But what if you are working part-time at McDonald’s in a host member state?  Or you are a student, but you work a bit to give yourself some cash?   Are you considered a “worker” for the purposes of EU free movement law?

The Danish government very generously summarizes some of the European Court of Justice (ECJ) case law on who might be considered a worker:

When is a Union citizen/an EEA national deemed to be a worker under EU law?

It depends on a concrete assessment of the specific circumstances of each case whether a Union citizen/an EEA national, including a Danish national, is deemed to be a worker under EU law. What is crucial is whether a person has had genuine and effective employment. Accordingly, employment appearing to be a mere marginal supplement is excluded from the scope of application of the concept. It is therefore normally a condition that the relevant employment was for at least 10-12 hours a week.

According to the jurisprudence of the European Court of Justice it is normally a requirement that the applicant has been employed for a minimum of 10-12 hours per week, see judgment Kempf (C-139/85) and Megner and Scheffel (C-444/93).

In the case of Kempf the employment in question was 12 hours per week, and in the case of Megner and Scheffel the European Court of Justice has ruled that paid employment where the working hours normally do not exceed 18, 12 or even 10 hours per week do not exclude that the person is regarded a worker under the EU legislation.

In the judgment of Genc (C-14/09) the European Court of Justice established criteria for the purposes of the concrete and individual assessment of whether an employment for less than 10-12 hours per week is genuine and effective. These criteria may be the entitlement to paid leave, remuneration during illness, the duration of the employment, and a collective agreement applies to the employment. The employment in the mentioned case was 5,5 hours per week.

The European Court of Justice did not consider whether a weekly employment of 5,5 hours was sufficient in order to be considered a worker under EU law, or whether the employment was of a merely marginal nature. It was left to the member state to undertake this evaluation.

It is not possible to fix a lower limit for the duration of the employment for assessment purposes.

The European Court of Justice ruled in Franca Ninni-Orasche (C-413/01) that a fixed-term contract of employment for ten weeks was sufficient for the applicant to be a worker under EU law. The case concerned educational grants and led to the issue of guidelines to the local authorities about when a person is deemed to be a worker. The guidelines concern employment relationships for which a short-term contract has been concluded in advance. The guidelines fix a minimum period of ten weeks for such situations. However, it should be emphasised that a concrete assessment must be made in each case.

Accordingly, a concrete and individual assessment must be made in each case, and the ten-week period fixed by the Court in the Ninni-Orasche judgment is thus only to be seen as an example of a situation in which ten weeks of employment were deemed to suffice.

A Union citizen/an EEA national who has permanent employment, but ceases working after less than ten weeks, may satisfy the conditions for being a worker under EU law in certain circumstances, while another person having worked for more than ten weeks may not always satisfy the conditions because it is not genuine work or for other reasons.

When I have time, I will try to expand the case law here.

Government bureaucracy of a member state can be very odd.  Sometimes they can be very well informed, efficient and effective.  Or they get stuck in the rut of doing everything the way they always have, even if it is against the law.  Sometimes training of staff is poor.  Or individual members of staff may operate outside the rules for their own reasons.  The are all sorts of reasons why they may do things incorrectly with respect to their obligations under European law.

1. Most organizations do not want to be seen to be clearly breaching well established European law
2. Complaining can help resolve your specific problem.   It brings light to parts of the organization, and with it often some remedial action
3. It can help others who follow in your footsteps: they will not have to go through the same hassle, waste of time and money, and humiliation that you have had to possibly endure
4. It can call the European Commission’s attention to larger trends that are incorrect but still happening across multiple member states

Complain effectively

Before making a complaint

• Keep detailed dated records and photocopies of everything, including who you talked with and what they said
• Make sure you understand generally what part of European law is being violated.   Read through this summary and this guide from the European Commission.  The European Commission’s free Your Europe Advice service can help clarify how the law should work in your situation
• Write down simply and clearly:
  1. who is involved (including their citizenship and exact relationship) and where they are  (e.g. Spanish citizen resident in France with Moroccan spouse now living in Egypt)
  2. which department of which member state you are dealing with (e.g. visa section of the German embassy in Egypt)
  3. what you tried to do, including exactly which documents you provided
  4. exactly what has subsequently happened
  5. why you believe point (4) is incorrect with respect to European law
  6. what you want done
• Reread, rewrite and review until what you have written is simple and clear
• If possible, have somebody else read it and then repeat step (4)

Appeal, where appropriate

• If you have applied for something, e.g. a visa or a Residence Card, and the application has been rejected, then you are guaranteed a right to effective appeal.  Use it and at the same time continue with other complaint options
• Note: it may often be faster to also simultaneously reapply with a cover letter which outlines the relevant EU law which you believe was not taken properly into consideration

Get the help of Solvit to resolve the issue

• Solvit may be willing to help mediate a solution when it involves an infringement by a government of a member state
• You can use any EU language in dealing with Solvit
• Results, if any, may take up to 10 weeks
• They have a mixed track record, often not seeming independent and instead talking very close to the policy of the national government who is paying their salary
• Despite the odds, it is still worth asking them to be involved.  Sometimes they work effectively, and it is good to get the complaint registered even if it is not resolved
• Solvit has service standards.  If they do not live up to them, they request that you complain with an email to SOLVIT@ec.europa.eu

Complain to the member state involved

• Many departments have complaints procedures (e.g. UK’s UKBA or Holland’s IND) or have a national ombudsman (e.g. UK’s Parliamentary Ombudsman) who may be able to help
• Make sure you point out which European law is being violated and by whom
• Some of these complaints procedures may be quite effective, and some  are quite likely not
• You are likely to be required to use the official language of the member state in doing this complaint

Complain to the European Commission

• Anyone may lodge a complaint with the Commission against a Member State for any measure (law, regulation or administrative action) or practice attributable to a Member State which they consider incompatible with a provision or a principle of EU law
• You can use any EU language in dealing with the European Commission
• The Commission will reply with an official reference number
• The Commission will “endeavour to take a decision on the substance (either to open infringement proceedings or to close the case) within twelve months“
• If you get no reply from the Commission, or if the reply is incorrect, or if the commission acted illegally, then you can complain to the European Ombudsman

Petition the European Parliament

• Citizens can petition the European Parliament, which is a form of complaint
• This should be considered either as an alternative to or together with complaining to the European Commission.  It is unclear which approach might be more effective
• You can use any EU language in petitioning the European Parliament
• Petitions, and the comments from the Commission, are published on the parliament website
• Some of the petitions in the past have been relatively effective in changing Irish policy about visas (see Ireland)

Take legal action against the member state or European Commission

• This step is beyond the scope of this article, but it is possible

EU citizens returning to their home member state after exercising free movement rights have also been able to invoke this principle of equal treatment (see ECJ Case C-224/98 D’Hoop v Office national de l’emploi [2002]).

Equal treatment requirements are not limited to the government.  It applies equally to other institutions in a host member state, for example: employers, businesses, service providers, transportation providers, clubs and hospitals.

There are a few limited exceptions, especially: restrictions on national security employment, citizenship rules, some student assistance, and some social assistance.

Directive 2004/38/EC

Article 24 – Equal treatment

1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.
2. [partial exception for some social assistance payments and student support]

Some examples of what this means in practice?  In each case EEA citizens and their non-EEA family members can participate fully:

• Property ownership can not be restricted to ”local citizens” (citizens of the member state).
• Special programs (e.g. property purchase subsidies or farm subsidies) can not be restricted to local citizens.
• Express processing or easier requirements for applications can not be offered only to local citizens.
• Citizens can not be given priority over EEA citizens and their family members.
• If local citizens are required to carry or produce ID cards, only then can EEA citizens and their family members be required to do so (see Gone Fishin’)
• Schools must be equally open to EEA citizens and their family members, and school free rules must be the same as for local citizens
• A football club can not sell tickets only to local citizens
• Employers can not hire only local citizens
• A private social club can not restrict membership  to local citizens
• …

The Scottish offer free university education to the Scottish and to citizens of other EU member states (and their family members!).

There is clearly an opportunity to use EU law to open Scottish universities again to applicants from the rest of the UK.

This raises some questions and options:

• How do they determine who is “Scottish”?  Based on where they are living or where they were born?   Answer: (Guardian.co.uk and another) ”Scottish [...] tuition fee arrangements are based on ordinary domicile and not nationality”
• Can the ECJ’s Singh ruling be used to force free university education for non-Scottish British citizens who have worked in another member state?   After a gap year with some work elsewhere in Europe, British students could then argue that they should be treated the same as citizens from other EU member states and receive free education in Scotland.   While the Singh ruling is mostly known for allowing spouses to move home on the basis of EU law, it has wider scope.
• There is an interesting possibility that being from the UK (but not Scotland) may count as being from “another EU member state” for the purposes of studying in Scotland. A similar EU law argument has been proposed for English barristers being considered “qualified” to present before immigration tribunals in Scotland.

Free movement rights can only be curtailed on the exceptional grounds of public health, national security and public policy. This must be proportionate, very well grounded, can only be done in clearly proscribed situations, and there is a full right of appeal.  For most people this is a total non issue.

The EU free movement Directive 2004/38/EC does not explicitly refer to same sex marriages.   Point 2 of Article 2 does talk about “spouses”  and “partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a [EU/EEA] Member State” (see full definition of direct “Family Member”).

An older ECJ case, State of the Netherlands v Ann Florence Reed. [1986] EU ECJ R-59/85 (17 April 1986), seems to leave plenty of room for same-sex spouses to be just like any other spouse in “a marital relationship”:

14 Article 10 (1) of Regulation no 1612/68 provides that certain members of the ‘family‘ of a worker, including his ‘spouse’, irrespective of their nationality, ‘have the right to install themselves with a worker who is a national of one member state and who is employed in the territory of another member state’.

15 In the absence of any indication of a general social development which would justify a broad construction, and in the absence of any indication to the contrary in the regulation, it must be held that the term ‘spouse’ in Article 10 of the regulation refers to a marital relationship only.

Are there EEA member states who treat a same sex spouse in exactly the same ways as a opposite sex spouse?   I would guess that the six member states that perform their own same sex marriages would likely recognize marriages done elsewhere.  (Please add a comment to this page if you know more!).

How does the UK handle same sex marriages, with respect to EU free movement law?    Instead of directly recognizing it, they work around the problem and transform it (conveniently) into a “civil partnership”.    The relevant UKBA IDI (Chapter 8 Section 2 Annex H) says:

4    FOREIGN CIVIL PARTNERSHIPS

Some people may have already formed a civil partnership or had a same gender marriage abroad. In certain cases this relationship will be recognised in the UK as a civil partnership and the partners will be treated as if they had formed the civil partnership in the UK. Schedule 20 to the Civil Partnership Act 2004 sets out a list of recognised foreign civil partnerships, as below:

[... list of various places where same sex marriage and civil partnerships are performed ...]

This definition  is then incorporated into the The Immigration (European Economic Area) Regulations 2006 through a footnote: “(c) Civil partner has the meaning given by [...]“

It is worth noting that UKBA’s normal marriage rules would not prohibit same sex marriages properly done in other countries.  Unlike the requirements for marriage done in the UK, this has no requirement that it must be a man and a woman:

Chapter 8, Section 1, Appendix B: Recognition Of Marriage and Divorce

2. MARRIAGE OVERSEAS

The recognition of any marriage which has taken place overseas is governed by the following:

• is the type of marriage one recognised in the country in which it took place?
• was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place? (This relates to the requirements for the marriage ceremony itself).
• was there anything in the law of either party’s country of domicile (at the time of the marriage) that restricted his/her freedom to enter the marriage?

If the answers to the above questions are respectively, “yes”, “yes” and “no” then the marriage is valid whether or not it is polygamous.

I suspect other EU member states will not be so adept at handling applications based on same sex marriages.   I am curious specifically how Ireland will handle such applications.   I’m willing to bet on an eventual referral to the ECJ!

Free movement rights can only be curtailed on the exceptional grounds of public health, national security and public policy. This must be proportionate, very well grounded, can only be done in clearly proscribed situations, and there is a full right of appeal.  For most people this is a total non-issue.  (For reference, Germany refuses entry to less than 10 EU citizens per year on these grounds).

It is worth noting that the chart applies to both:

1. An EU/EEA citizen who moves to a host member state different than the member state of which they are a citizen (e.g. A German citizen moving to France)
2. An EU/EEA citizen who has been working or self-employed in a host member state, and who now wishes to return to their country of citizenship (e.g. A British citizen who has been working in Italy and now wants to return to the UK).  In such a case, the non-EU family is allowed to use EU free movement law for entry (ECJ case of Singh).   Once safely back in their home member state, the “EU citizen” is not required to work during the initial 5 years (ECJ ref)

1. A member state can not require long-term immigration visas for for family members accompanying or joining their EU family member. When they require a visa, they can only require [the equivalent of] a short term tourist visa.  Long-term immigration formalities are handled only during processing of the Residence Card.
2. Residence [Cards] must be issued within the required maximum of 6 months.  No delay or extension is allowed.

You are a citizen of an EU member state and have never lived/worked in a different member state

• EU free movement law is not relevant for a family member’s entry into your country of citizenship.  National law applies, and the rules will vary significantly depending on which member state it is.   (There are exceptions: In certain circumstances you may benefit from EU law without having resided in another EU country, for example by providing services in another EU country without residing there.  And the parents of EU citizen children have some rights to have their parents live with them)
• EU free movement law does apply for any vacation or move to another EU/EEA member state with your family members

You are a citizen of an EU member state and are presently living/working in a different member state

Click here (Case C‑68/89 Commission v Netherlands [1991]) to go to the real thing.