Westminster Law School EU Law Case Study: Free Movement Rights Advice

This assignment is a case study analysis of EU Law, specifically focusing on the free movement rights of individuals and families. The case involves Bernadette, David, Stijn, and Katya, and requires an examination of their rights under EU law, including the implications of the Citizenship Directive 2004/38/EC. The analysis covers the limitations to these rights, such as those based on public health, security, and policy, and the impact of their employment and family status. It references key case law like S.K. and Anor v The Minister of Justice, Equality and Law Reform and Ors and Metock v Minister of Justice, to illustrate the evolving interpretation of the directive and the emphasis on workers' rights. The paper explores the conditions for residence rights, the exceptions to free movement, and the legal framework governing the citizens and family members of member states. The assignment considers how the court interprets the directives to ensure fair treatment, especially in the context of those employed within the EU. The assignment aims to advise the individuals on their rights and obligations within the framework of EU law.

European Law 1
European Union Law on Free Movement
by [Name]
Course
Professor’s Name
Institution
Location of Institution
10th December 2019

European Law 2
Advise Bernadette, David, Stijn and Katya how EU Law relates to their free movement
rights
The European Union Citizenship, Principle of Free Movement and Directive
Introduction
Since the Treaty of Maastricht was introduced, the European Union Citizenship and
also free movement laws in the region have received a great impetus. The Treaty on the
European Union (TFEU) as is commonly referred came up with the concept of a person being
able to be a European Union citizen. This was not possible in the past as citizenship was not
recognized outside a person’s country unless they were dual citizens. After this treaty was
introduced, there were new fundamental rights that were given to the citizens of nations that
were members of the Treaty on the European Union (TFEU).1 In detail scrutiny of the TFEU,
article 21 provides that one is capable of to reside freely within any country of the member
states subject to particular conditions. Therefore, this translates that one only has to abide to
these conditions that have been provided for and they will be free to live and also move to
any state that is a member of the TFEU.2 As time has moved since this treaty came in to
place, there has been an enumeration of the right to freedom of movement and also the right
to residence under the Citizenship Directive 2004/38/EC. One therefore, has a claim of right
to be able to move and also to reside in any country subject to the given conditions.
To the fact that this aspect has been enumerated into becoming a right, it therefore
gives the citizen more power as there has to be quite a good reason as a matter of law to deny
a citizen of their right as described in law. The above directive, (Citizen Directive
2004/38EC) is subjectively implemented first in the United Kingdom by regulations of
Immigration that is (European Economic Area) of 2006 (SI 2006/1003). The law that has
made all this changes was introduced in the year 2004 and the primary function was so as to
bring along certain rights that other regional blocks around the world were also enjoying to
be enjoyed by all the citizens of countries that would accept to be member states.3 One then
expects that things should be moving without an issue but is that the case? No, it is not. Over
the years, the Court of Justice has liberally interpreted and applied the contents of the treaty
1 T.P. Kennedy, European Law (Oxford University Press 2011) 19
2 Ibid 19.
3 Ibid 19.

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in the aim to expanding its application.4 For instance, self-employed workers and citizens
have been given special consideration. What other category of people have been given special
consideration? Could Bernadette, David, Stijn and Katya fall in any of the categories?
Both the citizens and their family members have been catered for under the directive
and so they can all enjoy the two primary rights which are the right to enjoy free movement
and the right of residence in the treaty member countries.5 A person can, therefore, be
allowed to move together with their family as a unit and enjoy both rights as a unit as any
single individual would do. This has been enshrined in Article 3(1) of the Directive
2004/38/EC, stating that this directive shall apply to both all the citizens and their family
members. There is a catch though in that the under the Directive, the citizens of member
nations have a limit to the extent in which they can exercise their right.6 The citizens of
member nations have a limited right of residence in the host state and the directive has the
timeline of this right to be 3 months. So, one is not supposed to exceed the period of three
months if they had decided to exercise their right of free movement within the territory of
member nations. There is an exception to this limitation in that in the event that one is
subjected to further conditions and formalities other than the exercise of their right to
freedom of movement, they can exceed this 3 month limit. This is enshrined under the
Preamble, para 9 of the Directive which goes on to state this exception can only be enjoyed
without prejudice to the favourable treatment that is given to job seekers as has been
demonstrated in the recent past in case law from the Court of Justice.7
In essence, the directive is somewhat not bias and thus applies to all but there is a
special treatment that is given to workers that is people who are employed and also the people
that are self-employed. Fundamentally, as earlier discussed, the directive provides for the free
movement of people (and people in this case, it is citizens of nationals,) but there are still
restrictions to the exercise of the right as there are exceptions in enjoyment of any other right.
The directive has tried to ensure that the members of given state do not become the burden of
another state and that’s the reason for the exceptions and the reason there are restrictions.
This would, of course, arise if the citizens of another country were allowed to stay in another
4 C. Callies, ‘The Dynamics of European Citizenship: From Bourgeois to Citoyen’ in A Rosas and others (eds),
The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law
(TMC Asser Press 2013) 425 ff.
5 T.P. Kennedy, European Law (Oxford University Press 2011) 72.
6 P. Guchteniere and A. Pecoud, Free Movement of Persons in the European Community and Economic
Community of Member States (UNESCO 2012) 25.
7 ibid 25.

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country indefinitely. If one has a reason as why he is to be granted permanent residency, the
relevant restrictions have been enshrine in the directive and have to be followed duly.
Looking at Para 7 of the Directive 2004/38/EC, there are quite a number of restrictions that
regulate the free movement that was the primary aim of this treaty. Well, it doesn’t matter
how much one is creative, the regulations are quite conclusive and leave no room for
creativity.
To all the citizens of the European nations, together with their family members, they
all are allowed to enjoy the freedom of movement and the right to reside in the member states
but the rights are subject to limitation under Article 1 of Directive 2004/38/EC. The grounds
for limitation of citizenship rights under article one of the Directive, should be based on the
grounds of public health, public security and public policy. One of the other regulations as
described in Article 5 of the directive is that a person is supposed to make sure that the host
country is aware of their presence failure to which sanctions could be brought. Even to
countries that do not have such a treaty is still obligatory to make known of ones presence to
the relevant authorities. Crossing a border without permission may be a misdemeanour but
should be taken with all seriousness as it could one land one in deep trouble. Article 4 goes
on to guarantee the right of exit for a Union member and also the freedom of the family to
travel in any of the territory of member nations. The first limitation to this freedom is under
Article 27(2) of Directive 2004/38/EC, in which the state reserves the right to deny this
freedom of movement in the event that there is a threat to public security.
In the case of Commission v Spain8 the Court of Justice held that the state may reserve
the right to decide on grounds of public policy, public security and public health as earlier
discussed but the court added that the threats must be genuine. In addition to the threats being
genuine, they also have to be serious and imminent to meet the seriousness threshold to
refuse entry to the citizen of a member state. Public health as a ground to refuse entry is
described under Article 29 of the directive. When one looks at the exceptions that may deny
one entry, they have been well articulated in that, the directive does not put a blanket ban
most importantly, the decision to allow or deny entry has to strike a balance of the rights of
the citizens as guaranteed in the Directive. There is no much room for interpretation as in
essence it deals with all the rights and duties of all the citizens residing in member states
together with their family members. For the citizens and family members that are to stay
beyond the stipulated period of 3 months, Article 7 of Directive 2004/38/EC provides for
8 [2005] ECR I-2911.

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their residence rights.9 As mentioned earlier, the citizens that are working have been in the
favoured in some kind of way and they can enjoy greater rights and one may argue this is
because of their contribution to the economy of the country they are working in. However, it
is bad news to citizens who are not working either employed with a job or with a business
because they won’t be allowed past the three months. Well, they can also claim their right of
residing if they comply with the conditions as enshrined in Article 7(3) of the Directive.
In the recent past there have been questions that have arose because of case laws
involving the interpretation of the Directive 2004/38/EC. The primary questions have been as
to whether all the citizens enjoy the same equal rights or there are other citizens who are
favoured over others when it comes to residence rights in Member States. Of course the
freedom of movement of citizens is quite unlimited as described under that Directive but
there are exceptions that require judicial interpretation and this is to be done by the Court of
Justice. In any aspect of the law, however clear the rules may seem, they are subject to
interpretation because it has become known now that the law is not clear. For instance, in the
case of Minister voor Vreemdelingezaken en Integratie v Eind,10 this is a good illustration of
the path that the Court of Justice is taking. In this case, the court held that prior residence that
can be proved to be lawful in the European Union citizen’s State of nationality is not a
primary requirement for a person to reside in the state. Bernadette, David, Stijn and Katya are
all working or employed and thus this changes the normal rights of residency and movement
as earlier described. The system has always had the intention of favouring such people. Some
of the cases that will be mentioned below will further demonstrate the growing intention of
the Court of Justice to favour workers over citizens. We’ll try to analyse the legal position of
Bernadette, David, Stijn and Katya since they are all working.
Important Case Law
In the case of S.K. and Anor v The Minister of Justice, Equality and Law Reform and
Ors,11 the court held that despite there being a provision in the directive granting freedom of
movement and residing rights, the freedoms and rights are also limited by quite a number of
provisions a described in Directive 2004/38/EC. The bond of contention in this case was that
the European Communities (Freedom of Movement of Persons) Regulations 2006 (SI
226/2006) was acting in excess of powers (ultra vires) granted to it as against the Directive
9 T.P. Kennedy, European Law (Oxford University Press 2011) 30.
10 [2007] ECR I-10719.
11 [2007] IHEC 216.

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2004/38/EC.12 This was essentially because it restricted the free movement of the citizens
within the member states of the treaty. Clearly, this is against the treaty and there can be rules
opposing each other. Looking at this 2006 regulation it had been made mandatory for family
members and also the spouses to be lawful residents in another member state before they
could join the husbands by entering Ireland.
In the case of Metock v Minister of Justice13 however, in the Grand Chamber of the
Court of Justice, it was held that prior legal residence would not be imposed as a condition to
allow citizens to enjoy the rights of freedom of movement as these have already been granted
under Directive 2004/38/EC. The court held that, to the fact that the directive does not
discriminate between citizens of member states together with their families, the requirement
of prior lawful residence in a member state before entry would therefore be unfair and
unlawful. This case, therefore, upheld the lack of need for prior lawful residence. The essence
of this case is that it emphasizes the autonomy of the citizens together with their rights of
moving and residing in any state they so wish to as long as it’s within the territory of member
nations.
The importance of the above case cannot be emphasized enough as they are quite
conclusive of the primary aims of the Directive 2004/38/EC. Typically, there are two main
aspects that are brought out; first the right of any citizen to move freely from state to state is
guaranteed and second the citizens get to maintain continued residence in member states. As
earlier highlighted, there was an aspect of discrimination towards working citizens. The
question that most ask is not just about the fundamental right of citizenship that is enjoyed by
member states in the European Union but also the restrictions that have been imposed. The
case of Orfanopoulos v Land Baden-Wurttemberg14 is quite the answer we are looking for.
The court in this case held that reasons of public interest the rights that the citizens enjoy can
be curtailed. A reasonable person will still have questions in this case right? Because if the
rights of the workers are to be curtailed, this means that the freedom of movement of the
workers will also be impacted. Well, the reason as to why workers are considered as favoured
citizens is because the aim that is being pursued is compatible with the fundamental right that
all workers enjoy.15
12 Directive 2004/38/EC has already amended Regulation 1612/68 dealing with free movement and resident
rights for EU citizens
13 [2008] IEHC 77
14 [2004] ECR I-5257.
15 C. Murphy and P. Green, Law and Outsiders: Norms, Processes and ‘Othering’ in the 21st Century (Hart
Publishing 2011) 185

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Conclusion
The above, is the complete analysis of the legal position of the free movement rights
of Bernadette, David, Stijn and Katya in regard to European Union Law. There is an evident
aspect that may apply to the four as they are workers and the law as we have seen tends to
favour workers. The main provision that will govern their free movement is the Directive
2004/38/EC. The intention of this directive was to be able to enable citizen rights to be able
to both move and reside freely within the member states of the treaty. In summary, people
that do not fully fall within the definition of the directive of a family member do not get to
enjoy any of the EU law right of entry and residence. We have also concluded that citizens
that are working enjoy special rights and can exceed the staying period of 3 months. The
limitations that would make one not to be allowed to enter are left to each country, subject to
genuine reasons as described in the Directive.
Advise Bernadette on what she can do about the Court of Appeal’s decision not to refer
a question to the Court of Justice of the European Union
COURT APPEAL DECISION Regulation 492/2011
Regulation 492/2011 is primarily a codification of another regulation 1612/68 because
there were quite some amendments that were done to that regulation. The Regulation
492/2011 was essentially created so as to provide assistance to workers and enable them to
freely move within the European Union.16 To avoid any unnecessary confusion of other
previous regulations, this regulation was therefore codified. Prior to that, the migration that
took place between original member states was quite lower when compared to the migration
in Eastern European Countries. So to be able to deal with the issue, the European Union
decided to come up with a set of measures that came to be regulation 492/2011 which in
detail its benefit was that a worker and his family would have the rights in the event they
migrate to any country in the European Union.17
The primary aim that this legislation was meant to achieve was to provide all the
workers together with their families with some additional rights that would allow the
objectives in Article 45 and 46 of the TEFU to be achieved. Thanks to this regulation, a
worker and his family can now be able to freely move within the member states plus they can
16 Barnard C, The Substantive Law of the EU: The Four Freedoms, (2013, 4th Edn, OUP)
17 Regulation (EU) No 492/2011, OJL 141/1, Articles 1-6

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integrate into the host of the member state. The presence of this regulation is supposed to
benefit the people in three crucial ways.
A) The first way is that all the European Union citizens should be able to have access to
employment without discrimination.
B) The second way is that the EU citizens are supposed to receive equal treatment during
employment.
C) The last way is providence of the workers of families with rights.
Looking at this breakdown and the case scenario, the regulation is not quite being
implemented.
Issue One- Access to Employment
In first six articles of the regulation there is the provision that states that a person who
is not a national should have the same access to the employment opportunities as any other
national would have access.18 This is remove any discrimination of foreign workers that come
to seek jobs based on the ground that one is a national and the other is not. An example as
seen in the case scenario is where a migrant worker is discriminated against and national is
treated in favour instead. In the case of Commission v Italy19, the court held that it was in
breach of the Union’s law when non-Italians were prevented from doing private security
work. Under Article 3(1) provides for more scenarios either direct or indirect that amount to
discrimination. For instance now in the case scenario, the situation where the employer
claims that she cannot be paid more because it took her three years to complete her diploma
instead of four is a good example of indirect discrimination. She is supposed to be able to get
the same wage as any other national with her qualifications would and not being given
irrelevant reasons yet she is qualifies and also experienced.
Issue 2 – Right to equal treatment during employment
Under article 7(1) of the regulation no non-national will be treated in a different
manner in respect to any conditions of employment.20 In 7(2), the right of the migrant worker
having same entitlement to social and tax advantages has been addressed.
Issue three- The rights of family members
18 Regulation (EU) No 492/2011, OJL 141/1, Articles 1-6
19 C-283/99 Commission v Italy [2001] ECR I-4363
20 Regulation (EU) No 492/2011, OJL 141/1, Articles 7-9

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 Under article 10 of the regulation, the family members of migrant workers and
those of nationals shall have the same right to access education as though they
were nationals of the member state21. In the case scenario, Katya’s child is the
one that suffers this fate as she is denied child benefit on the grounds that she
is not a UK citizen.
In essence, this regulation is supposed to facilitate the migrant worker together either their
families when they move from one county to another. They are supposed to receive the same
treatment and not as though they are members of the host country.
Application in regard to Bernadette
As discussed above, Bernadette has a legal claim to the instances of discrimination
and is likely to succeed if she were to sue in a court of Law.
21 Regulation (EU) No 492/2011, OJL 141/1, Article 10

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Advise the European Commission on its rights regarding the decision of the Court of
Appeal
It is the duty of the Commission to protect the rights of such workers like Bernadette
so that they do not have to deal with the discrimination that they are now facing. They have
been it for quite a while because there have been such instances in the past that were dealt
with. However, there is need to come up with a solid solution that we don’t need to
individually deal with such cases when they occur. There should be a system that looks into
the detail and makes sure things are in good condition. In the year 2013 the European
Commission was able to adopt a new proposal for a directive on different measures that will
enable the exercise of the rights that have been conferred of workers in the context of the free
movement of workers. The proposal that was brought up was accompanied with two staff
working documents, impact assessment and an executive summary of the impact of the
assessment. Since this matter is the duty of the commission, the commission considered this
directive to be necessary because again, the free movement for workers is one of the
fundamental freedoms on which the international market is founded. Any European Union
citizen who wants to move from one nation to another, for any purposes usually face
challenges and the commission has a right of protect them in whatever country they are in.
Under the commission’s proposal, there were problems that were listed which the
commission but the main one was the fact that public authorities, employers, legal advisors
do not comply the EU laws and that’s the scenarios of Bernadette are still in existence. If all
the stakeholders actually followed the law there won’t have been issues of discrimination.
The other primary issue that has to be addressed by the commission is the education of all the
citizens of their rights and freedoms whether they are nationals or migrants. Lack of
education makes people more susceptible to discrimination because there are chances of
people fighting for their rights when they are actually aware that they exist. The majority of
respondents actually argue the need for migrant workers to be more protected against
discrimination on the basis of nationality.

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Bibliography
A. Legislation
Regulation (EU) No 1612/68, OJL 257
Regulation (EU) No 492/2011, OJL 141/1
B. Cases
Commission v Spain [2005] ECR I-2911
Metock v Minister of Justice [2008] IEHC 77
Minister voor Vreemdelingezaken en Integratie v Eind [2007] ECR I-10719
Orfanopoulos v Land Baden-Wurttemberg [2004] ECR I-5257
S.K. and Anor v The Minister of Justice, Equality and Law Reform and Ors [2007] IHEC 216
C. Books
Barnard C, The Substantive Law of the EU: The Four Freedoms, (4th Edn, 2013, OUP)
Callies C, ‘The Dynamics of European Citizenship: From Bourgeois to Citoyen’ in A Rosas
and others (eds), The Court of Justice and the Construction of Europe: Analyses and
Perspectives on Sixty Years of Case-law (TMC Asser Press 2013)
Foster N, Blackstone’s: EU Treaties & Legislation 2012-2013, (23rd Edn, 2012, OUP)
Guchteniere P and Pecoud A, Free Movement of Persons in the European Community and
Economic Community of Member States (UNESCO 2012)
Kennedy TP, European Law (Oxford University Press 2011)
Murphy C and Green P, Law and Outsiders: Norms, Processes and ‘Othering’ in the 21st
Century (Hart Publishing 2011)
Weatherill S, Cases and Materials on EU Law,(11th Edn, 2014, OUP)