Free Movement of Persons - Essay Example

Free Movement of Persons Table of Contents Question Explain whether the German ities can, as a matter of EU law, refuse Nic and Igor entry into Germany 3 Question 2: Consider whether Natalie may rely on the TFEU and case law of the ECJ to challenge the restrictions 7 References 11 Question 1: Explain whether the German authorities can, as a matter of EU law, refuse Nic and Igor entry into Germany Nic is Bulgarian and a physiotherapist. He tries to enter into Germany on the strength of his conviction that he is to find work there as a physiotherapist owing to the shortage of professionals in that line of work in the latter country. He is going into Germany as a person seeking work. The Germans have two objections. One is that Nic is a Bulgarian national. The other is that he has not been accepted to any job in Germany at the time of his attempt at entry. There are two sets of laws applicable here, both relating to freedom of movement of persons within the European Union. One relates to the rights of workers, and corollary to that, on the issue of whether a job applicant such as Nic has the right to enter Germany and be treated as a worker under the law. The other has to do with whether citizenship in a country that is either a member of non-member of the EU grants certain rights of abode and entry into other member states of the EU (Bamford et al. 2012, pp. 6-39). First Article 45 of the TFEU states that “workers of the Member States” are free to move within the EU. The article, together with Article 18, reinforces the ban on discrimination based on nationality, and the former article specifically prohibits such discrimination as it relates to work for citizens of the EU. There are also other worker rights in the EU law that support Nic’s bid to enter Germany, among them the right against discrimination on job selection based on nationality, and the right to look for work in another EU country, as implied in the movement right provision in Article 45 of the TFEU. Meanwhile, while Article 45 is mum on the status of job seekers like Nic, the ECJ has made it clear that it is corollary to the stipulated rights of Article 45 for job seekers likewise to be afforded the rights guaranteed in Article 45. This is true for example in cases like R v. Immigration Appeal Tribunal, ex parte Antonissen (case C-292/89) [1991 ] ECR I-745, where the court ruled in favor of job seekers having equal freedom of movement rights as workers, in essence (Bamford et al. 2012, p. 13). This means that as a work seeker, Nic has the right to move within the EU (Bamford et al. 2012, pp. 6-15). Granted that a two-tier treatment system is in place in the EU, with states who were in the EU prior to the May 2004 inclusions being able to negate some of the laws on freedom of movement of persons, it was clear also that the two-tier system was to go by the beginning of 2012, and 2014 at the latest. Germany’s only safe ground here is that Bulgaria is within the group of states post 2004, and therefore Germany has the right to invoke restrictions to free movement of Bulgarians in Germany prior to 2014. The Germans though should have signified legally their intention with regard to restricting or lifting restrictions on movement of Bulgarian nationals within Germany by 2008. Moreover, the restriction post 2012 is not absolute, and Germany has to show that the movement of Nic, a physiotherapist, into Germany to seek work would disrupt the labor market in Germany. On the contrary, there is a physiotherapist shortage in that country (Bamford et al. 2012, pp. 6-24). The balance of the evidence and the legal provisions for and against the free movement of the Bulgarian physiotherapist Nic seems to favor Nic’s being allowed entry into Germany, and of Germany being on the wrong end of the EU law. Assuming this balance assessment is correct, EU law supersedes German law. ECJ case law provides many examples of the ECJ ruling on and deciding that national laws go against Article 45. Such is the case in Allue v. Universita degli Studi di Venezia, concerning restrictions on the entry of foreign language teachers into Italy (Bamford et al. 2012, p. 14). From these we can say that Nic has the right to move into Germany to look for work (Bamford et al. 2012, pp. 6-24). There are also the rights of citizens of all member states of the EU to move, work, and reside within each others borders, regardless of whether a person is working, looking for work, or simply wishes to reside in another state within the EU. Articles 20-25 establish the concept of Union citizenship and confer serious rights of mobility to all citizens of the EU. Article 21, in particular, delinks the right to travel based on worker status, and emphasizes citizenship in the EU as criterion for conferring rights of abode, travel, and work within the EU member states. These further reinforce the right of Nic to travel and seek work in Germany (Bamford et al. 2012, pp. 31-36). Relevant ECJ case law includes Grzelczyk (Rudy) v. CPAS (case C-184/99) [2001] ECR I-6193, Zhu and Chen v. Secretary of State for the Home Department (case C-200/02), and London Borough of Harrow v. Nimco Hassan Ibrahim, Maria Teixeira v. London Borough of Lambeth (cases C-310/08 and C-480/08), (Bamford et al. 2012, pp. 31-34). Turning to Igor, the Germans state that Igor could not enter Germany because of the reason that even if Nic were to be considered legally able to enter Germany, Igor being a non-family member of a citizen of a Union may not enter Germany with Nic. The unsaid statement here is that as things stood, with the Germans not allowing Nic entry, Igor also had no right to enter Germany. Does this reasoning hold water under EU law? First, Igor is 25, past 21 and therefore no longer dependent on Nic. Also, the case states that Igor, though Russian, had been living with Nic for the past two years. Igor was self-supporting while living with Nic, and in Germany he has the intention to likewise do the same and look for employment. Under EU law Germany may be standing on some legal ground by preventing Igor’s entry. First, under EU law, because Igor is a non-dependent, Nic may not have the right to bring Igor with him to the Germany, even if Nic were legally allowed to enter Germany on his own merits and on the strength of EU law. That Igor is not a citizen of an EU country means that he may not avail of the provisions of Article 45 to gain entry into Germany. On the other hand, the law also states that Germany may require Igor to apply for a visa to get into Germany, and so the law does not totally ban Igor from being able to get into German soil. Moreover, the manual states that Igor falls under the category of the non-dependent relative who lives with him in Bulgaria. This being the case, the law is clear that in such a circumstance Germany, as the host state, has to facilitate the admission of Igor into Germany, to be with Nic (Bamford et al. 2012, pp. 18-20). Question 2: Consider whether Natalie may rely on the TFEU and case law of the ECJ to challenge the restrictions CASE 1 – Equipment Use The first case has to do with whether the TFEU and the ECJ case law supports Natalie’s possible challenge to the restrictions placed on her ability to borrow equipment to restore buildings damaged by water. This case has several tributaries. One set of issues relates to Natalie’s ability to do her work in Italy, given the implicit assumption in the reason provided by the Venetian authorities that as a non-resident with limited time of stay in Venice, Natalie did not have the proper understanding of the peculiar problems facing Venice’s water-damaged buildings (Bamford et al. 2012, pp. 6-39; Free Movement 2010, pp. 1-6). From the point of view of EU laws relating to discrimination, there are two sides to the argument. On the one hand Natalie may invoke her right against being discriminated against by virtue of her being a non-Venice/Italian national in being able to cost-effectively and competently doing restoration work in Venice and practicing her craft. She may say that the restriction against being allowed to borrow equipment by virtue of her having just a short stay in Venice amounts to discrimination. Natalie may argue that this amounts to a kind of discrimination against competent restorers who are non-Italian nationals, something that would go against the letter of the TFEU law. This would go against Article 45. On the other hand, Italy may argue that it is restricting the use of the equipment not on grounds of nationality but on grounds of the necessary time and place intimacy with the buildings that the authorities deem necessary to be able to justify lending the equipment (Bamford et al. 2012, pp. 6-39; Free Movement 2010, pp. 1-6). The other set of issues tied has to do with whether the restriction on Natalie’s ability to work cost-effectively on restoring buildings in Venice and practicing her craft there, constitute a kind of quantitative restriction with regard to the number of non-Italian EU citizens who can undertake such work in Venice. The law seems clear, that any restrictions that amount to restricting the entry of goods and in this case restoration services must be deemed as MEQRs and deemed illegal. Natalie therefore may invoke case law and the TFEU to challenge the restrictions on both sets of issues that may be raised against them (Bamford et al. 2012, pp. 6-39; Free Movement 2010, pp. 1-6). Case law involving restrictions on the entry of foreign language teachers into Italy from other parts of the EU, Allue v. Universita degli Studi di Venezia, seems to parallel this, and reinforce the judgment on the presence of discrimination in this analysis (Bamford et al. 2012, p. 14). The Dassonville case is likewise an example of case law that supports the findings of this analysis (Free Movement 2010, pp. 2-3). CASE 2 – The Issue of Grants Grants have been found to be restricted to Italian concerns. The reason for such a restriction is that funds are short. Issues have to do with determining whether such prioritization in the allocation of grants is also a kind of discrimination against non-Italians, forbidden by the TFEU and by case law. Clearly from the point of view of MEQRs Natalie may have a case, for instance. Because grants are given to Italian businesses only, and because the grants give undue advantage to Italian businesses involved in restoration work, the game is rigged against non-Italian restorers like Natalie, who will have to work with no grants, on their own money. The rigging of the rules of fair competition can be argued to constitute MEQRs and therefore illegal under TFEU laws against such restrictions (Bamford et al. 2012, pp. 6-39; Free Movement 2010, pp. 1-6). Case law relating to this includes Dassonville and Allue v. Universita degli Studi di Venezia (Free Movement 2010, pp. 2-3; Bamford et al. 2012, p. 14). The two restrictions taken together severely hamper the ability of Natalie to compete with Italian businesses for restoration work in Venice. First, the restriction on the use of restoration equipment boosts the ability of Italian businesses to cut their cost bases and therefore to better compete with non-Italians when bidding for restoration projects. This allows them to quote lower, while still being able to make money because of the lower costs of the restoration work. Second, the restriction against giving grants to non-Italians, flipped on its head, really means that Italian restorers are being subsidized to undertake restoration work. Not only do they have lower costs, but they also get the financial incentives to do the restoration work, via the grants. This double whammy represents a concerted effort on the part of the government to rig the rules of the game, and tilt the rules to favor the Italians, while at the same time proactively defeating the efforts of non-Italians. This is discriminatory behavior, and behavior that amounts to restricting the free movement of restoration services into Italy. TFEU and case law supports Natalie and Natalie may rely on both to bolster her case against the restrictions and the Italian government (Bamford et al. 2012, pp. 6-39; Free Movement 2010, pp. 1-6). References Bamford, K . et al. 2012, Understanding law Manual 4 Units 24-28. The College of Law. Oxford University Press. Free Movement of Goods and People 2010, OUp_0910_33-1, The College of Law. Oxford University Press. Read More