Question 1

After a number of incidents involving minor offences of public order, which led to convictions for disturbing the peace, the founding member of the Tooting Popular Front, a self-proclaimed neo-Communist revolutionary party, Wolfie Smith and his girlfriend Shirley, both of whom had been unemployed in the UK for many months, decided to seek opportunities for work in Germany.

They were accompanied by Shirley’s retired father, Charlie, and mother, Florence, who is mentally disturbed.

Shirley obtained work but Wolfie did not and, after seven months, the immigration authorities, who now had details of Wolfie’s convictions and political associations, ordered the expulsion of Wolfie from Germany as a threat to public security and whose presence was contrary to public policy.

Charlie had claimed retirement pension and Florence had made a claim for a special benefit to attend a mental health clinic. Both were refused on the grounds that they had not contributed to the German social security system and were not German citizens and were thus not entitled to benefits. In addition, a deportation order was issued against Florence on the ground that her mental illness was a threat to public policy and public security. She was given just one week to leave.

Wolfie appealed against his deportation on the grounds that he was a worker and entitled to remain in Germany as a result of his street busking (playing guitar in the street for donations of money from the passing public). Wolfie had also joined a local band and played a series of gigs (about 80 hours in total) before ideological differences led the band to split. Afterwards he applied for a grant to attend music college but was turned down by the German authorities.

Shirley’s parents also appealed against the refusal of benefit and Florence’s deportation.

In order to help them in their appeals before the local administrative tribunal, before which representation is not compulsory, they obtained the services of Ken, a qualified UK solicitor with a practice in Tooting, who visited them in Germany. The tribunal, however, refused to recognise his right to represent them unless he worked in conjunction with a local lawyer and maintained a local chamber as a professional base whilst in Germany. Ken’s protest that the provision of services should not be subject to the same restrictive rules was rejected by the German authorities because they argued he had established in Germany, hence they can impose the same rules on him.

You are asked to consider the position of Wolfie, Shirley’s parents, and Ken under EU law.

Answer guidance

This long and involved problem question concerns a number of aspects of the free movement of workers including their rights in the host state, the rights of their relatives, and the free movement of professionals. As with many problem questions on this topic, it can be difficult to answer because there are often a considerable number of points to be considered. These include procedural points, rights and benefits to be claimed, rights of members of the family, and reasons why deportation would not be appropriate. It may not be typical of exam questions because of its length but, because of that, it is a good example to demonstrate the need to plan and structure an answer to a convoluted question.

You should commence by briefly outlining the general approach of the CoJ in this area of law, specifically Arts 45–62 TFEU before noting the issues that should be tackled in the answer. Then, identify the problems which must be considered. These can be listed person by person. Wolfie is concerned about the deportation, whether he is a worker or has the status of a worker for other reasons, and then whether there are substantive grounds for the deportation order. Florence and Charlie need to know their rights as relatives of a worker to claim benefits and Florence is concerned about the deportation order issued. Ken wishes to know about his ability to provide services.

The order in which these points are tackled is also important and the procedural points should be dealt with first because these are of first relevance for the persons concerned. This is even though you have not decided whether there are yet grounds for the deportation. Then you can deal with each person in turn or combine the treatment of persons where the issues are the same. Given that Wolfie is so complex you might provide a list of the items you need to tackle in respect of him in the answer or maybe just put these down in your plan. I have provided them here as a list, but a list might not be appropriate in the answer itself. Wolfie’s concerns are:

• Deportation
• Worker in own right?
• Providing services?
• Established?
• Seeking work?
• Student?
• Member of family?
• Cohabitee?
• Right to be or not to be deported
• Past convictions
• Personal conduct

Consider then each of the substantive issues identified according to legislation and case law.

For Ken, the Treaty and Secondary legislation on services and establishment of lawyers must be addressed and also case law applying to Ken’s case must be considered, especially Gebhard.

Question 2

Discuss the view that case law concerning the freedoms of establishment and the right to provide services has blurred the distinction between these two concepts.

Answer guidance

This question is really asking you to consider the effect of the cases of Säger v Dennemeyer (C-76/90) and Gebhard v Consiglio dell’Ordine degli Avvocati (C-55/94) and the more recent cases and legislative moves in this area. However, to make sense of this you must put these in context by provide basic definitions of the establishment and the provision of services as set out initially in Arts 3 TEU and 49–62 TFEU. Then establish the original distinction between them, indicating this by way of any case law relating to them, in particular the leading cases Reyners and van Binsbergen.

Finally, then, you can consider what effect, if any, the Säger and Gebhard cases and recent legislative intervention such as Directive 2006/36 on the Recognition of Professional Qualifications and Directive 2004/38 on the Free Movement of Persons. More recently, the Services Directive 2006/123 further consolidates the rules on services and establishment have had. You should consider which national rules, especially professional rules which may be considered acceptable for establishment but not for services and how the latest case law has affected this position and your conclusions on blurring, if any.

Question 3

Two UK nationals, Bob and Vic, decide to go to college in Holland because there are no tuition fees and many courses are in English, so they don’t have to learn a foreign language. They have saved up some money from working in the UK and have enough to live on for one to two years depending on how careful they are. On entry to Holland they are questioned as to their intentions and financial position and declare that they are fully self-sufficient. The Dutch authorities advise them that they will be provided with residence permits once they have completed all the necessary forms and registered with the local authorities in the Dutch town of Sneek where they have settled. They enrol on a four-year college course on hotel and pub management which involves some practical training working in bars, restaurants, and hotels, but this is not paid. They are not, however, too careful with their money because each weekend they travel to Amsterdam to enjoy the café and nightlife culture of that city. In less than one year their money runs out. Both apply to the Dutch authorities for social security assistance so that they can continue to live in Holland and complete their courses. Both are refused assistance. Now that the authorities are alerted to their situation, they discover that Bob and Vic have not completed the immigration formalities and do not possess a residence permit. The authorities issue them with deportation orders, giving them two weeks to leave the country.

Realising that the situation is grave, Bob is able to persuade a local bar owner to provide him with work for two nights per week (eight hours in total) but which is only paid for in free food and drink. He advises the authorities of this and now claims he has the right to stay as an EU worker and also that Vic can stay too as Bob’s live-in lover.

Discuss the rights, if any, that Bob and Vic have under EU law relevant to the above situation.

Answer guidance

This question considers the more general rights of movement of the non-economically active and the rights provided, under the concept of Union Citizenship. In answering the question itself, your starting point should be a brief discussion of the applicable legislative regime including Treaty and secondary provisions to enter as non-worker or student and the general rights under Arts 18, 20, and 21 TFEU, outlining the general rights of entry and residence. When addressing the facts of the case, as this problem also includes the threat of deportation, the procedural aspects relating to deportation should be considered first, followed by establishing whether Bob and Vic have any right to stay in Holland and then if there is a right to stay, whether the Dutch authorities then can establish any substantive grounds for their expulsion. As usual, relevant cases should be referred to, in particular Sala and Grzelczyk cases. You need to consider Article 45 TFEU and worker status including rights granted by Regulation 492/2011, the status, if any of cohabitee under Reed or student, the Lair and Brown cases and any rights under Directive 2004/38.