Lee is a national of member state Y of the European Union and currently resides in member state Z. Member state Z is trying to deport him in view of his recent convictions. This essay will advise Lee of his rights as an EU citizen and as a worker, as well as defences that can be used against member...
Lee is a national of member state Y of the European Union and currently resides in
member state Z. Member state Z is trying to deport him in view of his recent
convictions. This essay will advise Lee of his rights as an EU citizen and as a
worker, as well as defences that can be used against member state Z’s arguments. I
believe Lee has the prospect of success in this case.
First, we must establish if Lee is considered a worker under Union law. The Lawrie
Blum case broadly defined a worker as someone who a) for a period of time b)
performs services under the direction of another, 1 c) in return for remuneration. 2 Lee
fulfills all of these requirements – a) he works 2 days a week b) as a kitchen staff
assistant (therefore under the direction of another) c) and earns a wage. Member
state Z may argue that Lee working 2 days a week is not enough to be considered a
worker. As a defence, the Levin cased can be used - it established that part-time
work, though often providing individuals with a salary lower than what is needed to
live on, helps them improve their living conditions. 3 It held that if the rights conferred
under the free movement of workers could only be enjoyed by those who worked full
time and therefore earned a salary that was at least minimum wage, the
“effectiveness of Community law” 4 and the “achievement of the objectives of the
treaty”5 would be impaired. Furthermore, an EU citizen who has done “actual work as
an employed person for two and a half months can in principle be a worker within the
meaning of Article 39 EC.”6 Lawrie-Blum, however, held that that the part-time work
but must not be too small or infrequent to be considered “marginal” 7 or “ancillary”.8
In deciding whether or not part-time work is sufficient to not be considered marginal,
1
Case C-256/01 Debra Allonby v Accrington & Rossendale College, Education
Lecturing Services, trading as Protocol Professional and Secretary of State for
Education and Employment [2004] ECR 0873
2
Case 66/85 Lawrie Blum v Land Baden-Württemberg [1986] ECR 2121
3
n3 para 15
4
n3 para 15
5
Ibid.
6
Ninni-Orasche v Bundesminister fur Wissenschaft, Verkerhr und Kunst C-413/01
[2003]
7
n2
8
n2
, most member states don’t have a threshold for working hours or income 9 - the court
will look at the facts of individual cases when deciding. Some member states do
have some working hour or salary thresholds, usually de facto as a result of case-
law.10 For example, working below the 10-12 hours a week requirement in Belgium
and Denmark will likely result in the work being considered marginal. 11 Whether
member state Z has a threshold or not will impact if Lee’s work will be deemed
sufficient.
Member state Z is also arguing that as Lee’s income is insufficient to sustain his
household, he cannot be considered a worker. This argument will also most likely not
be successful – as the remuneration earned doesn’t have to be enough to live on. 12
The Levin13 and Nolte14 cases support this - just because an individual’s income is
lower than “the minimum required for subsistence” 15 doesn’t mean they cannot be
considered a worker under Union law, even if they seek “other means of
subsistence”16 such as financial benefits. Therefore, even if Lee is struggling to
sustain his household, he should be considered a worker under EU law.
Furthermore, Lee is looking for a better job - meaning that he has rights as a job-
seeker. Those actively seeking work (who have genuine prospect of finding work)
count as workers17 and they must be given a reasonable period of time to find
employment “corresponding to their occupational qualifications. 18 Lee has a
computer science degree and is therefore not doing a job that corresponds to his
qualifications – and should be given more time to find a more fitting one. It isn’t right
for member state Z to try and deport him because his first job there doesn’t provide
him with a sufficient salary. Additionally, if he hadn’t been rejected due to direct
discrimination on the grounds of nationality by the Department of Justice, Lee would
9
'European Commission Report: Concept Of A Worker – Art.45 TFEU | EU Rights
Project'
10
Ibid.
11
Ibid.
12
Case 139/85 R. H. Kempf v Staatssecretaris van Justitie [1986] ECR 1741
13
n3, para 15/16
14
Case C-317/93 Nolte [1995] ECR I-4625, para 19
15
n3, para 2 (summary)
16
n11 para 14
17
Case C-292/89 R v IAT, ex p Antonissen [1991] ECR I-745
18
Catherine Barnard and Steve Peers, European Union Law (Oxford University
Press 2020), pg. 404
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