Chapter 11 Guidance on answering assessment questions

Free movement of persons

Patrick, a UK national, is a librarian at his local library. He has recently been told that due to the economic crisis, a decision has been made to close a number of libraries and that unfortunately, the library in which he works is one of those that will close. Patrick has looked for employment opportunities elsewhere in the UK but unsurprisingly, librarian posts are few and far between.   Becoming increasingly concerned about his ability to financially support his family, Patrick has decided to go abroad to seek work and has identified France, where he has supportive friends, as a suitable destination.

Whilst he is looking for work, Patrick, his wife Shannon (a Canadian national) and his son James (a UK national) plan to live with Patrick's friends in France.  Shannon hopes to find casual work and James plans to attend the local school.  Patrick is confident he will be able to find work within a year and then plans to purchase a property.  He has spotted a couple of part-time posts in French libraries but it has been suggested that part time employment would not provide him with a right to stay in France. He has also become concerned by a recent newspaper article suggesting that some French provinces reserve librarian posts for French nationals because of the 'public service' nature of such posts. Furthermore, the article went on to say that at times, non-nationals were paid less and had less employment protection than French nationals.

As the day of departure approached, Patrick went out with friends as a farewell party. Unfortunately, Patrick drank heavily and whilst in an intoxicated state, became involved in an altercation with another man. He has since been charged with assault. Patrick fears that this charge will give the French authorities cause to deny him and his family entry.

Advise Patrick, Shannon and James as to all the issues raised above in connection with the free movement of persons within the EU.

The free movement of persons is one of the four fundamental freedoms of the internal market (Article 26 TFEU).  The instant case raises a number of issues pertaining to the rights of free movement and limitations upon those rights.

Patrick

Patrick is a UK national and as such, is a citizen of the Union (Article 20 TFEU).  He enjoys free movement rights subject to limitations and conditions (Article 21 TFEU).  These rights are developed in Directive 2004/38 and provide for the right to leave a Member State to travel to another Member State (Article 4), to enter another Member State such as France (Article 5) and to stay there for up to three months (Article 6) purely on the basis of European citizenship as introduced by the Treaty of European Union 1992.

Further to these rights, Union law provides him with jobseeker rights.  Specifically, these provide that he may not be expelled so long as he can provide evidence that he is continuing to seek and has a genuine chance of being engaged (Article 14(4)(b).  Thus, whilst his primary right is for up to three months, notwithstanding Antonnisen where a jobseeker was lawfully deported after six months, so long as Patrick satisfies the requirements of Article 14, he cannot be expelled.

As regards the part-time posts, if upon taking such a post Patrick was considered to be a worker, he would have a right to stay beyond three months (Article 45 TFEU, Article 7 Directive 2004/38).  Whilst no Treaty definition exists of the concept of worker, it has been held to have a Union meaning (Hoekstra) and was defined in Lawrie-Blum such that the ‘essential feature of an employment relationship…is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration’.  Subsequent case law has included within this definition a part-time worker whose income did not provide sufficient means of support and who fell below the nationally recognised minimum subsistence level, where the work was ‘effective and genuine’ and not on such a small scale as to be ‘purely marginal and ancillary’ – Levin, Kempf.  In application to the instant case, it is clear that upon taking such a post, Patrick would be a worker for the purposes of Union law and the suggestion that the family would be residing with friends due to financial constraints does not affect this (Article 14).

The rights pertaining to workers’ rights are initially set out in Article 45 TFEU and are subsequently expanded upon in Directive 2004/38 and Regulation 492/2011.  Whilst Article 45(4) allows Member States to deny or restrict access to employment in the public service on grounds of the worker’s nationality, this is interpreted narrowly by the Court of justice.  Indeed, in Commission v Belgium it was argued that ‘public service’ was a matter for Member States to define.  The Court disagreed and defined public service posts as those involving ‘the exercise of power conferred by public law’ where there was a responsibility for safeguarding the general interests of the State’.  In light of this narrow definition, it is submitted that the librarian posts would not amount to public service posts and therefore any discrimination on grounds of nationality as regards access to such posts would be a breach of Union law (Article 18 TFEU, Article 45(2) TFEU).

Furthermore, if the claim made in the newspaper article in the instant case relating to less pay and employment protection for non-nationals than French nationals proved to be true, this would similarly breach Union law (Article 18 TFEU, Article 7 Regulation 492/2011) which provides for equality as regards remuneration and dismissal.

Finally in relation to Patrick, we need to consider his charge for assault.  It is clear from Article 21 TFEU that free movement rights are subject to limitations and conditions.  Indeed, in Article 45 TFEU ground of public policy and public security are set out.  The general principles surrounding such limitations can be found in Article 27 Directive 2004/38.  Key principles to highlight in the instant case would be the fact that measures taken on such grounds must be based exclusively on the personal conduct of the individual and that the personal conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.  Considerations of general prevention will not suffice.  Furthermore, any such action must be proportionate.  It is submitted that in the instant case, a charge of assault would not justify denying entry.  Patrick has merely been charged and not convicted and even if convicted, the nature of the offence is such that it wouldn’t meet the very high standard set in Article 27 and nor would such action be proportionate in denying exercise of fundamental rights of free movement.  In light of the weaknesses of the argument to deny access, consideration does not need to be given to Article 28 which provides further protection against expulsion.

Shannon

Shannon is a Canadian national and therefore is not a national of a Member State.  If she is to have rights of free movement, these must necessarily be derived rights.  Directive 2004/38 provides for rights of free movement for ‘family members’.  This is defined in Article 2 and includes a spouse.  As such, Shannon enjoys rights derived from Patrick.  Such rights include the right to take up employment in the host state (Article 23, Gul).

James

James is a national of a Member State and is therefore a Union Citizen and enjoys free movement rights deriving from such status (Article 20 and 21 TFEU).  Like, Patrick, Directive 2004/38 provides him with basic rights including the right to stay for up to three months.  He is also a family member of a Union Citizen as defined in Directive 2004/38 Article 2(2)(c) – ‘direct descendants who are under the age of 21’ and therefore also enjoys derived rights.  James also has a right pertaining to Regulation 492/2011 Article 10 to be admitted to the State’s general educational courses under the same conditions as nationals of that state.  As such, James would be able to attend the local school.