Sally, a German national, is 20 years old. Sally had never travelled outside Germany, where all her family and friends live, until last year when she decided to settle permanently in Spain. She has been living in Madrid for the past nine months.

Shortly after her arrival in Madrid, Sally applied for unskilled work in the kitchens of a state-run secondary school. She was invited for interview but her application was unsuccessful because she failed a Spanish language test set at the interview. Eventually, Sally secured employment as a hotel chambermaid. However, after working in this job for a time, Sally began to feel very unhappy about her low wages and she became involved in criminal activity. She has just been convicted of robbery with violence and the Spanish court is considering ordering her expulsion from Spain on public policy grounds.

Advise Sally as to the application of EU law on the free movement of persons to each aspect of this situation.

Introduction

• Free movement of persons: one of the four fundamental freedoms of the EU internal market, Article 26 TFEU.
• Article 18 TFEU: general principle of freedom from discrimination on grounds of nationality 'within the scope of application of this Treaty'.

Sally's rights of entry and residence

Rights of entry and residence by virtue of Union citizenship alone

• Sally, as a German national, is a national of a Member State and is therefore a Union citizen (Article 20 TFEU).
• Article 21 TFEU grants the right of free movement and residence within the territory of the Member States to all Union citizens 'subject to limitations and conditions'.
• The scope of the Article 21 rights is defined in secondary legislation, Directive 2004/38. The Directive grants to all Union citizens, rights of entry and residence for up to three months, without formalities or conditions (Article 6). Sally has already exercised her right of entry to Spain and has lived in Madrid for the past nine months. Her right to remain for more than three months depends on her status as a worker or jobseeker.

Rights of entry and residence as a jobseeker

• As a jobseeker, Sally had the right to enter Spain and can now reside there (Directive 2004/38, Article 14(4)(b), Royer) but not necessarily indefinitely. She must continue to show that she is genuinely looking for work and capable of finding it (Directive 2004/38 Article 14 (4)(b), Antonissen).
• Sally has clearly demonstrated that she has been genuinely seeking employment, first applying for the post at the school and then applying for and taking the job as a hotel chambermaid.
• She therefore had the right to remain in Spain as a jobseeker.

Right of residence as a worker

• Now that she has taken the chambermaid position, if Sally can establish 'worker' status, she has available the range of worker rights under the provisions of the Treaty and secondary legislation.
• There is no Treaty definition of 'worker' but the Court of Justice has stated 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' (Lawrie-Blum). An individual undertaking of 'effective and genuine' economic activity will fall within the definition of 'worker' (Levin, Bettray). Sally's work as a chambermaid clearly satisfies these requirements.
• As an EU migrant worker, Sally has the right, under Article 45(3) TFEU to remain in Spain for the purposes of employment. As a Union citizen with worker status she has the right, under Directive 2004/38, to remain in Spain for more than three months (Article 7(1)(a)).

Sally's right of access to employment

Freedom from discrimination

• Article 18 TFEU sets out the general principle of freedom from discrimination on grounds of nationality 'within the scope of application of this Treaty'.
• Article 45(2) TFEU provides that workers of the Member States shall be free from discrimination based on nationality as regards employment, remuneration, and other conditions of work and employment.
• Directive 2004/38 provides that all Union citizens residing in another Member State on the basis of the Directive shall enjoy equal treatment with nationals of the host state, within the scope of the Treaty (Article 24).
• As an EU migrant worker, Sally is entitled to all these rights. Their scope is defined by Regulation 492/2011.

Access to employment

• Regulation 492/2011 provides that any national of a Member State is entitled to take up employment in another Member State under the same provisions as those applying to the host state nationals. However, the Regulation provides for derogation from this principle in relation to linguistic requirements. This matter must be considered in Sally's case.
• Sally's application for unskilled work in the school kitchens was unsuccessful because she failed the Spanish language test set at interview. Article 3 of Regulation 492/2011 states that the provisions on equal access to employment do not apply to conditions relating to linguistic knowledge 'required by reason of the nature of the post to be filled'. Given the kind of work involved in Sally's case, it would be difficult for the school to argue that anything more than the most basic linguistic knowledge was required by reason of the nature of the post. However, without further information, it is not possible to reach a definitive conclusion on the compatibility of the requirement with Union law.

Sally's expulsion on grounds of public policy

• Workers' rights of residence are subject to limitations on grounds of public policy, public security, or public health (Article 45(3) TFEU, Directive 2004/38).
• Article 27 of Directive 2004/38 requires that measures taken on grounds of public policy be proportionate and based exclusively on the personal conduct of the individual concerned. That conduct must represent a 'genuine, present and sufficiently serious threat affecting one of the fundamental interests of society'.
• Sally's criminal offence clearly comprises personal conduct, is recent, and is likely to be of a sufficiently serious nature to justify expulsion.
• Under Article 28 of Directive 2004/38, before it orders deportation, the Spanish court must take account of considerations such as how long Sally has lived in Spain, her age, state of health, family and economic situation, social and cultural integration into Spain and her links with the Germany.
• Sally is young, has lived in Spain for only a short time, and has family and social links with the Germany. On that basis, Sally is very unlikely to be entitled to the protection against expulsion envisaged by Article 27.
• Sally is, however, entitled to the procedural rights and safeguards afforded by Directive 2004/38. She has the right to be notified of the grounds on which the decision is based, a right of appeal, and the right to remain in Spain pending the completion of the appeal. She may, after a reasonable period and in any event after three years, submit an application to have the order lifted on the grounds that there has been a material change in the circumstances which justified the exclusion decision. (Articles 30–32, Directive 2004/38).