Chapter 12 Suggested approaches to end-of-chapter questions

Free movement of persons

1. Who is a worker for the purposes of the TFEU?

Widely defined by the CJEU to include not just those in work but also those in part time work, those retired or involuntarily unemployed, those seeking work in certain circumstances and those in training and education if linked to working.

2. Who is entitled to join a worker in the host state?

Members of the worker's family and those of his/her partner and now covered by Article 2 of Directive 2004/38.

3. Give four case law examples of how the CoJ has interpreted social and tax advantages from Article 7 (2) of Regulation 1612/68 (now Art 7(2) of Regulation 492/2011).

In Case 32/75 Fiorini a.k.a. Christini v SNCF, a reduced fare entitlement was claimed by the widow of an Italian SNCF worker. Widows of French workers were allowed such a family entitlement but it was denied to the Italian. The SNCF claimed that since it was not express in the contract of employment, it was not available to foreign workers. The Court of Justice was asked if this was the kind of social advantage envisaged by Article 7 and it held that Article 7 applies to all advantages, not just those limited to a contract of employment. It therefore applies to the family of an EC worker in the same way as for nationals.

In Case 94/84 ONE v Deak, an unemployed Hungarian national living with his mother, an Italian national working in Belgium, was refused special unemployment benefits for non-nationals on the basis that no agreement for such benefits existed between Belgium and Hungary. The Court of Justice held that special unemployment benefits were a social advantage within the meaning of Article 7 and that Deak, regardless of nationality, could derive rights as the descendant of a worker, otherwise a worker might be hindered from moving if the descendants were discriminated against, thus causing financial difficulty.

In Case 137/84 Mutsch, a Luxembourg national living in a German-speaking commune in Belgium was denied the use of German before a court, a right granted to the Belgium-German minority. The Court of Justice held that right was a social advantage under Article 7(2) despite there being no link to a contract of employment.

Article 7(2) has even been interpreted to include a grant to cover funeral expenses in Case C-237/94 O'Flynn where nationals were provided with the same assistance.

4. To what extent does the public service proviso allow member states to exclude all entry to public service employment in its territory?

Public service derogation only applies to typical public service posts which exercise powers conferred by public law and which are there to safeguard the interests of state, regardless of the actual status in each of the member states. The Court of Justice has on this basis excluded from the scope of Article 45(4) TFEU:

  • Case 307/84 Commission v French Republic; nurses;
  • Case 66/85 Lawrie-Blum v Land Baden-Würtemberg; trainee secondary school teachers;
  • Case C-4/91 Bleis v Ministry of Education; secondary school teachers;
  • Case 33/88 Alluè and Coonan v Università degli Studi di Venezia; as above; foreign language lecturers.

5. For what reasons may a member state refuse entry to, or lawfully deport, an EU worker?

Member states are able to restrict entry and deport EU nationals on the grounds set out under Article 45(3) TFEU which are public policy, security and health, subject now to stringent requirements in Directive 2004/38, Articles 27 and 28.

6. Is European Citizenship to be equated with European nationality?

No, European Citizenship is intended by the member states to complement and not replace national citizenship and can only be determined as the collective definition of citizenship from all of the member states. If a person is a national of a member state, then Articles 20 and 21 TFEU apply.

7. It seems, following the case law on citizenship, that it is no longer necessary to actively engage in an economic activity to trigger valuable EU law rights. What will now trigger those rights?

Where citizenship rights are established through lawful residence, Article 18 TFEU applies and if an EU citizen is lawfully resident in another member state, there is no requirement to be economically active to be entitled to equal treatment including for example, equal treatment in non-contributory welfare benefits on the same basis as nationals. It is even possible to be a burden on the state, albeit a reasonable one only as in Grzelczyk. Hence then, lawful residence and citizenship appear to be the main criteria needed to trigger other rights under EU law.

8. What is meant by 'reverse discrimination'?

This is where the application of EU law has the effect of producing reverse discrimination against nationals of member states when compared to EU nationals who have moved to a host member state and can benefit from EU law. For example, where strict professional rules continue to apply to nationals established and providing services but which are held by the Court of Justice not to be suitable or appropriate to apply to EU professionals providing services temporarily in the host state.

9. What is the 'wholly internal rule'?

EU law will not apply when a situation is regarded as being wholly within the internal legal competence of a member state, where for example, there is no movement across an EU border, thus, there is no reason why EU law rights are triggered.

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