Essay: Free movement of persons

This is a problem question which raises issues relating to the free movement of persons. EU citizenship was established in the Treaty of Maastricht and is determined on the basis of an individual holding the nationality of a Member State: Article 9 of the Treaty on European Union (TEU) defines EU citizenship as “Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.” Article 20 (2) of the Treaty on the Functioning of the European Union (TFEU) sets out the rights which EU citizens are entitled to and under Article 21 (1) TFEU, EU citizens have the right to move and reside freely in other Member States. Directive 2004/38 which is also known as the Citizens Rights Directive, was enacted in April 2004 and also covers the right of EU citizens and their family members rights to move and reside freely within other Member States. In order to determine the parties rights, it is necessary to determine whether they are EU citizens first and then analyse how EU law relates to their situations.
Firstly, Sandra is a Belgian citizen which means under Article 20 (1) TFEU and Article 9 TEU , she is an EU citizen. She has the right to move and reside freely which is one of the fundamental freedoms of the European Union. She has moved from her netball team, Antwerp Angels, which is based in Belgium over to Tooting which is based in London, England which is another Member State. Her contract is for 2 years and she will receive £2000 per match played. Sandra has moved from Belgium to London as a worker so she is protected under Article 25 of the Directive 2004/38 and can stay longer than 3 months based on Article 7 of the Directive. In the case of Lawrie-Blum v Baden-Württemberg the Court of Justice objectively defined a ‘worker’ as “a person who is obliged to provide services for another in return for monetary reward and who is subject to the direction and control of the other person as regards the way in which the work is to be done.” In this situation Sandra is providing a service through netball for Tooting where she has a contract in which she is under the control of and she receives her “monetary reward” which is £2000 per match played. She can therefore stay longer than 3 months as she is working and has sufficient economic income. Sandra is entitled to all of the European Union related rights which include Article 45 TFEU which provides that a Union worker has the right to “accept offers of employment actually made, move freely within the territory of Member States for this purpose, stay in a Member State for the purpose of employment and remain in the territory of a Member State after having been employed in that state.”Free movement doesn’t just mean the right to move and reside freely, it also means the right to be treated the same as nationals of that particular Member State. Anyone who does exercises their free movement rights shall not be discriminated against as that would be going directly against the internal market objectives of the European Union which are set in Article 26 (2) TFEU . The non-discrimination principles are set in Article 18 TFEU . The case of Commission v Germany (Re Nursing Directives) established that those who are entitled to EU rights must be made aware of them, and must be able to rely upon them before a court of law. Article 20 (2) TFEU establishes the rights attached to EU citizens which include: “the right to move and reside freely within the territory of the Member States, the right to vote and stand as candidates in elections to the European Parliament, the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State and the right to petition to the European Parliament and apply to the European Ombudsman.” The right to move and reside freely within the territory of the Member State is further developed in Article 21 (1) TFEU as it references the limitations laid out in the Treaties and secondary legislation. The Directive 2004/38 is secondary legislation establishes the rights of Union workers and their family members to enter, exit and reside freely within a Member State. The Regulation 492/2011 which is also secondary legislation deals with affairs relating to equal access to employment and equality in terms of employment, housing, education and social rights. All of these measures and provisions are directly effective rights which Sandra is entitled to. Due to the fact that she has changed teams in the middle of her playing season, she has now been disqualified from playing future European Masters League games for the rest of the season. Consequently, this means her potential earnings will be reduced. This has only happened on the basis of the European Netball Federation (ENF) rules on the international transfer of players meaning that she is only disqualified as she is an international player and these rules would not apply to any British citizens.
As Sandra is an EU citizen and due to her rights mentioned above, she is able to enforce her EU rights and use horizontal direct effect. This means she is able to take action against the ENF on the grounds that she is being discriminated against based on her nationality as the rules for disqualification for changing teams mid season are only applicable to international players. Acts that receive disqualification for only international players is unlawful and Article 18 TFEU states that “any discrimination on the grounds of nationality is prohibited.” Article 45 TFEU subsection 2 regards the “abolition of any discrimination based on nationality between workers of the Member States” in regards to employment. The case of Dona v Mantero the Court of Justice held that sporting bodies that are not emanations of the state are liable to uphold the rights set out in Article 45 TFEU as long as they undertake economic activities. This is directly applicable to Sandra’s situation which she can use against the ENF. The articles are part of the Treaty provision which is a legally binding source and the case of Defrenne v Sabena establishes that all treaties can be horizontally directly effective. Direct effect “enables individuals to immediately invoke a European provision before a national or European court.” It was established in the case of Van Gend en Loos v Nederlandse Administratie der Belastingen and is a fundamental principle of European law. It ensures that the Union and Member States are held accountable for failures to fully implement and apply EU law and the Court of Justice developed direct effect as one of the principles which enable citizens to enforce their rights within the national courts. In Sandras situation, horizontal direct effect is the most appropriate remedy as it is between individuals and private parties, who in this case are the ENF. She should argue for breach of Article 45 of the Treaty Provision and is likely to either receive compensation from the ENF or best case, she will be able to play the rest of the EML games of the season. The result depends on whether the national courts decide that the ruling is discriminatory against international players and that London, as a Member State has failed to apply EU law properly.
Charlotte is a Swedish national, making her an EU citizen under Article 20 TFEU . Under Article 21 EU citizens have the right to move and reside freely in another Member State. She has been playing for Tooting for the past 4 years and receives £1,500 per match played. Article 2 (1) of the Directive 2004/38 defines what and EU citizen is as well case law, specifically the Lawrie-Blum v Baden-Württemberg case. She is providing a service through playing netball and has a contract and also receives a monetary reward for each match played. Ultimately, she has the same rights as Sandra. Her worker status means she is protected under Article 25. She has been able to stay longer than 3 months as she has been working for the whole 4 years and has sufficient economic income. Under Article 45 TFEU Charlotte has the right to “stay in a Member State for the purpose of employment and remain in the territory of a Member State after having been employed in that state.” The Directive 2004/38 gives Charlotte the right got her and her family members to enter, exit and reside freely within the territory of the Member State. Rights set out in Article 20 (2) TFEU are also applicable to Charlotte: “the right to move and reside freely in the Member State, the right to vote and stand as candidates in elections to the European Parliament, right to enjoy the territory of the Member State, protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State.” She is also entitled to equality in terms of housing, employment, education and social rights under Regulation 492/2011 . Article 16 of Directive 2004/38 includes the right of permanent residence for a Union worker and their family members. The Union citizens acquire this right after a 5 year period of continuous legal residence 9 (Art 16 (1) of the Directive 2004/38) .
Charlotte is married to Luis who is from Columbia. He is not an EU citizen, however, he is able to stay and live with Charlotte in London under the status of a ‘family member’. Article 2 (2) of Directive 2004/38 includes spouse in the definition of a ‘family member’. From the facts of Luis’ situation, there is no evidence to suggest that he is working or looking for a job, so I can assume that he is a dependent family member on Charlotte as she is the only one receiving any income. In the case of Centre Public d’Aide Sociale de Courcelles v Lebon , the Court of Justice held that a dependant family member is one who receives support from the EU citizen whether that be finical or non-financial support it doesn’t matter. Article 6 (1) of Directive 2004/38 specifies the right for EU citizens to reside for up to three months is also applicable to non-EU family members in Art 6 (2). Directive 2004/38 establishes the rights of family members to reside with a Union worker. In terms of his rights to free movement as a family member, under Art. 9 (2)of the Directive , he is required to apply for a residence card not more than 3 months from his arrival in the Member State. Residence cards are valid for at least 5 years which would still be in date if he had applied for it. However, the facts do not suggest that Luis has applied for his residence card. Non EU family members who have lived with a Union citizen in the host Member State for 5 years can acquire the right to permanent residency under Art. 16 subsection 2 of the Directive 2004/38 . The right to “reside on the basis of this directive in the host Member State and enjoy equal treatment of the nationals of that Member State” under Article 24 (1) of Directive 2004/38 is extended to family members who have the right of residence which Luis does.
Under Art. 20 TFEU , Bjarne is an EU citizen as he is a Swedish national. He also comes under the definition of a ‘family member’ to Charlotte in Article 3 (2) (a) of the Directive 2004/38 . He is 11 years old and has learning difficulties which means he is a “dependant direct relative” of Charlottes under Article 3 (1) (d) . As he is an EU citizen, he is also entitled to free movement. He has the right of residence in any Member State for up to three months without any conditions. He has been able to stay for the 4 years as he is a dependant family member of Charlottes which means he has the right to stay in London as long as she is. He is entitled to all the rights set out in Article 20 (2) TFEU and 21 TFEU . Most importantly, Bjarne is entitled to equality in terms of social right under the Regulation 492/2011 which means he is entitled to go to the special needs school. Article 18 TFEU prohibits any discrimination on the grounds of nationality. Article 24 (1) of the Directive 2004/38 states “all Union citizens residing on the basis of this Directive in the host Member State shall enjoy equal treatment with the nationals of that Member State.” This suggests he is entitled to the equal treatment of being able to attend the special needs school regardless of the requirement as it wouldn’t apply to British nationals. The principle of equal treatment is set out in Art 24 (1) of Directive 2004/38 which states “all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State”. In the case of Inzirillo v Caisse d’Allocations Familiales de l’Arrondissement de Lyon the Court of Justice held that an allowance for disabled adults that a Member State awarded to its own nationals constituted to a social advantage to which an EU national should be equally entitled under such circumstances. The facts included that the EU citizen could apply on behalf of the family member. Although in the case the person was an adult, the principle is still the same that Charlotte is applying on behalf of her brother due to his age. Article 14 (4) (b) of the directive covers that the host State is not obliged to grant social assistance to the members of the Union worker in the first three months of residence. This is not applicable to Bjarne as he has been living in London for the past 4 years so the State is able to acquire him with social assistance.
As Bjarne is too young to have the knowledge and understanding to best enforce his rights, Charlotte will be required to do it on his behalf. The best way to enforce his rights are on the grounds of the State breaching his Article 18 rights and Regulation 492/2011 rights . The requirement for Bjarne to have resided in the UK for 5 years constitutes to discrimination. The requirement is unlawful and is set in the Treaty Provision in Article 18 , which includes direct discrimination of nationality is prohibited. This is legally binding which means it constitutes to direct effect. The test which was set out in the case of Van Gend en Loos v Nederlandse Administratie der Belastingen needs to be satisfied in order for Charlotte to use vertical direct effect. The requirements include: the EU provision needs to be sufficiently clear and precise, which Article 18 TFEU is. The provision must be unconditional, which it is only to EU citizens which Bjarne is, and it must leave no room for the exercise of discretion in its implementation by an institution or national authority which Article 18 doesn’t. As the provision passes these requirements, Charlotte will be able to enforce this provision and exercise Bjarne’s rights before the courts. The ESC can be considered and emanation of the state which is established in the Foster test: the body is considered to be providing a public service as it is a public school for special needs children. It is subject to state authority as is subject to the council. It can be considered to have special powers as it set a residency requirement and even turned away Bjarne based on it.
Maria is Luis’ daughter from a previous marriage and is 18 years old. She is Columbian and therefore not an EU citizen. She comes in the definition of a worker under the Directive 2004/38 Article 1 (c) “a child under 21 years of age or such child of a spouse of a European Union citizen and;” (d) “a dependent direct relative in the ascending or descending line or any such relative of a spouse of a citizen of the European Union.” Maria specifically falls under the age of 21 of a spouse of an EU citizen and she is dependant on the descending line of her father who is the spouse of an EU citizen. Maria’s rights are considerably low as she is dependant on her father who is also dependant on Charlotte. The right in Article 24 (1) of the Directive 2004/38 to “reside on the basis of this directive in the host Member State and enjoy equal treatment of the nationals of that Member State” is extended to family members who have the right of residence which Maria does based on her dependency on Luis and Charlotte. This means it is within her rights to receive a maintenance grant as other British nationals in her position would. Article 24 (2) of the directive provides a derogation from the principle of equal treatment in regards to students. It states that Member States are not obliged to grant maintenance loans for studies unless the person is classed as worker or a person of such a persons family. She is defined as Charlottes family member who is an EU citizen and a worker in London so according to this Article of the directive it is within her rights to be eligible for the maintenance grant. In the case of Gravier additional fees for non-nationals fell within the scope of Article 18 on the basis that secondary law provisions provided support to Member States under Article 166 TFEU which allowed the court to apply Art. 18 TFEU . The requirement of 5 years of residency in the UK amounts to indirect discrimination to nationality in this case. This requirement largely impacts those citizens who move from other Member States which is also a fundamental freedom of EU citizens.
The ESC, in my opinion, must refer questions about the local authority’s refusal to grant Bjarne a school place to the Court of Justice of the European Union as legally, it is requirement to receive and have an education until the age of 18 in London. The authority’s refusal of this has not only breached this legal requirement but it has also breached Bjarne’s Article 18 TFEU rights as well which include protection from discrimination of nationality. The fact that Bjarne has special needs means that his schooling options are already limited and the requirement of 6 years residency in the UK is purely discriminatory to any EU citizens who move to another Member State. The freedom to move and reside freely in another Member State is one of the fundamental freedoms of the EU and the authority here are clearly breaching it. The reason the ESC must refer the questions about the local authority’s actions is because the residency requirement is a direct breach of his rights and it should be brought to the Court of Justice that such requirements in order to attend a special needs school should be abolished in all Member States. Especially because Bjarne is still a child and its within his rights to be in full time education at his age anyway. He should have been attending school from a much younger age. Under Article 24 (1) of the Directive 2004/38 he also has the right to equal treatment of the nationals of the host Member State which he is not receiving. This area of law is not developed enough as the scope of EU law suggests that students should be treated equally, however, it doesn’t specify the difference between ‘normal’ and disabled students either. If the Court of Justice looked at this issue as well as the questions which arose from the authority’s refusal to grant Bjarne a place, it could reform and adapt EU law provisions related to this topic and prevent situations like Bjarnes arising in the future in any Member State.