EC Law - Advise Bob and Wendy.

Bob’s wife Wendy wishes to go with him.

My advice to Wendy would be first of all to inform her that her rights of entry into Portugal rely upon Bob’s status as a worker within the community.  Regulation 1612/68 defines who falls under the confines of a workers family and namely here we are concerned with Wendy having the right to join Bob as his spouse.  Thankfully Bob and Wendy are married so this should not pose any difficulties as the ECJ has held that couples that cohabit are not capable of falling under this category despite being in a long-term relationship.  As with Bob under Directive 68/360 I would advise Wendy that she to will be allowed to enter Portugal “simply on production of a valid passport or identity card”.  With regards to gaining a residence permit Wendy will have to go through a slightly different procedure to Bob, together with the documentation she used to gain entry into Portugal Wendy will also have to provide some form of documentation proving that she is Bob’s wife.  My advice to Wendy would be to provide documentation such as a marriage certificate that was issued in the UK so that her relationship with Bob cannot be disputed.  Bob and Wendy will then be entitled to a residence permit and as per Directive 68/360 Article 6 such a permit “must be valid throughout the territory of the member state it is issued” and “be valid for at least five years from the date of issue and be automatically renewable”.

Bob has been told that he will not be paid as much as his Portuguese colleagues…

Here my advice to Bob would be that under Regulation 1612/68 namely Article 7 (1) “A worker…may not…be treated differently from national workers by reason of nationality in respect of any conditions of employment and work, in particular as regards to remuneration…”  My advice to Bob would be that he is entitled to the same rate of pay as his Portuguese colleagues.  Furthermore if this were to be disputed to the point of taking the matter to the ECJ without going on to much of a digression of the topic at hand if the ECJ can follow the principle of equal payment between men and women then the same can be said for equal payment between nationals and non-nationals within the same Member State.  

…and he cannot be part of any company pension scheme

Article 7 (2) clearly states that a worker such as Bob “shall enjoy the same social, and tax advantages as a national worker” the question I am concerned with here is whether a pension scheme could fall under the heading of a “social advantage and tax advantage”.  The ECJ has described a social advantage as one which may or may not be “linked with the contract of employment” but is generally “granted to national workers…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 States therefore seems suitable to facilitate their mobility”.  Due to the fact that there are no cases which I could find of a similar nature with regards to pension schemes and based upon the reasoning above Bob should be entitled to be part of such a scheme because of his status as a worker and it should be seen as an extension of the entitlement for national workers.  It must be noted however that the pension scheme is not one set up directly by the Member State to benefit all workers so it will be left for the ECJ to decide.  If the ECJ did hold that a pension scheme did fall under the heading of social and tax advantage then my advice to Bob would be that he should entitled to be part of such a scheme and is not allowed to be discriminated against merely due to his nationality.  

Bob has also been warned that his entry into Portugal may be refused because he was once a member of the (fictitious) YBA (young builders association) which took part in various protest marches.

There are exceptions to when free movement of goods can be restricted and these concern employments within the public service and limitations based upon public policy, security and health contained within Directive 64/221.  Due to the limited facts of the case some of the reasoning I give may only be based upon assumptions of the facts given.  It is acknowledged that Bob was a member of the YBA which did take part in protest marches so it could be possible that in doing so Bob has a criminal conviction in connection with taking part in such protest if they were not peaceful events.  My advice to Bob would be that Article 3 (2) provides that previous convictions within themselves are not enough to prevent the free movement of persons, however if the conviction poses a “present or future propensity to act in a manner contrary to public policy or public security” then there will be sufficient evidence for exclusion or expulsion.  This can be illustrated by the case of Donatella Calfa where an EU citizen was expelled from Greece for life for the offence of possession and use of prohibited drugs whilst she was on holiday in Crete.  The ECJ did concede that drug taking was a sufficient danger to the public and the member state was right in saying so, but the conduct did not create a “genuine and serious threat” so the expulsion from Greece was not compatible with community law.

From the details given in the question and the reasoning above Bob is no longer part of the YBA and there is no specific evidence that he has any criminal convictions so it is very safe to say that he will not be refused entry into Portugal on this basis.

However Bob could still be excluded from Portugal on the grounds of personal conduct as per Article 3 (1) which a person can be disqualified on this basis alone.  In the case of Van Duyn a Dutch national who was also a member of the church of scientology sought to gain entry into the UK to continue her works within the establishment, the UK refused her entry on the basis that the organisation was “socially harmful” and a “threat to public policy” it was accepted that being part of such a group did fall under the confines of personal conduct and therefore a member state could be justified in taking such action.

Based upon the reasoning of the above case my advice to Bob would be that although the YBA may be a recognised organisation provided that the protest marches were entirely peaceful and posed no “threat to public policy” then Bob cannot be excluded from entering Portugal on the grounds of personal conduct.  

Wendy wishes to attend the Lisbon Secretarial Institute but has been informed that she will have to pay overseas student fees, which are roughly double those paid by Portuguese students.

Regulation 1612/68 Article 7 (3) provides that a non-national of a Member State has the same rights as to “…access to training in vocational schools and retraining centres.”  The Regulation does not define what vocational training extends to and again this was left to the ECJ.  Vocational training is to include “any form of education which prepares for a qualification for a particular profession… which provides the necessary skill for such a profession…whatever the age and level of the pupil or student”.  Although on the face of it access to education and training only applies to workers and their children but it can be extended further to include spouses.

My advice to Wendy would be that in exercising her rights to free movement she would be classifies as a “home” student so equal access applies to courses in the host state or another member state.  The course which Wendy wants to undertake will undoubtedly be providing her with some form of qualification which will lead to a particular profession.  Wendy has been informed that the fees she will be expected to pay will be double that of Portuguese students despite being resident in Portugal.  Based on the above information and the writings of J. Fairhurst and C. Vincenzie it is not acceptable that Wendy be discriminated against merely due to her non-national status and therefore she should be entitled to pay the same course fees as Portuguese students.

On a final note my advice to Bob and Wendy would be to enjoy there up and coming move to Portugal and well wishes in there every endeavour.  I would have to fully agree with the Court of Justice in that:

“European citizenship was destined to be a fundamental status of nationals of the Member States, enabling those who found themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to some exceptions as were expressly provided for.”

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