Freedom of Movement Scenario Essay PDF

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Freedom of Movement...

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51983134

EU Institutions & Law

LS2026

Introduction Luke is a national of an EU Member State, Polis Massa, who has moved to another Member State, Tatooine. To determine whether Luke qualifies as a worker under Article 45 of the Treaty on the Functioning of the European Union (TFEU), the basic requirements established in Case 66/85 Lawrie-Blum must be applied. Here the court held that the main elements of employment involved one person working in service of another, under their instruction, receiving payment for their service, for a set period of time. It seems Luke’s bus driving job meets these broad requirements. In C-53/81 Levin, it was explained that those in part-time jobs would also qualify for the rights conferred by the freedom of movement for workers, as long as the employment was not so insignificant that it was “purely marginal and ancillary”. Again, it appears that Luke qualifies as a worker.

Has Luke experienced discrimination regarding the additional leave? Article 45(2) of TFEU forbids the discrimination of workers on grounds of nationality. Case 207/78 Even, establishes that all advantages conferred upon national workers, because of their position as a worker or national residency, shall be included in the social advantages protected for foreign workers under Article 7(2) of TFEU. It appears the additional leave constitutes a social advantage for workers of the bus company. Luke could make the argument that the additional leave reward is indirectly discriminatory. Case C-237/94 O’Flynn states that conditions which may apply regardless of nationality, but primarily affect migrant workers, must be discriminatory unless they can be justified. Luke can argue that he has worked the required amount of time to qualify for the advantage and that his nationality is the reason he has been denied it. The company may argue that their use of the additional leave reward is justifiable as part of its system of loyalty rewards. However, Case C-15/96 Schoning-Kougebetopoulou v Hamburg addresses when loyalty rewards cannot be justified. It was held that when the requirements of a loyalty reward scheme work to the disadvantage of foreign workers who have

51983134

EU Institutions & Law

LS2026

performed similar work in another member state, this infringes their right to nondiscrimination. Ultimately the court will have to consider the objective facts and circumstances of Luke’s situation and decide whether the system of loyalty rewards is discriminatory.

Can the Ministry of Defence (MoD) refuse Luke an interview on grounds of nationality? Article 45(4) of TFEU sets forth that freedom of movement for workers does not include public service employment. However, this exception was narrowed in Case 149/79 Commission v Belgium, which set certain requirements. The court held that the position had to involve the use of specific powers stemming from public law, with tasks that protected the interests of the state. The court will have to decide if, on the interpretation of Commission v Belgium, this position was designed to protect the State’s interests, however, it appears unlikely as a position in human resources typically concerns employee relations. Furthermore, Case 66/85 Lawrie-Blum tightened the public service exception when the court held that the position must demand a unique bond of loyalty between the employee and the state in the performance of their duties and responsibilities. On this basis, it seems that the MoD is unlikely to be within its rights to refuse Luke’s interview on grounds of nationality.

Luke’s rights regarding deportation. The judgment in Case 30/77 R v Bouchereau establishes that a foreign national can only be deported when their own behaviour amounts to a significantly serious threat to public policy, public security or public health. Additionally, Article 27(2) of Directive 2004/38 asserts that the threat imposed by the foreign national must be imminent and the actions taken to address it must be proportionate to the imposed threat itself. Article 28 of the directive also requires the state to consider the individual circumstances of the foreign national, which in Luke’s case may provide some justification for his desire to protest. It appears, based on these strict requirements, that Luke’s protest would not amount to a substantially serious threat to any area of public policy, and therefore would not be proportionate to deportation.

51983134

EU Institutions & Law

LS2026

The Tatooine authorities’ claims that there is very little chance of review and no chance of readmission are unfounded. Article 31 of the directive safeguards the right to appeal or review the deportation, while Article 32 provides foreign nationals with the right to apply for readmission to the state after three years have passed.

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