Part 2 of legal tender

Wholly internal situations are excluded from scope of application.

    • R v Saunders: British woman couldn’t challenge undertaking given to court in England that she return to Northern Ireland and not visit England for 3 years – all within single MS!
    • Purely hypothetical prospect of employment in another MS is insufficient!
      • Moser, 1984: German national denied access to training course in Germany due to his political affiliations. Argument that this would prevent him from applying from teaching posts in other MSs failed.
      • Kremzow, 1997: Austrian judge sentenced to life for murder. Court held there was mere hypothetical prospect of him exercising right of free movement.
    • Indiv can invoke provision against own MS, once indiv has exercised/is exercising right of free movement.  
      • Surinder Singh, 1992: Indian national married British wife, both livd in Germany. Upon return to UK, Indian national not allowed to join wife – ECJ held EU law applied. No longer wholly internal situation. Otherwise, British wife would be be discouraged from exercising EU rights on free movement if conditions of entry/residence upon return to home state were not at least equivalent to those upon entry to another MS.
      • But note CRD art 35: MSs can refuse/terminate/withdraw rights under CRD in event of abuse of rights or fraud ➔ arises in cases of marriages of convenience (Metock, 2008)
  • What if there is reverse discrimination?
    • EU law does not preclude this! Migrants into host state can enjoy more favourable treatment than nationals of host state who have never moved (Moser).
    • Rationale for EU law allowing this:
      1. Jurisdictional divide between EU and domestic law.
      2. “virtual representation” – migrants can’t gain access easily to host state’s domestic political processes, hence need additional protection by EU law.
  • Criticism: AG Sharpston in Walloon vs Carpet cleaning Glasgow Govt, 2008:
      • FACTS: Belgium divided into Flemish and Walloon region. Flemish govt offered insurance, but only for residents of Flemish region, or residents of other MSs who were working in Flemish region. Hence Belgium citizens resident in Walloon region were worse off than these migrants.
      • AG thought the wholly internal rule ought to be reconsidered. Citizens of EU should be able to rely on citizenship + principle of non-discrimination (art 18 TFEU) to access benefits.
      • But ECJ rejected this, and reasserted the rule.
  • Erosion of the wholly internal rule:
    • Angonese, 2000: “potential” link with EU law might suffice
    • Deliege, 2000: ECJ held that in principle, EU law applied cos there was “degree of extraneity” from fact that A was athlete who had participated in competition in another MS.