The Free Movement of

Persons

Alla Pozdnakova, alla.pozdnakova@jus.uio.no

Free movement of persons

• One of the four ‘fundamental freedoms of the internal market’

• In 1957– right of movement for ‘workers’ (Article 45 TFEU)

– right of establishment of ‘natural and legal persons’ (Article 49 TFEU)

• Case law and secondary legislation expanded scope of the right – eg. defined ancillary rights, extended right to family members, ‘work-seekers’ and even non-workers

• 1992 Treaty of Maastricht– creation of status of ‘Union Citizenship’ – Articles 20 – 25 TFEU

• Today – Union Citizenship ‘should be the fundamental status of national of the MSs when they exercise their right of movement and residence’ (recital 3 Citizen’s Rights Directive 2004/38 - origin)

FMOP – Key legal sources

• Article 45 TFEU Free movement of workers

• Article 49 Right of establishment

• Articles 20 & 21 TFEU – EU Citizenship

• Citizen’s Rights Directive (CRD) 2004/38

• Regulation 492/2011 (ex 1612/68) FM for workers (employment)

• EU Charter of Fundamental Rights (arts 39-46)

• PLUS Court of Justice cases

• + Barnard, ‘The Substantive Law of the EU’, chs 7, 8 and 10

Article 45 TFEU - workers

• Para. 1 (Personal scope) – ‘Freedom of movement for workers shall be secured

within the Union.’

• Para. 2 (The rights conferred on workers)– FM shall entail the abolition of any discrimination based

on nationality between workers as regards employment, pay and work conditions

• Para. 3 (The rights conferred on workers)– scope of right including limitations– on grounds of

public policy, public security, public health (Art 27-33 CRD)

• Para. 4 (Exemption for employment in the public service)

• Direct Effect of Article 45 TFEU confirmed in Angonese C-350/96

Restrictions on Freedom of movement for workers

• Art 45.2 and 3 TEUF + Regulation 492/2011 + EU case law

– Right to accept ‘offers of employment actually made, move freely

and stay within territory of MSs for this purpose, remain after the

employment subject to conditions…’

– discrimination based on nationality between workers as regards

employment, pay and work conditions

• Except if grounds for restriction is

– Public policy, security and public health (strictly interpreted)

• 41/74 Van Duyn, C-482/01 &C-493/01 Orfanopolous etc

• Indirect discrimination and

• Non-discriminatory obstacles

• Except if

– Objective justification: Mandatory requirements which are

proportionate

Economic nexus

• To fall within Article 45 TFEU the migrant must be

engaging in an economic activity – they must be a

‘worker’ – i.e. factors of production

• Soon became clear that this policy area, which

directly benefits human beings, must have

implications beyond the economics of market

integration

Breaking the economic nexus

• CJEU broad interpretations of Treaty provisions and

secondary legislation

– Definition of “worker”

• Levin 53/81 ‘services performed for and under the direction of

another for remuneration. Activity must be ‘effective and

genuine’ and not ‘purely marginal or ancillary’

• Steynmann196/87 (plumber)

• Kempf 139/85 (music teacher)

– Includes right to enter and remain for a reasonable period of

time to seek work - Antonissen C-292/89 (Now see Article

7(3)(b) & (c) CRD)

Breaking the economic nexus

• A range of ‘ancillary’ rights – in order to remove disadvantages associated with exercising FM rights in order to work– Right of entry and residence for family members

• Family members may be non-MS nationals (ie TCNs)

• Family rights = ‘derivative’/ ‘dependent’

• (See CRD Articles 2(2), 3(2), 6(2), 5(2), 7(1)(d), 12, 13, 16(1) and (2))

– General right to equal treatment (Article 24 CRD)

– Right to employment conditions, to receive social advantages and education and vocational training under the same terms and conditions as host-state nationals

• (See Regulation 492/2011)

Regulation 492/2011 on FM of workers

• Eligibility for employment in another MS (Arts.

1-6)

• Employment and equality of treatment (Arts. 7-

9)

– Pay, dismissal, conditions, access to training

– Social and tax advantages (art 7(2) and 7(3))

– Membership of trade unions

– Housing

• Equal access of migrant workers’ children to

state education in the host state (Art. 12)

Ibrahim and Teixeira C-310/08 and C-480/08

Breaking the economic nexus

• Not just ‘workers’ and their families who can benefit from EU free movement rights

• In early 1990s 3 directives adopted offering residency rights to certain categories of person

– Directive 90/365 –retired workers

– Directive 93/96 – students

– Directive 90/364 – all others (the ‘playboy directive’)

– To benefit from this - no need to be a worker/economically active but must be economically self-sufficient

• These directives now consolidated into CRD – See Article 7 CRD

EU citizenship

• Concept ‘constitutionalised’ by Treaty of

Maastricht 1992

• Article 20 TFEU–

– (1)‘Citizenship of the Union is hereby established.

Every person holding the nationality of a MS shall be

a citizen of the Union. Citizenship of the Union shall

be additional to and not replace national citizenship.

– (2) EU citizens shall enjoy the rights and be subject

to the duties provided for in the Treaties. There

follows a non-exhaustive list of rights.

Treaty Articles on EU citizenship

• Article 21 TFEU -

– (1)‘Every citizen of the Union shall have the right to move and

reside freely within the territory of the MS, subject to the limitations

and conditions laid down in the Treaties and by the measure

adopted to give them effect.’

– (2) and (3) legal basis provisions

• Direct effect of Article 21 TFEU confirmed in Baumbast C-

413/99 [2002]

Citizen’s Rights Directive (CRD)

2004/38

– Consolidates most legislation (only Regulation 4921/2011 remains) and case law up to point of adoption and adds new dimensions (eg. definition of family member, permanent residence status)

– Continues to distinguish different categories of recipient of rights (eg most importantly those who are economically active or independent and those who are not)

– Directive beset by poor and incorrect implementation by MS

Citizen’s Rights Directive (CRD)

2004/38

• What does it do? (material scope)

– Lays down conditions governing exercise of right to FM and

residence in another MS by EU citizens and their family

members (including right of permanent residence) AND the

limits placed on these rights (Article 1 CRD)

• Who does it benefit? (personal scope)

– Union citizens who move to and reside in a MS other than

that of which they are a national and their family members

(Article 2 & 3 for definitions and beneficiaries)

CRD – Right of Exit, Entry and

Residence

• Art 4 – Right of exit, Art 5 – Right of Entry

• Art 6 – 18 - Right of residence

• Art 6 - for up to 3 months - any EU Citizen and family member- simply must not become an unreasonable burden on the social assistance system of the host state (Art 14(1))

• C-299/14 Vestische Arbei Jobcenter v Peña Guevas

–MS may not be responsible for social assistance to such EU citizens + accumulation of individual claims for assistance may result in an unreasonable burden on MS

Residence for more than 3 months (Article 7)

• All Union citizens shall have the right of residence on the territory of another Member State (Art. 7.1)

–if EU citizen is worker/self employed, or

–has sufficient resources plus comprehensive sickness insurance, or

–enrolled as student, have sufficient resources and have comprehensive sickness insurance, or (Art. 7.3)

• is a family member accompanying or joining an EU citizen and meet self-sufficiency conditions (Art. 7.2)

• CRD Article 7 does not by its wording cover situations where

the situation is not ‘A4’

Examples:

– National of a MS A works in a MS B and returns to A with a TCN

family member (‘ Right to return to HS’)

• C-370/90 Singh, C-291/05 Eind, C-456/12 O&B (but: genuine residence of

more than 3 months in the host state)

• Art 21 TFEU + CRD applied ‘by analogy’?

– ‘wholly internal’ situation (e.gTCN parents and a child EU citizen)

• Art 20 TFEU as a basis for residence: Case C-34/90 Zambrano but C-

434/09 McCarthy

• CJEU has relied directly on TFEU provisions on EU

Citizenship to extend rights of movement in such cases

CRD – Right of Exit, Entry and Residence

(cont’d)

–Art 16 - Right of permanent residence

»Union citizens who have resided legally for a continuous period of five years in the host MS shall have the right of permanent residence. ie no longer need to satisfy Art 7 requirements

CRD – Personal scope – Who is an EU

Citizen?

• EU Citizens are defined as Member State nationals (Art 20

TFEU and Art 2(1) CRD)

– Nationality is determined according to the domestic law of the

Member State concerned (Kaur (C-192/99), Micheletti (C-369/90)

and Chen (C-200/02))

– Long thought that determination of nationality was a matter

exclusively for national law. But see case of Rottman (C-135/08)

CRD – Personal scope - Who is a family

member?• Art 2.2 ‘family member’:

– the spouse, registered partner, direct descendants under 21 years or who

are dependent, and those of the spouse or partner, the dependent direct

relatives in the ascending line and those of the spouse or partner.

– Mandatory admission (Art 3.2 in conjunction with FM definition in Art 2.2)

• Art 3 ‘other family members’:

– beyond those in Art 2 include those who are dependent on the EU citizen

or are a member of their household or where serious health grounds

strictly require personal care of the EU citizen.

– Or the partner with whom the EU citizen is in a durable relationship.

– NB. In Art 3 – situations MS ‘shall facilitate entry and residence ‘in

accordance with national legislation’ – discretionary admission

CRD – Personal scope - Who is a family

member?

(cont’d)

• Irrespective of nationality. ‘TCN’ third country national family members.

• C-127/08 Metock – Citizen’s rights must not be interpreted restrictively.

Court prohibited national law making the right of residence of family

members subject to prior lawful residence in another MS.

CRD- restriction on scope of rights

– Restrictions on right of entry and residence and associated safeguards: -

• Articles 27 – 33 Public policy, public security or public health

Art 28: three different levels of protection against expulsion on these grounds.

– Less than 5 years (ie no permanent residence) the decision must consider all factors before making an expulsion order

– More than five years, consider all factors and there must be serious grounds

– More than ten years, consider all factors and there must be imperativegrounds. Tsakdouridis, C-145/09 P.I. C-348/09

• Conditions and limits which states may impose on these rights must be interpreted in a proportionate manner which does not unduly restrict their exercise.

CRD- restriction on scope of

rights contd.

• Art 35 limits in the event of ‘abuse of rights’

MSs may refuse, terminate or withdraw any rights

in the case of abuse of rights.

– Marriage of convenience and the like

What potential?

• Mere codification of pre-existing rights? (market citizenship? Community of individuals?)

• CRD important legislative intervention to consolidate and expand and limit scope and content of FM rights for EU citizens

• CJEU– crucial role in developing the concept of EU citizenship and EU citizenship crucial in developing concept of free movement!

What potential? (cont’d)

– EU citizenship as ‘fundamental status’ of MS nationals – Grzelczyk (C-184/99)

– CJEU has interpreted Article 21 in order to create rights for citizens

• When they are in other MSs (in combination with the Article 18 principle)– irrespective of any economic nexus – Martinez Sala

• When they have not moved from their state of nationality - Zambrano (but McCarthy)

Some key case-law

– Erosion of the “wholly internal” rule• General position – individuals must move in order to

engage EU free movement rights. EU provisions do not apply to situations ‘wholly internal to a MS’

• Surinder Singh C-370/90– EU law can be invoked by nationals against their own MS when they are exercising or have exercised their rights of free movement

• Erosion of wholly internal rule – takes increasingly little to trigger application of EU law –

– C-60/00 Carpenter

– C-200/02 Chen

– C-148/02 Garcia Avello

– C-34/09 Zambrano

– C- 434/09 McCarthy

– C- 256/11 Dereci

Some key caselaw

• Non-workers/non economically active

– C-85/96 Martinez Sala – right to claim social

advantages on same basis as host- state national

Work-seekers

– C-224/98 D’Hoop

– C-138/02 Collins – right to claim social security

benefit

– C-258/04 Ioannidis

– C-22 and 23/08 Vatsouras

Incremental approach?

• Case law does not suggest that all migrant EU

citizens have immediate right to claim all

benefits in the MS on the same terms as

nationals

• Incremental approach based on length of

residence and category of claimant - also

reflected in Directive 2004/38

• Possible to discern a link between length of

residence, degree of integration in host state

and degree of solidarity owed by MS to EU

citizens

Briefly on EEA Agreement and legal status of ‘EEA

nationals’

• The two-pillar structure of EEA: EU States - EFTA States

participating in EEA Agreement

• EEA Agreement’s right of movement for workers = EU law

right

– Identical wording of the TFEU and EEA Agreement

– EU case law relevant for interpretation of EEA provisions

– EU directives incorporated into the EEA Agreement

Difference between EU and EEA citizenship?

• TEUF provisions on EU Citizenship (Arts 20 and 21 TEUF) –

no corresponding provision in the EEA Agreement

• Citizens’ Rights Directive is incorporated into the EEA

Agreement with adaptations (decision of the EEA Joint

Committee, 2007)

– The concept of ‘Union Citizenship’ is not included in the

Agreement.

– Immigration policy is not part of the Agreement.

– The Agreement does not apply to third country nationals. Family

members within the meaning of the Directive having third country

nationality shall nevertheless enjoy certain derived rights such as

those foreseen in Articles 12(2), 13(2) and 18 when entering or

moving to the host country.

• Any real difference between EU and EEA citizenship?

• EFTA Court applied provisions of CRD by analogy to a

situation where Norwegian national, after having exercised

her right to move in EEA, returned to Norway with a TCN

spouse

– Jankuba Jabbi-saken E-28/15

Themes for revision….

• Impact of EU citizenship on right to free movement –breaking the economic nexus

• Limits to right to free movement

• Family members and free movement rights

• Rights of Third Country Nationals (TCNs) to EU free movement

• Students and free movement

• Application of the principle of non-discrimination on grounds of nationality in the free movement of persons

• Erosion of ‘wholly internal’ rule

Next Seminar

The next Seminar will take place on Wednesday 28th

February at 14.15 on the Right of Establishment of

natural and legal persons.