paragraph of Article 54, under the conditions laid
down for its own nationals by the law of the country where such establishment is effected,
subject to the provisions of the Chapter relating to capital.
 However Italy may derogate from Art 49 of TFEU under Public Service exemption
Public Service Exemption

 Article 51 of TFEU:
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to
activities which in that State are connected, even occasionally, with the exercise of official authority
public service by following Art 51 of TFEU
152/73) (1974)
58  Commission v Belgium (Case 149/79) (1980)
 On the fact, one has to decide whether Tourist guide profession requires special
allegiance to the state.
 In France, all tourist guides are considered to provide public services, and they
have to either reside permanently in France or be French nationals
 Tourist guides represent the country to tourists and hence it could be said they
have special allegiance with the state.
 However the profession of Tourist guide should not be equated to the people in
armed forces and police.
Qualification
 In Italy, the private travel company, Pluto, refuses to employ him, as they consider
his knowledge of Italian to be inadequate. Advise John whether EU law can assist
him.
 It should be noted that John has a degree in the History of Art and Architecture
(from a prestigious Irish university).
 However the degree obtained in Ireland may not be sufficient since he will be
dealing in Italian History.
 The Italian company may have to assess the equivalence of the degree with the
similar degree in Italian University.
 Obligation to assess equivalence
 However the court have imposed an obligation to assess equivalence in two
possibilities:


 Under Obligation to assess equivalence: (Vlassopoulou)(Case C-340/89)
(1991)
(a) Full Equivalence
59
(b) Partial equivalence (aptitude test; adaptation period)
(c) No equivalence
 Pluto has to assess the compatibility of the degree obtained in Ireland in
comparison with similar degree obtained in Italy.
 If it shows full equivalence, then John must be admitted.
 If there is partial equivalence, then he must be subject to aptitude test or adaptation
test.
 Adaptation period: Article 3(1)(g) 2005/36
practice possibly being accompanied by further training. This period of supervised practice
shall be the subject of an assessment. The detailed rules governing the adaptation period
and its assessment as well as the status of a migrant under supervision shall be laid down
by the competent authority in the host Member State.
 Aptitude Test: Article 3(1)(h) 2005/36
‘aptitude test’: a test limited to the professional knowledge of the applicant, made by the competent
authorities of the host Member State with the aim of assessing the ability of the applicant to pursue
a regulated profession in that Member State. In order to permit this test to be carried out, the
competent authorities shall draw up a list of subjects which, on the basis of a comparison of the
education and training required in the Member State and that received by the applicant, are not
covered by the diploma or other evidence of formal qualifications possessed by the applicant.
 If there is no equivalence, then the job maybe refused to him ut the decision must
be subject to judicial review.

Marcel is a French national who moved to Germany in 2005 with his mother, following the
divorce of his parents in 2004. He has since completed high school education, and
married Elsa, a German citizen. Marcel and Elsa now have two minor children. Marcel
has never worked, and in June 2018 he was arrested for drug trafficking. A deportation
order was issued against him. Marcel would like to know if he can rely on EU citizenship
law in order to fight deportation.
Answer Guideline
 Marcel needs an advice pertaining his deportation order.
60  On the fact, UK authorities may rely on Public Policy exception in order to deport
him
Derogations
 Art 27 of TFEU:
economic ends.
 Art 27(2)
concerned.
Security:
deportation
country of origin.
e. have resided in the host Member State for the previous ten
years; or

f. are a minor, except if the expulsion is necessary for the best

(8) His/her age
(9) State of health
61
years
 On the fact, in June 2018 Marcel was arrested for drug trafficking
 The threat that Marcel posed must be genuine, present and sufficiently serious
and he should not be taken as a criminal and be deported if he merely join any
institution
 Furthermore, he has 2 minor children and he has resided in since 2005 satisfying
enhanced protection threshold which is at 10 years.
 Georgios Orfanopoulos (2003)
Georgios Orfanopoulos, a Greek national, entered the territory of the
Federal Republic of Germany as a 13 year old in 1972 in order to join his
parents. In 1978, he returned to Greece for two years in order to carry out
his military service. In 1980, he re-entered Germany and, one year later,
married a German national. The marriage produced three children.
Mr Orfanopoulos has pursued various activities as an employed person
(interrupted by long periods of unemployment). He is a drug addict, has
been convicted nine times for drug-related offences and crimes of violence
and has been in prison several times. His stays in rehabilitation clinics were
brief as he had to be discharged on disciplinary grounds.
ECJ:
 The Court answered the question at what time the present threat
needs to be assessed. It considered that ‘in practice circumstances
may arise between the date of the expulsion order and that of its
review by the competent court which point to the cessation or the
substantial diminution of the threat which the conduct of the person
ordered to be expelled constitutes to the requirements of public
policy
 The court gave factors to consider before deporting a person:
1) The nature and seriousness of the offence committed
2) The length of residence in the host member state

3) The period which has lapsed since the commission of the offence
4) The family circumstances of the person concerned
5) The seriousness of the difficulties which the spouse and any of
their children risk facing in the country or origin of the persons
concerned.
62 more than five years for dealing in narcotics as part of an organised
group.
security".
Member State,
absences,
State
prevention.


host Member State,
committed
63 and the solidity of the social, cultural and family ties with
 The Court points out that in the case of a Union citizen who has lawfully spent most
or even all of his childhood and youth in the host Member State, very good reasons
would have to be put forward to justify the expulsion measure
 On the facts, did Germany has very good reasons to justify the expulsion measure.
 The facts are very vague here.
Child Protection
 It should be also noted here that:
Article 24 - The rights of the child (Charter of Fundamental Rights)
child''s best interests must be a primary consideration.
any of them.
Stats
(1) Seven out of the eight minor EU citizens had never made use of their
children.

rights.
64 residence status in the Netherlands and thus did not have the right
to receive social benefits
 Judgment:
 In Zambrano, the court stated that ‘deprivation of genuine enjoyment of substance’
should be the test to be used in order to find out the breach of Art 20 of TFEU to
the child.
 After this ground-breaking decision, the Court swiftly backtracked and
curtailed Ruiz Zambrano in several subsequent decisions on this issue.
(1) It held that this ‘genuine enjoyment’ protection did not apply to adults being
separated from their spouses (McCarthy), or to
(2) Adults separated from their parents (Ymeraga and Others), nor to
(3) Children separated from only one of their parents, whilst the other was able to
remain with them (Dereci and Others).
(4) The hope that Ruiz Zambrano had created a European citizenship beyond free
movement, one that was serious about protecting fundamental rights
(especially family reunification rights), was quickly pronounced dead.
 On the fact, both father and mother are EU citizens. It is very difficult for Marcel to
argue for deprivation of genuine enjoyment of substance for child since even if the
child were to follow him, it will be to France which is a EU member state.


Laura is an Italian student studying philosophy at a university in France. She assures the
French authorities that she has sufficient resources as well as sickness insurance. In
order to support herself, Laura does occasional work in a restaurant. In the course of her
studies she becomes very ill, and it turns out that for the last year or so she has not paid
her insurance contributions under the private hospital insurance policy she had taken out.
As a result, the French authorities refuse to offer her treatment. They claim that, as an
Italian citizen, she is not entitled to state-subsidised healthcare, and advise her to return
to Italy. Advise Laura
65
Answer Guideline
 Laura needs an advice pertaining her rights to receive medical treatment in France
and the request of French authorities who asked her to return to her state.
 Since Laura has not paid her insurance premium (which is a requirement to live
more than 6 months in any host member state as per Art 7 of 2004/38), she may
try to establish rights under Reg 492/2011 as a worker.
Worker
 Art 45 of TFEU stated the general right of free movements of workers
 According to Art 45 of TFEU:
(1) Freedom of movement for workers shall be secured within the Union.
(2) Such freedom of movement shall entail the abolition of any discrimination based on nationality
between workers of the Member States as regards employment, remuneration and other
conditions of work and employment.
2) For remuneration
 On the fact, Laura does occasional work in a restaurant

 As the question indicates that Laura undertakes occasional job, one may try
to classify her as part time worker.
1) Effective and
met.


 Nini-orasche – 2 and ½ month of work over the period of 3 years - The
national court still has to see whether it is an effective and genuine
employment.
 On the fact, it was not made clear how many hours she was working. As long
as the work is an effective and genuine work, she will be classified as a worker
and qualifies to receive benefits under Regulation 492/2011
 Article 7 Reg 492/2011
1. A worker who is a national of a Member State may not, in the territory of another Member
66 State, be treated differently from national workers by reason of his nationality in respect of
any conditions of employment and work, in particular as regards remuneration, dismissal,
and, should he become unemployed, reinstatement or re-employment.
2. He shall enjoy the same social and tax advantages as national workers.
 If Laura can be considered a worker, then she should be entitled to the same
treatment as French workers (assuming that is state-subsidised healthcare)
Citizenship Rights
 Since it is unclear whether Laura could be considered as a worker or not, once has
to decide her case based on citizenship status of her.
 Since she is a Italian national, she is considered to be a national of EU
union country, if:
coverage OR
coverage OR
 If she don’t have enough insurance coverage, she cannot be staying for more than
3 months in the host member state.
 Grzelczyk v Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve (2001)
Rudy Grzelczyk was French, studying in Belgium, and supporting himself
for 3 years of study. Citizens Rights Directive article 7(1)(c) required this.
He applied for a minimum income, or ‘minimex’ to fund the fourth and final
year.
He was refused for not being Belgian. He was not a worker, but claimed he
had a right as an EU citizen resident under TFEU art 21 and as a student
under Directive 2004/38. This, however, required (now CRD art 7(1)(c)) that
he had sufficient resources.
The Court of Justice, Grand Chamber, held that Grzelczyk was entitled to
the minimex.

Although CRD art 7(1)(c) required a student to have sufficient

resources, there was no requirement to preclude students receiving
social security. TFEU art 21 with art 18 precluded the Belgian law
discriminating against Grzelczyk.
“Union Citizenship is destined to be the fundamental status of nationals of the Member
States, enabling those who find themselves in the same situation to enjoy the same
treatment in law irrespective of their nationality, subject to such exceptions as are expressly
provided for”
 As such, by drawing analogy, although Laura must have sufficient resources,
receiving social security benefit will not make her as an unreasonable burden.
67  However one should distinguish the above case since here Laura do not have
health insurance as well.
 Bidar (Case C-209/03) (2005)
Mr Bidar, a French national, entered the territory of the UK, accompanying
his mother who was to undergo medical treatment there. In the UK, he lived
with his grandmother, as her dependant, and pursued and completed his
secondary education without ever having recourse to social assistance.
He then started a course in economics at the University College London.
While Mr Bidar received assistance with respect to tuition fees, his
application for financial assistance to cover his maintenance costs, in the
form of a student loan, was refused on the ground that he was ‘ordinarily
resident’ in the UK for at least three years prior to submitting the application.
The UK legislation excluded the time spent ‘wholly or mainly for the purpose
of receiving full time education’
He brought proceedings against that refusal alleging indirect discrimination.
ECJ stated:
 The British rules were indirectly discriminatory.
 Bidar, as a French national lawfully resident in the UK, had the right
to challenge these rules using a combination of Art 18 and Art 21(1).
 However, in Bidar the ECJ held that although the MS have the power
to limit the grants to those students sufficiently integrated, a blanket
prohibition would not be accepted as it would mean that no students
would qualify.
 On the fact, Italy claim that, as an Italian citizen, she is not entitled to state-
subsidised healthcare in France.
 It should be noted that having health insurance is one of the requirement for a
student. To distinguish from above cases, the students there qualified as a student
in all requirements.
 However since Laura failed to qualify as a student (since health coverage expired),
it is doubtful whether she could rely on Bidar.
 Case C-333/13 Elisabeta Dano, Florin Dano v Jobcenter Leipzig
Two Romanian nationals, Ms Dano and her son Florin, have brought
proceedings before the Social Court, Leipzig (Germany), against Jobcenter
Leipzig, which refused to grant them benefits by way of basic provision

They are, for Ms Dano, subsistence benefit and, for her son, social
allowance as well as a contribution to accommodation and heating costs
Ms Dano did not enter Germany in order to seek work there and, although
she is requesting benefits by way of basic provision which are only for
jobseekers, it is apparent from the case-file that she is not seeking
employment.
She has not been trained in a profession and, to date, has not worked in
Germany or Romania.
She and her son have been residing since at least November 2010 in
Germany, where they live in the home of Ms Dano’s sister, who provides
68 for them. Ms Dano receives, for her son, child benefit amounting to €184
per month and an advance on maintenance payments of €133 per month.
ECJ stated:
 The host Member State is not obliged to grant social assistance
during the first three months of residence. Where the period of
residence is longer than three months but less than five years (the
period which is at issue in the present case), one of the conditions
which the directive lays down for a right of residence is that
economically inactive persons must have sufficient resources
of their own.
 The directive thus seeks to prevent economically inactive Union
citizens from using the host Member State’s welfare system to
fund their means of subsistence.
 A Member State must therefore have the possibility of refusing to
grant social benefits to economically inactive Union citizens who
exercise their right to freedom of movement solely in order to obtain
another Member State’s social assistance although they do not have
sufficient resources to claim a right of residence;
 It should be noted that Laura is not exploiting the generosity of EU as in the case
of Dano. She was genuinely qualified as a student but only failed in one of the
requirement at much later stage.
 It should be noted that any deportation orders against her might be against Art 29
of 2004/38.
Derogations
 Article 29 of 2004/38:
1.The only diseases justifying measures restricting freedom of movement shall be the diseases
with epidemic potential as defined by the relevant instruments of 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 Member State.
2. Diseases occurring after a three-month period from the date of arrival shall not
constitute grounds for expulsion from the territory.

3. Where there are serious indications that it is necessary, Member States may, within three
months of the date of arrival, require persons entitled to the right of residence to undergo, free of
charge, a medical examination to certify that they are not suffering from any of the conditions
referred to in paragraph 1. Such medical examinations may not be required as a matter of
routine.
 The question never stated what the illness that Laura has is.
 By following Art 29 of 2004/38, one 2 categories of illness can justify deportation:
(a) Diseases with epidemic potential (defined by World Health Organization)
(b) Other infectious diseases or contagious parasitic diseases (protection
69
applicable to nationals as well)
 Furthermore, if she has contracted the disease 3 months after her arrival to France,
she cannot be deported based on the illness.
 The French authorities could ask her to go through medical examination before the
three months mark. However this cannot be made as a routine to everyone.


Karen is a single mother of Danish nationality, who has been living for the past six months
in Berlin (Germany). While looking for a full-time job, she works on a part-time basis in a
travel agency and is financially supported by her 20-year-old son, Jens. Karen’s latest
application for the post of a receptionist at the information desk of the Pergamon Museum
in Berlin, which belongs to the German State, was unsuccessful. The Museum justified
the rejection on the following grounds:
a) employment in the German public service is reserved to German nationals; and
70
b) all posts relating to German historical and cultural heritage can only be occupied by
persons with an in-depth knowledge of the German culture. Karen lacked the relevant
qualifications.
To what extent can Karen rely on the freedom of movement of workers under EU law and
can she challenge the rejection of her job application by the Pergamon Museum?
Answer Guideline
 Karen needs an advise pertaining her rights to work in German Museum she
applied for.
7) Identity Card OR
8) Passport
union country, if:
coverage OR
OR
 On the fact, Karen could stay for 3 months in Germany with her ID and passport
and could stay longer if she falls under Art 7 of 2004/38 as the question indicate
that she is a worker.
 Karen may also rely on Art 18, 20 and 21 of TFEU to enforce citizenship rights of
her.
year.

under the Students under Directive 2004/38. This, however, required (now
CRD art 7(1)(c)) that he had sufficient resources.
the minimex.
Although CRD art 7(1)(c) required a student to have sufficient resources,
there was no requirement to preclude students receiving social security.
TFEU art 21 with art 18 precluded the Belgian law discriminating against
71 Grzelczyk.
provided for”
 By following the above case, Karen may argue that she has Art 18 TFEU right as
to anti-discrimination and Art 21 right to move freely.
 She has to prove direct discrimination in order to prove the above.
 Art 18:
Within the scope of application of the Treaties, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
 Art 21:
Every citizen of the Union shall have the right to move and reside freely within the territory of the
Member States, subject to the limitations and conditions laid down in the Treaties and by the
measures adopted to give them effect.
 Art 20:
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member
State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace
national citizenship
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the
Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
Worker
2) For remuneration

 On the fact, Karen, works on a part-time basis in a travel agency and is financially
supported by her 20-year-old son, Jens
 Usually part time workers could not able to satisfy the requirements of
remuneration as it will be below national minimum wages or the working hours per
week since it is part time job by nature.

 As the question indicates that Karen undertakes part-time jobs, one may try
to classify her as part time worker.
72  Levin (1982), the court stated the following requirements for part time worker:
7) Effective and
met.
employment.
 On the fact, it was not made clear how many hours she was working. As long
as the work is an effective and genuine work, she will be classified as a worker
and qualifies to receive benefits under Regulation 492/2011
Job Seeker
 On the fact, Karen may be qualified to be a job seeker as well since she wa
finding for job while working as part time worker
 Lebon (1987)
The court stated that job-seekers has no right to obtain social security assistance
 Collins (2004)
The Court held that Job-seekers could able to obtain social security assistance by
applying for it. However there is no guarantee that they will obtain it.
Brian Collins, of dual US-Irish nationality, arrived in the UK in May 1998 to
look for work.
In June, he applied for job-seeker’s allowance, a benefit under the
Jobseekers Act 1995. In July, his application was refused on the ground
that he was not ‘habitually resident’ in the UK (as required by the
Jobseekers’ Allowance Regulations 1996).

It is noted that EU nationals who were ‘workers’ or who had a right of

residence under Directive 68/360 – were exempted from the ‘habitually
resident’ requirement; however Collins fail the conditions to be exempted.
He challenged this.
The ECJ held that, although Collins was a work-seeker/job-seeker,
following Antonissen (1991), he was protected from all discrimination based
on nationality within the scope of EU law by Article 18 of the TFEU.
The ECJ held that this requirement was potentially indirectly discriminatory
against foreign nationals, on the basis that UK nationals would be more
likely to satisfy it, but it was nevertheless justifiable.
73 The Court stated that it
‘may be regarded as legitimate for a Member State to grant such an allowance only after it
has been possible to establish that a genuine link exists between the person seeking work
and the employment market of that State’.
However, the ‘habitual residence’ test was subject to the ‘proportionality’
principle. The ECJ held that its application by the national authorities ‘must
rest on clear criteria known in advance and provision must be made for the
possibility of a means of redress of a judicial nature’.
Finally, any period of residence laid down in the national rules
‘must not exceed what is necessary in order for the national authorities to be able to satisfy
themselves that the person concerned is genuinely seeking work in the employment market
of the host Member State’.
 Vatsouras & Koupatantze (2009)
The court stated that it is legitimate for a Member State to grant such
benefits only after the work-seeker/job-seeker has established a ‘real link’
with the labour market of that state.
On the fact, the question indicated that M begins to find another job but she
was working on the meantime.
One must also consider whether the requirements established in Collins as
to proportionality test is satisfied or not. On the fact the habitual residence
requirement was not defined. This may defeat member states interest as
per CJEU’s judgment in Collins.
 On the fact, as long as Karen continue to look for work and had genuine chance
of success, she could be classified as job seeker as well. However as indicated
previously the benefits of job seekers will be by discretion of the state.
Art 45(4) Derogations

 On the fact, Germany stated that employment in the German public service is
reserved to German nationals
 Art 45(4) TFEU.
152/73) (1974)


74 the general interests of the member state concerned, which cannot be imperiled if rights under
 On the fact, one has to decide whether receptionist post at the information desk
of the Pergamon Museum in Berlin, which belongs to the German State requires
special allegiance to the state.
 Since it is museum and the post that she is applying for is receptionist, it is highly
doubtful that the court will accept the argument of Germany here as working as
receptionist in local museum never require special allegiance to the state.
Qualification Requirement
 Germany stated that all posts relating to German historical and cultural heritage
can only be occupied by persons with an in-depth knowledge of the German
culture. Karen lacked the relevant qualifications.
 One should draw analogy with Free Movement of services case here.
Commission v France (Tourist Guides)(Case C-154/89)(1999)
 French legislation required all tourist guides accompanying groups of
tourists to take an exam in order to become licensed. The commission
alleged that this was breach of Article 56.
 France argued that it was necessary to ensure that guides gave
tourists correct artistic and cultural information.
 The ECJ held that the French legislation was a prima facie
infringement of Article 56, because it prevented self-employed tour
guides from offering their service to tourists. It also prevented tourists
from taking part in such organized tours from availing themselves at
will of the service in question. However ECJ held that licensing
requirements was justifiable, in principle.
I. It was non-discriminatory, as it applied to French nationals
hoping to work as tourist guides as well as to other nationals
II. It was least justifiable, as it sought to ‘ensure the protection of
general interests relating to the proper appreciation of places
and things of interest and the widest possible dissemination of
knowledge of the artistic and cultural heritage of the country.
III. It was capable of achieving these objectives.
IV. The final question was whether the license requirement was
actually necessary. Here, the court held that it went too far, at
least as far as general tourist information was concerned.

Forcing tourist companies to employ only licensed guides

would inevitably lead some tour operators to have recourse to
local guides instead of their own staff. That, in turn, could leave
tourists with a guide unfamiliar with their language, their
interests and their specific expectations. Moreover, the fierce
competition under which tour companies operated meant that
they were obliged voluntarily to exercise control over the tour
guides they employed.
 On the fact:
(i) The rule was non-discriminatory as it is applicable to Germans and foreign
75 nationals equally.
(ii) The imperative requirement will be preservation of national heritage in
terms of knowledge as to history.
(iii) It is capable of achieving the objectives.
(iv) However it may not be proportionate since Karen just applied for
receptionist post and receptionist may not require to convey valuable
information to the tourist unlike tour tour guide.
 Scotch Whisky Association and others (Appellants) v The Lord Advocate and
another (Respondents)(Scotland) (2017)
CJEU
 The AG assimilated the analysis of proportionality under articles 34
and 36 TFEU into three stages
(1) Appropriateness
(2) Necessity
(3) A balancing of interest
 CJEU has assimilated 2 stages approach:
(1) Appropriateness
(2) Necessity
 On the fact, please decide according to the proportionality test stated above.
 However if Germany require all the people holding or applying for the post, it will
be dealt under Art 3 of Reg 492/2011
nationals; or
 Article 3(1) shall not apply to conditions relating to linguistic knowledge required by reason of the
nature of the post to be filled.

The Court stated:
76 but also by their participation in the daily life of the school and the privileged relationship
them to have some knowledge of the first national language.
 On the fact, by following the above case, one has to decide is there a necessity for
a receptionist to know the language?

2017 Question 6 Re-sit

Pawel is a Polish citizen. As part of his college studies, he spent one year in the UK in
2013. In 2014 and 2015 he returned there for a stay of approximately nine months during
which he did part-time work in a bookshop. In 2016 he returned to Poland to get married.
He returned to the UK on 1 January 2017 in order to find work. In April he claimed
jobseeker’s allowance which was refused by the British authorities on the grounds that:
(a) he was not habitually resident in the UK;
(b) he had not been resident in the UK for an appreciable time;
77 (c) pursuant to EU law he was not a worker nor did he have the right to reside in the
UK.
Advise Pawel on how EU law can assist him.
Answer Guideline
 Pawel needs an advise pertaining his rights under EU Free Movement of Worlers
especially job seekers.
9) Identity Card OR
10) Passport
union country, if:
coverage OR
OR
 On the fact, Pawel is a job seeker. His rights were not expressly guaranteed by
Directive 2004/38 as it never mentioned job seeker as part of the priciples.
 However Pawell, may rely on Art 18, Art 20 and Art 21 of TFEU to insist on his
citizenship rights.
year.

the minimex.
Grzelczyk.
provided for”
78  By following the above case, Pawel may argue that he has Art 18 TFEU right as
to anti-discrimination and Art 21 right to move freely.
 Although on the fact, Pawel is job seeker rather than a student, he was a student
in 2013 and he was working in UK on 2014 and 2105 for 9 months.
 As such it is difficult to argue that he is exploiting the social security benefit of the
host state.
 Similarities between Pawell and Grzelczyk
(a) Grzelczyk supported himself for 3 years of study He applied for a minimum
income, or ‘minimex’ to fund the fourth and final year only
(b) Pawell was a student in 2013 and he worked for 9 months in 2014 and 2015.
He came to UK in 2017 to find job.
 If the court follows the above interpretation, the UK authorities may not able to
deport him and have to give him job seekers’ allowance for his sustainment and
survival regardless of him not having sufficient resources and being an
unreasonable burden to the host state.
 Art 18:
 Art 21:
 Art 20:
 On the fact, the requirements pointed by UK authorities namely he was not
habitually resident in the UK and he had not been resident in the UK for an
appreciable time could be interpreted as an indirect discrimination and therefore
Pawel may not face issues in relying on Art 18 of TFEU.
 Additionally there are 2 points to note about Pawel:
(1) He spent 1 year as a student
(2) He was working for approximately 9 months between 2014 and 2015

Student
 It should be noted that Pawell is not a student anymore and as such he cannot
insist on his rights as a student by following Directive 2004/38
Worker
79 between workers of the Member States as regards employment, remuneration and other
6) For remuneration
 On the fact, one may satisfy that he was providing services (question is vague on
this point) and he was subject to the direction and control of another.
 However he working part time over the course of 2 years (2014 and 2015)
 As the question indicates that Pawel undertakes part-time jobs, one may try
to classify him as part time worker.
10) Effective and
met.
employment.
 On the fact, it was not made clear how many hours he was working. As long
as the work is an effective and genuine work, he will be classified as a worker
and qualifies to receive benefits.
 However he stopped working in 2016 to return to Poland to get married.
 One may have to see whether he stopped working voluntarily or involuntarily.
(1) Voluntary unemployment
Upon voluntary resignation, he is stopped from enforcing his rights
under Art 45 of TFEU and Regulation 492/2011 as he is not a
worker anymore

(2) Involuntary unemployment

Directive 2004/38 Article 7(3) stated that a worker may still retain
his classification as worker if the loss of job is involuntary in the
following circumstances:
(e) He is temporarily unable to work due to sick/injury
(f) He has worked for more than 12 months + Registered as a job
seeker
(g) He has worked on a fixed term contract of lesser than a year
or involuntary employment recorded within first 12 months +
Registered as a job seeker– Worker classification retained for
80 6 months
(h) He went on to pursue education (Continuity requirement may
be applicable)
Florea Gusa v Minister for Social Protection and Others (20
December 2017)(Case C-133/15)
 In Gusa, the Grand Chamber of the Court was confronted
with the question of the rights of ‘non-economically’ active
citizens. Mr Gusa, a Romanian citizen, moved to Ireland and
for a period he worked as a self-employed plasterer.
 However, he gradually lost all his customers and left without
an income, he registered as a jobseeker and applied for a
jobseeker’s allowance in November 2014.
 The Irish authorities refused Mr Gusa’s application as Mr
Gusa no longer had a right to reside in Ireland because he
had ceased his activities as a ‘self-employed’ person and
could not therefore be considered as economically active.
 The Court after a series of restrictive judgments such as
Dano, held that self-employed persons should be
guaranteed the same rights as employed people even in the
event of unemployment,
 The Court ruled that a national of a Member State retains
the status of self-employed person where, after having
lawfully resided in, and worked as a self-employed person in
another Member that national has ceased that economic
activity for reasons beyond his/her control.
 The Court did emphasise however, that his/her
unemployment should be duly recorded.
 The Court went on to distinguish Gusa from Dano and
explained that it would be ‘particularly unjustified’ if a Union
citizen who has worked in the host Member State and who
has contributed to its social security and tax system by
paying taxes, rates and other charges on his income, was
treated in the same way as a first-time job seeker in that
Member State ‘who has never carried on an economic
activity in that State and has never contributed to that
system’.

 On the fact, it seems he resigned from his work to return to Poland to get
married. Therefore he could not rely on involuntary employment and has to
rely on Job Seekers classification.
Job Seeker
81  Lebon (1987)
 Collins (2004)
look for work.
He challenged this.
The Court stated that it

 Office National de l'Emploi (ONEM) v. Ioannidis (Case C-258/04)
Belgian legislation provided for the grant of unemployment benefits, known
as "tideover allowances", to young persons who had just completed
secondary education in a Belgian educational establishment.
82 A young person who completed his secondary education in another
Member State was eligible to the tideover allowance only if at the time of
the application he was the dependent child of a migrant worker for the
purposes of the EC Treaty who was residing in Belgium
The ONEM rejected the application on grounds that, according to national
legislation, he had not completed his secondary education in a Belgian
educational establishment. I appealed against the decision on the basis that
the legislation at issue as interpreted by the ONEM was clearly contrary to
Art.39 EC (Now Art 45 TFEU)
ECJ held that:
 It is contrary to Article 39 EC (Now Art 45 TFEU) for a Member State
to refuse to grant a tideover allowance to a national of another
Member State seeking his first employment who is not the dependent
child of a migrant worker residing in the Member State granting the
allowance, on the sole ground that he completed his secondary
education in another Member State.
 Inasmuch as it links the grant of the allowance to the requirement
that the applicant has obtained the required diploma in that Member
State, this condition is likely to be met more easily by national citizens
and therefore risks placing nationals of other Member States at a
disadvantage.
Factual discussions
Habitual Residency
 On the fact, it is difficult for UK government to harp on Habitual residency
requirement without a clear criteria/definition in explaining it
 As per the ECJ in the case of Collins (2004), such a requirement must have:
(1) Definition
(2) Proportionate
(3) Subject to judicial review
 On the fact, it is unclear whether there is a definition for the requirement or not
Not been resident in the UK for an appreciable time

 By following the case of Vatsouras & Koupatantze (2009), the court stated that it
is legitimate for a Member State to grant such benefits only after the work-
seeker/job-seeker has established a ‘real link’ with the labour market of that state.
 As stated earlier, any requirements imposed should carry definition and the phrase
“appreciable time” is vague to its nature.
 Most likely the court will not accept this requirement without a definition.
He was not a worker nor did he have the right to reside in the UK.
 It should be noted that as a Polish Citizen, Pawel has a right to reside in UK for 3
83 months (Art 6 Directive 2004/38) and more than 3 months if he satisfy the
requirements under Art 7 of Directive 2004/38
 Although he is not a worker, he still stand a chance to try his luck as a job seeker
by following the case of Antonissen.
 It considered that if citizens could move to another Member State only if they
already had a job offer, the number of people who could move would be very small
and freedom of movement would be rendered practically irrelevant.
 The Court has thus acknowledged that in order to make full use of the EU's labour
potential it is necessary not only to enable persons to take up employment in
another Member State but also to facilitate their jobseeking there
 By following Art 45(3)(a) of TFEU, he has right
to accept offers of employment actually made;
 In essence, as long as he continue to search for job and has genuine chance of
success, he may reside in UK.
 Article 14(4)(b) of Directive 2004/38:
the Union citizens entered the territory of the host Member State in order to seek employment. In
this case, the Union citizens and their family members may not be expelled for as long as the Union
citizens can provide evidence that they are continuing to seek employment and that they have a
genuine chance of being engaged.

Question 3 2017 Zone A/Zone B

John Kerry is an Irish rugby player. At the end of the 2015/16 season he was engaged by
the Paris Rugby Club to take part in the final stage of the French Rugby championship.
Kerry played two matches only for Paris and the team managed to win the league. After
some complaints from another club, the French Rugby Association decided to deduct five
points from the score of the Paris Rugby Club and award to another team the
championship on the grounds that the Paris Rugby Club should not have fielded Kerry.
The Association argued that Mr Kerry’s move to the Paris Rugby Club breached the rules
concerning transfers of players. These rules prohibit clubs from fielding in the national
84
championship players coming from other leagues if they have been transferred after the
second half of the season.
Mr Kerry asks your advice on whether rules of a sports federation which prohibit a club
from fielding a player in a competition if he has been engaged after a specified date are
compatible with the principle of freedom of movement for workers.
Advise Mr Kerry.
Answer Guideline
 Mr.Kerry needs an advise pertaining whether the rules of a sports federation which
prohibit a club from fielding a player in a competition after a specific date are
compatible with EU law?
 It is to be noted that Article 45 of TFEU is applicable to team sports such as football,
rugby, basketball and hockey.
 Individual sportsmen and women, such as golfers and tennis players are not
protected by Article 45 because they are not employed by anyone.
 It also should be noted that EU law only applies to professional or semi-
professional sport, but not to purely amateur sporting activities.
 EU law also does not apply to questions of purely sporting interest such as
the number of players on a team or the actual rules of the sports itself.
 On the fact, Kerry is a Ruby player and as such he is covered under Art 45 of
TFFEU
10) For remuneration
 It is clear that Kerry can satisfy the requirements above since Rugby is group
sports

 Since the restriction here is as to transfer, prima facie there is a breach of Free
Movement of Workers.
 However French Rugby association may try to argue that this is pure sporting rule
Pure Sporting Rule (acquis communautaire sportive (“EU Sport Acquis”))
 The specificity of sporting activities and of sporting rules not covered under EU
law:
(1) Separate competitions for men and women,
(2) Limitations on the number of participants in competitions
85 (3) Need to ensure uncertainty concerning outcomes
(4) Preserve a competitive balance between clubs taking part in the same
competition
(5) Autonomy and diversity of sport organisations,
(6) Pyramid structure of competitions from grassroots to elite level
(7) Organised solidarity mechanisms between the different levels and operators,
(8) Principle of a single federation per sport
 Walrave and Koch (Case 36/74) (1974)
Bruno Walrave and Longinus Koch, Dutch nationals, were motorcycle
pacemakers.
This entails them riding ahead of cyclists in medium-distance cycle races,
for whch they received payment.
In 1973, the Association Union Cysliste International (AUCI) issued a rule
that pacemakers in the World Championship which AUCI organized, had to
be of the same nationality as the cyclist.
W and K challenged this rule on the basis that it interfered with their
Freedom to provide services.
ECJ stated that both Article 18 and 56 of TFEU could be raised to challenge
discrimination.
However on the fact it was held to be purely sporting interest and EU law
did not apply since it has nothing to do with economic activity.
 Kolpak (Case C-438/00) (2003)
Bosman was followed in Kolpak in the context of handball which is very
popular in Germany.
In 1997, Maros Kolpak, a Slovakian handball player, signed for the German
club TSV Ostringen.
The German Handball Association (DHB) issued him with a player’s permit
marked ‘A’ for Auslander (foreigner).
Under DHB rules only two squad places were available to foreigners.
Kolpak challenged this claiming that it limited his playing opportunities and
was contrary to prohibition of discrimination against foreign nationals.
The ECJ held that the rules were discriminatory and could not be justified
on ‘purely sporting grounds’.

In future clubs were free to field an unlimited number of nationals of other

EU member states, nationals of EEA state and nationals of EU Association
states.
 C-519/04 P - David Meca-Medina, Igor Majcen v Commission (2007)
Two professional swimmers who tested positive for Nandrolone during a
World Cup competition were suspended by the International Swimming
Federation (FINA) under the Olympic Movement’s doping control rules
They then filed a complaint with the Commission challenging the
compatibility of certain doping control regulations adopted by the IOC with
86 the Community rules on competition and freedom to provide services.
ECJ stated:
 The Court of Justice confirmed that rules on sport are subject to
Community law in so far as it constitutes an economic activity.
 If those rules do not constitute restrictions on freedom of movement
of persons and freedom to provide services because they concern
questions of purely sporting interest, that fact does not mean that
the sporting activity in question necessarily falls outside the
scope of the Community rules on competition.
 It underlined first that the general objective of the rules is to combat
doping in order for competitive sport to be conducted fairly and that
it includes the need to safeguard equal chances for athletes, athletes’
health, the integrity and objectivity of competitive sport and ethical
values in sport.
 Even if the anti-doping rules at issue are to be regarded as a decision
of an association of undertakings limiting the appellants’ freedom of
action, they do not, for all that, necessarily constitute a restriction of
competition incompatible with the common market since they are
justified by a legitimate objective.
 Even if rules of that kind could prove excessive by virtue of, first, the
conditions laid down for establishing the dividing line between
circumstances which amount to doping in respect of which penalties
may be imposed and those which do not, and second, the severity
of those penalties, the Court concluded that the restrictions which
that threshold imposes on professional sportsmen do not go beyond
what is necessary in order to ensure that sporting events take place
and function properly
 By analyzing the cases above:
(1) Kolpak – “Foreigner tag” – Not Pure sporting rule
(2) Walrave and Koch – Nationality of pace makers for cyclist – Pure sporting rule
(3) Meca-Medina – Anti-doping rules- Even if purely sporting rules, it is still not
outside of EU
 On the fact, even if the transfer window is purely sporting matter, it is not outside
of EU law.

Bosman Ruling
 Before the Bosman case, a professional footballer at the expiry of his contract
could be transferred to his new club only if the latter paid his old club a transfer
fee.
 There was also a 3+2 rule in regards to fielding a non-national players in football
teams in UK.
 Bosman v Royal Belgian Football Association and UEFA (Case C-415/93) (1995)
Transfer Fee
Jean-Marc Bosman was a professional football player under contract of a
87
Belgian first division club. When the end of his contract approached in 1990,
he refused to sign a new contract with his club and was placed on the transfer
list for a transfer fee based on his training costs and other pre-determined
factors
When no club showed interest in his contract during the month-long
compulsory transfer period, Bosman –as an unclaimed player- signed a
contract with a French second-division club
Bosman’s Belgian club never filed the certification papers required to finalise
the transfer and subsequently suspended him, preventing him from playing
the entire season
Consequently, Bosman brought an action against his Belgian club, RC
Liège, the Belgian football association URBFSFA (Union royale belge des
sociétés de football association) and UEFA (Union of European Football
Associations)
ECJ held:
 The Court reasoned that the transfer fee system did not effectively
maintain the legitimate objective of financial and competitive balance
because the rules neither prevented the richest clubs from
monopolising the best players nor reduced the decisive impact of
finances on the strength of competition
 Court indicated that these goals could be achieved by other, less-
restrictive means which do not impede worker’s freedom of
movement
 Consequently, the CJEU declared transfer rules adopted by sports
associations according to which, at the expiry of his contract, a
professional footballer could be transferred to his new club only if it
paid his old club a transfer fee to be an obstacle to the free movement
of workers.
Bosman created 2 categories on transfer fee:
1) Out of Contract - Total abolition of transfer fee
2) Under Contract – Subject to transfer fee. The fee operates as
compensation to the selling club for the loss of players.

3+2 Ruling
The case also involves a challenge to a rule devised by UEFA, known as
the 3+2 rule.
The rule which was enforced by all national football associations in Europe,
applied to football clubs competing in certain competitions:
1) National Championship
2) UEFA Cup – Now the Europa League
3) The Champions cup – Now the Champions League
4) European Cup Winners’ cup (now defunct)
88 It meant that they could only field three non-nationals plus two affiliated
players (those players had played in the country for an uninterrupted period
of five years).
The ECJ held that the rule constituted a breach of Article 4 of regulation
492/2011 which prohibits imposition of quotas on the employment of foreign
nationals.
Article 4 Regulation 492/2011:
Provisions laid down by law, regulation or administrative action of the Member States which
restrict by number or percentage the employment of foreign nationals in any undertaking,
branch of activity or region, or at a national level, shall not apply to nationals of the other
Member States.
The net result is that the 3+2 rule was disapplied as far as it concerned EU
nationals although it could still be applied to non-EU nationals.
 On the fact, by following the case of Bosman, Kerry can play in Paris Rugby Club
from another club without transfer fee for the transfer.
 Since he is an Irish player and hence an EU Citizen, he cannot be discriminated
with any rules imposing a quota on number of foreign players can participate in
French Ruby championship.
 However Bosman was qualified in Lehtonen (2000)
 Lehtonen (2000) (Case C-176/96)
In 1996, towards the end of the basketball season, Lehtonen, a Finnish
national, transferred from a team in Finland to Castors, in Belgium, who
intended to play him during the final stages of the Belgian Championships.
However rule 3(c) of the international Basketball Federation (FIBA)
provided that European clubs were not allowed, after a deadline on 28
February to include their team players who had already played in another
European country during that season.
Consequently, FIBA refused to issue a license for Lehtonen to play in
Belgium that season and warned Castors that the club might be penalized
if it played him.
However Castor did play him in a match the next day, which they won, only
to have the game awarded to their opponents by a score 20-0.
As the club ran the risk of being penalized again or even relegated if he
played, Lehtonen was dropped for the remainder of the season.

A few days later, Castros and Lehtonen brought proceedings challenging

the FIBA rules.
The case was referred to ECJ, which held, first, that rule 3(c) did restrict the
free movement of basketball players but, second that it was justified.
In particular, it prevented bigger clubs from distorting the run-in to the
league championship by trying to buy the best players from rival clubs.
 In the Lehtonen case, the transfer rules regarding a “transfer window” of the
Belgian basketball federation came under scrutiny.
 The CJEU ruled that the setting of deadlines for transfers of players may meet the
89 objective of ensuring the regularity of sporting competitions and therefore may be
objectively justified
 The Court reasoned that late transfers might be liable to change substantially the
sporting strength of one or other team in the course of the championship, thus
calling into question the comparability of results between the teams taking part in
that championship, and consequently the proper functioning of the championship
as a whole
 However, as the rules of the basketball federation established different deadlines
for EU and non-EU citizens, the Court ruled that these went beyond what is
necessary to achieve the aim pursued
 On the facts, the rule as to transfer windows maybe legitimate since Paris Rugby
club won the league with just 2 matches played by Kerry.
 That shows late transfer may impact the fate of the match and teams and questions
the proper functioning of the championship as a whole.
 However, the rules of the Rugby Union must comply with the following
requirements:
(1) Non-discriminatory
(2) Objective justifications
(3) Proportionate
 On the fact,
The rule maybe presumed to be non-discriminatory as there are no facts
to suggest contrary.
However if the rule is only applicable to national of other member states
and not to nationals of France, it may be construed as a direct
discrimination and contrary to Bosman case.
(2) Objective Justifications
One may argue the objective justification here could be ‘fairness Sports
It prevents bigger clubs from distorting the run-in to the league
championship by trying to buy the best players from rival clubs.
(3) Proportionality
On the fact, the punishment for breaching the rule is deduction of five
points from the score of the Paris Rugby Club and the match awarded

to another team the championship on the grounds that the Paris Rugby
Club have breached the rule.
Since it is near the end of season and after the final match played, it
seems the punishment here is proportionate to the aim.
90


John, a British national, moved to France with a view to settle there permanently. As a
former investment banker he had considerable holdings in shares in British companies
and also savings in a British bank, as well as private health insurance. He had therefore
no problem obtaining a residence permit from the French authorities. In 2015 he
encountered considerable financial difficulties. The value of his shares collapsed and the
value of the pound in France deteriorated sharply. In January 2016 he therefore took on
an occasional job as a waiter in the local restaurant, but given the slump in the economy
also in France his services were only infrequently called upon by the restaurant owner.
91
He also has to seek hospital treatment. When he asks to be treated in the local hospital
he is asked to pay for his treatment. His private health insurance refuses to cover the
costs as he has fallen behind with his payments for the insurance. However, he discovers
that French nationals would receive the hospital treatment free of charge. What is worse,
when the French authorities hear about his request to be treated in the hospital free of
charge, they decide, without further investigation into his financial situation, to revoke his
residence permit on the ground that he no longer fulfils the necessary conditions for
residence in France. Advise John as to his rights under EU law.
Answer Guideline
 John needs an advice pertaining his right to receive free medical treatment.
Citizenship
 According to Article 6, a union citizen can stay in another EU member state for 3
months with
11) Identity Card OR
12) Passport
union country, if:
coverage OR
OR
 On the fact, John can come under (2)nd limb as he has sufficient resources to not
to become unreasonable burden to the host state as he has considerable savings
in British banks and shares and private insurance scheme (question is very vague
on which country)

year.
the minimex.
92 there was no requirement to preclude students receiving social security.
Grzelczyk.
provided for”
 On the fact, John could rely in Art 21 and Art 18 of TFEU to argue that regardless
of the requirement of “sufficient resources”, he can still rely on Art 8 and 21 to
establish the principle of non-discrimination.
 Art 18:
 Art 21:
 Art 20:
 On the fact, there are no indications of any positive discrimination by French
authorities.
Worker
 If the court never accepts the above argument, John may try to rely on his rights
as worker. (Art 45 TFEU)
 Art 45:

93 Commission.

(9) Person obliged to provide services to another
(10) For remuneration
(11) Subject to direction & Control of another
(12) For certain period of time
 On the fact, John was infrequently needed as a worker. He could not able to
satisfy the requirement number 4.

 As the question indicates that John undertakes occasional jobs, one may try
13) Effective and
met.
employment.
and qualifies to receive benefits.
 On the fact, if he is considered to be a worker, he is most likely eligible to get
the hospital benefit.
 According to Article 7(2) of 492/2011:

Derogations
Public Security
circumstances:
1) Public Policy
2) Public Security
3) Public Health
 Article 28
94 1. Before taking an expulsion decision on grounds of public policy or public security, the host
country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their
group.
security".
Member State,
absences,

State
95  It adds however that the conduct of the person concerned
prevention.
host Member State,
committed
 On the fact, it depends on the Court to deport him under the reason of Public
Security in line with the above case. As the facts are unclear, it is difficult to
advice on the facts.

Mette, a Danish national, and her husband Viktor, a Russian national, move to the
UK from Denmark with their two-year-old son, Frederic. The UK authorities grant
residence permits to the entire family. Mette has been offered a job as a journalist
with a fashion magazine, Sparkle. However, on the day Mette’s job is due to begin,
the magazine’s publishers decide to close down Sparkle in response to poor sales.
Mette begins to search for another journalism job. In the meantime, she finds work
as a ‘runner’ for a reality television programme, making coffee, running errands and
answering the telephone for two or three hours a day, for which she receives travel
96 expenses and modest remuneration.
Mette’s earnings from working as a ‘runner’ are very low, and after two months Mette
and Viktor have exhausted their savings. Mette applies for jobseeker’s allowance
(the social security allowance paid to unemployed people) and child benefit for
Frederic. Mette is refused jobseeker’s allowance on the ground that she is not
habitually resident in the UK. She is also informed that she is not entitled to receive
child benefit because she has never worked in the UK. Viktor, who previously worked
as an art teacher in Denmark, and wishes to retrain to teach mathematics in the UK.
He applies for a place on a teacher training course, and also for a bursary (a
maintenance grant) offered by the UK government to encourage applicants due to a
national shortage of maths teachers. Viktor is told by the UK authorities that he is
not eligible for a bursary payable from public funds because he is not a national of
an EU Member State. Advise Mette and Viktor of any rights under European law.
Answer Guideline
Mette (as Worker)

 Art 45:
Commission.

 On the fact, M lost her job on the first day as the company closed down.
 Mette begins to search for another journalism job. In the meantime, she finds
work as a ‘runner’ for a reality television programme, making coffee, running
errands and answering the telephone for two or three hours a day, for which
she receives travel expenses and modest remuneration.
 M could be classified as Job-Seeker and still be covered under Art 45 of TFEU
Job Seeker
97 protection of workers if they:
 Lebon (1987)
 Collins (2004)
look for work.
He challenged this.


The court stated that it is legitimate for a Member State to grant such benefits only
after the work-seeker/job-seeker has established a ‘real link’ with the labour market
of that state.
 On the fact, the question indicated that M begins to find another job but she was
working on the meantime.
 One must also consider whether the requirements established in Collins as to
proportionality test is satisfied or not. On the fact the habitual residence
requirement was not defined. This may defeat member states interest as per
CJEU’s judgment in Collins.
98
Part Time and Low-paid employees
1) Effective and
met.
employment.
 On the fact, M was working for 2-3 hours per day and she was paid very low.
 Kempf (1986)
Kempf, a German national, was working as a music teacher in the
Netherlands. However, he was only working for 12 hours a week. His
income was not enough to live on, so he claimed Dutch supplementary
benefit (sickness benefit as well as more general income support).
In 1981 he applied for a Dutch residence permit. This was refused on
the ground that his income was insufficient to support himself.
Kempf challenged this.
CJEU:
A person in effective and genuine part-time employment cannot be excluded from
[Article 45] merely because the remuneration he derives from it is below the level of
the minimum means of subsistence and he seeks to supplement it by other lawful
means of subsistence.
 As such on the fact, whether her wages low and her salary is below minimum
wages will not be taken into account by the court.
 By looking at Levin and Kempf, certainly she would qualify as a worker.

 As such M is entitled for the child rearing benefit and the job seekers
allowance (after satisfying the requirements)
Viktor
 Since Viktor is a non EU national, he has to rely on his wife’s rights to get
benefit under EU law.
 According to Article 7d) of Directive 2004/38, a person may receive benefits under
EU law if:
99
coverage OR
OR
1) Spouse
member states)
 On the fact, Viktor is the husband of M and qualified to stay in EU.
 By following regulation 492/2011, Viktor has the right to claim Social security
benefits.
 Fiorini v SNCF (1975)
The ECJ allowed the Italian widow of an Italian worker in France to claim reduced
rail travel, but on the basis that he would have been entitled to it had he been alive.
 Bernini (1992)
ECJ held: the family members themselves could make a claim under Article 7(2)
The dependent members of the family are the indirect beneficiaries of the equal treatment accorded
to the migrant worker. Consequently, where the grant of financing to a child of a migrant worker
constitutes a social advantage for the migrant worker, the child may itself rely on Article 7(2) in
order to obtain that financing if under national law it is granted directly to the student.
Discrimination on Viktor
 It should be noted that since Viktor is the beneficiary of 492/2011, any
discrimination regardless of direct or indirect against him shall not be invalid.
 Art 3 of 492/2011
Under this Regulation, provisions laid down by law, regulation or administrative action or
administrative practices of a Member State shall not apply:
(a) where they limit application for and offers of employment, or the right of foreign nationals to take
nationals; or
(b) where, though applicable irrespective of nationality, their exclusive or principal aim or effect is
to keep nationals of other Member States away from the employment offered.

The first subparagraph shall not apply to conditions relating to linguistic knowledge required by
reason of the nature of the post to be filled.
Matte (as a citizen)

 It should be noted that Matte is a EU citizen and as such she could able to combine
her EU rights with Charter of Fundamental rights to form a family rights to claim
job seekers allowance and child raising allowance.
 Zambrano Case
100 refugee status in Belgium. The Belgian authorities refused them this status,
 Zhu and Chen Case
Ms Chen, a Chinese national travelled to Belfast in order to give birth to her
for not more than 30 days at a time and then only with the permission of the

life.
101  On the fact, the nationality of the child was not indicated. However Matte can try
to draw an analogy with the above cases and persuade the court that it is
applicable to anyone who is trying to protect their family.
Union.
 However, the court may also adopt a restrictive approach here by following the
below cases.
 Dereci Case
Case C-256/11 is a joint case of five applicants, each of whom is a third
country national wishing to reside in Austria with his/her Austrian family
member. None of the applicants’ family members have exercised their right
to free movement within the Union.
1. Mr Dereci is a Turkish national who entered Austria illegally and married an
Austrian citizen. He and his wife had three children, all of whom are
Austrian citizens and minors. Mr Dereci is currently resident with his family
in Austria.
2. Mr Maduike is a Nigerian national who entered Austria illegally and married
an Austrian national. He and his wife reside together in Austria.
3. Mrs Heiml is a Sri Lankan national who married an Austrian national. She
then entered Austria as a regular migrant, and continues to reside in Austria
with her husband, despite her residence permit having since expired.
4. Mr Kokollari entered Austria legally at age of 2 with his parents, who were
then Yugoslav nationals. Now 29 years old, he resides in Austria and
claims to be maintained by his mother who has assumed Austrian
nationality.
5. Mrs Stevic is a Serbian national who resides in Serbia with her husband
and three adult children. She seeks family reunification with her father, a
naturalised Austrian citizen resident in Austria, from whom she receives
monthly financial support.

All five applicants have had their applications for residence permits rejected
by the Austrian authorities, which refused to apply provisions under
Directive 2004/38/EC for family members of EU citizens on the grounds that
the Union citizen concerned has not exercised right of free movement.
Mr Dereci, Mr Maduike, Mrs Heiml and Mr Kokollari have in addition been
subject to expulsion orders and individual removal orders.
Article 3(3) of Directive 2003/86/EC stipulates that it does not apply to family
members, whilst Article 3(1) of Directive 2004/38/EC states that Union
citizens who have not exercised their right of free movement do not fall
within the scope of the Directive
102 In applying the test of ‘genuine enjoyment of the substance’ of citizenship
rights, the Court states that:
‘it follows that the criterion relating to the denial of the genuine enjoyment of the substance
of the rights conferred by virtue of European Union citizen status refers to situations in
which the Union citizen has, in fact, to leave not only the territory of the Member State of
which he is a national but also the territory of the Union as a whole.
Consequently, the mere fact that it might appear desirable to a national of a Member State,
for economic reasons or in order to keep his family together in the territory of the Union,
for the members of his family who do not have nationality of a Member State to be able to
reside with him in the territory of the Union, is not sufficient in itself to support the view that
the Union citizen will be forced to leave Union territory if such a right is not granted.’ [paras.
66 – 68]
 Dano v Jobcenter Leipzig (C-333/13)
In November 2014 the Dano judgment attracted unusual public attention,
not least because of its importance for UK Prime-Minister David Cameron’s
campaign against the phenomenon of ‘welfare tourism’.
Dano made clear that Member States may reject claims to social assistance
by EU citizens who have no intention to work and cannot support
themselves. Alimanovic gave the Court the opportunity to clarify the
application of this principle in the more complicated factual situation of an
EU citizen who applies for social benefits after having worked for 11 months.

Question 4 2016 Resit
In 2010, Rupert, a UK national, moved to Venice with the intention to settle there
permanently. As a former solicitor in an important law firm, he was rather wealthy and he
had his own private health insurance. He faced therefore no difficulties in obtaining a
residence permit in Italy. However, once in Venice, he started to regularly gamble in the
local casino and he lost most of his money. In January 2014, he therefore decided to work
twice a week as a gondolier. As a consequence of stress Rupert fell sick and he had to
seek hospital treatment in Venice. Unfortunately, his private health insurance refuses to
cover the costs of his treatment as he has fallen behind with his payments for the
103 insurance. However, Rupert discovers that Italian nationals receive the same treatment
free of charge and he asks therefore to be treated free of charge as well. When the Italian
authorities hear about his request, they decide to revoke his residence permit on the
ground that he no longer fulfils the conditions for residence in Italy. Advise Rupert as to
his rights under EU law.
Answer Guideline
 Rupert needs an advice pertaining his right to claim free health treatment and his
right to stay in Venice
Citizenship
months with
1) Identity Card OR
2) Passport
union country, if:
coverage OR
OR
 On the fact, Rupert can come under (2)nd limb as he has sufficient resources to
not to become unreasonable burden to the host state as he has considerable
savings in British banks and shares and private insurance scheme (question is
very vague on which country)
year.

the minimex.
104 Grzelczyk.
provided for”
 On the fact, Rupert could rely in Art 21 and Art 18 of TFEU to argue that regardless
of the requirement of “sufficient resources”, he can still rely on Art 8 and 21 to
 Art 18:
 Art 21:
 Art 20:
 On the fact, there are no indications of any positive discrimination by Italian
authorities.
Worker
 Art 45:

Commission.

105 1) Person obliged to provide services to another
2) For remuneration
 On the fact, Rupert worked as Gondolier twice a week. As long as this is
considered to be an effective and genuine (Lawrie-Blum), he could able to get
social assistance.
Derogations
Public Security
circumstances:
1) Public Policy
2) Public Security
3) Public Health
 Article 28
1. Before taking an expulsion decision on grounds of public policy or public security, the host
country of origin.
group.


security".
106 has lived in the Member State in question for the 10 years
Member State,
absences,
State
prevention.
host Member State,
committed

 On the fact, it depends on the Court to deport him under the reason of Public
107

Elisabeth is a Dutch national working as a secretary in Livorno, Italy since October 2014.
Her son, Koen, is enrolled in the University of Florence, where he is studying history of
art. Koen decides to apply for a ‘scholarship of excellence’ offered by the School of Arts
to students according to their grades, but is rejected because he is not of Italian
nationality. Elisabeth’s partner, Louise, joins them in December 2014, after quitting her
job in The Hague and selling all her property. She decides to register with the immigration
office immediately, but is rejected because she cannot provide a certificate of
employment. She is told that if she does not find a job in three months’ time, she has to
108 go back to the Netherlands. Louise is trained as a nurse but all her applications to several
hospitals in Livorno and Florence failed, because she cannot speak Italian. While coming
back home one evening after a party, Elisabeth and Louise are stopped by the police who
finds marijuana in their car. They are prosecuted for consumption of illegal substances,
facing three months imprisonment and expulsion from the Italian territory. Advise Koen,
Louise and Elisabeth.
Answer Guideline
 It should be noted that Elizabeth as a Dutch national working as a secretary in
Lovorno, Italy clearly qualifies as a worker under Art 45 of TFEU.
 Elizabeth and her family members are entitled to protection under Dir 2004/38 and
Dir 492/2011.
Koen
Establishing Rights on his own
months with
1) Identity Card OR
2) Passport
union country, if:
coverage OR
OR
 Koen may rely on the 3rd limb as a student to establish his rights. Furthermore, he
can rely on the rights in Art 18 and Art 20 of TFEU.
 Article 18 of TFEU prohibits discrimination on the ground of nationality and Art 20
guarantees rights of free movement of persons to EU nationals.

year.
the minimex.
Grzelczyk.
provided for”
 By following the above case, just because he is asking for scholarship, it does not
mean that he is an unreasonable burden to the state.
Establishing rights by relying on Elisabeth’s rights

 He may also establish his rights by relying on Art 10 of 492/2011.
Article 10
The children of a national of a Member State who is or has been employed in the territory of another
Member State shall be admitted to that State’s general educational, apprenticeship and
vocational training courses under the same conditions as the nationals of that State, if such
children are residing in its territory. Member States shall encourage all efforts to enable such
children to attend these courses under the best possible conditions.
 Since Elisabeth is considered to be a worker, Koen may rely on her rights to rely
in Art 10 of 492/2011.
 Case 24/86 Blaizot v University of Liege (1988)
The court held that University education is considered to be a vocational
training too.
Scholarship
 Case C-158/07 Jacqueline Förster v. Hoofddirectie van de Informatie Beheer

Groep
Jacqueline Förster, a young German woman, went to the Netherlands and
enrolled for training as a primary school teacher in 2000. She got a job to
help support herself while she studied. She also got a grant from the
competent Dutch authority. The authority, when it checked up discovered
that Ms Förster had not been gainfully employed between July 2003 and
December 2003. As she could no longer be considered to be a worker the
authority annulled the decision giving her a grant that was paid between
July and December 2003 and asked her to repay the amounts paid during
that time.

Ms Förster challenged that decision and claimed that she was already
sufficiently integrated into Dutch society during the period at issue to be able
to claim a maintenance grant as a student under EC law
She relied on the judgment in Case C-209/03 Bidar in which the Court of
Justice held that the existence of a certain degree of integration may be
deemed established by a finding that a student has resided in the host
member State for a certain length of time.
But, following that judgment the authority adopted a policy rule which
provided that a student from the EU must have been lawfully resident in the
Netherlands for an uninterrupted period of at least five years before claiming
110 a maintenance grant.
The Court of Justice replied that such a 5 year requirement was indeed
compatible.
The Court held that that a residence requirement of 5 years, such as that
laid down by the Dutch authorities, does not go beyond what is necessary
to attain the objective of ensuring that students from other member States
are to a certain degree integrated into the society of the host member State,
as required by the judgment in Case C-209/03 Bidar. The Court found that
the residence requirement was applied on the basis of clear criteria known
in advance
However, in Bidar the ECJ held that although the MS have the power to limit
the grants to those students sufficiently integrated, a blanket prohibition
would not be accepted as it would mean that no students would qualify.
On the fact, Koen merely stayed for a year since 2014. It is questionable
whether he has integrated in the society. However as the court in Bidar
noted, blanket restriction will be insufficient.
Louise
 According to Article 7 of Directive 2004/38, a person may receive benefits under
EU law if:
coverage OR
OR
7) Spouse
member states)

 Directive 2004/38/EC (the Free Movement Directive) spells out the right of EU
citizens and their family members to move and to reside freely within the territory
of the Member States (MS).
 However, in the light of differences in national family and matrimonial laws, the
question has been raised as to whether samesex partners can and should enjoy
this right on an equal footing with heterosexual ones. While the Directive is silent
on the problem, MS differ in their attitudes towards same-sex unions entered into
in other MS.
 On the fact, the question indicated that L is the partner of E. However it is unclear
111 whether it is a registered partnership and whether Italy recognizes such a
partnership in accordance with their existing national laws.
 Anti- discrimination provisions (L may rely)
4. Directive 2000/78
Article 1
Purpose The purpose of this Directive is to lay down a general framework for combating
discrimination on the grounds of religion or belief, disability, age or sexual orientation as
regards employment and occupation, with a view to putting into effect in the Member States
the principle of equal treatment.
5. Charter of Fundamental Rights
Article 9
Right to marry and right to found a family The right to marry and the right to found a family shall
be guaranteed in accordance with the national laws governing the exercise of these rights.
Article 21(1) of the Charter
Any discrimination based on any ground such as sex, race, colour, ethnic or social origin,
genetic features, language, religion or belief, political or any other opinion, membership of a
national minority, property, birth, disability, age or sexual orientation shall be prohibited
6. Treaty of Functioning of European Union
Article 19
1. Without prejudice to the other provisions of the Treaties and within the limits of the powers
conferred by them upon the Union, the Council, acting unanimously in accordance with a
special legislative procedure and after obtaining the consent of the European Parliament, may
take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation.
 It should be noted that the Charter Article providing the right to marry (Article 9) ‘neither
prohibits nor imposes the granting of the status of marriage to unions between people of
the same sex.
 However, prohibiting same sex couples in the territory is certainly against Art 21(1)
of the Charter and it may even lead to a situation where the EU citizen will leave
the territory, thus, depriving their rights of free movement of person (Zambrano)
 It should be noted that the majority of the eastern European countries do not offer
legal recognition to same-sex relationships and, in fact, a handful of them have –
or have recently introduced – a constitutional ban on same-sex marriage (of the
EU Member States, these are Bulgaria, Croatia, Hungary, Latvia, Lithuania,
Poland and Slovakia).
 The EU judiciary has, now, been called to clarify the EU’s position on this issue in
the Coman case (Case C-673/16). The case is pending before the ECJ and the

judgment is eagerly awaited by LGBT organisations, lawyers and academics

interested in LGBT rights, and married same-sex couples who have, so far, been
disappointed by the lack of clarity as regards the protection they enjoy under EU
law when exercising their free movement rights.
 It is also possible for E to argue on Charter of Fundamental rights to say that
separating the partner is considered to be against respect to private and family life
(Article 9 of EUCFR)(Zambrano; Dano)
Durable relationship
112  Alternatively L may try to rely on Article 3(2)(b) of Directive 2004/38 to show a
durable relationship duly attested to remain in the EU territory.
 If she could not able to establish either one of the requirement in Article 2 or Article
3, then she could be deported by the authorities unless she finds a job there and
establish her own rights as a worker. (Article 7)
nationals; or
 Article 3(1) shall not apply to conditions relating to linguistic knowledge required by reason of the
nature of the post to be filled.
The Court stated:
 On the fact, by following the above case, one has to decide is there a necessity for
a nurse to know the language?

Louise and Elisabeth

Public Security
circumstances:
4) Public Policy
5) Public Security
6) Public Health
 Article 28
113 1. Before taking an expulsion decision on grounds of public policy or public security, the host
country of origin.
group.
security".
Member State,
absences,

State
114  It adds however that the conduct of the person concerned
prevention.
host Member State,
committed
 On the fact, it depends on the Court to deport them under the reason of Public

2015 Resit Question 4
Ms Guerra is an Italian national who has been living in Brussels for the last three
years. She is an accordion player and works only part-time. Her total revenue is
below the minimum wage in Belgium. In 2015 she applies to the Belgian authorities
for a ‘minimex’, a social benefit granted to Belgian nationals when their salary is
below a certain wage. Meanwhile she started looking for a better-paid job. The
benefit was firstly granted but then revoked after few months. The grounds cited by
the national authorities are that Ms Guerra is not a worker nor is she is entitled to
receive such a benefit as she is not permanently resident in Belgium. The authorities
115 also decide to issue a deportation order against her on the basis of the Directive
2004/38: ‘EU citizens exercising their right of residence should not become an
unreasonable burden on the social assistance system of the host member State
during an initial period of residence’. She instructs you as her lawyer to challenge
the Belgium authority decisions.
Answer Guideline
Citizenship
months with
1) Identity Card OR
2) Passport
union country, if:
coverage OR
OR
 On the fact, Guerra can come under (1)nd limb as he is a worker.
Establishing Rights as a citizen
year.

the minimex.
Grzelczyk.
provided for”
116  On the fact, G could rely in Art 21 and Art 18 of TFEU to argue that regardless of
the requirement of “sufficient resources”, he can still rely on Art 8 and 21 to
 Art 18:
 Art 21:
 Art 20:
 On the fact, there are no indications of any positive discrimination by French
authorities.
Establishing Rights as a worker
Worker
 Art 45:

Commission.

117 10) For remuneration
 On the fact, G is a low paid worker.

16) Effective and
met.
employment.
regardless of the minimum wages and qualifies to receive benefits.
 On the fact, if he is considered to be a worker, he is most likely eligible to get
the benefits

Additional References
Limitation on Free Movement of Persons

 Articles 21 TFEU states that the right of free movement is “subject to the limitations
and conditions laid down in the Treaties and by the measures adopted to give them
effect”.
 Further guidance is given in Directive 2004/38.
General Principles
 Directive 2004/38 only applies to restrictions placed on the movement of ‘Union
118 citizens and their family members’. See Nouazli (Court of Appeal) for an example of
public policy measures taken against a Citizen’s family member.
 It does not apply to measures taken against non-EU nationals (who are unrelated to
a Union Citizen) – Dem'Yanenko, involving a Ukrainian national.
‘Measures’
 Member States are allowed to impose ‘measures’ which restrict free movement.
These include:
1) refusal of entry (Van Duyn);
2) refusal of exit (Jipa; Gaydarov; Aladzhov; Byankov; Gough & Others);
3) deportation / expulsion (R v Bouchereau; Bonsignore; Calfa; Tsakouridis);
4) refusal to issue a residence permit (Adoui & Cornuaille, Jany & Others);
5) internal restrictions (Rutili; Otieza Olazabal).
 The fact that Member States cannot refuse entry to, or expel from, national territory
their own nationals does not prevent them from refusing entry to, or expelling from,
national territory other States’ nationals (Pereira Roque).
 One situation in which States can take action against their own nationals is a refusal
of exit.
‘Proportionality’
 Public policy or security measures must comply with the principle of
‘proportionality’(Article 27(2)).
 Deportation because of failure to comply with immigration formalities would be
disproportionate (Oulane).
 An absolute and indefinite prohibition on a Citizen leaving his or her home State would
be disproportionate (Byankov).
 In cases where deportation is contemplated following a criminal conviction, account
must be taken of the:
1) nature and seriousness of the offence committed;
2) duration of residence in the host State;
3) period which has passed since the offence was committed;
4) conduct of the person concerned during that period;
5) ‘solidity of the social, cultural and family ties with the host State’ (Tsakouridis).

‘Personal Conduct’
 Public policy or security measures must be based ‘exclusively’ on the ‘personal
conduct’ of the individual concerned’ (Article 27(2)). This means that:
1) Member States may not take measures based on “general considerations”
(Rutili).
2) Member States cannot take measures against an individual on the ground that
it will serve as an example to others (Bonsignore).
3) Automatic deportation following conviction of a criminal offence is not
permissible. Member States must take account of the individual’s ‘personal
conduct’ which led to the conviction (Calfa; Orfanopoulos & Oliveri).
119 4) Present membership of an ‘objectionable’ organisation may constitute
‘personal conduct’ (Van Duyn, Kraus).
‘Previous Criminal Convictions’

 Previous criminal convictions must not ‘in themselves’ constitute grounds for the
taking of measures (Article 27(2)).
 They may only be taken into account “in so far as the circumstances which gave rise
to that conviction are evidence of personal conduct constituting a present threat” (R
v Bouchereau).
 This is possible in 2 situations:
 Where there is a “propensity to act in the same way in the future”;
 On the basis of “past conduct alone”.
 One example of the latter is Marchon (convicted of trafficking 4.5kg of heroin
worth£450,000 and sentenced to 11 years’ imprisonment). Contrast
with Monteil and Proll. Although both had previous convictions there was no evidence
that either was a “present” threat owing to significant changes in their circumstances.
Public Policy, Security and Health

‘Public policy’
 ‘Public policy’ presupposes a “genuine and serious threat” to the “fundamental
interests” of society (Article 27(2); R v Bouchereau).
 It is usually, but not necessarily, concerned with criminal activities (Van Duyn).
 The Member State must impose “repressive” measures, such as criminal penalties,
on its own nationals before it can invoke ‘public policy’ measures against nationals of
another Member State (Adoui & Cornuaille, Jany & Others).
‘Public security’
 ‘Public security’ has been invoked in three cases:
1) Otieza Olazabal, involving a member of ETA,[1] an “armed and organised group”.
2) Tsakouridis, involving drug trafficking. This “poses a threat to health, safety and
the quality of life of citizens of the Union, and to the legal economy, stability and
security of the Member States”.
3) P.I., involving the sexual exploitation of children. This constitutes a“particularly
serious threat to one of the fundamental interests of society, which might pose a
direct threat to the calm and physical security of the population”.

‘Public health’
 ‘Public health’ measures may be taken ‘against those suffering from ‘diseases with
epidemic potential’ and ‘other infectious diseases or contagious parasitic diseases’
(Article 29).
Procedural Safeguards

120  Article 28(1) lists various factors which Member States must take into account before
taking an expulsion decision:
1) how long the person has resided on its territory;
2) his/her age;
3) his/her state of health;
4) his/her family and economic situation;
5) his/her social and cultural integration into the host Member State;
6) the extent of his/her links with the country of origin.
 The most important of these is family status, if any (Rutili; Orfanopoulos & Oliveri).
Respect for family life is protected by the ECHR and the EU’s Charter of Fundamental
Rights.
 Article 28(2): Those with a right of permanent residence (acquired after 5 years’
continuous legal residence), may only be expelled on ‘serious grounds’ of public policy
or security.
 ‘Serious grounds’ refers to those convicted of crimes of violence (B, Court of Appeal).
 Article 28(3): Those who have resided in the host State for the ‘previous 10 years’
can only be expelled on ‘imperative grounds’ of public security.
1) ‘Imperative grounds’ presupposes “a particularly high degree of seriousness”
(Tsakouridis).
2) Time spent in prison does not count towards ‘residence’ (M.G.).
3) The ‘10 years’ is determined by “counting back” from the date of the expulsion
decision (M.G.).
4) The ‘10 years’ should, in principle, be “continuous” (M.G.). In determining whether
the 10 year period has been interrupted by absences, the host State should take
“all the relevant factors into consideration in each individual case”, including:
 the duration of each period of absence,
 the cumulative duration and the frequency of those absences,
 the reason(s) why the person concerned left the host State.
 Ultimately, it must be “ascertained whether those absences involve the transfer to
another State of the centre of the personal, family or occupational interests of the
person concerned” (Tsakouridis).
 Article 33(1): Deportation must not be an ‘automatic consequence’ of a criminal
conviction.
 Article 33(2): Expulsion orders should not be enforced more than 2 years after being
issued without a ‘check’ to establish whether the person is ‘currently and genuinely’ a
threat.

Notification
 Article 30: A person subject to measures must be notified ‘in writing’ and ‘in such a
way that they are able to comprehend its content and the implications for them’. The
State must give the individual a “precise and comprehensive statement of the
grounds for the decision, to enable him to take effective steps to prepare his defence”
(Rutili).
 This is the case unless notification would be ‘contrary to the interests of State security’
(Article 30(2)). The leading case is Z.Z. (2013). According to the ECJ:
1) Article 30(2) must be interpreted “strictly”.
121 2) An “appropriate balance” must be struck “between the requirements flowing from
State security and the requirements of the right to effective judicial protection”.
 On one hand, full disclosure of evidence may compromise State security in certain
cases in “a direct and specific manner” e.g. by revealing the identity of undercover
agents.
 On the other hand, the “fundamental right to an effective legal remedy” implies that
litigants should be able to examine, and to comment on, all the documents or
observations submitted to the court.
1) Therefore, the person concerned must be “informed of the essence of the grounds”
which constitute the basis of the expulsion decision” “in a manner which takes due
account of the necessary confidentiality of the evidence”.
Appeals and Reviews

 Article 31: Appeals and/or Judicial review procedures must be made available. “All
steps must be taken to ensure that the safeguard of the right of appeal is in
fact available” (Royer).
 The review body must “perform its duties in absolute independence” and not “be
directly or indirectly subject in the exercise of its duties to any control by the authority
empowered to take the measures provided for in the directive” (i.e. the government)
(Gallagher).
Marriage and Registered Partnership
Marriages
 If the couple is married in their home State and the host State recognizes the
validity of same-sex marriages, then the individual will have the right of a spouse,
under the Free Movement Directive, to join their partner.
 Currently, Belgium, the Netherlands, Spain and Sweden enable same-sex couples
to be legally married.
 However, at least 11 Member States (Estonia, Greece, Ireland, Italy, Latvia,
Lithuania, Malta, Poland, Portugal, Slovakia, Slovenia) do not seem to recognize
the validity of same-sex marriages.
 In these States same-sex spouses will probably not be recognized as ‘spouses’.
Registered partnerships.
 If the couple has entered into a registered partnership in their home State then an
individual may be able to join their partner in the host State as if they were a

‘spouse’. However, this depends on how the host State treats registered
partnerships.
(1) Under the Free Movement Directive if the host State’s national law treats
registered partnerships as equivalent to marriage, then an individual has the
right to join their partner as if they were a ‘spouse’. Member States allow
registered partnerships that have effects equivalent to marriage (Czech
Republic, Denmark, Finland, Hungary, Romania, UK).
(2) If the host State does not treat registered partnerships as equivalent to
marriage, then the couple will fall under the rules on unregistered (‘de facto’)
partners in a ‘durable relationship’. EU law places no obligation on Member
122 States to allow or recognize registered partnerships.
Unregistered (de facto) partnerships.
 If the host State does not recognize same-sex marriages or partnerships, or if the
couple has simply not formalized their relationship, then they will fall under the
rules on unregistered partnerships.
 Unregistered partners do not enjoy the same right as a spouse to join their partner.
Instead the Free Movement Directive obliges Member States to ‘facilitate entry and
residence’ to unregistered partners who are in a ‘durable relationship’.
 This applies equally to same-sex couples and to couples of the opposite sex. This
rule is not as clear as the concrete right enjoyed by a ‘spouse’ to join their partner,
and such couples must show proof that the relationship is ‘durable’.

2013 R-esit Question 8
Having completed her secondary education in Germany, Adelheid, a German national,

spent one year working as an au pair in the United Kingdom. The following year she
began studies in applied genetics at the University of Weston-super-Mare (United
Kingdom). Adelheid is in desperate need for money in order to finance her studies.
Consequently she submits applications for an education and training grant to the
competent authorities in Germany. The German legislation provides in principle for grants
for studies at education establishments outside of Germany. However, Adelheid’s
application is dismissed because her studies do not represent the continuation of
123 education or training pursued for at least one year in Germany (the so called first stage
studies condition). Adelheid doesn’t give up and applies for a similar grant to the UK
authorities. However, she’s unlucky again. The UK authorities dismiss her application
because only UK nationals who are workers under Article 45 of the EU Treaty and whose
studies are directly linked to the nature of their work are entitled to receive such grants.
Adelheid wants to challenge these national decisions in Court and seeks your help as an
expert in EU law.
Answer Guideline
 au pair –
Pronounced as ō ˈper/
Definition: a young foreign person, typically a woman, who helps with
housework or child care in exchange for room and board.
 Adelheid needed advise pertaining her education grant in Germany and United
Kingdom.
 On the fact, she was an au pair in United Kingdom for a year. This will probably
classify her as a Worker within Art 45 of TFEU.
Germany
 It should be noted that A is the national of Germany. Therefore she could easily
rely on citizenship rights to force Germany to give education grant for her.
 Art 18:
 Art 21:
 A has the right of free movement of persons and she has the right of non-
discrimination by following Article 21 and 18 of TFEU.
 D’Hoop v Office Nationale de l’Emploi (Case C-224/98)(2002)
ECJ decided that that Article 21(1) could be relied upon in the citizen’s home
state provided he/she had gone to other member state in order to exercise
his/her free movement of rights before returning.

First Stage Studies Condition

 Morgan and Bucher (2007)
The legislation in issue provided that the award of an education grant for
studies in another member state was conditional on having attended a
German education or training establishment for a period of at least 1 year
previous to the study abroad.
Having completed her secondary education in Germany, Ms.Morgan a
German national, spent 1 year working as an au pair in the United Kingdom.
In 2004 she began studies in Applied Genetics at the University of West
England in Bristol.
124 She applied to the German authorities for a grant for her studies in the UK,
claiming that courses in genetics were not offered in Germany.
The application was rejected she did not satisfy the first stage studies
condition.
Ms Morgan, a German national, spent 1 year working as an au pair in the
United Kingdom.
In 2004 she began studies in Applied Genetics at the University of the West
of England in Bristol. She applied to the German authorities for a grant for
her studies in the UK, claiming that courses in Genetics were not offered in
Germany.
This application was rejected since she did not satisfy the first-stage studies
condition.
Ms.Bucher, also a German national, experienced similar difficulties when
she began studies in Ergoihcrapy at the Hogeschool Zuyd in Heerlen in the
Netherlands.
Her application for an education grant was rejected, 100. The appeals
lodged by Ms Bucher and Ms Morgan both ended up before the
Administrative Court in Aachen, which decided to refer preliminary
questions to the ECJ because it was uncertain whether the German
legislation was compatible with the Treaty, Articles 17 and 18
EC (now Articles 20 and 21TFEU) in particular.
Interestingly, the six intervening governments had different opinions about
what the answer to that question should be.
The Dutch. Austrian and British governments concurred with the German
government, maintaining that the first-stage studies condition was not a
restriction of the free movement of persons, a view that was quite
remarkably supported by the Commission.
The Italian, Finnish and Swedish governments expressed the opposite
view, maintaining that the first-stage studies condition amounted to a
restriction of Free movement for the citizens of the union.
ECJ Stated:
 The Court found that because of the personal inconvenience.
additional costs and possible delays which it entailed, the first
stage studies condition was liable to discourage citizens of the
Union from leaving Germany in order to pursue studies in another
Member State.

 It therefore constituted a restriction on freedom of movement for

citizens of the Union contrary to Article 21 (1) TFEU.
 The German government forward a number of justifications for its
rule, all of which were subject to a strict proportionality review
 For example, it said that the condition was justified as a way
of showing integration into German society.
 However, the Court noted the personal situation of the applicant:
she had been raised in Germany and completed her schooling
there. This demonstrated her integration into German society.
 Therefore, the first-stage studies condition as a proxy for
125 showing integration was too general and exclusive and so
was disproportionate.
 The requirement of continuity between the studies in
Germany and those pursued abroad is not proportionate to
the objective of enabling students to determine whether they
have made ‘the right choice’ in respect of their studies.
 That requirement may prevent students from pursuing, in another
Member State, education or training different from that pursued
in Germany.
 As regards education or training courses in respect of which there
are no equivalents in Germany, the students concerned are
obliged to choose between foregoing the planned education or
training course and losing entitlement to an education or training
grant.
 There is, however, a risk attendant on such an individualized
approach.
 As the health care cases shew, the emphasis on protecting the
individual over the interests of the community reflects what
Newdick terms an 'institutional "asymmetry" within the EU, in
which the Court of Justice favors private "economic" interests
over the public "welfare" policies identified by national
government. He argued that this market citizenship is consistent
with inequality because individual choice, rather than government
policy is the dominant influence.
(C.NewDick, The European Court of Justice, Trans-national Healthcare and
Social Citizenship: Accidental Death of a Concept)(2008) 26 Wisconsin
International Law Journal, 844, 864.
 By following Morgan Bucher (2007), A could argue that the first stage condition is
not in line with EU law and should be invalidated.

United Kingdom
Worker
 It should be noted that she is working in exchange for room and board.
 Art 45:
126 3. It shall entail the right, subject to limitations justified on grounds of public policy, public
Commission.

2) For remuneration
 On the fact, A was not probably working for remuneration since she was in
exchange for lodging and board.

1) Effective and
met
 Case 344/87 Bettray (1989)
The ECJ held that activities described as ‘social employment’ which were carried
out as part of a state-sponsored drug rehabilitation programme, did not constitute
genuine employment.
 Case C-456/02 Trojani (2004)
Michael Trojani, a French national, had gone to live in Belgium in 2000. He
lived for a time on a campsite and later stayed in a youth hostel. By early

2002 he was living in a Salvation Army hostel, and in return for board and
lodging and ‘some pocket money’ he did ‘various jobs for about 30 hours
per week as part of a personal socio-occupational reintegration
programme’.
The ECJ took a more generous view with what was described as ‘a personal
socio-occupational reintegration programme’.
ECJ held: this was, in principle, capable of being regarded as falling within
the scope of Article 45 of the TFEU, although ultimately it was a question
for the national court.
The Court stated:
127 Neither the sui generis nature of the employment relationship under national law, nor the
level of productivity of the person concerned, the origin of the funds from which the
remuneration is paid or the limited amount of the remuneration can have any consequence
in regard to whether or not the person is a “worker” for the purposes of [EU] law.…The
national court must ascertain whether the services actually performed are capable of being
regarded as forming part of the normal labour market.
 On the fact, she will be more likely to be qualified as a worker. Although she is not
a social worker but her nature of employment to work for room and board could be
associated with social workers working for food and lodging.
 It is for the national court to decide her status.
Discrimination (Only UK Citizens Could claim the Benefit)

 A could argue that this is a direct discrimination against her EU citizenship rights.
year.
the minimex.
Grzelczyk.
provided for”
 It is unclear what is considered to be an ‘unreasonable burden’ pursuance to
Directive 2004/38.
 In several Article 21 cases, EU citizens have been held to be entitled to a claim
social security or other financial benefits:
(1) Child Raising benefit – Martinez Sala (1998)

(2) Minimum subsistence allowance – Grzelczyk (2001)

(3) Tideover allowance – D’Hoop (2002)
(4) Student loan – Bidar (2005)
(5) Student Grant – Forster (2008)
 Bidar (Case C-209/03) (2005)
Mr Bidar, a French national, entered the territory of the UK, accompanying
his mother who was to undergo medical treatment there. In the UK, he lived
with his grandmother, as her dependant, and pursued and completed his
secondary education without ever having recourse to social assistance.
He then started a course in economics at the University College London.
128 While Mr Bidar received assistance with respect to tuition fees, his
application for financial assistance to cover his maintenance costs, in the
form of a student loan, was refused on the ground that he was ‘ordinarily
resident’ in the UK for at least three years prior to submitting the application.
The UK legislation excluded the time spent ‘wholly or mainly for the purpose
of receiving full time education’
He brought proceedings against that refusal alleging indirect discrimination.
ECJ stated:
 The British rules were indirectly discriminatory.
 Bidar, as a French national lawfully resident in the UK, had the right
to challenge these rules using a combination of Art 18 and Art 21(1).
 On the fact, by following Bidar, it is also possible to argue that UK legislation is
discriminatory.
 However, one must also refer to later cases to reach a sound decision.
 In the cases of Bidar (2005), D’Hoop (2002) and Tas-Hagen (2006), ECJ stated
that the right to social security or education grant is subject to objective
considerations.
Objective Considerations
 The requirements for objective considerations are:
(2) Capable of achieving desired objective
(3) Proportionate
 D’Hoop (2002)
Marie-Nathalie D’Hoop, a Belgian national, had undertaken her secondary
school education in France before studying for a degree in Belgium.
On graduating, she applied for a tide-over allowance, social security benefit
paid to recent graduates who had undertaken their schooling Belgium.
As Ms. D’Hoop had spent some years as a student in France, this was
refused.
She challenged this, alleging discrimination contrary to Article 18 and
relying on her status as a ‘Citizen of the Union’ under Art 21(1).
The ECJ following Grzelczyk held that she was entitled to the allowance.
In D’Hoop the court accepted that it was legitimate for the national
legislature to wish to ensure that there is a real link between the

applicant for that allowance and the geographic employment market

concerned.
However the court added that it must be proportionate
In D’Hoop the schooling requirement was not capable of establishing the
‘real link’, being ‘too general and exclusive in nature’
 Tas-Hagen (Case C-192/05)(2006)
The case involved two Dutch nationals who had submitted claim for civilian
war benefit, which was payable to any Dutch national who had suffered
and/or mental injury during the Netherlands’ involvement in the Second
World War.
129 The problem for the two claimants was that, although they had suffered
such injuries, the Dutch benefit eligibility rules required claimants to be
resident in the Netherlands at the date the claim was submitted.
However,, by the time both Mr.Tas and Mrs Tas-Hagen sunmitted their
claims, in 1999, they were both living in Spain, having moved there after
being forced to give up work for health reasons.
Their claims were, therefore rejected. When the two claimants challeneged
the rejections, the ECJ held that Article 2(1) had been, in principle at least,
infringed.
The Dutch benefit eligibility rules made it more difficult for claimants who
had exercised free movement rights to claim benefits than those who had
stayed in the Netherlands.
The Dutch government argued that the requirement in Dutch law that
claimants for civilian war benefit had to be resident in the Netherlands when
the claim was made reflected the ‘legislature’s wish to limit the obligation of
solidarity with civilian war victims to those who had links with the population
of the Netherlands during and after the war.
Although ECJ prepared to accept the obligation of solidarity as an objective
consideration of public interest, the ECJ held that residency criterion was
not an appropriate means of establishing solidarity.
 Case C-158/07 Jacqueline Förster v. Hoofddirectie van de Informatie Beheer
Groep
Jacqueline Förster, a young German woman, went to the Netherlands and
enrolled for training as a primary school teacher in 2000. She got a job to
help support herself while she studied. She also got a grant from the
competent Dutch authority. The authority, when it checked up discovered
that Ms Förster had not been gainfully employed between July 2003 and
December 2003. As she could no longer be considered to be a worker the
authority annulled the decision giving her a grant that was paid between
July and December 2003 and asked her to repay the amounts paid during
that time.
Ms Förster challenged that decision and claimed that she was already
sufficiently integrated into Dutch society during the period at issue to be able
to claim a maintenance grant as a student under EC law
She relied on the judgment in Case C-209/03 Bidar in which the Court of
Justice held that the existence of a certain degree of integration may be

deemed established by a finding that a student has resided in the host

member State for a certain length of time.
But, following that judgment the authority adopted a policy rule which
provided that a student from the EU must have been lawfully resident in the
Netherlands for an uninterrupted period of at least five years before claiming
a maintenance grant.
The Court of Justice replied that such a 5 year requirement was indeed
compatible.
The Court held that that a residence requirement of 5 years, such as that
laid down by the Dutch authorities, does not go beyond what is necessary
130 to attain the objective of ensuring that students from other member States
are to a certain degree integrated into the society of the host member State,
as required by the judgment in Case C-209/03 Bidar. The Court found that
the residence requirement was applied on the basis of clear criteria known
in advance
However, in Bidar the ECJ held that although the MS have the power to limit
the grants to those students sufficiently integrated, a blanket prohibition
would not be accepted as it would mean that no students would qualify.
 On the fact, the requirement concerned is not about sufficient link or habitual
residency. This is a blanket prohibition on other country nationals and as such most
likely will be caught under Art 18 & Art 21(1) of TFEU and could not possibly be
justified as it is discriminatory.
Continuity in Education
 It should be noted that since A is considered to be a worker, she could also claim
her grants under Regulation 492/2011.
 By following Article 7(2) of the regulation 492/2011, workers have right to social
and tax advantages.
 The right to funding and maintenance to pursue full-time education is governed
under the Case 39/86 Lair (1988).
 Case 39/86 Lair (1988)
Sylvie Lair, a French national, had spent over 5 years in Germany, working
intermittently, with spells of involuntary unemployment, before securing a
place at Hanover University to study languages and literature.
She claimed maintenance grant. This was rejected on the basis that she
has not been employed in Germany for at least 5 years prior to enrolment,
a condition applicable only to foreigners.
Sylvie challenged this refusal.
ECJ held: provided she was a ‘worker’, she was entitled to a grant by virtue
of Article 7(2). Germany’s 5-year employment requirement for foreigners
was clearly discriminatory and contrary to Article 7(2).
Applying this, Sylvie was therefore entitled to a grant provided that she
could show that her course was connected in some ways to her
previous employment.

Thus, in order for a migrant worker to be entitled for funding and/or

maintenance grants to pursue education, there must be ‘some continuity’
unless the worker became ‘involuntarily’ unemployed.
 In the following cases, the element of continuity was satisfied:
(1) Case 235/87 Matteucci (1988)
Period of employment as a teacher of eurythmics; followed by a singing and
voice-training course.
(2) Case C-3/90 Bernini (1992)
Period of employment in design and planning department of a furniture
factory; followed by architectural studies degree.
131  On the fact, most likely there is no continuity from an au pair and applied genetics.

2012 Zone B Question 8

Gaston and Pierre, father and son, who are Belgian nationals, run a successful restaurant
in Belgium. They employ Emile, who is living in a civil partnership with Pierre. The three
of them decide to go to Italy to try their skills there. They easily find accommodation and
start hunting for jobs. Emile finds a job easily in a local Italian restaurant. Pierre wants to
try for something different and applies for a job as an assistant chef in Akola’s Nigerian
Restaurant. He is told they do not want him as they employ only chefs from Nigeria or
those ‘with a Nigerian background’.
132 Gaston, the most experienced of them all, applies for a part-time position in a local Italian
restaurant as he thinks his vast experience may be useful to them. The restaurant tells
him that they are not willing to employ him in view of his age.
Emile and Pierre want to set up house together and apply for a housing grant to the Italian
authorities, as they want to renovate an old farmhouse. Such grants are available to
couples, both married or living together. They are told they are not eligible as the grants
are not meant for couples of the same sex. Their civil partnership is not recognised in
Italy.
Advise Gaston, Pierre and Emile as to their rights under EU law.
Answer Guideline
 Gaston, Piere and Emile needs an advise pertaining their rights against
discrimination in line with European Union Law legislation.
Gist of Answer
 According to Article 20 of TFEU,
national citizenship.
 As Such Gaston, Piere and Emile are all EU Citiens since Belgiam is a state
signatory to European Union. (Micheletti [1992])
 According to Article 21, Every citizen has the right of free movement and
residence.
1. Every citizen of the Union shall have the right to move and reside freely within the territory of
the Member States, subject to the limitations and conditions laid down in the Treaties and by
the measures adopted to give them effect.
 As such Gaston, Piere and Emily have the right to move to Italy and reside there
without any form of discrimination in the ground nationality. (Article 18)
contained therein, any discrimination on grounds of nationality shall be prohibited

Piere
 Piere may try to invoke Article 18 together with Article 20 to form a discrimination
action against the restaurant.
 Martinez Sala (Case C-85/96)(1998)
Maria Martinez Sala, a Spanish national, had lived in Germany since 1968 and
had worked there intermittently from 1976 until 1986 and again for a short time
in 1989.
Since then she had not worked and was in receipt of social security. When
after her daughter was born in 1993, she applied for a child rearing benefit,
133 this was refused, essentially on grounds of nationality.
She contested this refusal. The ECJ ruled that, as a Spanish national, and
therefore EU citizen, lawfully resident in Germany, Maria could invoke Article
18 in conjunction with Article 21(1) in order to challenge discrimination on
grounds of nationality.
On the fact: Piere was refused job on nationality grounds. He may invoke
Article 18 together with Article 21 too.
Horizontal direct effect has been accepted, meaning that horizontal direct
effect only exists in certain situations falling under the scope of application of
Article 18 TFEU. The two leading cases are Walrave and Koch and Ferlini
 Piere may also refer to the case of Grzelczyk (2001) since the court stated in
Grzelczyk that EU citizenship is of a foundational right.
Gaston
 Gaston have been refused job because of his age.
Directive 200/78
 Article 2
Concept of discrimination
1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall
be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than
another is, has been or would be treated in a comparable situation, on any of the grounds
referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion
or practice would put persons having a particular religion or belief, a particular disability, a
particular age, or a particular sexual orientation at a particular disadvantage compared with other
persons unless………”
 On the fact, this is a direct discrimination based on age since Gaston have been
refused job because of his age.
 Article 6
Justification of differences of treatment on grounds of age

1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on
grounds of age shall not constitute discrimination, if, within the context of national law, they are
objectively and reasonably justified by a legitimate aim, including legitimate employment
policy, labour market and vocational training objectives, and if the means of achieving
that aim are appropriate and necessary.
Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training,
employment and occupation, including dismissal and remuneration conditions, for young people,
older workers and persons with caring responsibilities in order to promote their vocational
integration or ensure their protection;
(b) the fixing of minimum conditions of age, professional experience or seniority in service for
134 access to employment or to certain advantages linked to employment;
(c) the fixing of a maximum age for recruitment which is based on the training requirements of
the post in question or the need for a reasonable period of employment before retirement.
 Additional protection given by Article 6(2) specially for age discrimination
 The ECJ was asked to interpret Art 6(1)(a) in Mangold v Helm (Case C-
144/04)(2005)
 Mangold v Helm (Case C-144/04)(2005)
The case involved a provision of German legislation which allowed
employers to conclude fixed term contract if the employee in question was
over a certain age (52).
Although prima facie discriminatory on age grounds, the court stated the
the provision was, at least in principle, objectively and reasonably
justified by a legitimate aim.
Mangold v Helm was distinguished in Palacios de la Villa (Case C-
411/05)(2007).
 Palacios de la Villa (Case C-411/05)(2007)
This case involved a provision of Spanish Legislation which stated that
clauses contained in collective agreements providing for compulsory
retirement in the event of workers reaching the Spanish retirement age
were lawful.
The case was brought by a Spanish national who was told by his
employers that he was being compulsorily retired, having reached his 65 th
birthday.
The ECJ held that, although compulsory retirement was tantamount to
dismissal and, hence, that a prima facie breach of Framework Directive
had occurred, the Spanish legislation was justifiable under Article 6(1)(a),
in that it pursued a ‘legitimate aim’, namely, ‘the promotion of full
employment by facilitating access to the labour’.
 Kucukdeveci v Swedex (Case C-555/07)
Seda Kucukdeveci had worked for a German company called Swedex
from June 1996 (when she was aged 18) to December 2006 when she
was dismissed.

Despite her 10.5 year’s service, she was only given one month’s notice,
corresponding to the three years’ service that she had accumulated since
her 25th birthday, rather than the four months’ notice to which she would
have been entitled had her entire employment record been taken into
consideration.
She alleged a breach of the Framework directive. One question for the
ECJ was whether the German legislation could be justified on the grounds
the employers are recognised as having a commercial interest in flexibility
as regards staffing- an interest which would be adversely affected by
longer periods of notice.
135
Another issue vis-a-vis older employees could be justified on the ground
that, having regard to their age and/or their lesser social, family and
private obligations, the former are assumed to have greater professional
and personal flexibility and mobility.
The court rejected the justifications.
 On the fact: Could it be objectively and reasonably justified? Is it appropriate and
necessary?
Emily
 This will be discrimination based on sex. There are many legislations dealing
with this primarily.
 There are at least two other types of discrimination which might have regarded
as falling within the ambit of sex discrimination law.
1) Discrimination against transsexuals
2) Discrimination against homosexuals
 Only former situation amounts to ‘sex’ discrimination.
 In P v S (Case C-13/94)(1996)
ECJ held that the dismissal of a post-operative male to female
transsexual constituted based on ‘sex’.
The court rejected British government’s submission that the dismissal
was not discriminatory on the ground that the employer would have also
dismissed a post-operative female-male transsexual.
 KB v National Health Service Pensions Agency (Case C-117/01)(2004),
ECJ held that British legislation preventing post-operative transsexuals
from marrying in their acquired gender could be regarded as a breach of
EU sex discrimination law.
 Grant v South Wales Trains (Case C-249/96)(1998),
ECJ held that EU sex discrimination law did not cover sexual orientation
discrimination.
 Sexual orientation today covered under Directive 2000/78

 On the Fact, Since both of them are same sex couples in civil partnership,
therefore this will be under Directive 2000/78
Directive 2000/78
 Maruko (Case C-267/06)(20008)
In 2001, Mr Tadao Maruko and his male partner entered into a life
partnership, a formal relationship recognised under German law for same
sex couples.
His partner, a designer of theatrical costumes, had been a member of the
German Theatre Pension Institution (the VddB) since 1959. The designer
136 died on January 2005, and Maruko applied for a widower’s pension.
However, this was rejected on the basis that VddB’s scheme rules did not
provide pensions to surviving partners, only to spouses (Meaning married
persons of opposite sex).
Maruko challenged this, alleging that the refusal amounted to unlawful
discrimination on grounds of sexual orientation. The ECJ agreed.
The court drew an analogy with Art 157 TFEU cases involving similar
benefits and concluded that “since survivor’s benefit….has been
identified as “pay” within the meaning of [Article 157 TFEU it therefore]
falls within the scope of Directive 2000/78’
On the fact, Prima facie this amounts to sex discrimination by following
Maruko.
Emily and Piere Civil partnership

 If Piere and family are considered to be spouse, then another issue arise as to
whether their civil partnership recognized in Italy or not.
 Since Emily already received job, one must consider is it possible to view Piere
as a family member of her particularly ‘spouse’
Directive 2004/38
 Article 2(2)Directive 2004/38
2) "Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the
basis of the legislation of a Member State, if the legislation of the host Member State registered
partnerships as equivalent to marriage and in accordance with the conditions laid down in the
relevant legislation of the host Member State;
 Netherlands v Reed (Case 59/85)(11986)
‘In the absence of any indication of a general social development which
would justify a broad construction, and in the absence of any indication to
the contrary on the legislation, it must be held the term “spouse” refers to
maritial relationship only’
 On the fact, therefore, Piere and Emily could not be considered as spouse
 Article 2(2)(b) confers rights to family members in relation to Registered
Partnership. But this must be construed narrowly.

3) Who have contracted a registered partnership, on the basis of the

legislation of a member state
4) Where the legislation of the host member state treats registered
partnerships as equivalent to marriage
 In UK Civil Partnership Act 2004 recognized ‘civil partnership’.
 Civil Partnership Act 2004
Civil partnership
(1)A civil partnership is a relationship between two people of the same sex
 Recently UK allows Same sex couples to marry
 Marriages (Same Sex Couples) Act 2013
137 Extension of marriage to same sex couples
(1 ) Marriage of same sex couples is lawful.
 However, the position in Belgium is unclear.
 It must be noted here that Civil partnership and Co habitation is two different sort
of relationships.
Marriage – Between Opposite sex

Civil Partnership - Between same sex
Cohabitation – Between same sex/ different sex living together without civil
partnership registration or marriage registration
 CohabCo-habitation Rights Bill 2016-2017 (In first reading in House of Commons)

“Cohabitant”
(1) For the purposes of this Act, references to the cohabitants in a relationship are to
any two people (whether of the same sex or the opposite sex) who
(a) Live together as a couple,
 Pending such a legislation in Belgium, the last resort for them is in Section 3(2)(b)
 Article 3(2)(b) (Directive 2004/38)
2. Without prejudice to any right to free movement and residence the persons concerned may have
in their own right, the host Member State shall, in accordance with its national legislation, facilitate
entry and residence for the following persons
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
 B&C v Home Secretary (2012)
High Court accepted that a Swedish man and his Bolivian girl friend were in
durable relationship.
The couple had been together in London for over six years, they had lived
together for most of the time.
The couple had a five year old daughter together.
 As such on the fact, Does Emily and Piere is in a long term durable relationship?
If yes, then they will be considered as couples.
Legend

Directive Purpose
Equal Treatment Directive 2006/54 Equal treatment on the ground of sex

(Recast Directive) in other conditions of employment.
Race Directive 2000/43 Equal Treatment on grounds of race or
ethnic origin in employment and
certain other areas.
Framework Directive 2000/78 Equal treatment on grounds of age,
disability, religion belief and sexual
orientation in employment
138


Samantha is a fully qualified English primary school teacher who decides to take
advantage of the free movement rules of the EU to find a good job elsewhere in the EU.
She decides to move to Finland, a country where she has heard there is a shortage of
primary school teachers. She applies for a job at a large primary school in Finland, but
encounters the following problems, she is told that:
(a) her English qualifications are not recognised in Finland and consequently she
can only apply for a junior position as a teaching assistant.
(b) she needs a certificate confirming she has enough funds to keep herself in
139 Finland, as the job will not pay her enough to allow for minimum subsistence.
(c) she will be put on a waiting list, as priority is given to teaching assistants who
speak Finnish.
Advise Samantha as to her rights under EU law and as to the action she can take to
allow her to overcome the above obstacles.
Answer Guideline
 Samantha needs an advice pertaining 3 issues as indicated above.
Part A (Art 49 Freedom of Establishments)

 Her English qualification is not recognized in Finland and she could only able to
take junior position.
 This is governed under Art 49 on Freedom of EU nationals to establish themselves
in another EU member states.
 Since the problem is concerned as to qualification, one has to refer to qualification
directive 2005/36
Qualification Directive 2005/36

Article 1
This Directive establishes rules according to which a Member State which makes access
to or pursuit of a regulated profession in its territory contingent upon possession of
specific professional qualifications (referred to hereinafter as the host Member State) shall
recognise professional qualifications obtained in one or more other Member States
(referred to hereinafter as the home Member State) and which allow the holder of the said
qualifications to pursue the same profession there, for access to and pursuit of that
profession.
Article 2(2)
Each Member State may permit Member State nationals in possession of evidence
of professional qualifications not obtained in a Member State to pursue a regulated
profession within the meaning of Article 3(1)(a) on its territory in accordance with its
rules. In the case of professions covered by Title III, Chapter III, this initial recognition shall
respect the minimum training conditions laid down in that Chapter.
Article 3(1)(a) defined ‘regulated profession’:
‘regulated profession’: a professional activity or group of professional activities, access to
which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or

indirectly, by virtue of legislative, regulatory or administrative provisions to the possession

of specific professional qualifications; in particular, the use of a professional title limited by
legislative, regulatory or administrative provisions to holders of a given professional
qualification shall constitute a mode of pursuit. Where the first sentence of this definition
does not apply, a profession referred to in paragraph 2 shall be treated as a regulated
profession;
It follows that a ‘profession’ may be regulated in some member states but
not necessarily all of them.
It depends on whether access to the profession is subject in any given state
to the possession of qualifications.
140 Aranitis (Case C-164/94) (1996)
 The applicant had higher-education qualifications in geology
awarded in Greece.
 However when he purported to rely upon these in Germany the was
told that the profession of geology was un regulated in Germany and
hence the Directive did not apply.
Burbaud (Case C-285/01
 The case involved a Portuguese national who wished to reply upon
her hospital administrator’s qualification awarded by the University of
Lisbon in order to secure a managerial position within the French
national health service.
 The French authorities refused, insisting upon possession of specific
French qualifications.
 The court however rejected the French Government’s arguments
and held that the definition of regulated profession was a matter of
EU law.
 Indeed, it had to be otherwise national legislatures could arbitrarily
and unilaterally determine what was within the scope of the EU
legislation on qualifications.
Article 3(2) of the Qualifications Directive adds that a profession practiced
by the members of an association or organization listed in Annex 1 shall be
treated as regulated profession.
Chapter 1 of 2005/36 applied to all regulated professions not covered by
chapter 2 or Chapter 3. It divided professional competence into 5 levels:
Level 1 Attestation of Competence

 Issued by a competent authority in the home state on
the basis of a training course not forming part of a
certificate or diploma, or three years’ full time
professional experience, or general primary or
secondary education, attesting that the holder has
acquired ‘general knowledge’ (Art 11(a))
Level 2 Certificate
 Attesting to successful completion of a secondary
course which is either ‘general’ or technical or

professional’ in character, and which in either case is

supplemented by a course of study or professional
training (Art 11(b))
Level 3 Diploma
Certifying either
(iii) Successful completion of training at post-secondary
level of at least one year’s duration (full time) or the
equivalent part-time duration, or
(iv) Training with a special structure which provides a
comparable professional standard and which
141 prepares the trainee for a comparable level of
responsibilities and functions (Art 11(C))
Level 4 Diploma
Certifying successful completion of a training at post-secondary
level of at least three and not more than four years duration (full
time), or the equivalent part time duration, at a University or
equivalent establishment, plus any additional professional
training which may be required. (Art 11(d))
Level 5 Diploma
Certifying successful completion of a post-secondary course of
at least four years’ duration (full time), or the equivalent part
time duration, at a University or establishment, plus successful
completion of any additional professional training required.
(Art11(e))
Art 13
1. If access to or pursuit of a regulated profession in a host Member State is
contingent upon possession of specific professional qualifications, the competent
authority of that Member State shall permit access to and pursuit of that profession,
under the same conditions as apply to its nationals, to applicants possessing the
attestation of competence or evidence of formal qualifications required by another
Member State in order to gain access to and pursue that profession on its territory.
Attestations of competence or evidence of formal qualifications shall satisfy the following
conditions:
level immediately prior to that which is required in the host Member State, as
described in Article 11.
2. Access to and pursuit of the profession, as described in paragraph 1, shall also be
granted to applicants who have pursued the profession referred to in that paragraph on a
full-time basis for two years during the previous 10 years in another Member State

which does not regulate that profession, providing they possess one or more
attestations of competence or documents providing evidence of formal qualifications.
Attestations of competence and evidence of formal qualifications shall satisfy the following
conditions:
142 level immediately prior to that required in the host Member State, as described in
Article 11;
(c) they shall attest that the holder has been prepared for the pursuit of the
profession in question.
Summary of Article 13
 First Step: Find out how the professional qualification is obtained in
the member states concerned.
 For example: Imagine that Germany requires 5 years’ study at
University for a given profession, while the UK merely requires three
years. The German qualification will be at level 5 and the British at
Level 4.
 Germany cannot reject the British qualification as the Qualifications
Directive requires member states to accept qualifications obtained
in other member states at least equivalent to the level immediately
below that which is required in the host state.
 Germany must accept a level 4 qualification, though may impose
compensation measures.
Article 14
Article 13 does not preclude the host Member State from requiring the applicant to
complete an adaptation period of up to three years or to take an aptitude test if:
(a) the duration of the training of which he provides evidence under the terms of
Article 13, paragraph 1 or 2, is at least one year shorter than that required by
the host Member State;
(b) the training he has received covers substantially different matters than those
covered by the evidence of formal qualifications required in the host Member State;
Colegio de Ingenieros de Caminos, Canales y Puertos (Case C-
330/03)(2006)
 The court concluded that just because a host member state was
entitled to require an applicant from another state to satisfy one of
the measures before being allowed to practice a profession in the
host state, it did not follow that it was obliged to do so.

 Instead the court created the possibility of partial recognition of an

applicant’s qualifications, allowing him or her to practice in the
areas in which they were actually qualified.
Adaptation period: Article 3(1)(g)
practice possibly being accompanied by further training. This period of supervised
practice shall be the subject of an assessment. The detailed rules governing the
adaptation period and its assessment as well as the status of a migrant under supervision
143
shall be laid down by the competent authority in the host Member State.
Aptitude Test: Article 3(1)(h)
‘aptitude test’: a test limited to the professional knowledge of the applicant, made by the
competent authorities of the host Member State with the aim of assessing the ability of
the applicant to pursue a regulated profession in that Member State. In order to permit
this test to be carried out, the competent authorities shall draw up a list of subjects which,
on the basis of a comparison of the education and training required in the Member State
and that received by the applicant, are not covered by the diploma or other evidence of
formal qualifications possessed by the applicant.
Obligation to assess equivalence

 If the applicant does not possess a diploma, they may unlikely fall
under Art 11 or Art 13 of Directive 2005/36.
 However the court have imposed an obligation to assess
equivalence in two possibilities:
 Under Obligation to assess equivalence: (Vlassopoulou)(Case C-
340/89) (1991)
(d) Full Equivalence
(e) Partial equivalence (aptitude test; adaptation period)
(f) No equivalence
 On the fact, Samantha needs to have a Diploma in English for her qualifications to
be assessed under Art 13 and Art 11 of Directive 2005/36.

 It should be also be noted that the field she intended to pursue her activity has to
be a regulated profession too for it to be assessed under Art 13 and Art 11.
 If it is a regulated profession, member state is obligated to take into account the
immediate prior level according to the 1-5 levels of competence.
 By following Art 14, Samantha may require to choose between adaptation period
or aptitude test if partial equivalence offered to her.
 If she has no Diploma (unlikely as she is fully qualified) or the profession is an
unregulated profession, the member state still has the obligation to assess the
equivalence and to give her reason for rejection if any.
144 Part B (Low Paid Job)

 It should be noted that by following Article 7 of Directive 2004/38, Samantha could
not be an unreasonable burden to the state.
 However, this may not be true when it comes to employment, however little the
pay is.
1) Effective and
met.
employment.
 Trojani (Case C-456/02)(2004)
 Michael Trojani, a French national, had gone to live in Belgium in 200.
He lived for a time on a campsite and later stayed in a youth hostel.
 By early 2002 he was living in a salvation Army hostel, and in return
for a board and lodging and some ‘pocket money’ did various jobs for
about 30 hours per week as part of a personal socio-occupational
reintegration programme.
 The ECJ held that this was in principle capable of being regarded as
falling within the scope of Art 45.
Part C (Priority given to teaching assistant who speaks Finnish)


The Court stated:
 On the fact, Samantha is a primary school teacher. More likely she has to comply
145
with Groener case.


Charles, a British citizen, moves to France in search of work. He signs on at the Job
Centre and tries to enrol in a free 'preparing for work' programme that is offered to
unemployed French citizens and all EU nationals who have been employed for at least
one year in France. The French authorities do not permit him to enroll on the programme.
He then applies for a part-time job as a security guard at the French Foreign Office but is
rejected as only French citizens can be employed by the Foreign Office and, moreover,
only French nationals are authorised to bear arms. Eventually, Charles gets a contract
with an IT company for translation work on an 'on call' basis. Some months he works up
146 to 10 hours a week, but other months he has no work at all. However, according to his
contract he has to keep himself available for at least 3 hours a week. Charles is also a
keen ornithologist and he joins a local bird-watchers group. Soon afterwards, some
members of this group are arrested for criminally damaging a motorway building site they
claim will destroy the natural habitat of rare birds. Charles is declared a risk to public order
and threatened with deportation.
Advise Charles as to his rights under EU law.
Answer Guideline
 Charles needs an advise pertaining:
1) Preparatory program
2) Employment in French Foreign Office
3) Deportation
 It should be noted the Charles is a British citizen and thus an EU citizen and he is
guaranteed of his free movement rights pursuance to Art 21 of TFEU.
Preparing for work
 Since Charles is a EU citizen, he has rights against discrimination (Art 18) and
Free movement of persons (Article 21)
 Art 18:
 Art 21:
 Art 20:

year.
the minimex.
Grzelczyk.
provided for”
 On the fact, since Charles in a EU citizen and he could able to argue that by
following Grzelczyk, he should not be subject to discrimination in preparing for
work.
Job Seeker
 Lebon (1987)
 Collins (2004)
The court stated that it is legitimate for a Member State to grant such benefits only
after the work-seeker/job-seeker has established a ‘real link’ with the labour
market of that state.
 On the fact, the question indicated that M begins to find another job but she was
working on the meantime.
 By following the cases above, 1year requirement before preparing for work could
be considered as proportionate since it is required to establish real link with the
labor market of the state.
 It should be also noted that the court in Collin stated that:
1) Any rule must rest on clear criteria known in advance
2) Provision must be made for the possibility of a means of redress of a judicial
nature’.
3) Any rule ‘must not exceed what is necessary in order for the national authorities
to be able to satisfy themselves that the person concerned is genuinely seeking
work in the employment market of the host Member State’.

Part time Job as French Security Guard

 Charles was rejected for the job as only French Citizens can work in public office
and allow to bear arms.
 Art 45(4) TFEU.
148 been interpreted restrictively.
152/73) (1974)
 On the fact, one has to decide whether a security guard post which requires a
foreign national to bear arms constitute an employment of special allegiance to the
state.
Part time Job
 Charles gets a contract with an IT company for translation work on an 'on call'
basis.
 Some months he works up to 10 hours a week, but other months he has no work
at all.
 However, according to his contract he has to keep himself available for at least 3
hours a week.
2) For remuneration
1) Effective and


met.
149 employment.
 On the fact, he works 10 hours a week but in contract it appears as 3 hours a week.
 The court will look at the substance not the form and as long as the activity is
considered to be effective and genuine, he will be considered as a worker.
Derogation
 Charles could be deported due to public security concerns.
 Tsakouridis (Case C-145/09) (2009)
 The Court was asked whether involvement in criminal activity could be
classified as a public security
 Art 27(2) of 2004/38
 Measures taken on grounds of public policy or public security shall comply
with the principles of proportionality.
 To assess Proportionality, the following factors could be taken into account:
1) Whether the measure contemplated is proportionate to the aim
pursued, in the light in particular of the nature and seriousness of
the offence committed,
2) The duration of residence of the person concerned in the host
Member State,
3) The period which has passed since the offence was committed
4) The conduct of the person concerned during that period, and the
solidity of the social, cultural and family ties with the host Member
State.
 Measures taken on the grounds of Public policy or Public Security shall be based
exclusively on the personal conduct of the individual concerned.
 ECJ held that member states may not justify deportation of an individual on
the ground that it will serve as an example to others.
 Orfanopoulos (2004)
 The court gave factors to consider before deporting a person:
6) The nature and seriousness of the offence committed
7) The length of residence in the host member state
8) The period which has lapsed since the commission of the offence
9) The family circumstances of the person concerned
10) The seriousness of the difficulties which the spouse and any of
their children risk facing in the country or origin of the persons
concerned.

 Membership of the organization

 According to Van Duyn (1974), membership of an organization may
constitute personal conduct.
 Members of organizations known to pose a threat to public policy or security
can be made subject to the deportation orders.
 Past and Present association
 The Court in Van Duyn (1974) stated that past association cannot
in general justify a decision refusing the right to move freely.
 However present association which reflects participation in the
activities of the body or the organization as well as identification
150 with its aims or designs, may be considered a voluntary act of the
person concerned and consequently part of his personal conduct.
 On the fact, it is difficult to say that Charles shares the aim or designs of the group
and hence more likely will not be deported.

Question 7 1999 Far East
Francois, a French national, is a promising rugby player and has just been given a
contract by Poiters Pierrots, one of the top national clubs in France who are pleased to
have signed him up as the International Rugby Federation have just adopted a rule
restricting the number of foreign players in any one match for all clubs. Having been taken
on a trial period of a year, he plays for them for about 6 months.
He is then approached by Epsom Clowns, a major English club to come and play for
151 them. Poitiers decide they need money even more than they need Francois and consent
to let him go, subject to a one million Francs (about L 100 000) transfer fee. Epsom
Clowns consider this excessive, as Francois is a foreign player and however good he is,
they will not be able to use him in all their matches. They therefore reluctantly withdraw
their offer.
Francois is, of course very disappointed. He has heard something about European law
being able to help him and asks your advice.
Answer Guideline
 Francois needs an advice pertaining 2 issues:
(i) Rule of International Rugby Federation restricting number of foreign players in
any one match for all clubs.
(ii) Transfer Fee.
Nationality Restriction
 It is to be noted that Article 45 of TFEU is applicable to team sports such as football,
rugby, basketball and hockey.
 Individual sportsmen and women, such as golfers and tennis players are not
protected by Article 45 because they are not employed by anyone.
 It also should be noted that EU law only applies to professional or semi-
professional sport, but not to purely amateur sporting activities.
 EU law also does not apply to questions of purely sporting interest such as the
number of players on a team or the actual rules of the sports itself.
 Walrave and Koch (Case 36/74) (1974)
Bruno Walrave and Longinus Koch, Dutch nationals, were motorcycle
pacemakers.
This entails them riding ahead of cyclists in medium-distance cycle races,
for whch they received payment.
In 1973, the Association Union Cysliste International (AUCI) issued a rule
that pacemakers in the World Championship which AUCI organized, had to
be of the same nationality as the cyclist.
W and K challenged this rule on the basis that it interfered with their
Freedom to provide services.

ECJ stated that both Article 18 and 56 of TFEU could be raised to challenge
discrimination.
However on the fact it was held to be purely sporting interest and EU law
did not apply since it has nothing to do with economic activity.
 Dona v Mntero (Case 13/76)(1976)
The case concerns Italian football federation, under which only Italian
nationals could play in federation games.
The ECJ stated that Articles 18, 45 and 56 TFEU could be invoked to
challenge national sporting rules in the context of professional or semi
152 professional sport.
The case also involves a challenge to a rule devised by UEFA, known as
the 3+2 rule.
The rule which was enforced by all national football associations in Europe,
applied to football clubs competing in certain competitions:
5) National Championship
6) UEFA Cup – Now the Europa League
7) The Champions cup – Now the Champions League
8) European Cup Winners’ cup (now defunct)
It meant that they could only field three non-nationals plus two affiliated
players (those players had played in the country for an uninterrupted period
of five years).
The ECJ held that the rule constituted a breach of Article 4 of regulation
492/2011 which prohibits imposition of quotas on the employment of foreign
nationals.
Article 4 Regulation 492/2011:
Provisions laid down by law, regulation or administrative action of the Member States which
restrict by number or percentage the employment of foreign nationals in any undertaking,
branch of activity or region, or at a national level, shall not apply to nationals of the other
Member States.
The net result is that the 3+2 rule was disapplied as far as it concerned EU
nationals although it could still be applied to non-EU nationals.
UEFA justifications for the rule:
 The rule helped to maintain a connection between clubs and local
players
 This was rejected by the ECJ pointing out that there was no
requirement that clubs had to employ local players.
Chelsea made history in 1999 when it fielded a team containing no English
players.
 Kolpak (Case C-438/00) (2003)
Bosman was followed in Kolpak in the context of handball which is very
popular in Germany.
In 1997, Maros Kolpak, a Slovakian handball player, signed for the German
club TSV Ostringen.

The German Handball Association (DHB) issued him with a player’s permit
marked ‘A’ for Auslander (foreigner).
Under DHB rules only two squad places were available to foreigners.
Kolpak challenged this claiming that it limited his playing opportunities and
was contrary to prohibition of discrimination against foreign nationals.
The ECJ held that the rules were discriminatory and could not be justified
on ‘purely sporting grounds’.
In future clubs were free to field an unlimited number of nationals of other
EU member states, nationals of EEA state and nationals of EU Association
153 states.
 Simutenkov (Case C-265/03) (2005)
A case involving the EU/Russia partnership agreement in which Igor
Simutenkov, a Russian national, was playing in the Spanish football league
with Tenerife.
He was issued with a player’s license identifying him simply as a non-EU
player.
This meant that he could be exclude from certain games where only a
limited number of non-EU players could be fielded.
ECJ held that discrimination against Russian nationals was prohibited by
the Partnership agreement between EU and Russia.
 Kahveci (Case C-152/08)(2008)
The case involves a Turkish national playing in the Spanish football league.
He successfully invoked the Association Agreement between the EU and
Turkey to challenge playing restriction imposed on him.
 On the fact, this is a professional sport of Rugby and it is unlikely the rule to be
classified as purely sporting matter.
 As such the rule here is discriminatory.
Transfer Fee
Jean-Marc Bosman was a midfield football player with Liege FC in Belgium
whose employment contract had expired in June 1990.
He found a new football club willing to give him new contract, Dunkerque
FC in France.
However under rules adopted by all of the national football associations
operating under the umbrella of the UEFA organization, Liege retained
Bosman’s playing registration and would only release it to Dunkerque or
anyone else of the latter paid a ‘transfer fee’ set by liege at 11.7 million
Belgian Francs.
The transfer collapsed as a result, prompting Bosman to launch a challenge
to the ‘transfer fee’ system which culminated, in December 1995, in a
historic victory for Bosman.
Bosman created 2 categories on transfer fee:

3) Out of Contract - Total abolition of transfer fee

4) Under Contract – Subject to transfer fee. The fee operates as
compensation to the selling club for the loss of players.
 Lehtonen (Case C-176/96)
Bosman was followed but distinguished in an ECJ case involving the
compatibility of transfer deadlines.
In 1996, towards the end of the basketball season, Lehtonen, a Finnish
national, transferred from a team in Finland to Castors, in Belgium, who
intended to play him during the final stages of the Belgian Championships.
154 However rule 3(c) of the international Basketball Federation (FIBA)
provided that European clubs were not allowed, after a deadline on 28
February to include their team players who had already played in another
European country during that season.
Consequently, FIBA refused to issue a license for Lehtonen to play in
Belgium that season and warned Castors that the club might be penalized
if it played him.
However Castor did play him in a match the next day, which they won, only
to have the game awarded to their opponents by a score 20-0.
As the club ran the risk of being penalized again or even relegated if he
played, Lehtonen was dropped for the remainder of the season.
A few days later, Castros and Lehtonen brought proceedings challenging
the FIBA rules.
The case was referred to ECJ, which held, first, that rule 3(c) did restrict the
free movement of basketball players but, second that it was justified.
In particular, it prevented bigger clubs from distorting the run-in to the
league championship by trying to buy the best players from rival clubs.
 UEFA introduced a new system of ‘transfer windows’ to try to regulate the
movement of professional footballers.
 Under this system players are only free to move from one club to another during
close season which in Europe is June to August and for one more month mid-
season (January).
 Olympique Lyonnais (Case C-325/08) (2010)
Oliver Bernad spent his early playing career at Olympique Lyonnais, a
football club in central France.
However he rejected the opportunity to sign a professional contract with
Lyon, although one was offered, preferring to join Newcastle United in the
English Premiership instead.
This triggered a provision of French law, according to which he was liable
to pay damages to Lyon.
He refused, contending that the French rules infringed his rights as a worker
under Art45.

ECJ held that French rules were potentially justifiable. The Court accepted
that the objective of ‘encouraging the recruitment and training of young
players’ must be accepted as legitimate.
Moreover, ‘the prospect of receiving training fees is likely to encourage
football clubs to seek new talent and train young players.
However, in this case, the French rules provided for the payment of
damages, not compensation for training.
This went beyond what was permitted, and therefore constituted an
unjustified breach of Art 45.
155  On the fact, by analyzing the cases above the transfer fee is more likely to be
infringing Art 45 of TFEU.


Mrs Esin, a Turkish national, is married to a Mr Aguirre, a Spanish national. Aguirre found
a job in the Netherlands and so they moved there. Six months after they arrived in the
Netherlands Esin gave birth to their first child. A year after the child was born Aguirre felt
that he needed his ‘freedom back’ and so he left the Netherlands intending to move to
Brazil. Esin is now very worried about her future and wishes to rely on EU law to remain
in the Netherlands. Advise Esin.
Answer Guideline
156
Esin’s Right to Remain Relying on Aguirre’s Rights
 Mrs.Esin needs an advice pertaining her right to remain in Netherlands with her
child.
months with
1) Identity Card OR
2) Passport
union country, if:
2) Have sufficient resources for themselves and family members + Not to
become unnecessary burden to social assistance system + Comprehensive
insurance coverage OR
coverage
OR
 On the fact, Aguirre is a EU Citizen. Therefore he may stay in Netherlands for more
than 3 months if he is a worker.
 Esin may rely on Aguirre’s rights to remain in Netherlands as a family member of
the Union citizen by relying on Art 7(d) of Directive 2004/38
 It must be noted that by following Art 2 of Directive 2004/38, family members are
defined as:
(1) Spouse
(2) Registered partnership (on the basis of the legislation of a Member State)
(3) Direct descendants who are under the age of 21
(4) Dependents and those of the spouse or partner
(5) Dependent direct relatives in the ascending line and those of the spouse or
partner
(6) Partner with whom the Union citizen has a durable relationship, duly attested.

 On the fact, Esin is spouse for Aguirre and as such she can remain in Netherlands
as long as Aguirre remains there.
 Since Esin is a Turkish national, she may not able to rely on her rights as a EU
citizen and may only rely on Aguirre’s rights.
Departure of Aguirre
 Article 12 of Directive 2004/38:
Without prejudice to the second subparagraph, the Union citizen's death or departure from the host
Member State shall not affect the right of residence of his/her family members who are nationals
157 of a Member State.
 Since Esin is not a Union, she may not able to rely on Article 12 of Directive
2004/38
 As such, Prima facie, Esin may be deported by the Netherlands authorities.
Esin relying on her child’s rights

 On the fact, Esin gave birth to a child in Netherlands before the departure of
Aguirre.
 Since the child is a Netherlands citizen, Esin may able to rely on his/her rights as
a Union Citizen to remain in Netherlands.
 The judicial activism of ECJ is clearly seen in this area via various cases
insurance.
the mother.
The ECJ held that:

under EU law.
 The children in the R case were entitled to remain, to carry on their
education, because there would otherwise be an obstacle to free
movement.
 On the fact, Esin could able to rely on her child to remain in the territory of EU as
a primary carer of the child.
 Children of a Community national, who was a migrant worker in a host member
state, were entitled to remain in that host member state in order to attend general
158
educational courses.
 The parent who was the primary carer of those children was also entitled to remain
to facilitate the exercise of that right. That applied irrespective of whether only one
parent was a Community national who had since ceased to be a migrant worker,
irrespective of whether the parents had divorced, or irrespective of the children's
nationality.
 C-310/08 Ibrahim
Ms Nimco Hassan Ibrahim, a Somali national, arrived in the United Kingdom
in February 2003 to join her husband, Mr Yusuf, a Danish citizen, who
worked there from October 2002 to May 2003.
The couple have four children of Danish nationality, aged from 1 to 9. The
three eldest arrived in the United Kingdom with their mother and the fourth
was born in the United Kingdom. The two eldest have attended State
schools since their arrival.
Yusof ceased work and left United Kingdom in 2004.He ceased to satisfy
the conditions for lawful residence there under Community law.
Ms Ibrahim separated from Mr Yusuf after his departure. She was never
self-sufficient, and depends entirely on social assistance. She does not
have comprehensive sickness insurance cover and relies on the National
Health Service.
In January 2007 she applied for housing assistance for herself and her
children. The application was rejected
ECJ stated:
 The children and the parent who is their primary carer can rely on a
right of residence in the host Member State on the sole basis of
Article 12 of Regulation No 1612/68 (now Art 10 of 492/2011) without
being required to satisfy the conditions defined in Directive 2004/38,
 Under Article 12 of Regulation No 1612/68(now Art 10 of 492/2011)
the children of a national of a Member State who is or has been
employed in the territory of another Member State are to be admitted
to the latter State’s general educational, apprenticeship and

vocational training courses under the same conditions as the

nationals of that State, if those children are residing in its territory.
 The Court has held that the children of a citizen of the Union who
have installed themselves in a Member State during the exercise by
their parent of rights of residence as a migrant worker in that Member
State are entitled to reside there in order to attend general
educational courses there, pursuant to Article 12 of Regulation No
1612/68. The fact that the parents of the children concerned have
meanwhile divorced, the fact that only one parent is a citizen of the
159
Union, and the fact that that parent has ceased to be a migrant
worker in the host Member State are irrelevant in this regard
 The Court has also held that, where the children enjoy, under Article
12 of Regulation No 1612/68, the right to continue their education in
the host Member State although the parents who are their carers are
at risk of losing their rights of residence, a refusal to allow those
parents to remain in the host Member State during the period of their
children’s education might deprive those children of a right which has
been granted to them by the legislature of the European Union
 It must be stated at the outset that there is no condition of sufficient resources and
health insurance in Article 12 of Regulation No 1612/68 and that, as the Court has
already held, that article cannot be interpreted restrictively and must not, under
any circumstances, be rendered ineffective
 As such on the fact, Mrs Esin, need not to be self-sufficient to claim her right under
Art 12 of
 C-480/08 Teixeira
Ms Maria Teixeira, a Portuguese national, arrived in the United Kingdom in
1989 with her husband, also a Portuguese national, and worked there until
1991.
Their daughter Patricia was born there on 2 June 1991. Ms Teixeira and her
husband were subsequently divorced, but they both remained in the United
Kingdom.
From 1991 to 2005 Ms Teixeira worked for intermittent periods in the United
Kingdom, and Patricia went to school there.
In November 2006 Patricia enrolled on a child care course at the Vauxhall
Learning Centre in Lambeth.
In March 2007 Patricia went to live with her mother. On 11 April 2007 Ms
Teixeira applied for housing assistance for homeless persons. Her
application was rejected on the ground that she did not have a right of
residence in the United Kingdom, since she was not in work and was not
therefore self-sufficient.

She challenged that refusal before the national courts, arguing that she had
a right of residence because Patricia was continuing her education.
ECJ Stated:
 The Court points out that Article 12 of the regulation allow the child
of a migrant worker to have an independent right of residence in
connection with the right of access to education in the host Member
State.
 Consequently, the Court finds that that the right of residence of the
parent who is the primary carer of a child of a migrant worker who is
160
in education is not conditional on that parent having sufficient
resources not to become a burden on the social assistance system
of the host Member State.
 Finally, in answer to a further question raised in the Teixeira case, as
to whether the parent’s right of residence ends when the child
reaches the age of majority – the question was raised because in
2009 Ms Teixeira’s daughter reached the age of 18, thus coming of
age under the law of the United Kingdom – the Court observes that
there is no age limit for the rights conferred on a child by Article 12
of the regulation: the right of access to education and the child’s
associated right of residence continue until the child has completed
his or her education.
 The Court concludes that the right of residence of the parent who is
the primary carer for a child of a migrant worker, where that child is
in education in the host Member State, ends when the child reaches
the age of majority, unless the child continues to need the presence
and care of that parent in order to be able to pursue and complete
his or her education.
 Zhu and Chen v Secretary Of State For The Home Department (2005)
Kunqian Catherine Zhu was born on 16 September 2000 in Belfast to
Chinese parents who were living in Wales (part of the United Kingdom) and
working for a Chinese firm there.
The child's mother, Man Lavette Chen, had selected Northern Ireland as a
birthplace for her daughter so that she could gain Irish nationality.
As Catherine's parents were only temporary migrants in the UK, she was
not eligible for British citizenship simply by virtue of birth in the United
Kingdom, as the United Kingdom abolished automatic jus soli in 1983.
However, by being born in Belfast, Catherine was entitled to Irish citizenship
because at that time, anyone born on the island of Ireland had the
automatic, unrestricted right to Irish citizenship. Thus, Mrs Chen obtained a
passport and hence Irish citizenship for Catherine, with the intention of
using Catherine's status as a European Union citizen to move the family
permanently to Cardiff, Wales.

ECJ stated:
 A refusal to allow the parent, whether a national of a Member State
or a national of a non-member country, who is the carer of a child to
whom EU law grant a right of residence, to reside with that child in
the host Member State would deprive the child’s right of residence of
any useful effect.
 It is clear that enjoyment by a young child of a right of residence
necessarily implies that the child is entitled to be accompanied by the
person who is his or her primary carer and accordingly that the carer
must be in a position to reside with the child in the host Member State
161 for the duration of such residence.
 By analyzing the cases above, one may say that by following Art 10 of 492/2011,
the child has the right to education in Netherlands and by virtue of it the mother
can stay in Netherlands as her primary carer.
 It should be noted that the case of Zhu and Chen never even mentioned about Art
10 of 492/2011, which shows the concept of primary carer may be independent of
Art 10 of 492/2011.
 However one may also have to look at the case of Dano as it shows the current
position of ECJ as to this matter.
 Case C-333/13 Elisabeta Dano, Florin Dano v Jobcenter Leipzig
Two Romanian nationals, Ms Dano and her son Florin, have brought
proceedings before the Social Court, Leipzig (Germany), against Jobcenter
Leipzig, which refused to grant them benefits by way of basic provision
They are, for Ms Dano, subsistence benefit and, for her son, social
allowance as well as a contribution to accommodation and heating costs
Ms Dano did not enter Germany in order to seek work there and, although
she is requesting benefits by way of basic provision which are only for
jobseekers, it is apparent from the case-file that she is not seeking
employment.
She has not been trained in a profession and, to date, has not worked in
Germany or Romania.
She and her son have been residing since at least November 2010 in
Germany, where they live in the home of Ms Dano’s sister, who provides
for them. Ms Dano receives, for her son, child benefit amounting to €184
per month and an advance on maintenance payments of €133 per month.
ECJ stated:
 The host Member State is not obliged to grant social assistance
during the first three months of residence. Where the period of
residence is longer than three months but less than five years (the
period which is at issue in the present case), one of the conditions
which the directive lays down for a right of residence is that
economically inactive persons must have sufficient resources of their
own.
 The directive thus seeks to prevent economically inactive Union
citizens from using the host Member State’s welfare system to fund
their means of subsistence.

 A Member State must therefore have the possibility of refusing to

grant social benefits to economically inactive Union citizens who
exercise their right to freedom of movement solely in order to obtain
another Member State’s social assistance although they do not have
sufficient resources to claim a right of residence;
 By following Dano case above, Esin may able to remain in the territory of
Netherlands as primary carer.
 However, if she was to claim any benefits, the member states may refuse to grant
the benefits citing the case of Dano.
162


In France, jobseekers who are in need of assistance may apply for the ‘basic benefits
provision’ in order, inter alia, to meet their subsistence needs. The benefits granted
thereunder are intended to enable recipients to lead a life in keeping with human dignity
and are intended to cover basic subsistence needs, accommodation and heating needs.
Ms Popescu and her infant son, both Romanian nationals, were refused by a local job
centre the basic benefits provision. Ms Popescu and her son (who was born in France)
have been living in France in the apartment of one of Ms Popescu’s sisters, who provides
them with food and lodging. Ms Popescu has no professional qualifications and, up until
163 now, has not pursued any professional activity, either in France or in Romania. Ms
Popescu instructs you as a lawyer as to challenge the decision of the national authority
to deny her and her son the ‘basic provision’.
Answer Guideline
 Ms.Popescu needs an advice pertaining their rights to receive basic benefits
provision to meet their subsistence needs.
 It is difficult to argue that Ms Popescu should be considered as a worker as she
never pursued an occupation in France.
 Therefore she may rely on the EU citizenship provisions.
EU Citizenship
 Article 20 (ex Article 17 TEC)
Citizenship of the Union is hereby established. Every person holding the nationality of a
Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to
and not replace national citizenship.
 Since Ms.Popescu and her son are Union citizens (Since they are citizen of
Romania), prima facie, she has the right to claim the social benefit in question.
 However, this is qualified by directive 2004/38.
months with
13) Identity Card OR
14) Passport
union country, if:
coverage OR
OR
CJEU’s Case Laws
 Baumbast v Secretary of State for the Home department (Case C413/99)
(2002)
In 1990, the Baumbast family arrived in the UK. The father, a German
national, was employed in the UK. He resided with his wife (who was

Colombian) and their two school age daughters, the youngest one of
whom, Idanella, had dual German-Colombian nationality. The elder
daughter, being Mrs baumbast daughter from previous relationship,
held only Colombian nationality. Over the next three years, Mr
Baumbast was economically active either as a worker or in a self
employed capacity in the UK.
In 1993, however, economic circumstances forced him to take work
outside of the EU (first in China and then in Lesotho in Southern
Africa). In 1995, Mrs Baumbast applied for indefinite leave to remain in
the UK for herself and her daughters. This was refused and she
164 appealed. The ECJ held that Art 21(1) was directly effective and Mrs
Baumbast therefore had the right to residence in the UK despite the
fact that her husband was no longer working or self-employed in the
UK.
Strictly speaking Idanela would be classed as the ‘Citizen of the Union’,
being the only member of the family other than Mr. Baumbast holding
the nationality of a member state, with her mother claiming a right of
residence as her primary carer.
The ECJ stated:
 Consequently, in order to protect the right to family life of the
children allowed to remain in the, a corresponding right to reside
had to be granted to the primary career of those children, even
if the primary carer had no other right to reside under
Community law.
 Even if the ECJ derived the right to education for children solely
from Article 12 of the Regulation 1612/68 (now Art 10 of
492/2011), it held that this article had to be interpreted in line
with Article 8 ECHR.
 Case C-480/08 Teixeira v LB Lambeth (2010) and Case C-310/08 LB
Harrow v Ibrahim (2010)
The Court clarified that the rights of residence held by the child and
her/his primary carer in this instance did not depend on either of them
having sufficient resources to avoid being a burden on the social
assistance system of the UK.
 Garcia Avello (Case C-148/02 (2003))
Mr Garcia Avello, a Spanish national, and Ms I. Weber, a Belgian
national, are resident in Belgium. They married in 1986 and have two
children Esmeralda and Diego who have dual Belgian and Spanish
nationality. Children, pursuant to Belgian law, have the surname of
their father.
Parents requested, in their capacity as the legal representatives of
their two children, that
“their children’s patronymic surname be changed to “Garcia Weber” , pointing out
that, in accordance with well-established usage in Spanish law, the surname of
children of a married couple consists of the first surname of the father followed by
that of the mother.”

This application was rejected on the ground that, in Belgium, children

bear only father’s surname.
CJEU stated that:
 The CJEU reiterated that the citizenship of the Union is destined
to be the fundamental status of nationals of the Member states
(Baumbast) and that the nationals enjoy same treatment
(Grzelczyk).
 It was held that
“the rules governing a person’s surname are matters coming within the
competence of the Member States, the latter must none the less, when
165 exercising that competence, comply with Community law in particular the
Treaty provisions on the freedom of every citizen of the Union to move and
reside in the territory of the Member States.”
 Moreover, European Union citizens cannot suffer any
discrimination on grounds on nationality in regard to the rules
governing their surname. It was also pointed out by the
Advocate General that
“discrepancy in surnames is liable to cause serious inconvenience for those
concerned at both professional and private levels.”
 Even though the Belgian State contended that the principle of
the immutability of surnames is a founding principle of social
order, the CJEU held that
“art.12 EC and 17 EC must be construed as precluding, in circumstances
such as those of the case in the main proceedings, the administrative
authority of a Member State from refusing to grant an application for a
change of surname made on behalf of minor children resident in that State
and having dual nationality of that State and of another Member State, in the
case where the purpose of that application is to enable those children to bear
the surname to which they are entitled according to the law and tradition of
the second Member State.”
 By following the case laws above, one may argue that the right
to receive assistance is one of the fundamental right and more
than that for the sake of the infant child, the financial assistance
has to be given as refusing it will amount to depriving the child
of his/her Free movement of citizenship principles.
 However today one may need to reply on Charter of
Fundamental rights cases too.
Charter of Fundamental rights
 Article 7
Respect for private and family life Everyone has the right to respect for his or her private and
family life, home and communications.
 Article 24
The rights of the child

child’s best interests must be a primary consideration.
 Article 34
1. The Union recognises and respects the entitlement to social security benefits and social services
providing protection in cases such as maternity, illness, industrial accidents, dependency or old
166 age, and in the case of loss of employment, in accordance with the rules laid down by Community
law and national laws and practices.
2. Everyone residing and moving legally within the European Union is entitled to social security
benefits and social advantages in accordance with Community law and national laws and practices.
3. In order to combat social exclusion and poverty, the Union recognises and respects the right to
social and housing assistance so as to ensure a decent existence for all those who lack sufficient
resources, in accordance with the rules laid down by Community law and national laws and
practices.

Belgian law.
to the ECJ.
Treaty on the Functioning of the European Union precluded national
 McCarthy C-202/13 (2011)

lived in the UK.
167 2004/38.
second question.
of her EU rights.
It is arguable that McCarthy should be limited to its facts as Mrs McCarthy
movement rights.
self-sufficient.
Zambrano family.

not recognised.
168 of the rights conferred by virtue of that status.
this test.
However, a recent opinion of the Advocate General (AG), in case (Case C-
40/11 Iida), shows that the issue of whether or not residence rights need to
be accorded to the primary carer of a British child may not depend solely on
whether or not that British child would otherwise have to leave the EU.
 Case C-40/11 Iida (2012)
Mr. Iida is a Japanese national married to German national. They have a
daughter who was born in America.
She has German, Japanese and American nationality. The family moved to
Germany from the USA, upon which Mr. Iida obtained a residence permit
as spouse of a Union citizen.
He works full-time on unlimited contract. Relations soured between Mr. Iida
and his wife (though it is categorically noted not between Mr. Iida and his
daughter) prompted by her move to Austria with their daughter where she
worked full time.
Currently, Mr. Iida and his wife enjoy joint custody though are permanently
separated. After separation, however, Germany revoked Mr. Iida’s spousal
residence permit. He currently has a work permit subject to discretionary
renewal, but wants a residence card of family member of Union citizen. He
applied for long-term residence as a third country national, but withdrew this
application.
The questions referred relate to the meaning of ‘family member’ under
the Citizenship Directive, 2004/38 especially where the applicant does not
maintain the Union citizen, nor is the Union citizen accompanied or joined
by him. The questions of applicability of the Charter of Fundamental
Rights and the European Convention on Human Rights (ECHR) as regards
to the national laws in question as well as interpretation of Art 21 TFEU are
also in discussion.
AG’s Opinion
 The AG highlights that in Dereci the ECJ left open the possibility that
a refusal of a right of residence to the litigants would undermine the
right to respect for private and family life provided for in Article 7 of

the EU Charter of Fundamental Rights or Article 8 (right to respect

for family life) of the European Convention on Human Rights.
 The AG notes that, on those facts, the fundamental rights of
particular importance are the right of the child to maintain on a
regular basis a personal relationship and direct contact with both
parents (Article 24(3) of the Charter) and respect for family life
(Article 7 of the Charter).
 The AG is of the view that whether or not denial of the right of
residence of a parent of an EU child will constitute interference with
a fundamental right depends on the specific circumstances of each
169 case.
 The final decision in Iida is awaited, but if the ECJ follows the opinion
of the AG arguments that a right of residence must be recognised for
a parent of an EU national child, in cases where that child would
otherwise not be able to maintain regular contact with a parent were
such a right not recognised may succeed. As the AG observes:
‘85. However, if it were to transpire in a particular case that denying a right of
residence [to a parent] would rule out the possibility [for the child] of maintaining
regular personal relations [with their parents], this could constitute interference with
a fundamental right, the justification for which would have to been assessed from
the standpoint of proportionality. In that context, it would be necessary to consider,
among other things, whether the child’s father who is a third-country national also
actually exercises his right of custody and endeavours to fulfil his parental duties.
86. In this case a right of residence, based on fundamental rights, [...] within the
meaning of the Dereci judgment might be inferred from Article 24(3) of the Charter
of Fundamental Rights, in conjunction with Article 7 thereof.’
 ECJ’s Judgment
 The Court of Justice of the European Union (CJEU) is more
comprehensive in their assessment of which provisions Mr.
Iida cannot satisfy, beginning with rejecting the application
of Directive 2003/109 on long-term residency for third country
nationals because he withdrew his application.
 They continue to then, like AG Trstenjak, to reject application
of Directive 2004/38 clarifying that whilst his daughter and
wife fall squarely within its remit having moved to Austria, Mr.
Iida does not satisfy the definition of ‘dependent family
member’ upon his daughter’s rights because she is not reliant
on him, but he does come under the spouse definition
because separation is not legally synonymous to divorce.
 However, as it is crucial for him to reside with the Union citizen
to benefit, he may not rely on its provisions.
 The Court then analyses the validity of the case under Arts 20
and 21 TFEU. It is held that despite not having the residence
card Mr. Iida seeks, his family has not been discouraged from
the genuine enjoyment of their rights to free movement – they
have moved.

 Therefore, the Court finds that it is incorrect to rely on

hypothetical situations of discouragement of movement and
arbitrary links with EU law simply to find oneself within the
scope of the Treaty. Without a link to the Treaty, there could
be no recourse to fundamental rights under the Charter or the
ECHR.
 The Court does not consider the daughter’s rights, thus
holding that Mr. Iida did not have rights to the residence card.
 Case C-333/13 Elisabeta Dano, Florin Dano v Jobcenter Leipzig (2014)
170 The case concerned Ms Dano, a Romanian national who entered Germany
in November 2010.
For several years, Ms Dano and her son (who was born in Germany) have
been living in Leipzig in the apartment of one of Ms Dano’s sisters, who
provides them with food and lodging.
In July 2011, she was issued with a residence certificate of unlimited
duration by the city of Leipzig.
Ms Dano has no professional qualifications and has not pursued any
professional activity, either in Germany or Romania. The evidence showed
that she did not enter Germany in order to look for work, nor was she
actively seeking work in that country.
Ms Dano’s claim included subsistence benefits for herself and social
allowances and a contribution to accommodation and heating costs for her
son.
The Court has finally issued its verdict, ruling that:
"The [2004 free movement] directive thus seeks to prevent economically inactive Union
citizens from using the host Member State’s welfare system to fund their means of
subsistence. A Member State must therefore have the possibility of refusing to grant social
benefits to economically inactive Union citizens who exercise their right to freedom of
movement solely in order to obtain another Member State’s social assistance although
they do not have sufficient resources to claim a right of residence."

Question 4 Zone B 2012
Discuss the extent to which the person in each of the following cases is protected under
EU law from attempts to deport them.
(a) Esmeralda is a Portuguese national who comes to the UK in order to take up

employment in a senior position with a newly created internet company, Yourlife, aimed
at providing older people with medical advice after they have undergone surgery for heart
attacks or cancer. She is refused entry on two counts:
171 ii. UK health policy is aimed at making official health advice as efficient as
possible and at Minimizing the large amount of health advice available on
websites, some of which it considers to be detrimental to people’s health;
and
iii. Esmeralda only has 100 euros in cash with her and this is not considered
sufficient by the border officials.
(b) Hans is a Dutch house painter working in London. He has been employed for about
ten hours a week by an agency which pays his wages, with deduction of tax and national
insurance contributions. It is discovered that the agency has been employing some
people in painting and decorating jobs, but in reality as couriers for a thriving drug-
smuggling trade it maintains, and that the painting and decorating side was purely a cover
for this. Hans is in danger of losing his job and decides to get out while he can. He obtains
a number of jobs as a painter and handyman from people who formerly employed him
through the agency. Hans’s wife has some casual cleaning jobs. They have a child of
school age. Hans applies to the authorities in the London suburb where they live for
income support, housing and child benefits. His application is refused on the following
grounds:
i. He does not have enough work to maintain himself and his family; and
ii. He is under suspicion of having had some ‘connection’ with the drug-
smuggling activities of the agency.
Answer Guidelines
Esmeralda
Part A
 Esmeralda needs an advice on whether the UK authorities could deport her
based on the derogations under Art 45(3) of TFEU and Directive 2004/38, Art 27-
Art 29.
 Since she is a Portuguese national, hence an EU citizen, she is allowed to take
up employment in other member states of EU (i.e. UK) as guaranteed by
Directive 2004/38, Art 7.
 On the fact, UK authorities may rely on Public Policy exception in order to deport
her.

 Art 27 of TFEU:
economic ends.
 Art 27(2)
concerned.
172 measures. The personal conduct of the individual concerned must represent a genuine, present
Security:
deportation
serious.
country of origin.
g. have resided in the host Member State for the previous ten
years; or
h. are a minor, except if the expulsion is necessary for the best
(6) His/her age
(7) State of health


years
 On the fact, Yourlife, aimed at providing older people with medical advice after they
have undergone surgery for heart attacks or cancer.
 UK health policy is aimed at making official health advice as efficient as possible.
 It should be noted that Esmeralda’s mere employment position in Yourlife, should
not be the only factor to be taken into account here as it must be based on personal
conduct.
173  The threat that she posed must be genuine, present and sufficiently serious.
 Van Duyn v Home Office (1974)
The case involved a Dutch citizen, Mrs Van Duyn, who was denied leave to
enter the United Kingdom since she was to be employed by the Church of
Scientology whose activity was disapproved by the British Government.
The activities of the Church of Scientology were not unlawful in the
United Kingdom. However, the State considered them to be socially
harmful and employed administrative measures to counteract them.
The CJEU held that the lack of illegality of a certain conduct does not
lead to the impossibility to invoke the violation of public policy and
concluded that ‘the particular circumstances justifying recourse to the
concept of public policy may vary from one country to another and from one
period to another’
It was emphasised that although the United Kingdom does not impose
similar measures on its own nationals in similar circumstances, it is
not prohibited under the principle of non-discrimination to prevent
foreign nationals to enter its territory. As the CJEU said, this is a
consequence of the international law principle that a state cannot prohibit
its own nationals from entering its territory.
 By following the case of Van Duyn, UK health policy minimizing the large amount
of health advice available on websites but not making it illegal.
 As such the national website might not be expressly banned. However by following
Van Duyn v home Office, even if the measure is discriminatory, it could be still be
invoked against foreign websites.
 However, this part of the ruling was implicitly changed in Adoui and Cornuaille v
Belgium (1982)
 Adoui and Cornuaille v Belgium (1982)
Mrs Adoui and Mrs Cornuaille were to be expelled from Belgium since they
worked in a bar ‘which was suspect from the point of view of morals although
that point of view of morals – prostitution – was not prohibited by Belgian
legislation
The CJEU concluded that no public policy violation can be established if the
activity in question is allowed for domestic nationals

 In a fairly recent case, Josemans v Maastricht, the Court came to a different

conclusion, but tried to distinguish it from the Adoui and Cornuaille case
 Josemans v Burgemeester van Maastricht (2010) (C-137/09)
The Court observed that traffic in narcotics, except for medical uses and
scientific research, is prohibited in all Member States, unlike prostitution.
Having that in mind, Maastricht has the right to use the public policy
exception to prohibit non-residents from entering well-known ‘coffee shops’
if their large influx actually disturbs public policy by increasing crime and
illegal drugs sales
174
 Without going into a detailed analysis of the reasonableness of this case, it can be
concluded that in some instances the four freedoms public policy may be used as
a device of discrimination.
 By following Adoui and Cornuaille v Belgium (1982) and Josemans v
Burgemeester van Maastricht (2010), offering health websites itself is not illegal
and as such Joseman is distinguished in current case.
 By following Adoui and Cornuaille, since it is is not applicable to locals website
providers, such a measure cannot be justified.
Part B
 Esmeralda is an EU citizen so she should not be asked how much money she has
and it is absolutely irrelevant.
 Art 6 Directive 2004/38 Directive 2004/38, a union citizen can stay in another EU
1) Identity Card OR
2) Passport
union country, if:
(1) Worker/ Self Employed OR
(2) Have sufficient resources for themselves and family members + Not
to become unnecessary burden to social assistance system +
Comprehensive insurance coverage OR
(3) Student + Not an unreasonable burden + Comprehensive insurance
coverage OR
(4) Family member of accompanying EU citizen
 On the fact, she could be considered as a worker.
(2) Such freedom of movement shall entail the abolition of any discrimination based
nationality between workers of the Member States as regards employment,
remuneration other conditions of work and employment.
 As such she cannot be stopped at Custom because she was merely carrying less
money.

Hans
Part A
 Hans (Dutch painter working in London) may be considered as worker/ self-
employed or even involuntarily unemployed (drug trade of the company)
 Initially he was employed as a painter for 10 hours a week. In order to claim for
social security benefit, he has to satisfy the definition of worker under Art 45 of
175 TEFEU
Worker
(1) Person obliged to provide services to another
(2) For remuneration
(3) Subject to direction & Control of another
(4) For certain period of time
 Hans could be considered as a worker as since he was under the direction and
control of another, providing services. However he was only working for 10 hours
a week.
Part-time/Low Paid Employees
(1) Effective and
(2) Genuine employment
(3) Should not be marginal or ancillary
 What matters to the ECJ is that a basic qualitative threshold of work has
been met.
 Levin (1982) – Chamber maid in Dutch Hotel 20 hours a week & paid 25 pounds
was considered to be worker regardless of her purpose to take the job was to
 Kempf (1986) – 12 hours a week work as music teacher was considered to be a
worker regardless of below minimum wages salary.
 Genc (C-14/09) (2010)
Ms Genc, entered Germany on 7 July 2000 on a visa.
Since 18 June 2004, Ms Genc has been working as a cleaner the working
time per week is 5.5 hours at an hourly rate of EUR 7.87.
That contract provides for entitlement to 28 days of paid leave and
continued payment of wages in the event of sickness.
For this employment, Ms Genc receives monthly wages of approximately
EUR 175.

ECJ stated that it is not possible to fix a lower limit for the duration of the
employment for assessment purposes and left the question to be decided
by national court
 Megner and Scheffel (C-444/93) (1995)

Mrs Megner and Mrs Scheffel are employed as cleaners by Firma G.F. Hehl
& Co., an office cleaning undertaking.
Their normal working time is a maximum of two hours per working day, five
days a week.
176 Their remuneration is set by the collective agreement for office-cleaning
trades and does not exceed one-seventh of the relevant monthly reference
amount.
The definition of the working population is very broad, since it covers any
worker, including persons who are merely seeking employment.
This includes employees who only work part-time and do not receive
enough earnings to cover all of his or her needs
 Raulin (1992)
R, a French national, settled in the Netherlands in 1985 without registering
at the office for control of aliens or obtaining a residence permit.
In March 1986, she entered into an employment contract under which she
performed 60 hours of service as a waitress.
ECJ stated that:
a. A worker employed under an open contract is not precluded by
reason of his conditions of employment from being regarded as a
worker
b. The duration of the activities pursued by the person concerned is a
factor which may be taken into account by the national courts when
assessing whether those activities are effective and genuine or
whether, they are on such a small scale as to be purely marginal
and ancillary
c. In assessing whether a person is a worker, account should be taken
of all the occupational activities which the person concerned has
pursued within the territory of the host Member State but not the
activities which he has pursued elsewhere in the Community
 On the fact, by analyzing the cases above, Hans works for 10 hours a week with
deductions of tax and national insurance benefit.
 As per the Court in Genc (C-14/09) (2010) there is no hard and fast rule to decide
this
 As long as the activity is effective and genuine, Hans could be considered as a
worker.
Involuntarily Unemployed

 Although he volunteered to resign his job (as the question said he get out while he
can), he repented from illegality of the company.
 It is still possible consider the situation as involuntary unemployment.
 Directive 2004/38 Article 7(3) stated that a worker may still retain his classification
as worker if the loss of job is involuntary in the following circumstances:
(1) He is temporarily unable to work due to sick/injury
(2) He has worked for more than 12 months + Registered as a job
seeker
(3) He has worked on a fixed term contract of lesser than a year or
177 involuntary employment recorded within first 12 months +
Registered as a job seeker– Worker classification retained for 6
months
(4) He went on to pursue education (Continuity requirement may be
applicable)
 On the fact, Hans could still retain his classification as a worker if he satisfies
anyone of the above. (questions is vague)
Job Seeker
 At the time Hans was finding for work, he could be also classified as a Job seeker.
 Antonissen (1991), the court stated that Job-seekers are entitled for the protection
of workers if they:
 Lebon (1987)
 Collins (2004)
look for work.
He challenged this.

178  Vatsouras & Koupatantze (2009)
 On the fact, if Hans continue to seek for employment and have genuine chance of
success, he could be classified as a job seeker.
 The benefit that he receive as a job seeker plainly based on whether he could
establish a real link between him and the labor market of the host state.
 Member state allowed establish requirement with clear definition of satisfying it to
be satisfied by migrant workers.
Sel-Employed
 Hans is temporarily self-employed, but at the same time he is still a jobseeker to
classified as a worker.
 If he is considered as a self-employed, Art 49 of TFEU is applicable to him instead
of Art 45 of TFEU.
 However it wont make any difference as Directive 2004/38 and 492/2011 is
applicable for worker and self employed
 Florea Gusa v Minister for Social Protection and Others (20 December 2017)(Case
C-133/15)
The Court after a series of restrictive judgments such as Dano, held that
self-employed persons should be guaranteed the same rights as employed
people even in the event of unemployment.
Regulation 492/2011
 If hans is considered as a worker/self-employed, he may rely on 492/2011 in order
to claim social security benefit.
 Art 7(2) 492/2011

He (the foreign worker) shall enjoy the same social and tax advantages as national workers. He
shall enjoy the same social and tax advantages as national workers.
Part B
 Hans could be only be allowed to be deported based on the grounds under Art 27
and Art 28 of Directive 2004/38
 Art 27 of TFEU:
179 economic ends.
 Art 27(2)
concerned.
Security:
deportation
country of origin.
a. have resided in the host Member State for the previous ten
years; or
b. are a minor, except if the expulsion is necessary for the best
(2) His/her age

(3) State of health

years
180  On the fact, deportation of Hans must be based on his personal conduct and not
on the activities of his employer.
 The previous conviction may not be the sole factor for deportation.
 Georgios Orfanopoulos & Raffaele Oliveri v Land Baden-Württemberg (2003)
Georgios Orfanopoulos, a Greek national, entered the territory of the
Federal Republic of Germany as a 13 year old in 1972 in order to join his
parents. In 1978, he returned to Greece for two years in order to carry out
his military service. In 1980, he re-entered Germany and, one year later,
married a German national. The marriage produced three children.
Mr Orfanopoulos has pursued various activities as an employed person
(interrupted by long periods of unemployment). He is a drug addict, has
been convicted nine times for drug-related offences and crimes of violence
and has been in prison several times. His stays in rehabilitation clinics were
brief as he had to be discharged on disciplinary grounds.
Raffaele Oliveri, an Italian national, was born in Germany in 1977 and has
lived there ever since. He is a drug addict and has committed several
offences of theft and one offence of dealing illegally in drugs. He is therefore
serving a prison sentence. He abandoned a course of therapy. By decision
of 29 August 2000, the Regierungspräsidium Stuttgart threatened
Mr Oliveri with deportation to Italy without setting a time-limit. Mr Oliveri
brought an action against that decision before the Verwaltungsgericht
Stuttgart. By letter of 20 June 2001, the prison hospital stated that he has
been infected with HIV since 1998 and has had full-blown AIDS since 2001
and claimed that he would not be able to obtain adequate treatment in Italy.
ECJ:
 The Court answered the question at what time the present threat
needs to be assessed. It considered that ‘in practice circumstances
may arise between the date of the expulsion order and that of its
review by the competent court which point to the cessation or the
substantial diminution of the threat which the conduct of the person
ordered to be expelled constitutes to the requirements of public
policy
 On the fact, the case above distinguished since there personal conduct of Oliveri
and Orfanapoulos was not proper.

 On the fact, Hans repented from the illegal act which was committed by his
company and not even him.
 By looking at the harm he has caused, it is plainly nothing.
 In such circumstances, deportation order against Hans could be disproportionate
since he is not a present, genuine and sufficiently serious threat.
 As per the case of Orfanopoulos, the time of the threat to be assessed is the time
of the deportation order and Hans is not posing any threat at the time of the
deportation order too.
181

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Free Movement of Persons European Union

Question 6 2022 Zone B

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(3) It must be based exclusively on personal conduct

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2) Imperative Grounds of Public Security

Relying on Child Rights

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2022 Zone A Question 6

Hannah is the only daughter of a same-sex couple of Bulgarian nationals established in

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that competence, the Member States being free to decide whether

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 Moreover, European Union citizens cannot suffer any

Charter of Fundamental rights

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2022 October Zone B Question 7

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 Case C-133/15 Chávez-Vílchez and Others

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Question 7 2022 October Zone A

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It is arguable that McCarthy should be limited to its facts as Mrs McCarthy

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Question 4 2021 Zone A

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The ECJ held that:

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 Zhu and Chen Case (2004)

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Question 7 2021 Zone A

 The definition of worker was stated in the case of Lawrie-Blum (1986)

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Part Time and Low Paid employees

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Question 4 2021 Zone B

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(5) Social/cultural integration into the host state

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expulsion measure cannot be based on the existence of

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 Case C-34/09 Zambrano v ONEm (2011)

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Question 7 2021 Zone B

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