Free movement of workers

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The Law of the European Union Assignment

Bella, a UK national, has recently separated from her husband, Alonso, an Italian national and gone to seek a new life in Greece after taking her 15 year old son, David, with her. After a few months, Bella has spent a significant amount of her savings and begins to look for work. Over a period f time she applies for a number of positions but is unable to satisfy the language requirements. She begins to take drugs and David, who has been working part time to supplement their income, moves out into other accommodation. Bella is eventually arrested and charged with minor drug offences for which she is given a short custodial sentence. Meanwhile her husband has taken up an offer of employment in Germany and, at the end of the sentence Bella tries to enter Germany to effect reconciliation. She is refused entry because of her drug offences. In Greece David is found not to have a residence permit and is not allowed to obtain one as he is not living with either of his parents.
Please advise Bella and David.

Nicholas Payne

Group B

Professor Nick Grief

Student ID: 4150081

The scenario above involves one of the fundamental four freedoms of European law; the free movement of persons Arts. 39-42 of the  provide that citizens of EU member states shall have the general right to move freely within the EU to seek and take up offers of employment. Article 39 is particularly applicable in which grants under article 39(1) that: ‘freedom of movement of workers shall be secured within the Community’ and also such that it(2) ‘....shall entail the abolition of any discrimination based on nationality between workers of the member states as regards employment, re-numeration and other conditions of work and employment’. The limitations of this article are set out in article 39(3). Furthermore to consider the position of Bella and David it is vital to consider article 17, article 18 and Council  which in German national law is called the Freizügigkeitsgesetz.

Bella, a UK national and thus under Article 17, EC treaty, a European Union Citizen which specifies that Article 17 (1) of the amended  states that ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. All nationals of Member States are citizens of the union." With this borne in mind it is important to assess what are Bella’s right under EC law and whether the state has acted legitimately in order to refuse the right of entry based on her convictions. Whilst her intentions are not clear or stated with regards to employment as the facts are not explicitly stated in the scenario. However we can assume that she may do given her attempts in Greece to obtain employment and as it has been stated that a national of a Member State has the right to look for a job in another Member State. He or she will receive from the national employment offices the same assistance as nationals of the host Member State.  According to the European Court of Justice, the jobseeker may stay in the host Member state for a period "sufficient to enable him to appraise himself of offers of employment and to take the necessary steps to be engaged". After expiry of such period, he cannot be expelled if he proves that he is continuing to seek employment and that he has genuine chances of being engaged. This whilst valid is not entirely applicable given the fact there her current intention is simple, that she aims to reconcile her relationship with Alonso who is residing and working in Germany. This then falls within the scope of the EC directive 2004/38 which extends the freedom of movement provision to workers’ ‘family members’ which under article 2(2) of said directive clearly states that a ‘family member means: (a) the spouse’ which the ECJ have held in the case of Netherlands v Reed that ‘the term “spouse” refers to a marital relationship only’. This is important because whilst they are separated but no yet divorced she had not yet lost her status as a member of his family which is emphasised by Diatta v Land Berlin.

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There is however other articles which could be applied such as article 5; Rights of Entry which states that a member state must grant to all Union citizens the right to enter their territory with a valid ID card or passport, and article 6; The Right of Residence for up to three months. This states that a Union citizen shall have the right of residence for a period of up to 3 months without any conditions or formalities other than the necessity, like in article 5, to simply hold a passport or valid ID card. However there are restrictions under Article 14: ...

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