EU Law – Free Movement of Persons
Internal market
• goods - art 28, 30, 34, 35, 36 TFEU
• persons - art 45, 49, 46 TFEU
• Test (same steps as goods):
◦ is there a breach? (measure hindering the exercise of freedoms)
◦ is it justified? (pursuing legitimate objectives in the public interest)
◦ is it proportionate? (appropriate and necessary to achieve public interest
objective)
When does free movement of persons law apply?
• personal scope -
◦ nationality of an EU MS (Art 20(1))
▪ Kaur 2001 - allocation of nationality is domain of MS
▪ ICI -test for companies is looking at the location of their corporate seat
◦ engaged in economic activity? (where necessary) - no need to make profit, but
cannot be completely voluntary (Jundt)
▪ Mecca-Medina para 41 not purely sporting interests
• +
• material scope - situation has a cross-border element
◦ cannot be purely internal:
▪ Saunders - Brit can’t use EU law to challenge criminal ruling to return to
NI and not enter England & Wales for 3 years
▪ Gauchard - French supermarket expanded without permission
▪ Moser - hypothetical possibility of job does not trigger EU law
▪ Surinder Singh
• EXAM watch out for purely internal situations!
Are the provisions on FMP directly effective?
• vertical direct effect - yes
◦ 45 TFEU (French merchant seamen 17/73, Van Duyn)
◦ 49 TFEU (Reyners)
◦ 56 TFEU (Van Binsbergen)
• horizontal direct effect (e.g. individual vs private employer)
◦ 45 TFEU - yes, when discrimination involved - Clean Car C-350/96, Agonese C-
281/98
◦ 49 TFEU- unclear (court has hinted it might be, but never actually said it has
horizontal direct effect)
◦ 56 TFEU – unclear (same issue as 49, but don’t need to worry about)
Internal market
• goods - art 28, 30, 34, 35, 36 TFEU
• persons - art 45, 49, 46 TFEU
• Test (same steps as goods):
◦ is there a breach? (measure hindering the exercise of freedoms)
◦ is it justified? (pursuing legitimate objectives in the public interest)
◦ is it proportionate? (appropriate and necessary to achieve public interest
objective)
When does free movement of persons law apply?
• personal scope -
◦ nationality of an EU MS (Art 20(1))
▪ Kaur 2001 - allocation of nationality is domain of MS
▪ ICI -test for companies is looking at the location of their corporate seat
◦ engaged in economic activity? (where necessary) - no need to make profit, but
cannot be completely voluntary (Jundt)
▪ Mecca-Medina para 41 not purely sporting interests
• +
• material scope - situation has a cross-border element
◦ cannot be purely internal:
▪ Saunders - Brit can’t use EU law to challenge criminal ruling to return to
NI and not enter England & Wales for 3 years
▪ Gauchard - French supermarket expanded without permission
▪ Moser - hypothetical possibility of job does not trigger EU law
▪ Surinder Singh
• EXAM watch out for purely internal situations!
Are the provisions on FMP directly effective?
• vertical direct effect - yes
◦ 45 TFEU (French merchant seamen 17/73, Van Duyn)
◦ 49 TFEU (Reyners)
◦ 56 TFEU (Van Binsbergen)
• horizontal direct effect (e.g. individual vs private employer)
◦ 45 TFEU - yes, when discrimination involved - Clean Car C-350/96, Agonese C-
281/98
◦ 49 TFEU- unclear (court has hinted it might be, but never actually said it has
horizontal direct effect)
◦ 56 TFEU – unclear (same issue as 49, but don’t need to worry about)
