EU-Caselist FMP.txt

test for personal conduct justifying expulsion/refusal of entry- presence must also threaten" one of the fundamental interests of society Court said that the national authorities are required to carry out a specific appraisal from the point of view of the interest inherent in protecting the requirements of public policywhich would not necessarily coincide with the appraisals which formed the basis of the criminal convictions. Court stated that in addition to the "genuine and serious threat to public policy", the person's presence must also threaten" one of the fundamental interests of society". Concerned a French national living in England who was twice convicted in England of unlawful possession of drugs. After the second conviction, the sentencing court recommended that he be deported. A reference was made to the ECJ, asking among other things, in what way a criminal conviction might be taken into account in deciding to recommend deportation.

right of establishment-(Hey-Ummm)Art 43 required the German authorities to compare his qualifications to see if he had covered the knowledge required, & to take into account the experience gained in another MS when deciding whether its training requirements were met-Italian national had qualified as a dentist in Turkey. His qualification was not recognised under the EC Directive for dentists, but he had worked for 8 years in Belgium. He was refused employment in the German social security scheme and told he needed two more years� training

qualification requirements-Article 39 EC (free movement of workers) and Directive 98/5. Concerned Germany�s refusal to grant access to a Polish national to serve as a legal trainee. The Court stated that, although Community law requires that the qualifications and the experience of a candidate who obtained his diploma in law in another Member State be fully taken into account, it does not require that the level of knowledge of national law be lowered for such a candidate. It notes that, in the absence of harmonisation at European Union level of the conditions of access to legal traineeships, Member States are entitled to lay down the knowledge and qualifications they require. However, in order to reconcile the national requirements so defined with the requirement that the fundamental freedoms guaranteed by Community law are capable of being exercised effectively, European Union law requires the authorities of a Member State, when assessing the application for admission of a national of another Member State, to carry out the examination of equivalence in the light of the academic and professional training and experience as a whole, before requiring a candidate to take an aptitude test. However, though Community law does not, of itself, require a lowering of the level of knowledge of the law of the host Member State, the Member States are also not deprived of the possibility of relaxing the relevant qualification requirements.

concept of public policy/direct effect applies to directives/free movement of workers w/in Community-Dutch Woman coming to the UK to work for the church of scientology was denied entry on the grounds of public policy. Article 39 guarantees free movement but subject to restrictions under policy and public health. Directive 64/221 held that exceptions to Article 39 must be based exclusively on conduct. The ECJ held that Article 39 was not directly effective as it relied on further legislation by the Member States, but the directive imposed a clear obligation that exceptions could be based solely on conduct, and this was directly effective as long as three conditions were filled: the directive must be (i) clear, precise and unconditional, (ii) not dependent on further legislation/action by the Member State or the Community, and (iii) the date of implementation must have passed. the Ct held that Ms van Duyn could rely on a clause in a Directive which the UK had not introduced into national law. concerned an attempt by a Dutch woman to enter the United Kingdom to take up employment in the Church of Scientology, which while not unlawful was considered to be socially undesirable and harmful by the United Kingdom authorities. Mrs Van Duyn was refused entry on the ground of public policy. The provision at issue was Article 3(1) of Directive 64/221 which states that: �Measures taken on the grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned�. Ms Van Duyn claimed that the refusal was based not on her personal conduct but on the conduct of the group. The ECJ held that personal conduct must be an act or omission to act on the part of the person concerned and must be voluntary. It need not be however illegal or criminal in order to offend public policy. It was further held that present association which reflected participation in the activities and identification with the aims of the group may be considered a voluntary act and could therefore, come within the definition of personal conduct. The Court recognised that concepts of public policy vary from Member State to Member State and indeed within one Member State from time to time. This case has been criticised in that it seemed to allow a difference of treatment between nationals and non-nationals, and therefore discriminated again non-nationals.

how long may a migrant worker remain in a Member State in order to seek work-not unlimited.Member States must allow a reasonable period-6 months allowed by the UK was reasonable, but held that the expiry of that time-limit did not give a Member State the automatic right to deport work-seekers. If they could show that they were actively seeking work, and had a genuine chance of success, they must be allowed to stay-Belgian national who had come to the United Kingdom to seek work. the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided (for job-seekers)�Belgian national who had come to the United Kingdom to seek work. After three years he was still unsuccessful, and was then convicted of, and imprisoned, for drug offences. The Secretary of State decided to deport him, and Mr Antonissen applied for judicial review of the dismissal of his appeal.

real and genuine economic activity-wide-Mr S, a German national living in the Netherlands had previously been a plumber. However, at the material time he was a member of a religious community. He took part in the religious life of the community & performed plumbing jobs and other general duties. In return the community provided for his material needs (as it did for all its members), and gave him a small amount of pocket money. He applied for a residence permit to pursue an activity as an employed person, Dutch authorities refused. The ECJ held: work done by Mr Steymaan played "a relatively important role in the� Community." The Ct then said that: "In so far as the work, which aims to ensure a measure of self sufficiency� constituted an essential part of participation in that community the services which that latter provides to its members should be regarded as being an indirect quid pro quo for their work".

RIGHT OF ESTABLISHMENT-ECJ held that he was entitled to benefit from the right of establishment since he held a degree which was recognised as equivalent to a degree in the country of establishment and he had fulfilled the requirements for professional training in that MS.involved a Belgian national who was qualified as an advocate in Belgium. This qualification was recognised in France as the equivalent to a French law degree and he also obtained in France, the qualifying certificate for the profession

music teacher-genuine and effective work to qualify for assistance- earned less than the minimum wage irrelevant-as a worker he was entitled to receive supplementary benefit from financial assistance drawn from the public funds of the Member State in which he resides. "Mr K was a German national living in the Netherlands. He worked for about 12 hours/week giving music lessons, but as his earnings were so low he had to rely on state supplementary benefits to top his earnings up to subsistence level.Dutch authorities, in refusing to grant him a residence permit, argued that work at a level which meant that it was necessary to claim from social security funds could not be regarded as genuine and effective work.

discrimination-meaning of social advantage/non-worker-very important case in that it gave S the right, as an EU citizen, to equal treatment with nationals in the host state, even though she was not a worker and her right to reside in Germany depended on national, not Community, law.Spanish national who had worked in Germany but was now unemployed. As such, The ECJ held that an EU national who is lawfully resident in another Member State falls within the provisions on EU citizenship under Art 17(2) & Art 18 EC and can rely on Article 12 EC, which prohibits discrimination within the scope of application of the Treaty.

Ct's narrow approach to Article 39(4) EC ie public service:nursing posts in state hospitals were not covered- held to be in contravention of Art 39(4) to reserve the appointment of nurses in public hospitals to French nationals.

Article 49 has direct effect, & discrimination on the grounds of nationality is unlawful, nevertheless a MS could restrict the freedom to provide services by introducing rules justified by the general good (such as the organisation, qualification, ethics and responsibilities of the legal profession). This case concerned a Dutch national (by name Kortman) acting as a legal adviser to Van Binsbergen in a Dutch court case.

Mutual Recognition-national authorities must take into account the knowledge and qualifications already acquired by the person concerned in another Member State. The authorities must also make a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules. If this comparison finds the qualifications equivalent, the Member State must recognise the qualification. Even if the qualification is found to be not equivalent the national authority must assess whether the knowledge and experience gained in the host Member State is sufficient to make up for the lack of qualifications. a Greek national with a Greek law degree, who worked at the Athens Bar. However, much of her work was in the field of German law and was focused in Germany. When she applied for admission in the German Bar her application was turned down on the ground that she did not have the necessary qualifications. The ECJ was asked by the German Court if it was lawful to refuse access for this reason. The ECJ held that national authorities must take into account the knowledge and qualifications already acquired by the person concerned in another Member State. The authorities must also make a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules. If this comparison finds the qualifications equivalent, the Member State must recognise the qualification. Even if the qualification is found to be not equivalent the national authority must assess whether the knowledge and experience gained in the host Member State is sufficient to make up for the lack of qualifications.Greek national with a Greek law degree, who worked at the Athens Bar. However, much of her work was in the field of German law and was focused in Germany. When she applied for admission in the German Bar her application was turned down on the ground that she did not have the necessary qualifications. The ECJ was asked by the German Court if it was lawful to refuse access for this reason. The ECJ held that

genuine and effective work/irelevant-amount of the wage was irrelevant AND person's motive 1-"worker"-Community concept(Hoekstranee)-went further and declared that the amount of the wage was irrelevant to the status of the worker. All that was required was that the work was an activity of an economic nature. 2-The Dutch authorities have also argued that Ms Levin had only taken employment in order to obtain a residence permit. The Court held that the motive of the person in taking up employment was irrelevant, all that was required was that the person was pursuing genuine and effective work This case concerned a British woman working in Holland on a part-time basis. She was married to a non-EC national and had not worked for over a year when she was refused a residence permit. Her argument was that she had sufficient funds to maintain herself and her husband. The Dutch authorities argued that her income from her work was inadequate.

all the advantages, which, whether or not linked to a contract of employment, are generally granted to national workers�as workers�or by virtue of the mere fact of their residence on the national territory-Martinez Sala v Freistaat Bayern

strict definition of "public service-defines the (very narrow) limits of the use of Art 39(4)/Belgium was treating all posts within the public sector (nurses, teachers, railway workers etc.) as reserved for nationals under Article 39(4) EC. The Court ruled that the exception was intended to apply only to the exercise of public authority in order to safeguard the general interests of the state,NOT at junior level.The Court rejected this approach and held that posts covered by the Article must involve participation in the exercise of powers conferred by public law and must entail duties designed to safeguard the general interests of the state. They �presume... the existence of a special relationship of allegiance to the State and reciprocity of rights and duties which form the foundation of the bond of nationality�. held to be in contravention of Article 39(4)-law reserving posts in the public service. This was because the list of excluded jobs included nurses, plumbers and architects employed in central&local government. The Ct went on to rule that such posts normally involve "allegiance to the state". It would seem obvious that work in the police force, or the armed forces, or high ranking civil servants, or the judiciary might be covered by the exemption, but Art 39(4) does not apply to the exercise of authority at junior level.

real and genuine economic activity-restrictive approach to its definition of worker the Court held that paid activities carried out as part of a state-run drug rehabilitation scheme did not amount to a real and genuine economic activity. It may be that the distinction between the two cases is that in Steymaan the work was carried out so as to serve the economic purpose, whereas in Bettray, although the work undertaken did have some commercial value, its primary purpose was social. It can also be said that Bettray is one of the few cases where the Court has adopted a restrictive approach to its definition of "worker".

requirement of sufficient resources in relation to students, further step in the recognition of the rights conferred by citizenship of the Union must be proportionate. It concerned the availability of a social assistance benefit to an EU citizen residing as a final yr student in Belgium- applied for the social assistance benefit. He was refused it as he was not a worker and so was not covered by Article 7(2) of Regulation 1612/68. The ECJ held that the prohibition on discrimination under Article 12 EC must be read in conjunction with the provisions on citizenship under Art 18 and precluded a Member State from refusing a benefit to EU nationals from other Member States in circumstances where it would have been available to the Member State's own nationals. The Court went on to say that, whilst Member States may withdraw rights of residence from students if they have insufficient resources to support themselves, such a measure should not be automatic. The Directive was designed to prevent students becoming an 'unreasonable' burden on the host state and did not entirely preclude access to benefits at any time. The Member State's response must be proportionate.

expression "worker" was to be defined as a Community concept. The Court also said it recognised the temptation, if left to individual Member States, for them to define the term restrictively and indicated that the Court would interpret the term generously. These two features, that the ECJ will reserve to itself the authority to define the key concepts of free movement provisions and that rights will be widely construed, are key factors recurrent in the case law of the ECJ.

Lawrie Blum (66/85)- (a) the provision of some type of service; (b) under the direction of another person; and (c) in return for remuneration.

the job-seeker�s allowance- Court said that, in light of the establishment of EU citizenship under Article 17 EC and of recent case law on the right to equal treatment for citizens (see section 12.4.2 below) �it is no longer possible to exclude from the scope of Article 48(2) (now 39(2)) of the Treaty�a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member StateA job-seeker who held dual nationality (Irish and American) was refused the job-seeker�s allowance while he was looking for work in the UK. This was in line with the Lebon approach whereby job-seekers are only covered by the provisions on equal access to employment, and are not entitled to social and tax advantages under Article 7(2).

definition of "personal conduct-Ia Member State could not use deportation as a deterrent and any decision to depart had to be based on the behaviour of the individual concerned. The possibility of future behaviour was only relevant in so far as there were clear indications that the individual would commit further offences. Italian national resident in Germany shot his brother by accident with a pistol for which he did not have a permit. The German authorities wished to deport him in order to deter other foreign nationals and because they considered the unlawful possession of firearms by aliens to be a danger to the peaceful coexistence of Germans and foreigners. The ECJ was clear in its ruling that any departure from the freedom of movement rules must be interpreted strictly. Thus, As the German court had not sought to punish Bonsignore -probably in view of the circumstances- it was not now acceptable to deport him.

Mutual recognition-bilateral arrangement whereby one Member State accepted the qualifications of a non-Member State did not oblige other Member States to accept them.a French national had qualified as a dentist in the Lebanon. Belgium had recognised his qualification, but it was held that this did not bind France

married couple separated-family members� rights to reside in the host state, held that it does not matter if a married couple stop living together as long as they are still legally married.

genuine and effective work �on-call contract-French waitress in the Netherlands had worked under contract, but for only 60 hours in an 8 month period. The Court held that, in considering whether the work is genuine and effective, the national court shall take account of all the services actually performed, and the duration of the activities.

dependant of a worker-benefits-the Court held that those in search of work were not entitled to the same benefits as those in work.Ms Lebon was the daughter of an EC. worker, but she no longer lived with her parents, and therefore did not qualify for benefits as a dependant of a workerbenefits provided by legislation on free movement were available only for those in actual employment. Although she could be temporarily classed as a worker, this right did not extend to the payment of benefits. Nor was she entitled to the same social and tax advantages guaranteed to workers in actual employment. -. She argued that she should qualify for workers benefits as she was seeking or intended to seek for work.

AG Mayras-Van Binsbergen pointed out that the principle of equal treatment on grounds of nationality underpinned workers, services, and establishment alike.

level of linguistic knowledge must be proportionate (i.e. it must relate to the actual demands of the job and not be set too high). the Court made clear language requirement must be considered under Article 3(1) of Regulation 1612/68

purely horizontal DE case/age discrimination=general principle of Community law had to be guaranteed by the national court in setting aside any provision of national law in conflict with Community law ‘even where the period prescribed for transposition of that directive had not yet expired’.German law on fixed-term contracts, which, over the age of 52, could be concluded without any restrictions, that is, an employee above that age could have his contract terminated without compensation. The date of implementation of the Directive on which this legislation was based concerning the framework agreement on fixed-term work) had not yet expired and Article 6 of Council Directive 2000/78/EC had not yet come into force. The age limit in the original German Act (based on Article 6), had been set at 58, but had been lowered on 1 January 2003 to 52. Mr Mangold, while aged 56, had concluded a fixed-term contract with Mr Helm, to take effect on 1 July 2003 until February 2004. Mr Mangold contended that the fixed term of the contract was forced upon him because the German law made it ‘easier to conclude fixed-term contracts of employment with older workers…since the employee is more than 52 years old’.