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First Class EU law notes from University of Cambridge written during academic year 2015/2016. Contain all key information needed for the course as well as further reading, commentaries, essay plans and exam tricks. These notes solely were used in my exams.
EUROPEAN UNION LAW SUPERVISION 8 – FREE MOVEMENT OF PERSONS (I) WORKERS, ESTABLISHMENT AND SERVICES: DEFINITIONS AND CORE MARKET RIGHTS A. Definitions B. Forms of economic activity excluded for public policy reasons C. Engagement of EU law: the cross-border element D. Core market rights E. Justifications F. Using free movement provisions G. Questions to consider Summary: There is an overlap between the topic of this supervision and the next supervision. In this supervision we concentrate on threshold issues and economic rights. In the next supervision we cover residency rights and social rights (including for job-seekers) along with certain non-economic aspects of citizenship status. what residency and social rights can you get as a citizen despite not being economically active? **Causation is a key problem with a lot of the cases in this area of the law – are these ‘obstacles’ really causing a hindrance to FM?** logic has to be that you wouldn’t go to Spain if you thought that if you hooked up with someone there you wouldn’t be able to return home with them so we must give this right back to example of university fees, you wouldn’t go to france if you thought that by doing so you wouldn’t be able to return home and go to uni for free essentially difference between going on holiday and meeting someone and moving to another country and meeting someone why would you use art 45 over directive? maybe if directive not properly implemented? horizontal direct effect? most of these cases pre-date CRD. to rely on directive is wrong bc if implemented its national law, really going to involve immigration act. you really need to know about CRD when trying to interpret the national law in light of the EU background. real world – but in exam understanding we can pretend the directive is directly effective also with UCPD you’d never refer to it directly it would be e.g. consumer rights law – maybe worth mentioning this sin passing in exam important point re establishment different from workers – cf. companies established in one country from another – you get a right to bring in other people from other countries even if they are TCNs but they have to go home straight away – Rush Portuguesa Key topics: • Art 45 – free movement of workers • Including jobseekers – an extension of the law • Art 49 – free movement of establishment of natural persons • Art 56 – provision of services • Non-discrimination or market access approach – Sager • Regulation 492/2011 • Citizens Rights Directive 2004/38 2 EU Law – Handout – Supervision 8 What is free movement of persons? • Free movement of persons is one of the 4 freedoms of EU law – goods, persons, services, capital • Free movement of persons refers to the following 4 freedoms • Workers – Art 45 TFEU • Establishment (includes self-employed natural persons and companies, we don’t focus on companies) – Art 49 TFEU • Services – Art 56 TFEU • Citizenship – Arts 20 – 25 TFEU • Basic difference between worker and services/establishment – does someone tell you what to do or not? • Difference between services and establishment is the temporariness • All the free movement of persons provisions are now contained in the TFEU. • There is also important secondary legislation e.g. CRD 2004/38 • The idea underpinning all the provisions on free movement of persons is the principle of nondiscrimination on the grounds of nationality How does EU free movement of persons law affect us? • Affects national law in two ways • Positive – EU is given powers to harmonise national rules in furtherance of the single market (Art 114) • Negative – TFEU provisions give citizens the right to free movement —> citizens can use the treaty to disapply national legislation that gets in their way What is the rationale for free movement of persons? • We originally had free movement of persons to support the single market. • There are said to be two ‘pillars’ of the single market • Approximation of laws concerning the ‘establishment and functioning of the internal market’ (Art 114 TFEU) • The economic freedoms of movement • Workers, establishment and services have economic rationales at heart but the 4th freedom of citizenship seems to have broader aims than purely economic. • Key economic justifications • Aggregate welfare gains through market integration • Idea was that allowing people to move across the European continent from countries where there were no jobs to countries where there were labour shortages would boost European wealth overall and would encourage mixing of nationalities to prevent war. Economic and politically motivated • As such the unemployed can find work in other member states (and this has recently been the case for Greek and Spanish young people) • Allocate labour to its most efficient use • The idea was that the provisions ensure factors of production could move easily – aiding the single market, efficient rationale etc • When you allow workers to move around freely they will go where they will be put to best use • Highly integrated goods and capital markets but we didn’t have as integrated labour and service markets • Monetary union requires intra-EU migration • Especially since the single currency was launched free movement of persons became very important for its functioning Art 26(2) TFEU – the single market is an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty 3 EU
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