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The free movement of persons: Personal Mobility Workers and Citizenship

Treaty Provisions Article 39 EC Freedom of movement for workers shall be secured within the Community. Migrant workers Article 43 EC ights of self em!loyed !eo!le and their businesses !rohibits restrictions on freedom of establishment Article 4" EC Free movement of self#em!loyed !eo!le !rohibits restrictions on freedom to !rovide services. $ationals of any Member %tate may enter and stay or live in any other Member %tate in order to be em!loyed or run a business $ot to be discriminated against in any way same as nationals Directive 200 !"# Makes it !ossible for union citi&ens to enter and reside in any member state. 'hese rights a!!ly whether they are workers( self#em!loyed( students or )economically inactive !ersons*. $rticle "% &C: 'ree Movement of Workers What is a (orker) Lawrie-Blum a+ !erforms services for another b+ under control of that other !erson c+ receives remuneration ,orkseekers A !erson seeking work comes within the sco!e of Art 3" ex p Antonissen -ost significance because $rt *+,- of Dir 200 !"# gives right of residence for 3 months for all citi&ens and $rt , + -+b- says that you can*t be e.!elled as long as you are actively looking for work and have a genuine chance of being engaged. /art#time A !art time worker is a worker under Art 3" EC !rovided the work is )effective and genuine* and )not on such a small scale as to be regarded as marginal and ancillary* Levin A !art#time worker is a worker even if he su!!lements his income with !ublic funds Kempf

An un!aid worker who contributed towards the community*s economic activity and who received benefits as an indirect wage is a worker Steymann 'he work carried out by a drug addict as !art of a rehabilitation scheme did not make him a worker as the work was to benefit him Bettray 0e. A worker must be carrying out work that is a genuine economic activity Mi.rant Worker A wholly domestic situation ie a 1ritish $ational being sent back to $orthern 0reland does not fall within the sco!e of Art 3" EC R v Saunders /nterpretation of 0ationality $ationality is determined by the national law of the member state concerned ic!eletti

1i.hts of &ntry and 1esidence for 2nion Citizens: Workers3 4elf5 &mployed and 6thers
Primary 7e.islation EC 'reaty Articles 3"(43 and 4" grants rights to 2nion citi&ens to work in any Member %tate on an em!loyed or self#em!loyed basis. $rt "% +"- includes rights to move freely within states which im!lies a right to enter each se!arate state. Also grants a right to stay while working and remain thereafter( sub3ect to conditions these are rights of residence. $rticles " and % &C make no mention of rights for 2nion citi&ens themselves to )move freely* or )enter* a host state( to )stay* or )remain* or )reside*. Although such rights could !erha!s be inferred from the rights granted 4to work in a host %tate on a self#em!loyed basis+( the !rovisions here are !erha!s not sufficiently e.!licit to guarantee those rights. As a result secondary legislation was !asses 5ir 6774839 Directive 200 !"# 'his directive aims to grant to 2nion citi&ens e.!licit and clear rights of entry and residence to host %tates 1eneficiaries: Art 34;+ states that 5irective 6774839 covers two categories of !eo!le: a+ 2nion citi&ens who move from their home state to another member state< and b+ Family members who may accom!any them

ights: Article 4 ights of e.it Article = ights of entry $rticle * esidence for u! to 3 months # do not need to !ursue any economic or other activity #Article >46+ e.tends this right to non#2nion national family members accom!anying or 3oining the migrant 2nion citi&en $rticle 8 esidence for longer than 3 months. A!!lies to 2nion citi&ens who are: a+ workers and the self em!loyed b+ !eo!le with sufficient resources to su!!ort themselves( and with sickness insurance c+ students with sufficient resources to su!!ort themselves during their studies and sickness insurance d+ family members of the above( whatever their own nationality $rticles ,* after = years legal residence 2nion citi&ens and their family members are entitled to !ermanent legal residence $rticles ,8 9 ,# ?rants !ermanent esidence !rior to = years residence to the following workers and self#em!loyed !eo!le( !lus their family members( in certain situations( eg where the migrant 2nion Citi&en has retired or become !ermanently inca!able of work. Even where the worker8self#em!loyed !erson has died before gaining !ermanent residence ,8+ 2nion Citizens: 'amilies 5irective 6774839 grants entry ans residence rights to the families of 2nion citi&ens e.ercising free movement rights as workers( self#em!loyed !ersons( 3obseekers( students or !ersons with inde!endent means. %ometimes described as )!arasitic*. Family member: ;+ %!ouse( 6+ egistered !artner 4where host state recognises the relationshi! as e@uivalent to marriage+( 3+ 5irect descendants of citi&en or s!ouse( under 6; or de!endant 4+ 5e!endant direct relatives in the ascending line of the s!ouse or !artner Member %tates must also allow entry and residence to de!endants or members of the 2nion citi&en*s household or need his8her !ersonal care for serious health reasons and the !artner with who the 2nion citi&en has a durable relationshi! Art 3 5eath of the union citi&en 0f 2nion citi&en then the family member must meet the Article A conditions 4be worker( self#em!loyed( students( have inde!endent means( or be a family member of a 2nion citi&en holding such status+ 0f not a 2nion citi&en they can stay !rovided they have lived in the host state for at least a year Art ;6

5e!arture of the 2nion Citi&en non E2 family members have no right to stay if the 2nion citi&en leaves unless they can rely on Art ;643+ which !rovides that following the de!arture of the 2nion Citi&en his8her children in education in the host state( and the !arent who has actual custody( irres!ective of nationality( retain residency rights until the children*s studies are com!lete. 5ivorce of the 2nion Citi&en Article ;346+ 0f they divorce they lose their rights unless: a+ 'heir marriage lasted for at least 3 years with one year in the host state b+ 'hey have custody of the 2nion Citi&ens children c+ 'here are !articularly difficult circumstances such as domestic violence d+ Br where the s!ouse or !artner has access rights to a child in the host state %e!aration has no effect on rights 5iatta %urinda %ingh established that an EC worker returning to the home state should be treated in the same way as an EC worker moving to a host state. %o a non#ec s!ouse should be able to accom!any a worker home &;ceptions to 1i.hts of &ntry and 1esidence: &;cl<sion and Deportation Articles 3"43+ 4migrant workers+( 4> 4right of establishment+ and == 4those !roviding services+ EC allow Member %tates to e.clude or de!ort a 2nion citi&en or their family members on the grounds that they are a threat to )!ublic !olicy( !ublic security or !ublic health* 5irective 6774839 confirms these grounds and further s!ecifies that any e.clusion or de!ortation: a+ may not be used for economic ends b+ must be !ro!ortionate c+ must be based e.clusively on the !ersonal conduct of the individual d+ may not be carried out on the grounds of !revious criminal convictions in themselves e+ if on the grounds of !ublic health( can only relate to diseases )with e!idemic !otential* or diseases which are the sub3ect of !rotection !rovisions a!!lying to nationals of the host Member %tate f+ should entail a right of a!!eal or review in the host %tate itself 0n Adoui 46 French !rostitutes refused residence !ermits in 1elgium+ the ECC ruled that a Member %tate could not refuse residence to a non#national where the Member %tate did not ado!t against its own nationals acting in the same manner )re!ressive measures or other genuine measures intended to combat such conduct 0n Bouc!ereau 4French national working in the 2D( was convicted for the 6nd time within > months for unlawful !ossession of drugs+ the ECC suggested that !ast convictions are only relevant in so far as the !erson constitutes a )!resent threat*: this will be the case if the !ast conviction shows a !ro!ensity to re#offend

0n "an #uyn 45utch scientologist refused entry to the 2D+ the ECC made it clear that current association with a grou! or body could constitute !ersonal conduct and that the activities of the grou! do not need to be illegal for a Member %tate to deny entry to e.!el its members. Euman ights Car!enter v %ecretary of %tate for the Eome 5e!t # FFF 1/=>T T6 &?2$7 T1&$TM&0T Art 3"46+ EC !rovides that migrant workers must not suffer )discrimination based on nationality* as regards their )em!loyment remuneration and other conditions of work and em!loyment* a!!lies to any em!loyer not 3ust the state 5istinctly and 0ndistinctly A!!licable Measures 5istinctly A!!licable Measure: Commission v France French maritime code re@uired French merchant shi!s to em!loy a ratio of 3 French crew to one non#French. 0ndistinctly A!!licable Measure 4discriminatory+: Eg all vets in %!ain must go to a %!anish vet school $on#discriminatory 0ndistinctly A!!licable Measure: 1osman Case as it inhibits free movement of !eo!le but it does not discriminate against any nationality egulation ;>;68>9 Art ; 'he right to take u! em!loyment in the territory of another state Art ;46+ with the same !riority as nationals of that state Art 34;+ -anguage conditions # an em!loyer can re@uire their em!loyee to s!eak the language if the 3ob re@uires it Art >4;+ generally engagement and recruitment must not be sub3ect to a discriminatory test or other criteria Art A4;+ 'he right not to be discriminated against on the grounds of nationality in relation to any conditions of em!loyment includes !ay Art A46+ a!!lies to social and ta. advantages # Art A43+ a!!lies to training Custification of distinctly a!!licable8directly discriminatory measures: the 'reaty e.ce!tions $rticles "%+"- &C allow Member %tates to e.clude or de!ort a 2nion citi&en or their family members on the grounds that they are a threat to )!ublic !olicy( !ublic security or !ublic health*

Gery narrowly inter!reted Can be used by individuals accused of hindering free movement as well as Member %tates Bosman where 2EFA was hindering free movement $rticle "%+ - allows restrictions with regard to em!loyment in )!ublic service* ie 3obs which have a )s!ecial relationshi! of allegiance to the %tate* the test is )the e.ercise of !owers conferred by !ublic law* and )safeguarding the general interests of the state* eg 3udicial a!!ointments( senior civil servants and !olice officers. Commission v Bel$ium various !osts on the 1elgium railways eg trainee drivers( shunters and signallers were restricted to 1elgian nationals ECC ruled that Art 3"44+ EC did not a!!ly to these roles Any e.ce!tion must be !ro!ortional Custification of 0ndistinctly A!!licable Measures Cassis de 5i3on A!!roach a!!lied to Free movement of workers: E@ual 'reatment E@uivalent case is Bosman which confirmed that the Cassis a!!roach could be used in workers cases too( as a 3ustification for indistinctly a!!licable measures which actually hinder the free movement of workers. H'he rules could be 3ustified if they !ursued a legitimate aim com!atible with the 'reaty and were 3ustified by !ressing reasons of !ublic interest*. 'his restates the Cassis a!!roach that the measure must be )necessary* for a )mandatory* re@uirement of the %tate. Must be !ro!ortional. C/T/@&04>/P 6' T>& &216P&$0 20/60 Article ;A EC creates conce!t of )citi&enshi! of the 2nion* Article ;9#66 EC state that rights which )citi&ens of the 2nion* are to have ights Art ;9 'o move and reside freely within the territory of the Member %tates Art ;"4;+ 0f residing in a Member %tate of which he or she is not a national( to vote and stand as a candidate in munici!al elections in that Member %tate( on the same conditions as a national of that Member %tate Free movement of throughout the Community is no longer linked to the status of worker crossing frontiers( but has now become linked to the status of citi&en of the 2nion.

Baum%ast Article ;9 is directly effective ECC case law shoes that Art ;9 can be useful in a number of situations( including the following: ;+ ?ranting rights of residence where more s!ecific rights of free movement have ceased 0n Baum%ast a ?erman national came to the 2D as a self em!loyed !erson( then became an em!loyee but didn*t have sickness insurance. 2D argued he lost his right to reside Article ;9 had direct effect 6+ /rohibiting discrimination against 2nion citi&ens from other Member %tates &r'elc'y( French national student at university in 1elgium he was denied a grant ECC ruled that this was unlawful and that he was a 2nion citi&en and it was discrimination contrary to Art ;6 EC.