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The free movement of persons

Previous: The free movement of goods

Historically, persons living in the European Economic Community were entitled to move between member states if work was offered to them requiring such a move. However, the Treaties now citizenship rights and a legal base to adopt measures to facilitate the free movement of EU citizens respectively, work is no longer a precondition for the exercise of free movement rights.

The treaties

The starting point for the free movement of persons is Art 18 TFEU, which prohibits discrimination on the grounds of nationality. Art 20 establishes EU citizenship to complement national citizenship and Art 21 then provides for a right of free residence to EU citizens. Articles 45. 49 and 56 TFEU cover the free movement rights of workers.

Free movement of persons

Exercise of rights

There are two elements to the exercise of free movement rights of EU citizens (EUCs): a right to have EU nationality recognised and a right to exit and re-enter a home Member State (MS).

Under Art 20(1) TFEU, Member States may retain their autonomy in granting citizenship to individuals, but they are obliged to recognise other (EU) nationalities:

  • Micheletti [1993] obliged Spain to recognise the dual nationality of an Argentinian woman with Italian ancestors
  • Avello [2003] obliged Belgium to recognise the dual nationality of a person using the surnames of both parents

In failing to recognise free-movement rights, a MS may not deprive and EUC of his rights:

  • Yhu and Chen [2004] obliged Ireland to retain the residence of a woman who’s child had Irish citizenship, but
  • Uecker and Jacquet [1997] did not force Germany to recognise the right of residence of a citizen not from the EU, a third country national (TCN), after she married an EUC. The EUC was not exercising his free movement rights, therefore the TCNs right to residence need not be recognised.
  • Zambrano [2011] forced Belgium to accommodate a father whose child was an EUC, irrespective of the child not exercising free movement rights as the child would be deprived of other EU recognised rights
  • Dereci [2011] helped reconcile Zambrano and Uecker and Jacquet by providing for a ‘genuine enjoyment test’. If an EUC would be deprived of the genuine enjoyment of his rights by deporting a TCN, that TCN may not be deported. A Turkish national could not be deported from Austria where his child (with Austrian spouse) would have to move out of the EU to accompany him

Having left their home MS, an EUC must not be deprived of his rights. In particular, he must not be denied re-entry back into his home MS:

  • De Cuyper [2006] found that Belgium’s refusal to pay ‘job seeker’s allowance’ to an emigrant (to France) restricted that EUC’s free movement rights (but this restriction was justified)
  • Surinder Singh [1992] prevented the UK from refusing re-entry after an EUC had worked in Germany for a while
  • Eind [2007] forced the Netherlands to allow a Dutch father’s daughter to re-enter the country to accompany him
  • Metock [2008], a landmark case, allowed an EUC’s spouse, even if a TCN, to enter the EUC’s state to join the EUC to live, even if the TCN has never lived in the EU
  • McCarthy [2011] confirmed that family members of EUCs can join the EUC without prior residence and without visas

Categories of citizen

EUCs have different rights depending on their classification. An EUC exercising his free movement rights will be classed as either a worker (including self-employed persons, both discussed below), a work-seeker, a student, a family member or a non-economically active citizen. Work-seekers and non-economically active citizens have the same rights.

Workers

The Citizens Rights Directive (CRD), also known as Directive 2004/38/EC, was enacted to complement and expand upon EUC free movement rights. Article 7(1)(a) CRD provides workers with automatic residence rights in another Member State (the host Member State), in which they undertake work. Article 7(3) allows the retention of the ‘worker’ classification after employment for: 1 year of job-seeking; 6 months after the termination of fixed-term employment, and indefinitely during periods of illness.

To be classed as a worker, the EUC must satisfy the broad definition of ‘worker’ set out in Trojani [2004], involving the setting of real and genuine objectives, working for a period of time, receiving a wage, and being in a relationship of subordination.

Work-seekers and non-economically active citizens

Work-seekers are persons who are not employed, but are seeking employment. Non-economically active citizens is a residual category covering non-workers, whether they are unemployed and don’t want a job (benefit tourists), or whether they are unemployed out of choice and do not need to work (rich pensioners). Art 7(1)(b) CRD will allow residence in another MS if the person has ‘sufficient resources’ to as not to burden the host MS and ‘comprehensive sickness insurance cover’ for both themselves and their family.

A MS may only restrict rights associated with residence if such restrictions are justified. In Collins [2004], the UK was justified in not providing job-seeker’s allowance to non-habitual residents where there was no ‘real link’ between Collins’ residence and the UK’s labour market. A MS may insist on evidence of compliance with Art 7(1)(b)’s conditions, and, under Art 24(2) CRD, is not obliged to provide social assistance to work-seekers and non-economically active citizens. It should be noted that social assistance does not include job-seeker’s allowance, as the latter, according to V&K [2009] facilitates access to the labour market.

Dano [2014] takes a tough stance on work-seekers and non-economically active citizens. If the conditions set out in Art 7(1)(b) CRD are not satisfied, the EUC is not entitled to equal treatment rights as provided for in art 24(1) CRD. There was no evidence that Dano, a Romanian living in Germany, was seeking work.

Students

Students, EUC’s studying in a different MS, must fulfil the conditions set out in Art 7(1)(c) CRD, which are identical to 7(1)(b) – sufficient resources and sickness insurance – but with the addition of an educational enrolment requirement.

Having fulfilled these conditions:

  • Gryzelczyk [2001] prevents the denial of student benefits. Belgium were obliged to offer a ‘minimex’ allowance to a French EUC studying in Belgium
  • Bidar [2005] found that student loans may be restricted with residency requirements (UK 3 year residence requirement justifiable)
  • Forster [2008] also confirmed the validity of a 5 year residence requirement for a student loan

Family members

Art 7(1)(d) CRD provides that the family members of an EUC categorised above may join the EUC in residence in a host MS if they also satisfy the required conditions – sufficient resources and sickness insurance. Art 8(4) CRD provides that the question of sufficient resources is a question of fact for which a minimum figure (of money) cannot be set.

In Baumbast [2002], it was disproportionate for the UK to exclude a family who out of choice flew to Germany for major health treatment and did not have sickness insurance in the UK. In Zhu and Chen [2004], the TCN mother of an EUC baby did have sufficient resources.

According to Trojani [2004], a right to equal treatment will only be available to lawfully resident family members, and according to Dano [2014], equal treatment will be unavailable where sufficient resources are not held (on a case-by-case analysis).

Residence rights

For fewer than 3 months

The classifications above apply only to EUC’s resident in a host MS for more than 3 months. Any EUC is entitled to visit another MS for up to 3 months on the basis of a valid ID card or passport, according to Art 6 CRD. Wijsenbeek [1989] confirms the need for a passport or ID card to confirm that the EUC is an EUC. After this fact is confirmed, no further formalities may be required by a MS. After 3 months, Art 8 CRD allows a MS to require visitors to register their residence.

For more than 3 months

Having staying in a Member State for more than 3 months, an EUC will become subject to the above classifications. According to Oulane [2005], the lack of a passport or ID card will not by itself justify exclusion from a host MS, but some evidence that the person is an EUC will be required. Once any conditions under the classifications above are satisfied, the EUC will be entitled to treatment equal to that of a national of the host MS. In Bickel & Franz [1996], an EUC’s right to fair trial was upheld when Italy refused to provide a trial conducted in a language other than Italian.

Permanent residence

Having resided in a host MS for at least 5 years, the conditions and classifications set out above will no longer apply if the EUC has taken absences not exceeding 6 months in length (Art 16 CRD). An EUC may then apply for permanent residence in their host MS. According to Lassal [2010], residence will only be granted if the conditions and classifications above would be satisfied. Ziolkowski [2011] also found that residence durations may be backdated through periods to time in which the host MS was not a member of the EU.

Permanent residence may also be acquired by workers retiring after 3 years of residence or EUCs who became incapacitated after 2 years of residence.

Equal treatment rights

Art 18 TFEU provides a general negative obligation, prohibiting discrimination on the grounds of nationality. Art 24(1) CRD imposes a positive obligation on Member States to ensure equal treatment of its residents, including family members.

Sala [1998] confirms that these rights are operational whenever Member States act within the scope of the treaties: child benefit could not be denied to a lawful resident. Where a right is claimed, the burden will be on the Member State to show that the conditions required for equal treatment have not been met, according to Dano [2014].

Non-discriminatory restrictions (applicable to MS nationals and other residents equally) are also caught by these equal treatment obligations:

  • Collins [2004] found a job-seeker’s allowance limitation to be a restriction
  • Morgan [2007] found a limitation on student funding to nationals to be a (justified) restriction
  • Bressol [2010] found it to be a (justified) restriction to require the permanent residence of medical students

Family members’ rights

Who are family members?

Family members, according to Art 2(2) CRD are: spouses, partners, direct descendants (under the age of 21 or dependants of the EUC or spouse) or ascendants of the EUC or spouse.

A marriage in one Member State (creating spouses) must be recognised by another Member State under the principle of mutual recognition, according to Diatta [1985], which also found the burden to be on a MS to show that a marriage was a sham. Registered partners may not be discriminated against, but may not be recognised as mutual recognition does not apply here. Reyes [2014] defines a dependant as someone who receives substantial financial help from the EUC or spouse. Students’ ascendants will not be classed as family members for the purposes of family members’ rights.

Following Metock [2008], a family member (within the definition of art 2(2) CRD) need not have resided in the EU prior to joining an EUC exercising free movement rights.

If a family member does not fall within the Art 2(2) definition, art 3(2) requires a MS to facilitate their entry if they require the care of the EUC, they are a dependant member of the household of the EUC or they are in a durable relationship with the EUC. The host MS is entitled to deny residence if justified following an extensive examination of the family member’s personal circumstances.

According to Jia [2007], dependancy must have existed prior to the EUC moving to the host MS, and according to Rahman [2012], the obligation to ‘facilitate entry’ requires a MS to give a certain advantage to an applicant. A greater dependancy will increase the strength of this obligation.

What are their rights?

Family members’ rights include:

  • To exit and enter the host Member State, under articles 4 and 5 CRD
  • To acquire permanent residence after 5 years, under art 16(2)
  • To retain residence following the EUC’s death or divorce, under articles 12 and 13 CRD

Restrictions on the free movement of persons

Article 27 CRD allows Member States to restrict the free movement rights of EUCs and their family members on the grounds of public security, public policy or public health. A restriction may only be imposed on the basis of a genuine, present and sufficiently serious societal threat to a fundamental interest which is not economic. It must also be based on the personal conduct of an individual:

  • Bouchereau [1977] prevented the expulsion of a person with previous criminal convictions as the ‘present’ threat element of the test was not satisfied.
  • O&O [2004] found that even a present criminal conviction by itself would not allow expulsion.
  • Adoui and Cornuaille [1982] prevented Belgium from denying residence to two prostitutes, where prostitution was legal in Belgium

Where a MS wishes to expel a resident, art 28(1) requires that MS to consider the age, health, family situation, length of residence, social integration and cultural integration of the resident first. An expulsion decision may only be made on the grounds of public policy or public security (not public health).

Permanent residents may not be excluded from a MS, other than on serious grounds of public policy or public security, according to Art 28(2) CRD.

If a permanent resident has resided in a Member State for at least 10 years an expulsion decision may only be based on imperative grounds of public security. This test was satisfied in Tsakouridis [2010], where a drug gang member represented a continuous threat to public security. PI [2012] prevented the expulsion of a rapist following his 7.5 year prison sentence for raping an 8 year old girl until an individual examination had been made.

Where an expulsion decision is made, Art 30 requires notification of the decision to be given to its subject. This was confirmed in ZZ [2013].

Free movement of workers

Employed persons

Art 45 TFEU secures the free movement of workers and prevents discrimination on the basis of nationality against workers, including discriminatory pay and discrimination concerning other employment conditions. For example, in Kranemann [2005], it was discriminatory for Germany not to reimburse training validly undertaken in another Member State. The Free Movement of Workers Directive (FMWR) has expanded the rights of workers within art 45 TFEU. Member States may not restrict the free movement rights of workers, except where justified on the grounds of public policy, public security or public health. Bosman [1995] provides a broad test for restrictions, just as Dassonville does in the context of the free movement of goods. Bosman [1995] also extends art 45 TFEU to actions of private bodies (direct effect). For example, the requirement of a certificate of bilingualism in Angonese [2000] constituted a restriction.

The scope of Art 45 TFEU

A significant number of cases can be cited in defining the scope of a ‘worker’ within the meaning of art 45 TFEU:

  • Trojani [2004] – the starting point is a broad test where real and genuine objectives are achieved in return for a wage in a relationship of subordination
  • Hartmann [2007] – living in Austria but working in Germany invoked Art 45, entitled family member benefits
  • Kempf [1986] and Steymann [1988] – both low pay for a piano teacher and remuneration by way of the provision of accommodation only are within the scope of Art 45 TFEU – the Art 7(1)(b) conditions need not be satisfied by such persons with low levels of remuneration as they are classed as workers
  • Bettray [1989] – rehabilitation cannot be classed as employment
  • Raccannelli [2008] – it was up to a MS to decide whether a medical student who declined the option of work was to be classed as a worker
  • Vatsouras [2009] – a worker can be a person who takes on short duration work for limited remuneration (still a real and genuine activity)
  • ITC [2007] – Private recruitment agency in Gemrnay entitled to claim a free from a state employment agency within art 45 TFEU
  • Jany [2001] – national court to decide whether EUC is a worker or self-employed (prostitution); subordination is key factor

Equal treatment

On the assumption that an EUC is a worker, they may not be discriminated against on the grounds of nationality. Discriminatory restriction on equal treatment may be proportionately justified on the basis of public policy, public security or public health. Non-discriminatory restrictions may be proportionately justified as above or through the use of an ORPI. Non-discriminatory rules were added to the jurisdiction of art 45 TFEU by Bosman [1995].

  • Bernard [2010] – proportionate to restrict the first signing of a French football player to a particular club (who trained the player), preventing the exercise of a right to free movement to accept a bid from an English football club (Newcastle United) – damages assessed on costs of training, not total loss to club
  • Sotgui [1974] – residence requirements are usually proportionate
  • Groener [1989] – justified to require a Dutch music teacher to speak Irish as well as English to teach in an Irish school to preserve the Irish language
  • Hartmann [2007] – no ‘real link’ test, unlike for work-seekers
  • Commission v Netherlands [2012] – invalid restriction of student grants for children of workers, requiring 3 years of residence – breach of equal treatment of workers (different for non-workers – see Bidar above)

According to Art 7 FMWR, workers are entitled to enjoy the same social and tax advantages as nationals of a MS. This is to be given a borad interpretation according to Cristini [1975]. In Hartmann [2007], a worker was entitled to a higher rate of child benefit usually reserved for nationals, and in Commission v Netherlands [2012], the Netherlands were obliged to provide university funding to a worker’s child.

It must be noted that restrictions on equal treatment rights of workers, under art 45(4) TFEU, do not apply to ’employment in the public service’. According to Commission v Belgium (Public Services) [1980], not all public sector jobs may be reserved for MS nationals, but national interests may be safeguarded. For example, the police, judiciary and tax authority may reserve jobs of nationals only.

Rights of family members of workers

Under Art 10 FMWR, the children of workers (an ex-workers) are to be admitted to education under the same conditions as a national’s child. According to Baumbast [2002], this is an independent right granted to a worker’s child. In Di Leo [1990], a MS was obliged to issue a study aborad grant on the same conditions as a national worker’s child; a frontier worker’s children were entitled to educational benefits in Giersch [2013], and Teixera [2010] confirmed that art 10 still applies after the death or abandonment of a worker until his child’s education is complete.

Self-employed persons

Where working person is not caught by the Trojani [2004] test of a worker within the EU and therefore not caught by the protections given under Art 45 TFEU, they may nevertheless be entitled to work as a self-employed person under Art 49 TFEU, which secures the freedom of establishment.

Scope

Establishment, according to Factortame [1991], is defined as:

“The actual pursuit of an economic activity through a fixed establishment in another Member State for an indefinite period”

Where, according to Sodemare [1997], there is ‘stable and continuous presence’ in another MS, establishment will be found. According to Broekmeulen [1981], a MS will be required to recognise equivalent qualifications obtained in another MS. According to Reyners [1974], Art 49 TFEU has direct effect, meaning that self-established positions such as lawyers may not be reserved for MS nationals.

Art 51 and 52 TFEU allows establishment to be proportionately restricted on the basis of public policy, public security, or public health. Gehard [1995] found that a person may e established in multiple Member States, and in Knoors [1979], Belgium was required to recognise a Dutch plumber’s equivalent qualifications.

Establishment can be differentiated from the provision of services on the basis of temporariness, according to Gebhard [1995]. According to Commission v Portugal [2006], fast track residence rights under Art 7(1)(a) CRD are available to self-employed persons exercising free movement rights.

Mutual recognition of qualifications

Issues with the freedom of establishment usually arise where a Member STate prohibits a person from practicing a certain trade due to non-discriminatory restrictions. This will only apply where requirements for a certain trade have not been harmonised by the EU:

  • Reyners [1974] – Belgium could not require lawyers to be of Belgian nationality
  • Thieffry [1977] – A lawyer in France could not be required to have a French diploma
  • Vlassopoulo [1991] – A Greek lawyer could not be prohibited from practicing at the German bar unless Germany considered whether and rejected that the lawyer had the required specialised knowledge to do so
  • Bouchoucha [1990] – France were not required to recognise the qualifications of an English osteopath and France did not distinguish between doctors and osteopaths
  • MacQuen [2001] – Belgium was not required to recognise an English optician (no mutual recognition) as Belgium made no distinction between doctors and opticians
  • Heylens [1987] – a MS is entitled to regulate the knowledge required to practice a profession, accounting for the personal experience of the person exercising free movement rights
  • Nasiopoulos [2013] – Greece required to recognise a German hydrotherapist as a physiotherapist due to personal experience

Where there is vertical EU-level harmonisation of a profession, that profession should be mutually recognised by all Member States. The addition of a not too restrictive adaptation test will be permitted where there is only horizontal harmonisation (mutual recognition enforcement), according to Vlassopoulo [1991]. In Khatzinasis [2008], Greece was required to recognise an Italian training centre for opticians established in Greece for the benefit of Italians, and the Vlassopoulo [1991] test was applied in De Bobdilla [1999] to allow an English fine art restoration degree to be recognised by Spain (who ironically funded the English degree).

Restrictions on establishment

Discriminatory restrictions on establishment are exceptionally difficult to justify. As establishment is a fundamental freedom, Gebhard [1995] provides that restrictions on the freedom of establishment must be:

  • Non-discriminatory
  • Justified by imperative requirements in the general interest
  • Suitable for attaining the objective they pursue
  • Necessary to attain that objective

This test was applied in Nasiopoulos [2013], above. In the earlier case of Gullung [1988], an ethics based restriction was accepted concerning lawyers.

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