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
- R v Saunders (case 175/78) [1979] ECR 1129
- 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
- He relied on his Italian nationality to do this
- 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
- 'Migrant' Worker
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