Free Movement of Workers Article 45 TFEU Q&A

The Free Movement of Workers Article 45 TFEU series offer the best preparation for tackling exam questions. This set of EU law notes looks at Free Movement of Workers Article 45 TFEU and the procedure to challenge blocking of imported goods and how to challenge this using Article 45 TFEU. The notes start with simple questions to provide a good understanding getting more complicated as they progress.

Essay Question One

‘The free movement of persons is commonly described as one of the fundamental freedoms of the European Union. It has been integral to the realisation of the single market. But there is more to it than just this economic dimension. There is also a human dimension as the freedom ultimately concerns human beings exercising a right to mobility for themselves and their families. These two dimensions can be in tension with the desire of Member States to control entry and residence within their territory and to minimise the resulting burden placed on the state.’

To what extent have the provisions of EU law governing the free movement of persons and the case law of the Court of Justice successfully resolved these tensions? Your answer should refer to relevant treaty articles, secondary legislation and decided cases of the Court of Justice.

Problem Question One

Ayesha is a Portuguese national. She has a degree from a Spanish university in acting and theatre studies. She is passionate about the British way of life and the opportunities available to work in theatre in London. She has been living in London for 18 months. She has been living off money provided to her by her partner Brian, a director of an adult entertainment theatre in America. Brian is an American national and lives in Los Angeles. He has been refused entry to the UK to visit Ayesha as the government considers his work distasteful and considers him an undesirable person. Ayesha has been unsuccessful in obtaining theatre work in London as she is not a member of the Actors’ Union. No theatre in London will hire an actor who is not a member of this union. The Actors’ Union has told Ayesha that she cannot be considered for membership because (i) she is not British (ii) her qualifications are not from a recognized university. Despite this set back she has sought to enhance her experiences in public performance by busking, (a type of street performance), on the streets of London. She has been charged by the police for illegal use of the streets, failing to declare income and has been warned that she faces deportation. She had previously been cautioned three separate times by the police for busking.

Advise the parties of their rights under EU law.

Problem Question Two

Benjamin, a British national, has just completed a two-year course at Gordon Bleu, one of the most exclusive cooking schools in Great Britain, from which he obtained a chef diploma. He also spent a brief (1 month) but instructive training period with one of London’s best-known chefs. Benjamin wishes to open his own restaurant one day, but realises he needs much more experience, and the best place for that is, according to him, France. So, Benjamin packs his bags, buys a ticket, and he is soon in Paris, looking for work.

However, things are not that easy, since Benjamin’s French is very poor. Disappointed and lost, he meets Anita in one of the Paris cafes. Anita is originally from Turkey but has spent the last 5 years studying philosophy in Paris. Anita speaks perfect French and English, and she agrees to let Benjamin a room in her apartment. Benjamin continues to apply for chef positions, and he is finally invited for an interview by a very good restaurant in the suburbs of Paris. However, he is turned down, on the grounds that, first, his diploma is not French, and the restaurant owner fears that Benjamin would not be able to cook French food sufficiently well; second, Benjamin’s poor command of the language may mean that he will not be able to communicate with the other chefs in the kitchen.

After a few unsuccessful interviews Benjamin is almost ready to give up (it has now been 4 months since he first arrived in Paris). But his relationship with Anita flourishes and they decide to get married. During the wedding ceremony, Benjamin, under a serious influence of alcohol, injures his younger brother with a knife. The injury is so serious the brother dies in the hospital. Benjamin is imprisoned, and while in prison he is informed that he will be deported upon his release.

In the meantime, Anita tries to find a job, as she has just graduated from philosophy, and she needs to support herself. She cannot obtain a work permit, as the argument of the authorities is that, although she is married to an EC national, he is not a worker within the meaning of the Treaty of Rome, and even if he was, he will soon be deported, and she has to join him in Britain.

Advise Benjamin and Anita as to their rights under EU law.

Problem Question Three

Mange Tout is a recently established French restaurant in central London. It is owned by Henri Mangetout, a French multi-millionaire film star who came to live in the UK in April 2012 after the French presidential elections, not for the food, but to pay less tax. He was accompanied by his sixth wife Ana from Brazil, whom Henri married in July 2009, and Ana’s son Benjamin, who she had in a previous relationship. Benjamin is 21 years old and a Portuguese citizen. When he arrived, Benjamin found his own flat and enrolled on a Master’s degree programme at the University of Westminster.

The restaurant’s success has attracted a number of applicants for positions of employment. One applicant is Antoine, a French student looking for part-time work as a waiter while studying English in London. He is refused employment on the basis that his English is not good enough. 

The restaurant is managed by Claude, who Henri thinks is a Belgian citizen, but is in fact from the DR Congo. His wife Marie is a waitress at the restaurant and is also Congolese. They have a six year old son called Patrice, who lives with them in London. He was born in Belgium and acquired Belgian nationality. They have lived in the UK since November 2007. The family is struggling financially, despite being in employment at Mange Tout. In desperation, Marie tries to claim housing benefit, whereupon the family’s immigration status is brought into question. Claude and Marie are accused of residing in the UK illegally, and are notified in writing that they must leave the UK in 14 days.

One November evening, there was a serious incident at the restaurant. A drunken customer was rude and argumentative towards the waiters, who tried to keep him quiet. Henri was at the restaurant, eating with friends, and overheard the commotion.  He intervened, and the customer lunged at Henri. Henri picked up a steak knife and stabbed the customer, who died. Henri was arrested and charged with murder, and is currently remanded in custody.

Ana has grown tired of Henri’s exploits and wants a divorce, but she is concerned about her right to reside in the UK and in France, where she would like to return. Benjamin is happy in the UK and wishes to stay.

a) Advise all the parties on their right of residence and rights associated with free movement of persons.

b) Advise them on and the remedies they can rely on in national courts to enforce the rights they may have.