Section f Case study

24. The free movement of workers

Background information

Franco, an experienced hear surgeon, from Italy, was recently offered a professorial position at a teaching hospital in Nice, France, regarded as one of the best in Europe. He immediately accepted the offer and handed in his notice to his previous employer, a health authority in Rome in Italy. He also sold his house in Rome and most of his furniture, intending to make a fresh start in the south of France.

Last month Franco flew to Nice, accompanied by his wife, Gisele, who is from Albania, their nine-year-old daughter Heidi, and Julio, Franco’s son from a previous relationship. Julio is 23 years old but has a mental age of 10, the result of a brain tumour when he was a child. Soon afterwards, Franco started work and Heidi was enrolled at school.

Notes: brain tumour – пухлина мозку

Problem

A few days after starting work, Franco arrived at his office to be told that his post was being re-advertised. He was told that new French legislation had just come into force, starting that all senior teaching posts in France had to be held by French nationals. Franco has decided to stay in Nice to fight this decision, which he regards as blatantly wrong.

Julio loves gardens and would like to be a gardener. Franco, therefore, had arranged for Julio to be enrolled on a training course for adults with educational difficulties, run by Nice University. The course offers tuition in a variety of skills including cooking and gardening. However, when Franco applied (on Julio’s behalf) for a special grant from the French Government, available for victims of brain injuries to commence education, he was told that the grants are only available to French nationals.

The strain of the move to Nice, followed by the sudden withdrawal of Franco’s job, proved too much for Gisele, who has decided to seek a divorce. She has already moved out of the apartment and is renting a flat. Ideally, she would like to stay in France and get a job and a place for herself and Heidi to live, rather than return to Albania or Italy.

Task

Your law firm has asked you to review the following legal situation and the relevant documents in preparing the advice to the client according to the EU law.

Brainstorming session

1. Where does Franco come from?

2. What job was he offered to have in Nice?

3. Did he sale all his furniture in Rome?

4. Why was Franco’s post re-advertised?

5. Was it legal or illegal?

6. Why do Gisele, Heidi and Julio have a right to live in France with Franco?

7. Does Gisele have a right to live and get a job in France after being divorced?

8. Which law regulates the freedom of movement of workers?

9. Which document (or treaty) can you rely on according to this problem?

10. Does the EU law protect Julio’s rights?

11. What documents should Julio present to enter a training course?

Relevant documents

Article 39 EC.

Article 39

(1) Freedom of movement for workers shall be secured within the Community.

(2) Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

(3) It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to [directive 2004/38].

(4) The provisions of this Article shall not apply to employment in the public service.

Article 17

(3) Irrespective of nationality, the family members of a worker or a self-employed person who are residing with him in the territory of the host Member State shall have the right of permanent residence in that Member State, if the worker or self-employed person has acquired himself the right of permanent residence in that member State on the basis of paragraph 1.

Directive 2004/38

Article 13 (2) … Divorce, annulment of marriage or termination of the “registered partnership” … shall not entail loss of the right of residence of a Union citizen’s family members who are not nationals of a Member State.