Directive 2004/38 – Union Citizens

Directive 2004/38  – Union Citizens

Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States^[1] was introduced to enhance the free movement principles for EU citizens (i.e. cementing the purposive approach to free movement supported by the European Court of Justice (ECJ) (the Court of Justice, part of the Court of Justice of the European Union (CJEU)))^[2]. The attempts by Member States to impose restrictions on the free movement of EU citizens were sought to be redressed through Directive 2004/38^[3]. The rationale is that there has to be a balance between the fundamental right for the EU citizen to move freely throughout the Union and Member States limiting the burden that the citizen may pose^[4]. For example, the Directive supports ECJ principles that allow students^[5] and workers^[6] to move freely in the Union. Jobseekers also have rights, but entitlement to benefits is a separate question: in Collins, a proportionate residence requirement could be used to establish a genuine link with the host State’s employment market^[7]. Article 1 of Directive 2004/38 identifies public policy, public security and public health as grounds for restricting movement. Article 27 governs those restrictions and expressly prohibits their use for economic ends. Residence conditions and limits on entitlement to social assistance are instead governed by Articles 7, 14 and 24. Thus, the rationale of the Directive is to ensure that there is a fair and balanced model to enhance citizenship rights whilst allowing Member States to implement fair restrictions, in order to allow Member States to protect their own borders^[8].

The Maastricht Treaty introduced the principle that citizens of EU States are also EU citizens, regardless of age or place of residence^[9]. Directive 2004/38 consolidated the existing free movement rules for workers and citizens in general, as well as the family of the citizen. Article 3(1) applies to EU citizens moving to or residing in a Member State other than their own and to family members accompanying or joining them. This extension has been controversial, because qualifying non-EU family members have derived rights of entry and residence^[10]. In fact, one of the key controversies of Directive 2004/38 is that it is undermining the right of the Member State to control its borders when the individual is a non-EU citizen. Nonetheless, the ECJ (CJEU) has developed a broad understanding of citizenship, which includes the right of the individual to a family life^[11].

Article 2(2) of Directive 2004/38 defines family members as: (1) spouses; (2) registered partners under the legislation of a Member State, where the host State treats registered partnerships as equivalent to marriage and its relevant conditions are met; (3) direct descendants who are under 21 or dependent, including those of the spouse or registered partner; and (4) dependent direct relatives in the ascending line, including those of the spouse or registered partner. It does not matter whether these individuals are EU citizens or not^[12]. Article 3(2) requires the host State to facilitate entry and residence for certain other dependent or household family members, relatives who strictly require the EU citizen’s personal care on serious health grounds, and duly attested durable partners; these are not automatic Article 2(2) rights. The Directive has had a significant impact on the competencies of the EU and the Member State to determine its immigration policy where a non-EU family member accompanies or joins an EU citizen. Separately, Ruiz Zambrano concerned Article 20 TFEU, not the Directive: refusal of residence and permission to work to a non-EU parent was prohibited where it would deprive dependent EU-citizen children of the genuine enjoyment of the substance of their citizenship rights by forcing them to leave the Union^[13]. This change is significant, but is based upon the general principle of balance. Article 35 permits proportionate measures against abuse or fraud, including marriages of convenience. In Patmalniece, the Supreme Court upheld an indirectly discriminatory right-to-reside condition for state pension credit as objectively justified^[14].

Under Articles 4–6, EU citizens may enter another Member State with a valid identity card or passport and reside there for up to three months without the Article 7 resource conditions. Non-EU family members require a valid passport and, where applicable, an entry visa; a valid Article 10 residence card exempts them from the visa requirement. Any necessary visas must be facilitated, free of charge and issued through an accelerated procedure. Article 14(1) requires that residents during the initial three months do not become an unreasonable burden on the host State’s social assistance system.

For residence exceeding three months, Article 7 covers workers and self-employed persons; economically inactive citizens with sufficient resources and comprehensive sickness insurance; and enrolled students with comprehensive sickness insurance and an assurance of sufficient resources. Qualifying family members may accompany or join them. For students, Article 7(4) limits the automatic family right to the spouse, qualifying registered partner and dependent children, with facilitation for dependent ascendants. Article 7(3) preserves worker status in specified circumstances, including temporary incapacity and certain periods of involuntary unemployment. Resources must be assessed individually rather than against a fixed minimum imposed without regard to personal circumstances (Article 8(4)).

Recourse to social assistance does not automatically justify expulsion. Subject to the public policy, public security and public health rules, workers and self-employed persons are protected against expulsion, as are jobseekers who can show that they continue to seek employment and have a genuine chance of being engaged (Article 14). Articles 12 and 13 allow family members to retain residence rights following death, departure, divorce or termination of a registered partnership in specified circumstances; they include protections for children in education, their custodial parent and victims of domestic violence.

Article 16 generally gives EU citizens, and non-EU family members who have lawfully resided with them, permanent residence after five years’ continuous legal residence. Temporary absences within Article 16(3) do not break continuity. Permanent residence is no longer subject to the Article 7 economic conditions and is lost through absence exceeding two consecutive years. Articles 17 and 18 provide additional routes for certain workers and family members. Article 23 permits resident family members to work or be self-employed. Article 24 provides equal treatment within the scope of the Treaties for those residing under the Directive. Its exceptions permit refusal of social assistance during the first three months and the longer jobseeking period, and of student maintenance grants or loans before permanent residence. Workers, self-employed persons, those retaining that status and their families retain their equal-treatment rights. Economically inactive citizens who fail the Article 7 resource conditions cannot claim equal treatment in social assistance under Article 24 on that basis; separate rights under EU law must also be respected.

Restrictions on public policy or public security grounds must be proportionate and based on personal conduct representing a genuine, present and sufficiently serious threat to a fundamental interest of society; previous convictions alone are insufficient (Article 27). Article 28 requires account to be taken of the person’s circumstances and provides enhanced protection against expulsion for permanent residents and, subject to its conditions, EU citizens with ten years’ residence and minors. Public health restrictions are limited by Article 29; diseases arising more than three months after arrival cannot justify expulsion. Articles 30 and 31 require notification, reasons and access to redress. Residence documents evidence rights rather than create them, and their possession cannot be made a precondition to exercising a right that can be proved by other means (Article 25).

2. Article 21 TFEU- Union Citizens:

Article 21 TFEU solidifies the principle of free movement for citizens, which marks the movement to an internal market that is not only focused upon economic integration but also social integration^[15]. The text of Article 21(1) TFEU supports the social/economic integrative model, which states:

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 the Treaties and by the measures adopted to give them effect.

The operation of Article 21 TFEU centres upon the fact that free movement is a substantive citizenship right, which means that the traditional economic focus has been watered down through the operation of this Article^[16]. Article 21(2) TFEU allows the European Parliament and Council, using the ordinary legislative procedure, to adopt provisions facilitating those rights where action is necessary and the Treaties have not supplied the necessary powers. Article 21(3) separately permits measures on social security or social protection, in the absence of the necessary Treaty powers, by a unanimous Council acting under a special legislative procedure after consulting Parliament. The implication is that the Member State now has to meet a high threshold to limit the free movement of citizens (and their families)^[17].

Article 21 TFEU operates alongside the economic freedoms concerning goods, services, establishment and workers, but citizenship rights do not depend on pursuing an economic activity. The right of the citizen to move freely throughout the Union remains subject to the Treaty and legislative conditions^[18]. In fact, Article 21 TFEU extends the principle of mutuality of obligations, which was clearly espoused in the Rottmann Case^[19] where AG Poiares Maduro opined that European citizenship:

Presupposes the existence of a political relationship between European citizens, although it is not a relationship of belonging to a people… It is based on their mutual commitment to open their respective bodies politic to other European citizens… It does not require the existence of a people, but is founded on the existence of a European political area from which rights and duties emerge.^[20]

The Rottmann Case clearly highlights that there is now a common EU citizenship, which is based upon a political (and economic) framework where free movement is at the centre of citizenship rights^[21]. The implication is that the operation of Article 21 TFEU is that the political (and economic) framework has created a social dimension that has been solidified in Article 21 TFEU^[22]. For example, Marie-Nathalie D’Hoop v Office national de l’emploi^[23] held that Belgium could not refuse a tideover allowance to a Belgian citizen seeking her first employment solely because she had completed her secondary education in another Member State. A genuine link with the employment market could be required, but that exclusive education-location condition was disproportionate.

In fact, the social extent of citizenship rights can be seen in Carlos Garcia Avello v État Belge^[24]. This case held, under Articles 12 and 17 EC, that the Belgian authorities could not refuse the requested change of surname for children with dual Belgian and Spanish nationality so that they could bear the surname to which Spanish law and tradition entitled them. Divergent surnames could cause serious inconvenience in professional and private life, including difficulties using diplomas and other documents. Citizenship and free movement rights therefore extend beyond purely economic interests to protect aspects of private and family life.

The term “spouse” includes a same-sex spouse for free movement purposes (Coman, Case C-673/16, EU:C:2018:385). In Wojewoda Mazowiecki, Case C-713/23, EU:C:2025:917, the Court held that a Member State must recognise a same-sex marriage lawfully concluded by two of its nationals while exercising free movement in another Member State, where they created or strengthened family life. Where transcription of the marriage certificate is the only means of recognition, that procedure must be available without discrimination. This does not require Member States to introduce same-sex marriage in their domestic law.

2026 update

Directive 2004/38/EC (the “Citizens’ Rights Directive”) remains a central instrument of European Union law governing the right of EU citizens and their family members to move and reside freely within the territory of EU Member States. Following the United Kingdom’s withdrawal from the European Union, the general EU free movement regime in the UK ended at 11pm on 31 December 2020. However, Part Two of the Withdrawal Agreement protects qualifying EU citizens who exercised residence rights in the UK before that point and continue to reside there, UK nationals in the corresponding position in an EU Member State, and qualifying family members. It also protects qualifying frontier workers. The residence conditions in Article 13 of the Agreement expressly incorporate provisions of Directive 2004/38. Article 15 preserves routes to permanent residence, counting qualifying periods before and after transition; that permanent right is lost only after absence exceeding five consecutive years. These treaty rights have domestic effect through section 7A of the European Union (Withdrawal) Act 2018. The EU Settlement Scheme provides UK immigration status for eligible people, including some groups covered more generously by domestic rules. The Directive therefore remains relevant to the interpretation and application of rights protected by the Agreement. People outside the protected arrangements are generally subject to the ordinary UK immigration rules.

References:

Barnard, C The Substantive Law of the EU. The Four Freedoms (3rd ed., Oxford University Press Oxford 2010)

Clayton, G Textbook on Immigration and Asylum Law (5^th Ed, OUP 2012)

Craig, P The Lisbon Treaty: Law, Politics, and Treaty Reform (OUP 2010)

Currie, S ‘Accelerated Justice or a Step too far? Residence Rights of Non-EU Family Members and the Court’s Ruling in Metock’ (2009) European Law Review 34(2)

De La Casa, AH and Meduna, M ‘The New Directive on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States – What Changes Does it Bring?’ CESifo DICE Report 4/2006

Harpaz, G ‘European Integration in the Aftermath of the Ratification of the Treaty of Lisbon: Quo Vadis?’ (2011) 17 EPL 73

Jacobs, F ‘Citizenship of the European Union-A Legal Analysis’ (2007)  ELJ 13(591)

Steiner J. &. Woods, L EU Law, (11^th ed., Oxford University Press 2012)

Wollenschlager, ‘A New Fundamental Freedom Beyond Market Integration: Union Citizenship and its Dynamics for Shifting the Economic Paradigm of European Integration’ F (2011) ELJ 17(1)

Cases:

C- 413/99 Baumbast and R v Secretary of State for the Home Department, ECR [2002] I-7091;

Case C-127/08 Metock & Others v Minister for Justice, Equality and Law Reform [2008] ECR I-6241 (CJEU); preliminary reference: [2008] IEHC 77;

Case C-138/02 Collins v Secretary of State for Work and Pensions [2004]

Case C-148/02 Carlos Garcia Avello v État Belge, ECR [2003] I-11613,

Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECR [2001] I-6193

Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, ECR [2004] I-9925

Case C-413/99 Baumbast, R v Secretary of State for the Home Department, ECR [2002] I-7091

ECJ, Case C-224/98 Marie-Nathalie D’Hoop v Office national de l’emploi, ECR [2002] I-6191

ECJ, Case C-300/04 M.G.Eman, O.B. Sevinger  v  College van burgemeester en wethouders van Den Haag, ECR [2006] I-8055.

Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst (Case C-413/01) [2003]

Patmalniece v SSWP [2011] UKSC 11

Rottmann (Case C-135/08) [2010] ECR I-1449

Ruiz Zambrano [2011] 2 CMLR 46

EU Legislation:

Directive 2004/38/EC of the European Parliament and of the Council 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, OJ 2004 L 158/77.

Last updated: 11 November 2026