II.

FREE MOVEMENT OF WORKERS

The European Union has a long history and the institutions issued many legislative acts to ensure that the principles laid down in the founding Treaties are clear and followed by all Member States. One of the objectives referred to in these Treaties is ensuring the right to free movement of persons. This concept is a broader one, but the first step to achieve it was to create the proper environment for workers to move and reside freely. The evolution of this right can be observed in both primary and secondary legislation. The Treaties articles, directives, regulations and decisions that were issued, created the legal basis and the European Court of Justice was the one to interpret them and to offer decisions that resolved any misinterpretation. Although restrictive from some points of view, even in the Treaty establishing the Coal and Steel Community, from 1951, article 69 states: Member States undertake to remove any restrictions based on nationality upon the employment in the coal and steel industry of workers who are nationals of Member States and have recognized qualifications in a coaling or steelmaking occupation, subject to the limitation imposed by the basic requirements of health and public policy. 1 This article, even though offers the possibility for qualified workers to move freely to other Member States, does not give the same right to other workers from different industries, but only for the coal and steel one. Furthermore, it is restrictive because by health and public policy, Member States have the power to restrict mobility rights. Another restriction can be found in section 2 of the same article, that states: Member States shall draw up common definitions of skilled trades and qualifications therefor. Finally, a key institutional barrier exists in the fact that the role of the High Authority is limited to coordinating and advising; according to the Treaty, it is the Member States which are responsible for drafting and implementing the Treatys free movement provisions.2 The Treaty establishing the European Economic Community (known as the Treaty of Rome), from 1957 promotes the idea of citizens of the Union in article 173 and confers the right of these citizens
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1969R0549:20021003:EN:PDF Creating the European citizens: the genesis of European rights, Willem Maas, Yale University, March, 2003, http://aei.pitt.edu/6520/1/000434_1.PDF
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1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. www.eur-lex.europa.eu

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to move and reside freely within the territory of the Member States (article 181). These rights were furthermore developed in Regulation No. 1612/682. Moreover, article 12 of this Regulations states that: The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.
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Because the European Court of Justice

has an important role to interpret and to provide clarifications regarding any problem arising from Member States not following these principles, case C-413/994 is one example on how a decision is made. In this particular case there were two situations where questions regarding the right to free movement of workers were put. First of all, one of the parties was represented by Mrs. Baumbast, a Colombian national, who married Mr. Baumbast, a German national, in the United Kingdom in May 1990. Their family consisted of two daughters, the elder, Maria Fernanda Sarmiento, Mrs. Baumbast's natural daughter, who is a Colombian national and the younger, Idanella Baumbast, who has dual German and Colombian nationality. In June 1990, the members of the Baumbast family were granted residence permits/documents valid for five years. Between 1990 and 1993, Mr. Baumbast pursued an economic activity in the United Kingdom, initially as an employed person and then as head of his own company. However, since that company failed and he was unable to obtain a sufficiently well-paid job in the United Kingdom, he has been employed since 1993 by German companies in China and Lesotho. Although Mr. Baumbast has from time to time sought work in the United Kingdom since that date, his employment situation had not changed at the time

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Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. 2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251. 3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection. www.eur-lex.europa.eu Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community , Official Journal L 257 , 19/10/1968 P. 0002 - 0012
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http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31968R1612:EN:HTML

Judgment of the Court of 17 September 2002. - Baumbast and R v Secretary of State for the Home Department. Reference for a preliminary ruling: Immigration Appeal Tribunal - United Kingdom. - Freedom of movement for persons - Migrant worker - Rights of residence of members of the migrant worker's family - Rights of the children to pursue their studies in the host Member State - Articles 10 and 12 of Regulation (EEC) No 1612/68 - Citizenship of the European Union - Right of residence - Directive 90/364/EEC - Limitations and conditions. www.eur-lex.europa.eu

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of the order for reference. During the material period, Mr. and Mrs. Baumbast owned a house in the United Kingdom and their daughters went to school there. They did not receive any social benefits and, having comprehensive medical insurance in Germany, they travelled there, when necessary, for medical treatment. In May 1995, Mrs. Baumbast applied for indefinite leave to remain in the United Kingdom for herself and for the other members of her family. In January 1996, the Secretary of State refused to renew Mr. Baumbast's residence permit and the residence documents of Mrs. Baumbast and her children. On 12 January 1998, that refusal was brought before the Immigration Adjudicator (United Kingdom). He found that Mr. Baumbast was neither a worker nor a person having a general right of residence under Directive 90/3641. As regards the children, the Adjudicator decided that they enjoyed an independent right of residence under Article 12 of Regulation No 1612/68. Moreover, he held that Mrs. Baumbast enjoyed a right of residence for a period co-terminus with that during which her children exercised rights under Article 12 of that regulation. According to the Adjudicator, Mrs. Baumbast's rights flowed from the obligation on Member States under that provision to encourage all efforts to enable children to attend courses in the host Member State under the best possible conditions. Mr. Baumbast appealed to the Immigration Appeal Tribunal against the Adjudicator's decision in his regard. The Secretary of State lodged a cross-appeal before that tribunal against the Adjudicator's decision regarding Mrs. Baumbast and her two children. On the same side, R, a United States citizen, had, as a result of her first marriage to a French national, two children who have dual French and United States nationality. In 1990, she moved to the United Kingdom in her capacity as the spouse of a Community national exercising rights conferred by the EC Treaty and was granted leave to remain in the United Kingdom until October 1995. R and her first husband were divorced in September 1992 but, as no measures were taken at that time by the Secretary of State affecting R's immigration status; she continued to reside in the United Kingdom. The divorce settlement provided that the children were to reside with their mother in England and Wales for a period of at least five years after the date of the divorce or until such other time as agreed by the parties. After the divorce, the children had regular contact with their father, who still resides and works in the United Kingdom and who shares responsibility with their mother for their upbringing from both an emotional and financial point of view. The file in the main proceedings also shows that, during her residence in the United Kingdom, R purchased a house and established a business as an interior designer in which she has invested substantial sums of money. She married a United Kingdom national in 1997. In October 1995, an application for indefinite
1 Council Directive 90/364/EEC of 28 June 1990 on the right of residence, Official Journal L 180 , 13/07/1990 P. 0026 - 0027

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leave to remain in the United Kingdom was made under domestic law on behalf of R and her two daughters. On 3 December 1996, the children were granted indefinite leave to remain in the United Kingdom as members of the family of a migrant worker. Mrs. R's application was refused, however, on the ground that the Secretary of State was not satisfied that the family situation was so exceptional as to justify the exercise of his discretion. In his view, the children were young enough to adapt to life in the United States if they had to accompany their mother there. One of the issues raised in the action brought before the Adjudicator against the Secretary of State's refusal to grant R indefinite leave to remain was whether that refusal would interfere with her children's Community law rights to be educated and to reside in the United Kingdom and with the right to family life. The Adjudicator dismissed that application by a decision against which R appealed to the Immigration Appeal Tribunal. The Court decided that children of a citizen of the European Union who have installed themselves in a Member State during the exercise by their parent of rights of residence as a migrant worker in that Member State are entitled to reside there in order to attend general educational courses there, pursuant to Article 12 of Regulation No. 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. The fact that the parents of the children concerned have meanwhile divorced the fact that only one parent is a citizen of the Union and that parent has ceased to be a migrant worker in the host Member State and the fact that the children are not themselves citizens of the Union are irrelevant in this regard. Also, where children have the right to reside in a host Member State in order to attend general educational courses pursuant to Article 12 of Regulation No 1612/68, that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the parent who has the status of citizen of the European Union has ceased to be a migrant worker in the host Member State. Last but not least, a citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoys there a right of residence by direct application of Article 18(1) EC Treaty. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.
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Article 7 from the same Regulation No. 1612/68 states that : 1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment; 2. He shall enjoy the same social and tax advantages as national workers. 3. He shall also, by virtue of the same right and under the same conditions as national workers, have access to training in vocational schools and retraining centers. 4. Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorizes discriminatory conditions in respect of workers who are nationals of the other Member States.1 This article is the basis for the Courts decision in case C-65/81.2 The questions have been raised in a dispute on a matter of administrative law concerning the grant of a childbirth loan between a married couple , workers of Italian nationality residing in the federal republic of Germany , and the Landeskreditbank Baden-Wurttemberg , an institution incorporated under public law and placed under the direction of the land of Baden-Wurttemberg. The Landeskreditbank grants loans, upon application, on the basis of guidelines laid down by the competent authority of the land of Baden-Wurttemberg , inter alia on the birth of a child . the childbirth loans , which are free of interest as a result of subsidies allocated by the land , are granted for a term of seven years up to an amount of DM 8 000 , which may be increased to DM 12 000 in exceptional cases . they may be granted to married couples only where at least one of the spouses is a German national and the family income does not exceed a specified amount . according to the information provided by the national court , this system of childbirth loans was introduced with a view to stimulating the birth rate of the German population and in order to reduce the number of voluntary abortions. In this case , the plaintiffs in the main action , Mr. and Mrs. Reina , applied for the grant of a loan on the birth of twins . The Tandeskreditbank Baden-Wurttemberg rejected their application on the ground that under the above-mentioned guidelines , a loan may be granted only if at least one spouse is a German national. The plaintiffs then brought an action before the

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31968R1612:EN:HTML

Judgment of the Court (Third Chamber) of 14 January 1982. Francesco Reina and Letizia Reina v Landeskreditbank Baden-Wrttemberg. Reference for a preliminary ruling: Verwaltungsgericht Stuttgart - Germany. Free movement of workers - Social advantages. www.eur-lex.europa.eu

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Verwaltungsgericht Stuttgart challenging the conformity of that requirement with community law . In its first question, the National Court asks in substance whether article 7 ( 2 ) of Regulation No. 1612/68 of the Council of 15 October 1968 must be construed as meaning that the concept of social advantage referred to in that provision encompasses interest-free loans granted on childbirth by a credit institution incorporated under public law , on the basis of guidelines and with financial assistance from the state , to families with a low income with a view to stimulating the birth rate . In answer to the questions submitted to it by the Verwaltungsgericht Stuttgart by order of 17 February 1981, gives the following ruling: Article 7 ( 2 ) of Regulation no 1612/68 of the Council of 15 October 1968 must be interpreted as meaning that the concept of' social advantage referred to in that provision encompasses interest-free loans granted on childbirth by a credit institution incorporated under public law, on the basis of guidelines and with financial assistance from the State, to families with a low income with a view to stimulating the birth rate. Such loans must therefore be granted to workers of other member states on the same conditions as those which apply to national workers. A directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, provided in Article 19 of the Treaty on the functioning of the EU (ex. Article 13 Treaty on the European Community), seeks to prohibit discrimination throughout the European Union in different areas such as employment, education, social security, health care and access to goods and services (Directive 2000/431). It defines the concepts of direct and indirect discrimination, gives right of redress to victims of discrimination, imposes an obligation on the employer to prove that the principle of equal treatment has not been breached, and offers protection against harassment and victimization in all the Member States. The EC/EU has set up a general framework for combating discrimination on grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment (Directive 2000/782). This prohibition of discrimination applies also to nationals of third countries but does not cover differences of treatment based on nationality, race or ethnic origin, because Directive 2000/43 already provides protection against such discrimination in the field of employment and occupation. An important body of European law

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Official Journal L 180 , 19/07/2000 P. 0022 - 0026 2 COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. www. eur-lex.europa.eu

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prohibits discrimination against women as regards access to employment, vocational training and promotion, and working conditions. Public statements by an employer to the effect that he will not recruit people of a certain racial or ethnic origin constitute direct discrimination in the sense of Directive 2000/43. In case C54/071, Centrum voor gelijkheid van kansen en voor racismebestrijding, which is a Belgian body designated, pursuant to Article 13 of Directive 2000/43, to promote equal treatment, applied to the Belgian labour courts for a finding that Feryn, which specialises in the sale and installation of upand-over and sectional doors, applied a discriminatory recruitment policy. Centrum voor gelijkheid van kansen en voor racismebestrijding is acting on the basis of the public statements of the director of Feryn to the effect that his undertaking was looking to recruit fitters, but that it could not employ immigrants because its customers were reluctant to give them access to their private residences for the period of the works. The Court, having the role of interpreting the principles laid down in Directive 2000/43 gave the following ruling: The fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market. Public statements by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory within the meaning of Article 8(1) of Directive 2000/43. It is then for that employer to prove that there was no breach of the principle of equal treatment. It can do so by showing that the undertakings actual recruitment practice does not correspond to those statements. It is for the national court to verify that the facts alleged are established and to assess the sufficiency of the evidence submitted in support of the employers contentions that it has not breached the principle of equal treatment.

Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV. (Reference for a preliminary ruling from the Arbeidshof te Brussel). www. eur-lex.europa.eu

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Article 15 of Directive 2000/43 requires that rules on sanctions applicable to breaches of national provisions adopted in order to transpose that directive must be effective, proportionate and dissuasive, even where there is no identifiable victim.1 The most important Directive relating to the right to free movement is Directive 2004/38/EC on the right to move and reside freely.2 The Directive merges into a single instrument all the legislation on the right of entry and residence for Union citizens, consisting of two regulations and nine directives. This simplification aims to make it easier not only for the general public but also for public authorities to exercise their rights. The Directive also sets out to reduce to the bare minimum the formalities which Union citizens and their families must complete in order to exercise their right of reside. In case C-127/083 there were concerned four nationals of non-EEA states (third-country nationals) each of whom had applied (unsuccessfully) for asylum in Ireland, and had then married a citizen of another EEA state who was exercising free movement rights in Ireland (the host Member State). They each applied for a residence card under the Irish regulations that implement Directive 2004/38/EC. The Directive allows EEA nationals who are exercising free movement rights in another EEA state to be accompanied by their family members of whatever nationality. The Irish Government refused each of the applications, because its regulations stated that the rights under the Directive did not apply to a family member unless the family member was already lawfully resident in another Member State and was either seeking to enter Ireland with the EEA citizen of whose family her or she was a member or seeking to join such an EEA citizen who was lawfully present in Ireland. A number of Member States supported the Irish Governments position and submitted observations to the Court. In its judgment, the Grand Chamber of the European Court of Justice ruled against the Irish Government. Its main findings were that national legislation cannot require the third-country-

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0054:EN:HTML European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC. 3 Judgment of the Court (Grand Chamber) of 25 July 2008. Blaise Baheten Metock and Others v Minister for Justice, Equality and Law Reform. Reference for a preliminary ruling: High Court - Ireland. Directive 2004/38/EC - Right of Union citizens and their family members to move and reside freely in the territory of aMember State - Family members who are nationals of non-member countries - Nationals of non-member countries who entered the host Member State before becoming spouses of Union citizens. www.eur-lex.europa.eu
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national spouse of an EEA citizen who is exercising his or her free movement rights in a host Member State to have been previously lawfully resident in another Member State before they can benefit from the provisions of the Directive; and it is immaterial when and where their marriage took place and how the third-country national entered the host Member State. The refusal of the host Member State to grant rights of entry and residence to the family members of a Union citizen is such as to discourage that citizen from moving to or residing in that Member State, even if his family members are not already lawfully resident in the territory of another Member State. The ECJ had previously ruled in the Akrich case1 that in some circumstances, in order to benefit from the rights of entry into and residence in a Member State, the third-country spouse of an EEA citizen must be lawfully resident in a Member State when he moves to another Member State in the company of an EEA citizen in order to benefit from the rights of the Directive. But in Metock the ECJ ruled that the Akrich case must be reconsidered. The Court noted that Member States had other options for dealing with false marriages and other abuses of immigration control. It quoted Article 27 of the Free Movement Directive on Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health2 It also referred to Article 35 of the Directive, Abuse of rights.3 The Court said that where the Member State wishes to penalize the national of a non-member country for entering into and/or residing in its territory in breach of the national rules on immigration before becoming a family member of a Union citizen, it can do so as long as it acts in compliance with Article 27.

Case C-109/01 Akrich, 23 September 2003. Unlike Metock, this case concerned a third-country national spouse of a British citizen, who had resided unlawfully in the UK before and after his marriage to the British citizen. www.eur-lex.europa.eu 1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. www.eur-lex.europa.eu Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31. www.eur-lex.europa.eu
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II.1 Restrictions to free movement of workers

Even though freedom of workers is encouraged and stipulated in many legislative acts of the Community law, there are some restrictions, also. These restrictions refer to the fact that Member States have the possibility to deny entry or to expel non-national workers under some conditions. These conditions differ from Member State to Member State, since they have different national legal systems. The national legal systems are important because the restrictions to free movement of workers are, as stipulated in article 48 EEC Treaty, limitations justified on grounds of public policy, public security or public health.1 Another restriction is stipulated within the same article at number 4: The provisions of this article shall not apply to employment in the public service.above The Council of the European Union implemented the free movement exceptions in Directive 64/2212. The special measures that were introduced refer to the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. The provisions take into consideration the stipulations found in article 56 EEC Treaty: 1. Within the framework of the provisions set out in this chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited. 2. Within the framework of the provisions set out in this chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.3 The Directive stipulates the fact that Member States, when deciding, on grounds of public policy, public security or public security, on denying entry or expelling a non-national employee or self-employee need to take into consideration only the individuals personal conduct. Furthermore, past criminal records are not sufficient to take such measures. If the identity card or passport of the worker has expired, the Council mentions that The State which issued the identity card or passport shall allow the holder of such document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.4 This fact cannot stand as a base for taking measures to impede the free movement of that person.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12002E039:EN:HTML Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health ,Official Journal 056 , 04/04/1964 P. 0850 0857 www. eur-lex.europa.eu 3 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12002E056:EN:HTML 4 Article 3 (4), Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health
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The Directive contains also an annex mentioning the types of sickness that can be grounds for exception to free movement. These are mainly contagious illnesses that can jeopardize the health of nationals of that Member Stat. However, because such illnesses can be sometimes difficult to diagnose, Member States have the freedom to decide if a person suffering from one is considered to be a threat to public health. Finally, he Directive also prohibits invocation of the public policy exception for economic reasons, which prevents expulsion in times of recession. The European Court of Justice occupied an important role in formulating standards regarding free movement restrictions. An example would be Case 41-741. In this action the plaintiff was Miss Yvonne van Duyn. The defendant was the Home Office. The plaintiff seeked a declaration that she is entitled to enter and remain in the United Kingdom for the purpose of accepting employment with a body known as the Church of Scientology. The plaintiff was in fact refused leave to enter the United Kingdom on May 9, 1973, and returned to the Netherlands on the same day. The defendant, the Home Office, contended that such refusal was justified. The issue in the action turns for all practical purposes upon the construction of certain provisions in the Treaty of Rome, and a direction given pursuant to that Treaty, the combined effect of which is that within the community a member state may refuse entry to an individual on the grounds of public policy, but that measures taken on this ground must be based exclusively on the personal conduct of the individual concerned. The facts may be stated as follows: The Church of Scientology is a body established in the United States of America, which functions in the United Kingdom through a college at East Grinstead, Sussex. The Government of this country regards its activities as contrary to public policy. On July 25, 1968, the Minister of Health stated in the House of Commons that the Government was satisfied that scientology was socially harmful and that he had withdrawn acceptance of the college as an educational establishment. On the other hand, they is no suggestion that the activities of the Church of Scientology are unlawful in this country. In 1972 the United Kingdom acceded to the Treaty of Rome. The Home Office has not altered its adverse view of the Church of Scientology and maintains that nothing contained in the Treaty of Rome or its secondary legislation precludes it from continuing to refuse entry and work permits to persons connected with that body.
Case 41-74 Yvonne van Duyn vs Home Office. Judgment of the Court 4 December 1974. http://iom.fi/elearning/files/european_law/case_law/european_union/CASE%20OF%20Van%20Duyn%20vs%20Home %20Office.pdf 25
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The plaintiff is a Dutch national who has been engaged in the study and practice of scientology abroad. On May 9, 1973, having been offered employment in the college at East Grinstead, she arrived at Gatwick Airport with a view to taking up that employment. She was examined there by an immigration officer who refused her leave to enter the United Kingdom, and returned her to the Netherlands that evening. By the first question, the Court is asked to say whether article 48 of the EEC Treaty is directly applicable so as to confer on individuals rights enforceable by them in the courts of a Member State. The response given by the Court in its answer was : Article 48 of the EEC Treaty has a direct effect in the legal orders of the Member States and confers on individuals rights which the national courts must protect. The second question asks the court to say whether council directive No 64/221 of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health is directly applicable so as to confer on individuals rights enforceable by them in the courts of a Member State. The Courts decision was that : Article 3(1) of council directive No 64/221 of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health confers on individuals rights which are enforceable by them in the national courts of a Member State and which the national courts must protect. The most important was the answer to the third question. The question raises finally the problem of whether a Member State is entitled, on grounds of public policy, to prevent a national of another Member State from taking gainful employment within its territory with a body or organization, it being the case that no similar restriction is placed upon its own nationals. The Court decided that: Article 48 of the EEC Treaty and article 3(1) of directive No 64/221 must be interpreted as meaning that a Member State, in imposing restrictions justified on grounds of public policy, is entitled to take into account as a matter of personal conduct of the individual concerned, the fact that the individual is associated with some body or organization the activities of which the Member State considers socially harmful but which are not unlawful in that state, despite the fact that no restriction is placed upon nationals of the said Member State who wish to take similar employment with the same body or organization.

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