Questions

Question 1

Explain the difference between EU citizenship and the free movement of workers. What is the added value of EU citizenship? In your answer, refer to relevant legislation. (15 points)

Question 2

The Dutch Museum for Comic Books wants to scan every comic book in its collection but doesn't have the money to buy an advanced book scanner. The municipality of Heerlen, in which the museum is located, is considering to offer the museum a 750.000 euro subsidy. This subsidy would have to be used by the museum to buy the latest Book Scanner 3000XL, a professional book scanning machine. The museum director would be very happy with such a generous subsidy as it would enable the museum to open an 'online' branch and become the first online comic book museum. Visitors of this new online museum would have to buy a 5 euro ticket to get access to the museum's comics. Should the Dutch municipality of Heerlen notify the European Commission of its plans? And if so, on what basis? In your answer, refer to relevant legislation and case law. (20 points)

Question 3

Jan works in Belgium and resides in The Netherlands - his home Member State - where he has a (basic) health insurance. His employer offers additional health care coverage to his employees, on the condition that the (basic) health insurance is from an insurance company established in Belgium. Motivate whether this condition is contrary to EU law. In your answer, refer to relevant legislation. (15 points)

Question 4a

The Area of Freedom, Security and Justice is a particular policy field in the EU law as the Member States are not eager to lose control over the issues falling within this area, such as immigration and asylum. Yet, cooperation in criminal and police matters is necessary as borders have been lifted between the Member States. Which principle has been promoted by the European Council to develop judicial cooperation in civil and criminal matters between the Member States? What does this principle entail and where can you find it in the Treaties? (5 points)

Question 4b

What concrete legal instrument can you name as to how this principle is operationalized? How does this instrument function? Explain your answer by referring to relevant legislation. (10 points)

Question 5

Amy - a Dutch national - wishes to move to Spain and perhaps open a bed and breakfast. She has been successfully employed in the hospitality business in her home Member State. She is not sure as to whether starting her own business is a viable option for her, but nonetheless, she has the intention of moving to Spain permanently. Under what conditions is Amy able to reside in Spain for the first year? Explain your answer by referring to relevant legislation and case law. (15 points)

Answers

Question 1

The difference is that a worker is cross-border economically active, while a EU citizen also has the right to free movement and to reside on the territory of another Member State than his or her nationality, based on the status as a EU citizens as such. Every national of one of the MS is a EU citizen (Article 20 TFEU). The right to reside in another Member State may, however be conditional, according to the Directive 2004/38.

• Up to 3 months: the right to stay in another Member State without conditions except valid ID (art. 6)
• Up to 5 years: right to stay for workers or self-employed or for other citizens having sufficient resources and a sickness insurance, students and family members (art. 7)
• After 5 years: right to permanent residence (art. 16)

Moreover, EU citizens have political rights, the right to vote and stand as a candidate for European and municipal elections in another Member State (Article 22 TFEU). Even though workers in EU law have a strong position, EU citizenship proved to be a significant status, which grants different right to EU citizens based on nationality (mostly when there is a cross-border dimension).

Question 2

State aid – 107 TFEU       6 points

• Advantage (‘aid’) for undertaking or sector
  • Definition: Altmark, par. 84.
• Granted through state resources
• Selectivity: favoring certain undertakings
• Effect on competition
• Effect on Member State Trade
• Exceptions: Article 107(2) and (3) TFEU

Applying 107 TFEU     12 points

• Advantage: yes, the museum is given an economic advantage which the museum would not have obtained under normal market conditions.
• Granted through state resources: yes, the municipality of Heerlen is an organ of the state. Subsidies is paid by funds of municipality of Heerlen.
• Selectivity: only this particular museum is given the subsidy.
• Treaten to distort competition: Yes, likely (Deminimis Notice).
• Effect on Member State Trade: trade is generally affected if financial aid strengthens the position of an undertaking (Philip Morris, par. 11)
• Exception: 107(3)(d) TFEU may apply? “Aid to promote culture and heritage conservation where such aid does not affect trading conditions and competition in the Union to an extent that is contrary to the common interest.”
  However, the aid would likely affect conditions and competition in the Union because of its commercial nature.

State aid must be notified – 108(3) TFEU     2 points 

Plans to grant state aid must be notified to the European Commission.

Question 3

Interstate element: yes
(Art. 45 TFEU has horizontal direct effect) Pieter is a frontier worker (art. 45 TFEU / Reg. 492/2011)Art. 7 Reg. 492/2011 / he is entitled to equal treatment with regard to social advantages. The provision results in indirect discrimination. The employer will not be able to justify this violation. Solely financial motives will not be accepted and one must consider the strong position workers (economically active MS nationals) have within EU law.

Questions 4a

Principle of mutual recognition (art. 67(4) and 82(1) TFEU + definition)

Question 4b

European Arrest Warrant (Council Framework Decision on the EAW + description on how it works: definition (art 1.1.), mutual recognition principle (1.2.), scope (article 2) and grounds for non-execution (3-4)).

Question 5

Art. 7 Directive 2004/38: nationals of a MS that are employed or self-employed (in this case art. 49 TFEU / on a stable and continuous basis) are able to reside in the host MS for longer than three months. Amy is not yet employed. If Amy decides to find employment, she will be regarded as a work-seeker. Art. 45 TFEU jo. art. 14 (4) (b) Directive 2004/38, Amy can search for a job for a reasonable period if she is actively searching and has a genuine chance of being employed. She will need to have sufficient resources. Art. 24 (2) Directive 2004/38 a host MS is not obliged to confer entitlement to social assistance for the first three months. Even where the quality principle applies (self-employed / work-seeker)) there is no guarantee that a benefit from day one can be obtained. A genuine link between an applicant for an allowance and the geographic employment market can be allowed.