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Free Movement of Persons Problem Question (Solved)
- Module
- EU Law (LA2024)
- Institution
- Queen Mary, University Of London (QMUL)
Free Movement of Persons - solved problem question - EU Law UoL LLB
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Mahnoor Tariq Free Movement of PersonsQ: Alberto trained as a chef in his home country Italy and worked in various Italian and
other European countries before settling in Paris, France, with his family. Throughout his
career, Alberto has always been an active member of different trades unions, fighting for
workers’ rights. Since his relocation to Paris, Alberto has become much more active and
has published a series of articles in the French and foreign press, denouncing abuses
towards staff in the hospitality industry across Europe. Three years ago, he initiated a pan-
European protest, whereby 5,000 cooks around Europe went on strike for a day claiming
better wages for temporary staff. Alberto has applied for a position as executive chef at
the Elysée Palace, to lead the kitchen feeding the President of the Republic. He was not
even interviewed, and Philippe, a less-qualified French national, got the job. The feedback
Alberto received from the panel was that, as a foreigner, he was not eligible for this job.
Moreover, given his profile, he would qualify as a threat to the president. Alberto wonders
if EU law can help him challenge the decision of the panel. Advise Alberto.
This question revolves around the principle of free movement of workers and EU citizenship.
The issues Alberto is dealing with are discrimination based on his nationality, and him being
an alleged threat to the president of France.
First, we will establish Alberto as a worker who does work. In Levin, the court found that the
concept of workers applies to those engaged in part time work for less than the minimum
wage. It rejected the interpretation of workers as in full time employment and held that
anyone whose objective is the improvement of their standards of living should be
considered a worker. As part time work constituted for a large number of people an effective
means of improving their living conditions, but their income was lower than the minimum
wage of subsistence in the country concerned, CJEU in Kempf held that the work engaged in
by a worker must be provided for renumeration and be effective and genuine, not marginal,
or ancillary. Here, Alberto is a worker who has applied for the position of executive chef at a
palace with an objective of improving the standards of living for himself and his family.
However, this work must be an economic activity. In Steymann, the applicant worked in a
religious community and in turn, he was looked after by them instead of being paid. This was
held as sufficient to constitute an economic activity. Here, Alberto engages in economic
activity for work as he is a chef. However, it is safe to assume that Alberto is a jobseeker
because he applied for a job which he did not get. Secondly, we shall advise Alberto against
discrimination he faced based on his Italian nationality as a job seeker in France. Art.18 TFEU
prohibits discrimination in matters within the scope of EU law. The Court has found that,
where an EU citizen is lawfully resident in another Member State (MS), their situation is
within the scope of EU Treaties. They have a right not to be discriminated against under
Art.18, even if they do not fall into one of the economic categories recognised by EU law
(Martinez Sala).
For this we will establish Alberto as an EU citizen. In Janko Rottmann, it was held that EU law
under Art.20 TFEU does not prevent the loss of Union citizenship as a result of the
revocation of nationality by one MS and does not require an individual’s original nationality
to resume automatically. Thus, Italy being a part of EU, automatically makes Alberto an EU
citizen. Hence, Alberto can rely on Art.18 and Martinez Sala, as a lawful resident of Italy, for
his right to not be discriminated against the nationals of the host MS. Here, he was denied
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