EU Law - Article 45 TFEU: Free Movement of Worker II

  • Created by: Alasdair
  • Created on: 15-11-20 18:59
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  • Article 45  TFEU: Free Movement of Worker II
    • 'Migrant' Worker
      • R v Saunders (case 175/78) [1979] ECR 1129
        • Demonstrates Article 45 TFEU does not apply in totally internal situation
        • S, a British national, had pleaded guilty to charge of theft
        • S accepted order  from English court to go back to Northern Ireland and not to return to England or Wales within three years
        • She returned to England to work, so when prosecuted for breaching order, she challenged it under what is now Article 45 TFEU
        • ECJ ruled it was wholly domestic situation which fell outside scope of Article 45
      • R v Immigration Appeal Tribunal and Singh (Surinder), ex p Secretary of State for the Home Department (case  C-370/90) [1992] ECR I-4265
        • ECJ often willing to find a 'Union element' even if one is not immediately obvious
    • Interpretation of Nationality
      • Only nationals of Members  States are able to rely on Article 45 TFEU and other Treaty provisions granting rights of free movement
      • Declaration on Nationality attached to Treaty on European Union provides:
        • 'the question whether an individual possesses the nationality of a Member State  will be settled solely by reference to national law of the Member State concerned.'
      • Nationality is not matter for EU Law but for law of each Member  State which will define its own concept of nationality
        • A person is a national of a Member  State if he or she qualifies as such under national law.
        • means nationality rules differ from one Member State to another
      • Micheletti v Delgacion del Gobierno en Cantabria (case C-369/90) [1992] ECR I-4239
        • Pre-dates Treaty on European Union
        • Illustrates consequence of differing nationality rules very clear
        • M, a dual national of Argentina and Italy, wanted to enter Spain as a worker
          • He relied on his Italian nationality to do this
            • Italy recognised his Italian nationality
        • Spanish authorities refused him entry
          • Because Spain recognised only his Argentinian nationality, as Argentina was his last country of residence
        • ECJ ruled that it was Italian law was decisive
          • as M was Italian national under Italian law, then he was national of a Member State and Spain had to recognise his Italian nationality
          • The Declaration on Nationality confirmed ECJ's ruling
    • Can Individual Workers Rely on Article 45 TFEU?
      • Wide range of people can call themselves 'workers' and therefore claim rights set out in Article 45 TFEU
      • Van Duyn v Home Office (case 41/74) [1974] ECR 1337
        • Case confirmed Article 45  TFEU does indeed have direct effect and so it can be relied on by individuals before their national courts


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