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On 21 October 2004 the European Court of Justice handed down
judgment in the case of the Commission v Luxembourg regarding
the conditions which the Luxembourg authorities have placed on
third country national workers posted to that state by
enterprises based in other Member States (C-443/03). The Court
has heavily criticised the practices of Luxembourg and held
that requiring work permits for third country nationals is
such circumstances is contrary to Community law, including the
requirement that the third country national should have been
employed for six months before being posted:
The ECJ "declares that, by imposing on service
providers established in another Member State who wish to
deploy in its territory workers who are nationals of
non-member countries a requirement of individual work permits,
the issuance of which is subject to considerations relating to
the employment market, or a requirement of a collective work
permit, which is granted only in exceptional cases and only
when the workers concerned have, for at least six months prior
to the deployment, been in a relationship with their
undertaking of origin through a contract of employment of
indefinite duration, and by requiring those service providers
to provide a bank guarantee, the Grand Duchy of Luxembourg has
failed to fulfil its obligations under Article 49 EC;".
On 20 October 2004, the European Court of Justice handed
down judgment in the case of Chen v the UK, on the right of a
very young citizen of the Union (ie a few months old) to
residence in the host Member State and to have with her third
country national mother who is her primary carer reside with
her. The fact that the family specifically went to the Member
State where the child was born for the express purpose that
the child would acquire citizenship of the Union was
irrelevant to the child's right to exercise her free movement
and residence in the EU. Further, without the presence of her
mother, she would be unable to exercise the right at all
(C-200/02).
"In circumstances like those of the main proceedings,
Article 18 EC and Council Directive 90/364/EEC of 28 June 1990
on the right of residence confer on a young minor who is a
national of a Member State, is covered by appropriate sickness
insurance and is in the care of a parent who is a
third-country national having sufficient resources for that
minor not to become a burden on the public finances of the
host Member State, a right to reside for an indefinite period
in that State. In such circumstances, those same provisions
allow a parent who is that minor’s primary carer to reside
with the child in the host Member State."
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