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Free movement of persons 1: Entry and Residence (Workers - Article 45 TFEU…
Free movement of persons 1: Entry and Residence
Workers - Article 45 TFEU
Economically active
Free movement of workers shall be secured
Abolition of discrimination based on nationality regarding employment
Derogations and specific rights
Public service exemption
Sotgiu - EU meaning
Defined in Commission v Belgium (Public employees)
Local authority posts exempted - Commission v Belgium
Not exempted
Railway posts - Commission v Belgium
Nurses - Commission v France
Trainee teachers - Lawrie Blum
Definition
Hoekstra - EU meaning - can't be left to national law in defining
Walrave & Koch
Economic activity
Levin - Effective and genuine activities
Not marginal or ancillary
Bettray - not allowed - purpose of employment was rehabilitation - economic elements ancillary
Effective and gennuine
Kempf - counted even though couldn't meet needs without welfare
Steymann - work in religious community counted because involved commercial activity
Trojani - confined to facts
Having character of gainful employment
Lawrie-Blum - defines 'employment relationship' - prepatory service counts
Performs services
For or under the direction of another
In return for renumeration
Job seekers
Royer - Art 45 - includes right to enter and reside to look for work
Antonissen - reasonable period of time only
Article 14(4)(b) Directive 2004/38 - no expulsion where...
Evidence that continuing to seek employment
Has genuine chance of being engaged
Union citizens - Articles 20 & 21
No need to be economically active - same treatment in law as nationals - new category that came about in the Maastricht Treaty - post 1992
Grzelczyk - destined to be the fundamental status of nationals of the MS
Right to move and reside freely
Subject to limitations and conditions in the Treaties and secondary measures
Status under Directive 2004/38
Union Citizen - Art 2(1)
Family members - Art 2(2)
2(2)(a) - Spouse
2(2)(b) - registered partner
2(2)(c) - direct descendants under 21 or dependent
2(2)(d) - dependent direct relatives in the ascending line
Basic rights
Art 5 - entry
5(1) - valid identifty card or passport - no visa or equivalent formality
5(1) - non-EU family member - entry visa in accordance with Reg. 539/2001 or where appropriate, with national law
Art 6 - residence up to 3 months
6(1) - Union Citizen - valid identiy card or passport - no other conditions or formalities
6(2) - Family member - right of residence where...
Accompanying or joining Union Citizen
In possession of valid passport
Art 7 - residence over 3 months
7(1) - Union Citizen
Worker or self-employed
Sufficient resources and sickness insurance
Enrolled students
Family member accompanying or joining Union Citizen
7(2) - family member accompanying or joining Union Citizen
Further rights of residence
Retention of residence
Union Citizen
Art 14(4)(b) - jobseekers
Art 7(b) - no longer a worker or self-employed
Subject to conditions in the relevant article
Family member
Diatta - separation from spouse
Art 13 - divorce or annulment
Art 12 - death or departure of Union Citizen
Subject to conditions in the relevant article
Permanent residence
Article 16
16(1) - legally resided in host MS for continuous period of 5 years
16(2) - legally resided in host MS with Union Citizen for continuous period of five years
16(4) - lost through absence from MS for period exceeding two consecutive years
Can be acquiried before 5 years
Worker or self-employed 17(1)
a) Reached pension age or has retired
b) Permanent incapaciy to work
c) Resident in host MS but working in another MS
Subject to conditions
Family member 17(3)
Also gains permanent residence
Other beneficiaries
Art 3(2)(a) - other family members where...
Dependent
Member of household
Serious health grounds
Art 3(2)(b) - any partner with whom Union Citizen has 'durable relationship'
MS required to facilitate entry and residence only
Derogations
Art 45(3) TFEU
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Public policy
Public security
Public health
Art 27(1) Directive 2004/38
27(2) - must be based on personal conduct only - Van Duyn
Not arbitrary - Adoui & Cornuaille
Not to deter others - Bonsignore
Must represent genuine, present and sufficiently serious threat affecting one of the fundamental interests of society - Bouchereau
Not past convictions in themselves - Bouchereau
Proportionate
Must not serve economic ends
General principles of EU law - compatible with human rights - Rutili and Orfanopoulos
Art 28 - additional safeguards