Free Movement Of Persons

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Free Movement of Persons

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Free Movement Of Persons
  1. EU Citizenship: 1957: No concept- 1993: TEU concept created
    1. Art 20(1) TFEU: "Every person holding the nationality of a MS shall be a citizen of the Union"
      1. Rights: Free Movement, Voting, Diplomatic Protection, Petitioning of the European Ombudsman
      2. Art 18: fundamental principle Movement cannot de be discriminated based on nationality
        1. TFEU: Art 45(1): FMOW shall be secured within EU i.e. accept job offers, move around to get jobs, reside and remain Art 45(2): Reinforces Art 18- work & conditions cannot be subject to discrimination Art 45(3) & (4): Derogations and public service principle
          1. 'Worker'- not defined in TFEU- Lawrie-Blum: Certain period of time, under direction of another and for remuneration Includes Part-time workers- Levin, Levl of remuneration irrelevant- Kempf, Genuine and effective activities regardless of payment/hours
            1. Courts have taken a purposive interpretation to Art 45 Can include work seekers- Antonissen- 'reasonable' time up to 6 months- when individual is actively seeking work & genuine chance of employment
            2. D2004/38: Consolidated all existing law into one source- pragmatic Art 4: Own MS must provide individuals with documents to leave i.e. passport
              1. Art 5: Entry with valid identity card/passport for worker- family only need visa if non-EU
                1. Art 6: Right of residence up to 3 months
                  1. Art 7: Becomes unlimited for worker & family- potential right to remain and even where the worker is temporarily out of work- Art 7(3)
                    1. Art 14: Right of family members to reside with worker- in compliance with Art 8 of HRA- family life- if these rights did not exist would be a barrier to FM- parasitic rights from the EU worker
                      1. Art 27(1): Derogations can not be based on economic grounds- does not define what amounts to policy, security or health but offers limited guidance Art 27(2): Must be proportionate and based on the personal conduct of the individual which must be genuine, present and of serious threat- Van Duyn: concept of public policy will differ amongst Ms e.g. Omega case
                2. Who are Family Members? Art 2: Spouse, registered partner, direct descendants under 21 and dependants
                  1. Art 3(2): Two new gateways- a) individual who requires the personal care of the EU worker- might be able to join worker and b) duly attested relationship
                    1. Art 12(1): FM's can remain after death/departure of EU Worker Art 12(3): Children can stay in school Art 13(1): Can remain after divorce but more restrictive for Non-EU (Art 13(2))
                      1. Art 14(1): Worker cannot be unreasonable burden on the MS- Lebon Art 24: All EU citizens must be treated equally in the Host MS- Sotgiu (traveller allowance issue) Gull (qualifications)
                3. R492/11- Art 7(1): Must not be treated differently for employment Art 7(2): Enjoy same social and tax advantages as nationals- generous approach- Even Benini-Tuition fees issue- descendant of a worker
                  1. Freedom to move/work within the EU is not absolute- MS can sometimes derogate from the freedoms Art 45(3): "Subject to limitations on the grounds of public policy, public security and public health"
                  2. Personal Conduct: Expulsion must be proportionate, not as an 'example'- Bonsignore Criminal conviction per se- not automatic expulsion- Bouchereou: focus on propensity Calfa: genuine & sufficiently serious threat affecting a fundamental interest- Gough and Smith & Others Art 29(1): public health as defined by WHO- restrictions no non/nationals
                    1. Procedural safeguards- MS to satisfy Rutili: State must give individual comprehensive statement of the grounds for decision- enable them to prepare a defence Art 28(1): Consider how long individual has been in host MS, age, health, family, economic, social & cultural integration Art 28(2): Permanent residents only on serious ground
                      1. Art 30(1): Notification in writing- 'can be comprehended and implications for them'- important- Rutili Art 31(1): Access to judicial & admin procedures to appeal/seek review Art 45(4): Public service exemption- Satgiu
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