Free Movement of Workers/Persons

Article 45 TFEU, is the basic provision which provides that:

1.

Freedom of movement for workers shall be secured within the Union.

2.

Such freedom of movement shall entail the abolition of any discrimination

based on nationality between workers of the Member States as regards
employment, remuneration and other conditions of work and employment.

3.

It shall entail the right subject to limitations justified on grounds of public

policy, public security or public health:
a)
b)
c)
d)

4.

To accept offers of employment actually made;

To move freely within the territory of Member States for this purpose;
To stay in the Member State for the purpose of employment in
accordance with the provisions governing the employment of nationals
of that State laid down by law, regulations or administrative action;
To remain in the territory of a Member State after having been
employed in that State, subject to conditions which shall be embodied
in regulations to be drawn up by the Commission;

The provision of this Article shall not apply to employment in the public
service.

The Court has repeatedly emphasized the central importance of the twin principles of
freedom of movement and non-discrimination on grounds of nationality. Article 45, is
said to represent an application, in the specific context of workers, of the general
principle in Article 18 TFEU, prohibiting discrimination on grounds of nationality.
The ECJ in Walrave and Koch held that Article 45 would apply even where the work
was done outside the Community, so long as the legal relationship of employment was
entered within the Community. This was extended further in Boukhalfa, in which the
Court ruled that the Article applied also to the employment of a Member State
national which was entered into and primarily performed in a non-member country in
which the national resided, at least as regards all aspects of the employment
relationship which were governed by the legislation of the employing Member State.
The Court also ruled in Walrave and Koch and Bosman that the provisions of Article
45 are not just of vertical direct effect. The Angonese case, subsequently went
further and indicated that Article 45 is also horizontally applicable to the actions of
individuals, who do not have the power to make rules regulating gainful employment,
such as a single employer who refuses to employ someone on the ground of their
nationality. Thus, there is a distinction between free movement of workers and that
governing the free movement of goods, since the ECJ has made clear that Article 34
applies only to state measures, and not to those adopted by private actors.
Article 45: Worker and the Scope of Protection

Article 46 TFEU provides for the European Parliament and the Council to adopt
secondary legislation to bring about the freedoms set out in Article 45. A range of
directives and regulations were adopted under this provision to govern the conditions
of entry, residence, and treatment of EU workers and their families. Many of these
were consolidated by Directive 2004/38 on the free movement and residence of EU
citizens and their families.
One of the main feature of this directive is that it has introduced the right of
permanent residence for EU nationals and their families after five years of continuous
legal residence in another Member State.
Definition of Worker: An EU Concept
The Court has now and then insisted that the definition of a worker is a matter for EU
law and not national law: Hoekstra The position is as follows: any person who
pursues employment activities which are effective and genuine to the exclusion of
activities on such a small scale as to be regarded as purely marginal and ancillary
is treated as a worker. For an economic activity to qualify as employment under
Article 45, rather then self-employment under Article 49 TFEU, there must be a
relationship of subordination. There is, however, no single EU concept of a worker,
and that it varies according to the EU law context in which it arises.
Definition of Worker: Minimum Income and Working-Time Requirements
A number of cases have been concerned with the interplay between the economic
aspect of free movement, as determined by the level of remuneration, and the social
aspect underlying free movement policy.
In the Levin case, a number of important aspects arose to this judgment. The ECJ
affirmed that the free movement of persons was fundamental to the Community and
must therefore be broadly interpreted. The freedom to take up employment is
important not only as means towards the creation of a single market for the benefit of
the Member States economies, but as a right for the worker to raise her standard of
living.
All workers in the Member States have the right to pursue the activity of their choice
within the Community, irrespective of whether they are permanent, seasonal or
frontier workers or workers who pursue their activities for the purpose of providing
services. Even part time employment is not excluded from the field of application of
the rules on freedom of movement for workers. However, their activities must be
effective and genuine to the exclusion of activities on such a small scale as to be
regarded as purely marginal and ancillary.
In Kempf, the issue was taken a step further, stating that when a genuine part-time
worker sought to supplement his earnings below the subsistence level, it was
irrelevant whether those supplementary means of subsistence derived from property
or from the employment of a member of a family or from public funds of the Member
State in which he resided.

The Court has ruled that the practice of sports falls within EU law in so far it
constitutes an economic activity: Bosman It has also ruled that fisherman who are
paid a share of the proceeds of sale of their catches can be considered to be workers
despite the irregular nature of their remuneration: R v Ministry of Agriculture,
Fisheries and Food.
In Lawrie-Blum, the Court held that the essential feature of an employment
relationship, however, is that for a certain period of time a person performs services
for and under the direction of another person in return for which he receives
remuneration.
In Steymann, the concept of remuneration was and hence of economic activity was
pushed a bit further. The fact that the work might be seen in conventional terms as
being unpaid did not mean that it was not effective economic activity. Steymann,
provided services of value to the religious community, which would otherwise have to
be performed by someone else, and in return for which his material needs were
satisfied.
Definition of Worker: Purpose of Employment
The general rule is that the purpose for which the employment is undertaken will not
be relevant in determining whether a person is a worker. Provided that the
employment is genuine and not marginal it will benefit from Article 45. There are,
however, cases in which some account has been taken of the purpose of the
employment.
In Bettray, the purpose for undertaking the work was crucial to the ECJs decision.
The fact that the main and the sole purpose of the work was to rehabilitate the person
and to find work suited to their capabilities rather than to meet genuine economic
needs resulted in a ruling against Bettray. On the other hand, in Trojani v CPAS,
although ECJ left it to ultimately to the national court to decide whether his
employment was real or genuine, it made clear that the fact that social reintegration
was the main purpose of the employment would not itself disqualify the employment
from being considered as such. Instead, the crucial factor was whether the services
are capable of being regarded as forming part of the normal labour market.
Brown, remains an authority for the proposition that an EU national who undertakes
work for a temporary period purely as a means to qualify for an educational course
will not be entitled to all the same advantages as a fully-fledged worker under EU
law.
In Ninni-Oraschi, the ECJ again reiterated the importance of objective factors such as
hours of worked and remuneration over other subjective factors such as motive and
conduct.

Definition of Worker: The Job Seeker

In Antonissen, it was held that a job seeker would come within the definition of a
worker, clearly enunciating a purposive approach adopted by the ECJ. It concluded
that a literal interpretation would hinder the purpose of the free movement of workers.
However, the ECJ was clear that the status of an EU national searching for work was
not the same as that of an EU national who was actually employed. Member States
retained the power to expel a job-seeker who does not have prospects of finding work
after a reasonable period of time.
In Commission v Belgium and also in Lebon, the ECJ ruled that the social and tax
advantages guaranteed to workers under EU law, particularly under Article 7(2) of
Regulation 1612/68, were not available to those moving in search of work.
Article 45: Discrimination, Market Access, and Justification
It is clear, that rules that discriminate on grounds of nationality, will be caught by
Article 45. It is even clear that indirect discrimination, and even impediments to
market access, which do not depend on a showing of unequal impact can also lead to
an infringement of Article 45. Discrimination whether direct or indirect will be found
only where two groups which are comparable in relevant ways are treated differently,
or where groups which are not comparable are treated in the same way.
Direct Discrimination
In Commission v French Republic, the ECJ ruled that Article 45 was directly
applicable in the legal system of every Member State, and would render in applicable
all contrary national law. Further, a state can be held in breach of Article 45, where
the discrimination is practiced by any public body, including public universities:
Commission v Italy
While cases involving direct discrimination on grounds of nationality are much less
common, such cases do arise but they raise a strong burden of justification.
Indirect Discrimination
Indirect discrimination is also prohibited by Article 45, so that a condition of
eligibility for a benefit which is more easily satisfied by national than by a nonnational workers is likely to fall foul of the Treaty. The ECJ has relaxed the
requirements for proof of indirect discrimination, ruling in OFlynn that in order for
indirect discrimination to be established it was not necessary to prove that a national
measure in practice affected a higher proportion of foreign workers, but merely that
the measure was intrinsically liable to affect migrant workers more than nationals.
A common species of indirect discrimination is where benefits are made conditional,
in law or fact, on residence, place of origin requirements, or place of education
requirements that can more easily be satisfied by nationals that non-nationals: Ugliola
In Commission v Belgium, the ECJ held that a system of retirement pensions points
that could more easily be satisfied by workers possessing the nationality of that

Member State than by workers from other Member States was indirectly
discriminatory, and hence caught by Article 45.
A further form of indirect discrimination is the imposition of a language requirement
for certain posts, since it is likely that a far higher proportion of non-nationals than
nationals will be affected by it: Commission v Greece. However, since such a
requirement may well be legitimate, Article 3(1) of Regulation 1612/68, allows for
the imposition of conditions relating to linguistic knowledge required by reason of
the nature of the post to be filled.: Groener
Another form of indirect discrimination is the imposition of a double-burden
regulatory requirement, which does not recognize appropriate qualifications or
certification already received in the home state: Commission v Portugal
Obstacles to Access to the Employment market
The ECJ has ruled that even non-discriminatory restrictions may breach the Treaty if
they constitute an excessive obstacle to freedom of movement: The Bosman Case. It
is sometimes difficult to distinguish between cases of indirect discrimination and
those where the ECJ intervenes to protect access to the employment market but there
are nonetheless cases that fall clearly within the latter category.
In Commission v Denmark and Van Lent, the Court condemned national rules which
prohibited workers domiciled in one particular state from using a vehicle registered in
another Member State, on the basis that these rules might preclude workers from
exercising their rights to free movement or might impede access to employment
between states.
In Graf, the Advocate General argued that neutral national rules could be regarded as
material barriers to market access only if it were established that they had actual
effects on market actors akin to exclusion from the market. Thus, the outer boundaries
of Article 45 have been clearly articulated.
Internal Situations
Article 45, does not prohibit discrimination in a so-called wholly internal situation.
This is sometimes referred to as a situation of reverse discrimination since its effect
is frequently that national workers cannot claim rights in their own Member State,
which workers who are nationals of other Member States could claim there. In
Saunders, the ECJ held that since there was no factor connecting the defendant to any
of the situations envisaged by Community law she could not rely on Article 45.
In De Groot, it has nevertheless been established that a worker will be able to use
Article 45 against his or her own state where the worker has been employed and
resided in another Member State. Such a worker may then claim that he or she has
been discriminated against in relation to, for example, social security contributions or
taxation, when returning to work in his or her own Member State.

Objective Justification
The possible justification for justifying indirect discrimination are broad, and not
confined to the exception set out in the Treaty or secondary legislation. Thus, in
Schumacker, the Court ruled that indirect discrimination based on the residence of a
worker, whereby an EU national employed but not resident in a particular Member
State could not benefit from personal tax allowances, could in certain circumstances
be justified. However, such indirect discrimination could not be justified where, for
example, the non-resident worker could not benefit from the personal allowances in
the Member State of residence either.
The ECJ undertakes close scrutiny of claims that restrictions are justified. Thus, in
Terhoeve, the ECJ considered whether heavier social security contributions levied on
a worker who transferred his residence from one Member State to another to take up
work during the course of a year could be justified. The ECJ rejected justifications
based on the need to simplify and coordinate the levying of such contributions and
technical difficulties preventing other methods of collection.
Article 45(4): The Public Service Exception
The ECJ has taken an expansive approach to the definition of a worker. Conversely,
its approach to the limiting clause in Article 45(4), which provides that Article 45
shall not apply to employment in the public service has been restrictive. The ECJ has
endeavoured to ensure that the scope of the exception does not go further than is
necessary to fulfill the purpose for which it was included in the Treaty. This requires
an analysis of why the exception was created. It must be noted that it is for the Court
and not the Member State to decide what constitutes employment in the public
service: Sotgiu
..legal designations can be varied at the whim of national legislatures and cannot
therefore provide a criterion for interpretation appropriate to the requirements of
Community law.
The ECJs Test for Public Service
In Commission v Belgium, a state cannot bring certain activities, for example of an
economic or social kind, within the Treaty derogation simply by including them in the
scope of the public law of the state and taking responsibility for their performance.
The ECJ held that the aim of the Treaty provision was to permit Member States to
reserve for nationals those posts, which would require a specific bond of allegiance
and mutuality of rights and duties between state and employee.
The Courts description of the posts that could be said to require such allegiance and
to depend upon the bond of nationality was two-fold:

They must involve participation in the exercise of powers conferred by public

law; and
They must entail duties designed to safeguard the general interests of the
state.

Both the requirements are cumulative rather than alternative. A post will benefit from
the derogation in Article 45(4) only if it involves both the exercise of power conferred
by public law and the safeguarding of the general interests of the state: Lawrie-Blum
Application of the ECJs Test
In the Belgium case the ECJ ruled that by simply referring to the general tasks of the
National Research Council and listing the duties of all its researchers is not sufficient
to establish that the researchers are responsible for exercising powers conferred by
public law for safeguarding the general interests of the State. Only the duties of
management or of advising the State on scientific and technical questions could be
described as employment in the public service within the meaning of Article 45(4).
It must, however, be noted that Community law does not prohibit a Member State
from reserving for its own nationals those posts within a career bracket which involve
participation in the exercise of powers conferred by public law or the safeguarding of
the general interests of the state.
The issue is still one, which is fraught with ideological tensions, the underlying debate
being about the relevance of nationality and specifically about when it is legitimate
for the Member States to require nationality as a condition for employment. The
efforts of the Member State to define the public service derogation in institutional
terms by reference to the public sector have repeatedly failed.
It is clear from the Sotgiu case, that Article 45(4) cannot be used to justify
discriminatory conditions for employment within the public service. In this case
Germany had invoked Article 45(4) in an attempt to justify its provisions on
separation allowances for post-office workers, which worked to the disadvantage of
non-nationals.
Directive 2004/38
This Directive concerns the movement and residence of EU citizens and their
families, with family members defined in Articles 2 and 3 thereof.
It is important to be mindful of the ECJs interpretive methodology in relation to
Directive 2004/38. It held that the Directive aims to strengthen the primary and
individual right to move and reside freely within the Member States that is conferred
directly on Union citizens by the Treaty, and thus it must not be interpreted strictly.
Article 6 of the 2004 Directive gives an initial right of entry and residence for up to
three months to all EU citizens and their families without any conditions other then
presentation of an ID card or passport. The interim status of job-seeker is also
recognized in the preamble to the Directive, which implicitly confirms the ECJ case
law on this subject.
Article 8 of the Directive provides that workers and their families may be required to
register with the host state authorities, and upon presentation of a valid passport or ID
card and confirmation of employment (and, in the case of family members a
document attesting to the existence of the relevant family relationship, dependency,

etc.). to receive a certificate of registration as evidence of their underlying right of

residence. Thus, the previous system of residence permits has been replaced with a
simpler registration procedure for workers and their families.
However, family members who are not EU nationals are to be issued with a residence
card under Articles 9 and 10.
Member States are generally required by Article 4 to grant citizens and their families
the right to leave their territory to go and work in other Member States simply on
producing an identity card or passport of at least five years validity which their
Member States must provide for them and which will be valid throughout the EU and
any necessary transit countries between Member States. No exit visa requirement may
be imposed.
Article 5 sets out similar conditions for the right to enter another Member State: all
that is required is a valid identity card or passport and a visa requirement is
impermissible, except for certain third country nationals. However, the visa must be
issued as soon as possible and free of charge: Article 5(2).
It is made clear in the Directive, that the rights to reside and to work and not
conditional upon initial satisfaction of the formalities for which the Directive
provides. The penalties imposed must be proportionate and non-discriminatory. It is
clear that deportation, refusal of entry or revocation of the right of residence
constitutes a disproportionate penalty for failure to fulfill administrative formalities.
MRAX v Belgium, provides that where the EU national or the family member does
not have the requisite documents or visas, the Member State shall give them every
reasonable opportunity to obtain the documents, to have them brought to them, or to
prove their right of residence by other means.
In Metock, it was clarified that Directive 2004/38 does not make the application of the
directive conditional on the family member of a Union citizen having previously
resided in a Member State. It must also be pointed out that the directive even covers
nationals of non-member countries who are family members of a Union citizen. Thus,
Community legislature recognized the importance of ensuring the protection of the
family life of nationals of the Member States in order to eliminate obstacles to the
exercise of the fundamental freedom guaranteed by the EC Treaty. The Community
even derives from the Articles of the Treaty the competence to enact the necessary
measures to bring about freedom of movement for Union citizens.
Job-Seekers and the Unemployed
Article 7(3) of Directive 2004/38, governs the position of former workers, who
although have ceased working, nevertheless retain some of the rights of workers for
themselves and their families.
It provides that EU citizens who are no longer workers shall retain the status of
worker where they are temporarily unable to work as a result of an illness or accident;
or where they are involuntarily unemployed after having been employed for more
than one year and having registered with the employment office as job seekers. In

case of involuntary unemployment where a worker has embarked on a vocational

training may retain the status of a worker, but in cases where the worker has
voluntarily given up employment retention of this status is conditional upon the
training being related to the previous employment: Raulin
Job-seekers do not enjoy the status of a worker in the full sense of the term, although
they enjoy a right of residence during the period they are seeking work, and access to
certain benefits which are specifically intended to facilitate access to employment:
Collins. As far as the length of this period is concerned the ECJ in Antonissen left it
somewhat flexible. Although, a period of six months allowed by UK seemed
reasonable, the right to remain in search of work must continue even after that period
so long as the person concerned provides evidence that he is continuing to seek
employment and that he has genuine chances of being engaged.
The Right of Permanent Residence
An important innovation in Directive 2004/38 was the introduction of the right of
permanent residence for EU citizens and their families, including non-nationals, who
have resided lawfully for a continuous period of five years in the host state.
Articles 16-18, indicate the conditions under which EU citizens may enjoy this right,
which clearly cover EU workers and their families. Article 16(4), provides that the
right of permanent residence may be lost only through absences of more than two
consecutive years.
The administrative formalities are regulated by Articles 19-21. A document certifying
permanent residence is to be issued as soon as possible to EU nationals who have
verified their duration of residence. Non-EU national family members who enjoy a
derivative right of permanent residence are to be given a permanent residence card,
which is to be automatically renewed after every ten years and the validity will be not
be affected by the absence of less than two consecutive years.
Articles 22-26, regulate conditions under which the right of residence, including the
right of permanent residence, is to be enjoyed. It is to cover the whole of the territory,
and includes the right of equal treatment with nationals of the host state within the
scope of the Treaty, subject to such exceptions as are provided for by the Treaty or in
secondary legislation.
Regulation 1612/68 (now 492/11): Substantive Rights and Social Advantages
Article 45, even confers positive substantive rights of freedom of movement and
equality of treatment on EU workers. These rights are to some extent fleshed out by
secondary legislation and in particular by Regulation 1612/68, which has been
amended by Directive 2004/38. The Commission has proposed a codification of
Regulation 1612/68.

Article 7(2) of Regulation 1612/68 (now 492/11)

Initially in Michel S the court read Article 7(2) in a limited way, ruling that it
concerned only benefits connected with employment. Shortly afterwards, the ECJ,
departed from this restrictive interpretation and ruled that Article 7(2) should be read
so as to include all social and tax advantages whether or not attached to the contract of
employment: Cristini v SNCF. It applied not just to workers but also to surviving
family members of deceased worker and that although Article 7 refers only to
advantages for workers, it covers any advantage to a family member, which provides
an indirect advantage to the worker: Inzirillo In Reina, an interest free childbirth
loan granted under German law to German nationals in order to stimulate the birth
rate of the population was held to be a social advantage within Article 7(2), since its
main aim was to alleviate the financial burden on low-income families, even if it was
also a part of national demographic policy.
The limits to the rights, which may be claimed by a worker under Article 7(2), were
addressed in the case of Even, which held that the advantages which this regulation
extends to workers who are nationals of other Member States are all those which,
whether or not linked to the contract of employment, are generally granted to national
workers primarily because of their objective status as workers or by virtue of the mere
fact of their residence on the national territory and the extension of which to workers
who are nationals of other Member State therefore seems suitable to facilitate their
mobility within the Community. In this case, because the benefit granted to national
workers was based on the services rendered during wartime to their own country, it
could not be regarded as an advantage within Article 7(2).
Similarly, in de Vos, the ECJ ruled that the statutory obligation on an employer to
continue paying pension insurance contributions on behalf of workers who were
absent on military service was not a social advantage to the worker within Article
7(2), since it was an advantage provided by the state as partial compensation for the
obligation to perform military service, rather than an advantage granted to workers by
virtue of the fact of their residence in the Member State.
By comparison in Ugliola, which concerned the taking into account of military
service in calculating seniority at work, the Court found that there was impermissible
discrimination under Article 7(2). The difference between the two cases is very
difficult to discern, since each was concerned with ensuring that workers who were
away on military service would not be disadvantaged as a result.
Article 7(3) of Regulation 1612/68 (now 492/11) and Educational Rights for
Workers
Article 7(3) provides that EU workers shall by virtue of the same right and under the
same conditions as national workers, have access to training in vocational schools
and retraining centres. The Article has been held to confer equal rights of access for
non-nationals workers to all the advantages, grants and facilities available to
nationals.
In Lair, it was restrictively interpreted excluding Universities from the scope of
vocational schools. The ECJ, however, went on to hold that workers could also invoke

the social advantages provision of Article 7(2) to claim entitlement to any advantage
available to improve their professional qualifications and social advancement, such as
a maintenance grant in an educational institution not covered by Article 7(3):
Meeusen This is subject to the requirement that must be a link between the previous
work and the studies in question: Lair. In Brown the Court has made it clear that not
only must there be a link between the previous employment and the subsequent
studies, but the employment must not be ancillary to the main purpose of pursuing a
course of study.
The one exception permitted under Article 7(3)(d) of Directive 2004/38 is where a
worker involuntarily unemployed was obliged by conditions on the job market to
undertake occupational retraining in another field of activity.
Finally, under Article 35 of Directive 2004/38, Member States may refuse or
withdraw rights under the Directive in the case of abuse of rights or fraud.
Article 12 of Regulation 1612/68 (now 492/11) : Educational Rights for Children
Article 12, provides that the children of a national of a Member State, who is or has
been employed in the territory of another Member State, shall be admitted to courses
of general education, apprenticeship and vocational training under the same
conditions as the nationals of that State, if those children reside in its territory.
In Michel S, the ECJ interpreted Article 7(2) narrowly, but in the same case it
interpreted Article 12 broadly, so that a benefit for disabled nationals was included
within Article 12 on access to education for the children of workers. This expansive
reading was continued in Casagrande, where the ECJ ruled that Article 12 applied not
just to admissions to courses but also to any general measures intended to facilitate
educational attendance, including an educational grant. Thus, Article 12 places the
children of EU workers residing in a Member State in the same position as the
children of nationals of that state so far as education is concerned.
In Gaal, the ECJ ruled that the term children in Article 12 was wide enough to confer
educational rights on children who were over 21 and non-dependent. In Moritz, the
ECJ further ruled that Article 12 covers the childs right to educational assistance
even where the working parents have returned to their state of nationality.
Rights of families, as Parasitic on the Workers Rights
Although the interpretation of social advantages in Article 7 is broad, it is only
workers and the family workers covered by Directive 2004/38, who may avail
themselves of them. In Lebon, the ECJ ruled that once the child of the worker reached
21 and was no longer dependent on the worker, benefits to that child could not be
construed as an advantage to the worker.
In Reed, the ECJ ruled that the possibility for a migrant worker to have his unmarried
companion reside with him could constitute a social advantage only where the host
state treated stable companions as akin to spouses. In Diatta and Singh, the ECJ
indicated that even where the spouses were separated and where a decree nisi of
divorce had been granted the non-working spouse did not lose the right of residence

while the marriage was still formally in existence. In Baumbast, the ECJ stated that a
non-EU national spouse could exercise the right of residence even after divorce,
provided the children were exercising their educational rights under Article 12.
Article 13(1) of Directive 2004/38 now provides that even after divorce, annulment
of marriage or termination of a registered partnership, the right of residence of the
family members who are EU nationals will not be affected. In the case of non-EU
national family members, Article 13(2) provides that the right of residence will not be
lost where:
(i)
(ii)
(iii)
(iv)

The marriage or registered partnership has lasted at least three years

including one year in the host Member State; or
Where the spouse retains custody of the EU citizens children; or
Where it is warranted by particular difficult circumstances such as the
applicant being a victim of domestic violence during the marriage or
partnership; or
Where the non-EU spouse has the right of access to the child in the host
Member State.

Article 35 of the Directive 2004/38, clearly provides that a non-EU national spouse
will not gain a right of residence or social advantages if the marriage is merely a
marriage of convenience or a sham.
Directive 2004/38: Public Policy, Security and Health Restrictions
Articles 2733 of Directive 2004/38 govern the restrictions on the right of entry and
residence, which Member States may impose on grounds of public policy, security or
health. An innovation of Directive 2004/38 has been the introduction of three levels of
protection against expulsion on these grounds:
(i)
(ii)
(iii)

A general level of protection for all individuals covered by EU law;

An enhanced level of protection for individuals who have already gained
the right of permanent residence on the territory of a Member State;
A super enhanced level of protection for minors or those who have resided
for 10 years in a host state.

There is a significant body of case law derived from the previous Directive 64/221
concerning the circumstances in which Member States may expel EU nationals or
their family members on public policy or security grounds.

Van Duyn;
Adoui and Cornuaille;
Rutili

The substantive and procedural protection for individuals subject to an expulsion

order are now set out in Article 28 of Directive 2004/38. Article 28(1) requires that
before making an expulsion order the Member State must take into consideration the
period for which the individual has stayed the host Member State, his/her age, state of
health, family and economic situation, social and cultural integration and the extent to
his/her links with the country of origin. Enhanced level of protection is provided to

the EU citizens under Article 28(2), stating that they may only be expelled for
serious grounds of public policy or public security. Article 28(3) provides for an
even more stringent level of protection for a minor or an EU citizen residing in the
host State for more than ten years stipulating that they can only be expelled on
imperatives grounds of public security.
Land Baden Case reveals the ECJs interpretation of Articles 27 and 28 of the
Directive and the conditions that must be satisfied for an expulsion to be lawful. 1
Article 29(1) governs the public health requirement by specifying that only diseases
with epidemic potential as defined by the relevant instruments of WTO, and other
infectious or contagious parasitic diseases subject to protection in the host Member
State will justify measures restricted freedom of movement. Article 29(2) sets out a
three-month period following arrival after which diseases occurring cannot constitute
grounds for expulsion.
Article 29(3) states that where there are serious indications that it is necessary
Member States may within three-months of the date of arrival, require persons
entitled with a right of residence to undergo a medical examination free of charge to
certify that they are not suffering from any disease.
Article 30, requires that the persons concerned must be notified of the decision in
such a way that they can comprehend its content and implications: Adoui and
Cornuaille
Article 31, provides for procedural safeguards, stating that a person has access to
judicial and where appropriate administrative redress procedures in the host Member
State to appeal against or seek review of an adverse decision taken on grounds of
public policy, public security and public health.
Article 32, provides that where someone has been validly excluded on public policy
or security grounds they may apply to have the exclusion order lifted after a
reasonable period, and no later than three years from the enforcement of the final
exclusion order, by arguing that there has been a material change in the circumstances
justifying their exclusion. States must decide on such application for re-admission
within six months, but the applicants have no right of entry to the territory while the
application is being considered.

1 Please refer to De Burca (Page 757758)