Archive | February, 2010

Problem = Answer

12 Feb

Social Rights – Problem Question (p20) Outline Answer:

Part A.

• Briefly – Worker / Worker Rights – Who is a Worker? Art. 45(3) TFEU rights = (a) (b) (c) (d)

• Concept of a Worker -should know no real definition in Art 45 or Dir 2004/38.

• Lawrie-Blum concept of ‘worker’ has led to a wide interpretation of the term Levin

• To keep status = ‘having left his job is capable of taking another’: Hoekstra or Steymann, • Equal Treatment When You Lose You Job (i.e. to keep social benefits of a worker) Unintentionally – relation to Dir 2004/38 Art 7(3) he retains this status in some circumstances a-d (i.e. involuntary unemployed) vs Voluntarily – do you keep status Ninni-Orashe, Baumbast case. Art 3(1) 1408/71 Art 4(1)

• How long do you have to work to claim benefits – Monique Chateignier, Collins, Antonissen?

• Non-discrimination aspect of TFEU e Directive 2004/38

• Charter of Fundamental Rights of EU Article 34 (Social Rights) and 35 (Heath Care) – now enacted by Lisbon

Part B.

• Right of residence / Job seeker rights. Right to remain Art 45 (3) (a) Art 6 & 7 Dir 2004/38 3mth/6mth rule job seeker. Also must connect Dir 2004/38 with MS obliged or not = social rights (3mths!). Royer e Collins cases – Commission v Belgium

• Should notice – Dir 2004/38 provides for a right of residence after 5 years. • Right of residence. Right to remain further than 6 mths discussed in – Antonissen. General discussions maybe on not burdening the MS Art 14 (1)

• Job Seekers under Reg 1408/71 states and with regard to rights to social assistance (unemployment or sickness) Dir 2004/38 Art 24 and Art 14 (4) (b). Also must connect Dir 2004/38 with MS obliged or not (3mths) = social rights

• Derivative rights – 1612/68 (families not living under same roof) – Diatta e Reed + new rules under Dir 2004/38 – what about under 21 or is she a dependent (daughter?)

• Rights for Workers’ Families Reg 1408/71 has now interpreted widely by the ECJ = social rights of worker conferred to family members Commission v Belgium Art 2, 7, 24 and 10 Dir 2004/38

• Could she claim ‘sickness benefit’ under 1408/71? For looking after father? Hervein case • Charter of Fundamental Rights of EU Article 35 (Heath Care) – now enacted by Lisbon • Could mention health care 1408/71 – Commission v Luxembourg and Heinze.

Your Social Rights!

5 Feb

Some extra reading – a link to the Charter of Fundamental Rights of The European Union which is now part of  the Lisbon Treaty is HERE.  Just in case you have some spare time on your hands – a link to the Regulation 1408/71 is HERE!.