User:Kaihsu/IMlawA6

European internal market.

Section A: The scope of the four freedoms.

Chapter 6: Personal scope – third-country nationals.

Notes by Kaihsu Tai, 2012-03-06.

Temporal limits and the free movement rules
A national who died before their country’s accession is not a “worker”; his family therefore cannot claim the derived rights: Case C-131/96 Mora Romero. Similarly, one unemployed at accession and has no objective possibility of obtaining work is not a “worker”: Case C-171/91 Tsiotras.

Determination of nationality
Nationality of legal persons should be available on a non-discriminatory basis: Case C-221/89 Factortame II. A Member State has to accept nationality decisions of another; dual EU/third-country nationals have EU rights: Case C-369/90 Micheletti.

Derived rights
Family members of EU citizens have derived rights: Article 7(2) of Regulation 492/2011, Article 3(2) of Directive 2004/38. These include entry (Case C-370/90 Surinder Singh) and residence (Case 267/83 Diatta) rights. To claim the rights, there must be an inter-State element, however tenuous: Case C-60/00 Carpenter. The rights remains derivative: Case C-10/05 Mattern and Cikotic. A (gratis, fast-track) visa may be required under Regulation 539/2001 or national law: Article 5(2) of Directive 2004/38.

Internal market and mobility
See:
 * Title V of Part Three TFEU (area of freedom, security and justice),
 * Joined cases 281, 283, 284, 285 and 287/85 Germany and others v Commission (migration policy),
 * Directive 2003/86 (family reunification),
 * Directive 2003/109 (long-term residents),
 * Directive 2004/114 (students),
 * Directive 2005/71 (researchers),
 * Directive 2009/50 (EU Blue Card).

An English court ruled that Article 26 TFEU (area without internal frontiers) does not confer, with direct effect, rights to third-country nationals: R v Home Secretary, ex parte Flynn [1995] 3 CMLR 397, [1997] 3 CMLR 888. Similarly see Case C-378/97 Wijsenbeek.

EU service providers can bring with them members of their workforce: Case C-113/89 Rush Portuguesa.

Member States are not required to recognize non-EU diplomas, even if recognized by another Member State: Case C-154/93 Tawil-Albertini. However, subsequent professional experience in the EU must be taken into account: Case C-319/92 Haim I.

A third-country national moving from one Member State to another and failing to exchange his driving licence cannot rely on Case C-193/94 Skanavi and Chryssanthakopoulos to evade punishment for driving without a licence: Case C-230/97 Awoyemi.

Area of freedom, security and justice
See:
 * Directive 2001/40 (expulsion of third country nationals),
 * Directive 2001/51 (financial penalties),
 * Directive 2008/115 (returning illegally staying third-country nationals),
 * Directive 2009/52 (employers of illegally staying third-country nationals),
 * Decision 2002/629/JHA (human trafficking).

Association and international agreements
In addition to the ones below, these also include cooperation agreements with Morocco, Algeria and Tunisia, as well as the Cotonou Agreement (succeeding the Lomé Convention).

Turkish Association Agreement
Decision 1/80 of the Association Council created by the Turkish Association Agreement (1963) has direct effect; the term “legal employment” therein “presupposes a stable and secure situation as a member of the labour force”: Case C-102/89 Sevince. The right to work under Article 6(1) of Decision 1/80 implies a right to reside; the limitations are to be interpreted likewise; general expulsion as a deterrent is not permissible: Case C-340/97 Nazlı. Article 10(1) (non-discrimination) of the same decision has direct effect, and precludes a Member State from excluding Turkish workers from being elected to workers chambers’ general assembly: Case C-171/01 Wählergruppe Gemeinsam. Member States cannot “adopt national legislation which excludes at the outset whole categories of Turkish migrant workers”: Case C-98/96 Ertanır.

The time limits in Article 6(1) are strictly enforced: Case C-355/93 Eroğlu. A Turkish worker’s “involuntary unemployment following the declaration of insolvency of the undertaking in which he was working cannot of itself prevent him from continuing to belong to the labour force of the host Member State”: Case C-337/07 Altun; see also Nazlı, Case C-383/03 Doğan. A Turkish worker “who has definitively ceased to belong to the labour force of a Member State because he has, for example, reached retirement age or, as in the present case, become totally and permanently incapacitated for work” do not enjoy the rights under Article 6(1): Case C-434/93 Bozkurt.

Articles 12 and 13 of the Decision 3/80 of the Association Council (social security) are not directly effective: Case C-277/94 Taflan-Met. But Article 3(1) of the same decision (equality of treatment) is directly effective: Case C-262/96 Sürül.

Derived rights of Turkish workers’ family members are provided by Article 7 of Decision 1/80. The spouse’s (conditional) right to work does not depend on a residence permit: Case C-351/95 Kadıman at 51. A stepson is a family member: Case C-275/02 Ayaz, referring to Case C-413/99 Baumbast and R; see similarly Case C-65/98 Eyüp on cohabiting ex-spouses. Rights under these decisions can be lost only by violating the limiting provisions in Article 14(1) or by leaving the host State: Case C-325/05 Derin. After vocational training, a Turkish child can respond to any employment offer “when one of his parents has in the past been legally employed in that State for at least three years”, regardless of the parent’s current residence: Case C-210/97 Akman.

Europe Agreements
Article 49 TFEU (freedom of establishment) cannot be extended to similar Europe Agreement provisions; the latter are directly effective insofar as they confer rights of entry and residence to self-employed persons; Member States can control entry and residence so far as there is no blanket prevention because of previous false declarations: Case C-63/99 Gloszczuk, Case C-235/99 Kondova, Case C-257/99 Barkoci and Malik.

The possibility that there is a disguised employment relationship not provided for by Europe Agreements does not justify systematically refusing residence: Case C-268/99 Jany.

The non-discrimination rule in Europe Agreements are directly effective: Case C-162/00 Pokrzeptowicz-Meyer, confirmed by Case C-438/00 Kolpak (horizontal direct effect for sports federations).

Requiring the worker to obtain a residence permit in advance is compatible with Europe Agreements, provided that the system for obtaining such permits is easily accessible, deals with requests in a reasonable period and objectively, and allows refusals of such permits to be contested before a court: Case C-327/02 Panayotova.

Partnership Agreements
Article 23(1) (non-discrimination in employment) of the EU–Russia Partnership Agreement (1994) is directly effective: Case C-265/03 Simutenkov (sports federation).

The bilateral EU–Switzerland Agreement on free movement of persons (1999) provides for non-discrimination; direct effect seems assumed: Case C-13/08 Stamm and Hauser; but see Case C-70/09 Hengartner and Gasser.