EU Law - Free movement of persons questions

Hi all, I have a few questions regarding the Free movement of persons want to ask:

1) Case problem:

Karl, a French national, moved to Venice with the intention to settle permanently (he was wealthy as a doctor and had his own private health insurance), and he later lost most of his money and took part time work as gondolier. He later falls sick and has to seek hospital treatment in Venice. Unfortunately, his private insurance refuse to cover the costs of the treatment, Karl later discovers that Italian nationals receive the same treatment free of charge and he asks to be treated freely as well.

The Italian authorities decide to revoke his residence permit on the ground that he longer fulfils the conditions for residence in Italy, after hearing about his request. Advise Karl as to his rights under EU Law

My questions: a) is it the Italian government has no right to revoke his residence permit as he has a PART TIME JOB?

b) Can Karl claim the free of charge treatment as the Italian nationals do? (provided he has a part time job)

2) Case: If Duncan, a UK national, now is a job seeker in France and he is arrested in a demonstration in Paris during which some French officers were injured by the crowd. Does the French government has the right to deport him?

Thank you very much :smile:

Reply 1

darylpoon12

4

Original post by cest

Hi all, I have a few questions regarding the Free movement of persons want to ask:

1) Case problem:

Karl, a French national, moved to Venice with the intention to settle permanently (he was wealthy as a doctor and had his own private health insurance), and he later lost most of his money and took part time work as gondolier. He later falls sick and has to seek hospital treatment in Venice. Unfortunately, his private insurance refuse to cover the costs of the treatment, Karl later discovers that Italian nationals receive the same treatment free of charge and he asks to be treated freely as well.

The Italian authorities decide to revoke his residence permit on the ground that he longer fulfils the conditions for residence in Italy, after hearing about his request. Advise Karl as to his rights under EU Law

My questions: a) is it the Italian government has no right to revoke his residence permit as he has a PART TIME JOB?

b) Can Karl claim the free of charge treatment as the Italian nationals do? (provided he has a part time job)

2) Case: If Duncan, a UK national, now is a job seeker in France and he is arrested in a demonstration in Paris during which some French officers were injured by the crowd. Does the French government has the right to deport him?

Thank you very much :smile:

The Italian government should have no right to revoke Karl's residence as he has a part time job. The relevant cases include: Levin, where workers working part time still qualify as workers despite working below a minimum wage. In Kempf, it was held that even if the individual has to subsidize his income from his own pocket, he is still a worker. Finally in Vatsouras it was held that even if the worker only works for very few hours, he is still a worker.

Notably, even if Karl went into hospital, his status as a worker will still remain if, according to Art 7(3)(a) Dir 2004/38/EC he is only temporarily unable to work as the result of an illness.

If the Italian authorities had other justifications to revoke his residence under Article 45(3) of the TFEU of public policy, health, security, then they would be justified in doing so, however this does not seem applicable here.

Free of charge treatment
This deals with social advantages for workers governed by Reg 492/2011 Article 7(2). Given that he is a part time worker, he should be allowed to receive the same treatment as the Italian nationals.

2)
First dealing with the fact that Duncan is a job seeker:
According to Art 7(3)(c) Dir 2004/38/EC job seekers also qualify as workers and are allowed to retain that status for no less than 6 months. If it is the case that Duncan has stayed in France for longer than his 6 months, then he must be able to show that there is a genuine chance of him being able to seek employment in order to stay (Antonissen). Otherwise he must show that he has sufficient resources for himself and his family members so as not to become a burden on the state, in addition to having comprehensive sickness insurance (Art 7(1)(b)). If he is unable to show both, then the French government will have a right to deport him.

Next dealing with the fact that he was involved in the demonstration. The French government may presumably try to deport him using Art 45(3) TFEU under the grounds of public policy or public security. The law relating to this is governed by Directive 2004/38/EC Article 27, which states that the personal conduct of the individual must represent a genuine, sufficiently serious threat affecting one of the fundamental interests of society. In deciding this, the principle of proportionality must also be used, and will be based only on the personal conduct of the individual concerned. This is relevant to the fact that the French officers were ‘injured by the crowd’ and not Duncan himself. The case of Bouchereau states that a what is ‘sufficiently serious’ should be construed narrowly, and should entail socially harmful behaviour such as possession of drugs. It is unlikely that Duncan will be deemed to satisfy the relatively high threshold test and it is unlikely that the French government will be able to succeed in deporting him.
Finally, it should be noted that even if the French government did succeed in deporting him, Duncan may use the procedural safeguards provided in Article 31 to seek review of that decision.

Hope this is right! :smile:

Reply 2

cest

OP

To Daryl,

A really big thank you to your detailed reply, it solves a lot of questions in my mind during revision :biggrin:

May I ask 2 more following questions if you are available?

1) Regarding to the Duncan case, regardless of the demonstration scene, does he have a right to apply for a jobseekers' allowance in France, as a UK national?

2) What if Duncan is not arrested in a demonstration scene, but involved with the “European Rabbit Militants” movement (which tries to stop the development of previously untouched forests somewhere in France, one of the few places where the European rabbit still lives). During one of their operations, Duncan cuts the tyres of digging machines and his members chain themselves to some trees. Duncan is arrested on the spot. The French government criminally prosecute and deport him as the government claims that the European Rabbit Militants is an animal rights terrorist organization. Can the French government deport him?

Thank you very much once again! :biggrin:

Reply 3

darylpoon12

4

Original post by cest

To Daryl,

A really big thank you to your detailed reply, it solves a lot of questions in my mind during revision :biggrin:

May I ask 2 more following questions if you are available?

1) Regarding to the Duncan case, regardless of the demonstration scene, does he have a right to apply for a jobseekers' allowance in France, as a UK national?

2) What if Duncan is not arrested in a demonstration scene, but involved with the “European Rabbit Militants” movement (which tries to stop the development of previously untouched forests somewhere in France, one of the few places where the European rabbit still lives). During one of their operations, Duncan cuts the tyres of digging machines and his members chain themselves to some trees. Duncan is arrested on the spot. The French government criminally prosecute and deport him as the government claims that the European Rabbit Militants is an animal rights terrorist organization. Can the French government deport him?

Thank you very much once again! :biggrin:

Hi, to answer your questions:

Job seekers allowance is a form of social and tax benefit as per Article 7(2) Reg 492/2011. According to Article 7(3)(b) Directive 2004/38/EC, a job seeker will still qualify for the status of a ‘worker’ for 6 months, as long as he is in duly recorded involuntary unemployment after having been employed for one year and has registered as a job seeker with the relevant employment office. If he applies for job seekers allowance in France, he should be able to do so without any major problems in 6 months, but case law like Collins states that it may be legitimate for a state to require a ‘genuine link’ to show the individual has a link with the employment market of the state.

Given that Duncan is a UK National, it may be appropriate to also mention EU Citizenship under Article 20 TFEU, in which case the later case of Vatouras is relevant as it confirmed the ruling in Collins and stated that the introduction of EU citizenship had the effect of including within the scope of Art 45(2) TFEU non-discriminatory entitlement to benefits intended to facilitate access to employment. There it was held that job seekers benefits of this kind should not be considered to be ‘social assistance’ within Art 24(2) of Dir 2003/48 . But it should be noted that Vasouras did not say that Art 24(2) was incompatible with the Treaty or wholly redundant, so a MS may arguably continue to rely on Art 24(2) to exclude job seekers from access to other kinds of social assistance, though not from benefits which are objectively construed by the domestic court as ‘intended to facilitate access to the labour market’, which falls under Art 45.
So given Duncan’s UK national status, it is likely that following Collins and Vatsouras, he will be able to apply for the jobseeker’s allowance, as long as he is able to show a genuine link between himself and the labour market.

2) Being currently involved in a militant group is relevant according to Van Duyn in determining whether the French government can deport him using the justifications of public security or public policy. Bouchereau states that activities have to be ‘socially harmful’, like drug trafficking for this to suffice. It is stated that Duncan is arrested on the spot, which suggests that the police would have done the same to similar nationals. In Adoui & Comvaille, it was stated that if the same treatment would be carried out to the nationals, then it would be sufficiently serious. However it is stated that Duncan cuts the tyres of digging machines, and his members (but not himself) chain themselves to some trees. According to Directive 2004/38 Article 27(2), it is the ‘personal conduct’ of the individual himself which must be looked at, so Duncan may try to use the procedural safeguards in Article 31 to argue for an appeal.

Reply 4

cest

OP

Thank you very much for your detailed answer :smile:

very logical and clear :biggrin:

Reply 5

ashimz

Original post by darylpoon12

Hi, to answer your questions:

i was wondering if you could guide me with this question please.
Gino an italian national, renowned italian ice cream maker from Rome. intends to spend 4 week in the UK selling ice cream at Olympic events.the local authorities state that he must obtain a licence to so in order to demonstrate that he is genuine and recognised vendor. Gino is questioning the lawfulness of this requirement.
thanks for any help

EU Law - Free movement of persons questions

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