EU Citizenship and Law on Free Movement

How far does the law on free movement suggest that EU citizenship should now be seen as the key status for persons moving between EU Member States?

Introduction

When the Maastricht Treaty introduced the formal status of citizenship of the Union (then the EC) in 1992,[1] it was clear that EU institutions intended to place it at the core of its realisation of the free movement of persons within the EU. As the CJEU stated in the case of Grzelcyzk in 2001, European citizenship aimed to be “the fundamental status of Member States’ citizens.”[2] This idea built on the case law and legislation of the previous decades. Whilst ‘freedom of movement’ was initially allowed on the basis of economic activity – securing the rights of workers and those wishing to provide or establish services in another EU member state – this narrow definition was subsequently relaxed by the CJEU in cases like Lebon and Antonissen,[3] and the implementation of regulations like 492/2011 (previously 1612/68) to include limited rights of movement for family members, for those seeking work, and for the non-economically active.

Furthermore, Articles 20 to 25 of the Treaty
For the Functioning of the European Union (TFEU) lays down a seemingly
extensive set of rights that derive from EU citizenship. It is important to
note that some of these rights apply only to EU citizens and do not include third
country citizens; access to social security, residency and – more broadly –
equal treatment as examples, although legislation including the Citizen’s
Rights Directive (2004/38) allows non-EU family members to enjoy rights derived
from the status of a relative who is an EU citizen. This approach has been bolstered
by the CJEU’s judgments in cases like Baumbast
and Bidar,[4]
where it stated that these secondary or derivative rights directly facilitated
the fundamental, primary right to free movement as one of the three key
freedoms of the EU.

However, while the CJEU’s interpretation of
directives and rights conferred by EU treaties has been generous in the past,
suggesting the freedom of movement and residence within the territory of Member
States is a core right for EU citizens, it has considerably narrowed the scope
and extent of its enjoyment in the last few decades, delineating limitations
and conditions laid down in primary and secondary EU legislation. Its case
law also shows that the extent to which EU citizens enjoy equal treatment is contingent
on their economic activity, their level of integration in a host member state,
and the kind of welfare or social security they want to access.[5]
Furthermore, although the derogations from free movement and the direct
discrimination allowed under Article 45 TFEU is often interpreted strictly, they
remain broad in application – the UK has successfully negotiated derogations
preventing the free movement of citizens of new member states on grounds of
public policy and security, for example.           

Although these limits on free movement often
focus on the rights of EU citizens in
a host EU country rather than their ability to move to that country in itself,
curtailing these rights can act as a direct impediment to free movement
overall. This move towards conditional, rights-restricted movement has become
more noticeable in the last decade as a direct result of member states’
increasing concerns about the socio-economic burdens of disproportionate
migration between richer and poorer EU states, including the costs of ‘benefits
tourism’ on public services and the economic disadvantages of immigration for
national citizens in those states. When looking at the different priorities and
factors the CJEU has had to balance, it is clear that while EU institutions
have placed citizenship of the Union at the core of free movement to some
extent, in practice these freedoms are not determined by the simple possession
of EU citizenship.

The Central Role of EU Citizenship: Restrictions on Third Country Nationals

Perhaps the most compelling argument for the role
of EU citizenship as key to free movement in the EU is the simple fact that only European citizens benefit fully
from the level of free movement and all subsequent rights to equal treatment conferred
by EU treaties. Third country nationals (non-EU citizens who live in an EU
member state) are usually excluded from the enjoyment of these rights.

Although EU case law allows for non-EU
citizen’s residence when it involves the rights of an EU citizen – in Zambrano,[6]
for example, the CJEU ruled that Article
20 TFEU precluded a host state from refusing residence for a non-EU national
upon whom a minor EU-citizen was dependent, extending its own principle in
the earlier case of Chen[7]
– these cases concerned questions of over the right residency in one EU member
state only. A Zambrano carer as a non-EU national, for example, cannot move freely between
member states, and cannot claim equal treatment or the same rights to social
security as enjoyed by EU citizens. Factors used to evaluate their right of
residency include having health insurance and evidence of financial
self-sufficiency. In cases like Zambrano, the CJEU made it clear that a
non-EU national’s right to reside was derived from that of an EU citizen, but
that their status was not the same– residency was granted in order to allow
that EU citizen to fully enjoy their own rights. As R v SSHD ex p Sandhu
confirms,a non-EU family
member would therefore lose their residency rights in the original member state
if the EU citizen from whom this right derived moved to another EU country.[8]

As such, non-EU nationals legally residing in
an EU member state enjoy little to no freedom of movement. If a non-EU national
wishes to move to another member state for over three months, they must apply
and go through the immigration processes of that state. Whilst their movement is
unrestricted within the member state
in which they legally reside, a non-EU national’s ability to move between member countries and to enjoy
equal treatment in those states is therefore restricted. Having citizenship of
an EU country determines your fundamental right to free movement within the EU more
broadly, as well as the enjoyment of the social and economic benefits of its
member states.

Baumbast: Extending Free Movement & Residency to Economically Inactive Citizens

In
addition to making a clear distinction between the status of third-country
nationals and member state citizens, the CJEU has also relaxed the economic requirements
for free movement to allow non-economically active citizens, those seeking
work, and EU family members of workers to move within the EU, most notably
under the Citizen’s Directive, 2004/38 and others, like Directive
73/148.[9]
These pieces of legislation, coupled with the now binding EU Charter for Human
Rights[10]
have allowed the Court to separate an individual’s right to remain in another
member state from their economic status (as a worker or non-worker) and to derive
it directly from their status as an EU citizen in itself (or a dependent of an
EU citizen exercising their treaty rights).[11]

This
right to move and reside for non-economic reasons was laid out in the key case
of Baumbast, which was decided shortly
after Grzelczyk. In Baumbast, the CJEU was asked to look at
the direct effect of Article 18(1) TEC (now Article 21 TFEU) or the exact scope
of the right to move and reside within the EU. Mr Baumbast, a German national, had
been refused a renewal of his residence permit by the British government after
he had stopped working in the UK, although his family continued to live a
settled life in the country (his children were attending school, for example).
In reviewing the facts of his case, the CJEU ruled that the TFEU did not
require EU citizens to pursue economic activities in order to exercise and
enjoy their rights. As a national of an EU member state (Germany) and therefore
of the EU itself, Mr Baumbast was entitled to live in another member country under
Article 18(1) TEC (Article 21 TFEU),[12]
regardless of his employment status.

The
CJEU therefore made it clear that the right of residence under Article
18(1) TEC was conferred on every EU citizen. As such, Mr
Baumbast’s children were allowed to stay on in the UK to complete their
education after their father became unemployed, and Article 8 ECHR was engaged.
The Court stated that even if the children’s rights to education could only be
derived from Article 12 of Regulation 1612/6846, which ensures that the children
of an EU member state national enjoy the same access to and level of education
as the nationals of another member state in which they reside, this article had
to be interpreted in line with Article 8 ECHR.[13]
Similarly, even if Mr Baumbast had no right to reside in the UK under any other
EU law, his and his children’s right to a family life under Article 8 meant
that he should be granted a corresponding right of residence as they were
dependent on him as a primary carer (this was also the case in Zambrano, for example, as discussed
previously).

Judgments
in cases like Baumbast have been
further consolidated by the Citizenship Directive, Regulation 2004/38, which
outlines different kinds of residency status, including rights to reside of
family members. Article 7 of the Directive, for example, allows an individual to
be resident in an EU member state for up to 3 years depending on their status
as a verified job seeker. The CJEU has been able to extend free movement for almost
all EU citizens as a direct result of this, and has also extended the
application of the principle of non-discrimination in Article 18 TFEU, too, allowing
economically inactive EU citizens parity of treatment in terms of access to the
same social security and benefits as the nationals of their host countries.[14]

When
looking at these developments, it is clear that the Court has expanded the
secondary rights that derive from EU free movement laws in order to allow EU
citizens to enjoy their fundamental rights (non-discrimination, or their ECHR
rights, for example) whilst steadily eroding the original economic basis used
to justify the granting or restriction of these rights[15]
at the same time. Using EU citizenship as a means to do so has been central to
this process, defining free movement and residency as rights contingent on
citizenship in and of itself rather than on economic activity.

EU Citizenship: Conditional (But Not Unrestricted) Free Movement?

However, it is important to consider the limitations
placed on the free movement of EU citizens by other legislation. Whilst the
principle of non-discrimination and the free movement rights of EU nationals has
been increasingly determined by their EU citizenship rather than economic
activity, these rights have been qualified by laws looking to address security concerns
and manage disproportionate financial strains on the public services of member
states due to inter-state migration. Most crucially, EU nationals lose their right
to reside in a host member state if they are found to be an “unreasonable
burden” on that country’s public purse.[16]
Directive 2004/38, whilst extending the rights of an EU citizen’s family
members, for example, also limits the right to reside for over three months to
certain ‘categories’ of people – students, workers or the self-employed (and
family members), and the “self-sufficient”. Furthermore, any students in a host
EU state can only reside there if they have adequate health insurance (in order
to cover any potential expenditure by that state’s public services), and must
declare they have sufficient resources; conditions the CJEU outlined in Bidar.[17]

In recent years, the CJEU has more clearly
defined these limitations to provide greater precision and less breadth of
generosity in the interpretation of free movement law. In the seminal judgment in
Dano, the Court stated that an EU citizen from another member state would
lose their a right to reside in a host state under EU law if they had
moved there for the ‘sole purpose’ of claiming social security.[18] In Brey, it allowed member states to place
conditions on an EU citizens right to reside (e.g. having residency for a
certain length of time) in order for them to become eligible for other social security
benefits rather than just social assistance benefits (income support,
for example, versus job-seeker’s allowance).[19] Whilst
this did not strictly discriminate against EU citizens in comparison to host
country nationals (they were still, in theory, entitled to the same benefits),
it gave member states significant discretion in the full implementation of
EU-law rights of residency and in determining their own conditions for
eligibility for welfare. By allowing member states to place conditions on
welfare assistance, the Court in effect allowed member states to greatly limit the
viability of movement for those EU citizens without the financial resources or sufficient
job security to remain largely independent of a host state’s welfare system.

This position was confirmed in cases like Alimanovic and Garcia Nieto,[20]
where the CJEU emphasised that EU nationals did not have the right to social
assistance during the first three months of their stay in a host member state,
or if they were determined to be a job seeker (this included unemployment
benefits). EU citizens seeking jobs were therefore only entitled to social
assistance that facilitated access to the jobs market and helped them find
employment, but could not claim benefits by virtue of their unemployed status.
In Commission v UK, furthermore, the
CJEU extended this principle to cover all social security benefits, not just
social assistance benefits. Employed EU citizens had to prove that they were
engaged in genuine and effective work, and like students under Bidar,
those who were economically inactive would have to be self-sufficient in order
to continue to exercise Treaty rights in another member state.[21]

These cases demonstrate that whilst EU
citizenship does, in theory, allow nationals of member states to move and
reside relatively freely within the EU, the CJEU has been sensitive to rising
concerns about ‘benefits tourism’ and the effects of migration within the bloc.
Being an EU citizen therefore entitles a member state national to free movement
within the EU, but their exercising of this right is circumscribed by other kinds of criteria (their
socio-economic status, for example) which can greatly restrict their ability to
move – directly and indirectly – by limiting their access to other rights in
host states.

The Continued Relevance of an EU Citizen’s Economic Status

When looking at conditions placed on individuals exercising free movement rights, it is therefore clear that a person’s economic status still determines the extent and kind of free movement they can enjoy as an EU citizen. As discussed previously, under Article 24 of Directive 2004/38, member states can withhold access to most welfare benefits from all economically inactive citizens during the first three months of residency, except for workers and their family members, and students. Under Regulation 492/2011, workers also enjoy equal treatment and access to employment in comparison to the economically inactive.[22] Furthermore, the entitlement of an EU worker or EU citizen’s family members to enjoy the same rights as that worker is usually derived from the latter’s economic status; they are ‘parasitic’ on the rights of the economically active EU citizen in question.

On this basis, it is clear that any EU nationals who fall
outside the categories of economically active and economically inactive
(or a dependent) do not have the right to equal treatment, as they do not have
the legal right to reside in and of itself in another EU member state.[23] This
acts an effective indirect barrier to migration for these EU citizens, as the
discretion afforded to member states to withhold most social security benefits
from citizens who are unemployed or cannot prove their self-sufficiency is a
prohibitive factor against free movement in reality.

How Do Derogations Under Article 45 TFEU Effect Free Movement?

It is also important to examine the scope and
impact of the derogations allowed under Article 45(3) TFEU, which enable member
states to restrict free movement for allpersons including EU citizens providing
their grounds are adequate and it falls under the categories listed in the
Treaty. Article 45 states that the rights to reside and move freely between EU
countries for economic activities and to reside in a host state as an
economically inactive EU citizen are subject to ‘limitations justified on
grounds of public policy, public security or public health’.[24] Member
state governments can therefore adopt restrictive measures on a case-by-case
basis, relying on any of these three grounds. In recent years, member states have
been permitted to temporarily derogate from their obligations under the TFEU in
order to minimise the impact of migration from new member states upon their own
national labour markets. The UK government, for example, used a ‘worker
registration scheme’ until 2011; it ensured EU citizens from new member states
were not entitled to any unemployment or non-job-seeking social security
benefits until they had completed at least 12 months of registered work in the
country. If an EU citizen in the UK failed to remain in employment for the
requisite year, or to meet the conditions of the registration scheme, they
would not qualify for these benefits, and their time in employment would not
count towards the total number of years needed to gain the permanent right to
reside.[25]

Article 45(4) TFEU also adds another key exception
– that the free movement provisions do not apply to public service employees,
so that positions involving the exercise of powers granted by public law and
the undertaking of sensitive duties meant to safeguard the interests of a
member state is reserved for nationals only. However, this does not allow for
direct discrimination – EU citizens cannot be treated differently to nationals
once they have entered the host state’s labour market. In Commission v Belgium, for example, the CJEU ruled that although
there were legitimate exceptions in cases where a position required a ‘special
relationship’ or the ‘bonds of nationality’ between a government and its
peoples in order to fulfil the function served, a blanket public sector
employment ban on non-member state EU citizens was unlawful and failed to
satisfy Belgium’s other obligations under the TFEU.[26]

Clearly, the fact that these derogations are
permitted show that the rights to move and live freely by virtue of having EU
citizenship are not unrestricted. There
are exceptions to the principle of non-discrimination on grounds of
nationality. The rights granted to an individual as an EU citizen have to be
considered alongside other crucial concerns, like the economic interests and
the general security of member states and the Union itself. Despite the CJEU
continually narrowing the scope of and defining the guidance on the way
national governments can apply these exceptions,[27] these
derogations remain important for member states, and the case law demonstrates
the way CJEU has counterbalanced the placement EU citizenship at the core of
free movement rights against a recognised need to have restrictions and limitations
in place for citizens exercising these rights in the interests of member
states.

Conclusion: Freedom of Movement in Principle, Conditional in Practice

When looking at the case law and legislation on free movement and EU citizenship, it seems clear that the extent to which EU citizenship is key to enjoying freedom of residence and movement within the EU has depended on the CJEU’s attempt to find a careful balance between the rights of individual citizens and the interests of member states. To be an EU citizen, individuals have to first be a national citizen of a member state – connecting these two forms of status has allowed the CJEU to distinguish between categories of residents and to give member states flexibility in their implementation of EU law.[28] This has created a unique, if incrementally changing approach to newer issues like immigration and the ultimate need to uphold the fundamental freedoms upon which the EU is based.

The CJEU
has therefore been generous in its interpretation of EU law and has
increasingly used EU citizenship as the basis for free movement rights in theory,
whilst limiting the ability of EU citizens to enjoy them indiscriminately in practice; allowing
member states to grant different types of residency status to EU citizens based
on economic and social criteria determined by national governments. By justifying
this practice through its case law, the CJEU allows effective restrictions on
free movement in reality whilst maintaining freedom to move and reside in other
countries in principle. EU institutions have attempted to address state
concerns about migration and security by creating a legal definition of EU
citizenship is based on, rather than independent of, member state nationality,
at the core of free movement rights.

As such, meeting the conditions set by EU
case law in order to exercise full free movement rights is still linked closely
to being economically active. Although the EU has relaxed the traditional
principle of free movement of workers to allow economically inactive citizens a
right to reside in other countries under EU law – job-seekers, students and
family members, as defined in Directive 2004/38, for example, this is not unlimited
or uncontrolled freedom of movement. The ability of an EU citizen to move
between member states is primarily dictated by their employment status as
determined by their host state’s government and its labour market; their
potential reliance on national welfare systems, and an assessment of their economic
self-sufficiency. In this sense, EU citizenship is at the core of an
individual’s ability to move between countries, but the scope of this freedom
to move and entitlement to equal treatment is constrained by other factors, often
in the form of conditions put in place by member states themselves. The CJEU has carefully extended freedoms of movement and its
derivative rights to almost all EU citizens, but it is clear that member
states still have substantial control over which
individuals, how and when EU citizens
get to exercise these rights fully.

Bibliography

Table of Cases

Case 115-116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665.

Case 149/79 Commission
v Belgium [1980] ECR 3881

Case
293/83 Gravier v
City of Liege [1985]
ECR 593

Case 316/85 Courc’e’iles
v Lebon [1987] ECR
2811,

Case 67/74 Bonsignore
v Oberstadtdirektor der Stadt Köln [1975] ECR 297.

Case C-140/12 Pensionsversicherungsanstalt
v Peter Brey

Case C‑33/07
Jipa [2008] ECR I‑5157

Case C-184/99 Rudy Grzelczyk v Centre Public
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Case C-207/78 Ministere
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Case C-209/03 R (Bidar) v London Borough of Ealing, [2005] ECR I-2119. 

Case C-267/83 Diatta v
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Case C-292/88 R
v Home Secretary, ex p Antonissen [1991] ECR I-745

Case C-299/14 García-Nieto, EU:C:2016:114.

Case C-308/14 Commission v United Kingdom. EU:C:2016:436

Case C-34/09 Zambrano v. Office national de l’emploi (ONEm) 8 March [2011] ECR I-nyr

Case C-370/90 R v
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Home Department [1991] ECR I-4265

Case C-67/14 Jobcenter Berlin Neukölln v Nazifa, Sonita, Valentina and Valentino Alimanovic [2015] Alimanovic [2015] WLR (D) 384

Case C-85/96 Maria
Martinez Sala v Freistaat Bayern [1998]
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Case C‑200/02 Zhu
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Case C‑333/13 Dano v
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R v The Secretary of State
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EU Legislation

Primary Legislation

Consolidated
version of the Treaty on the Functioning of the European Union, 13 December
2007, 2008/C 115/01

Treaty of Lisbon
amending the Treaty on European Union and the Treaty establishing the European
Community [2007] OJ C306/01

Charter of
Fundamental Rights of the European Union: 2010 O.J. (C83) 389

Treaty on
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Secondary Legislation

Council Directive 90/364/EEC on the
right of residence for persons of sufficient means (OJ L 180, 13 July 1990, pp 30–31)

Council Directive 90/365/EEC (OJ L 180, 13 July 1990, pp 28–29);

Council Directive 90/366/EEC on the
right of residence for students (OJ L 180, 13 July 1990, pp 30–31),

Council Directive 2004/38/EC, 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 (OJ L 158/77, 30 April 2004, pp 77–123)

Council Directive 73/148/EEC, 21 May
1973 on the abolition of restrictions on movement and residence within the
Community for nationals of Member States with regard to establishment and the
provision of services.

Council Regulation 883/2004/EC on the
coordination of social security systems, (OJ L 200/1, 7 June 2004, pp 1–49)

Council Regulation. 492/2011 on
freedom of movement for workers within the Union (codification) Official Journal of the European Union L141 of 27.5.2011

Council Regulation 987/2009/EC laying
down the procedure for implementing Regulation 883/2004/EC on the coordination
of social security systems, (OJ L 284/1, 30 October 2009, pp 1–42).

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[1] European
Union, Treaty on European Union (Consolidated Version), Treaty of
Maastricht, 7 February 1992.

[2]  Case
C-184/99 Rudy Grzelczyk v
Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve (CPAS) [2001] ECR I-6193

[3] Case 316/85 Courc’e’iles v Lebon [1987]
ECR 2811, Case C-292/89 Antonissen [1991] ECR I-745

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

[5] Damay
L and Mercenier H, ‘Free movement and EU citizenship: a virtuous circle?’
[Routledge] 23 Journal of European Public Policy 1139 at pg. 3

[6] Case C-34/09 Zambrano v. Office national de l’emploi (ONEm) [2011] ECR I-nyr

[7] Case C‑200/02
Zhu and Chen [2004] ECR 1-9925.

[8]  R v The Secretary of State for the Home Department ex parte Amarjit Singh Sandhu CA, [1983] Imm AR 61.

[9] Council Directive
73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and
residence within the Community for nationals of Member States with regard to
establishment and the provision of services

[10] Convention
for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR)

[11] O’Neill, A, ‘Free Movement Of EU
Citizens Within The EU’, Matrix Chambers. (2011), pg. 6.

[12] Case C-413/99 Baumbast, para. 80.

[13] Case C-34/09 Zambrano, paragraphs
41-2.

[14] Thielemann E and Schade D, ‘Buying into
Myths: Free Movement of People and Immigration’ (Hoboken) [Wiley-Blackwell]
87 Political Quarterly 139.

[15] Damay L and Mercenier H, ‘Free
movement and EU citizenship: a virtuous circle?’ pg. 3.

[16] Directive 2004/38/EC, 29 April 2004.                                                                       

[17] Case C-209/03 R
(Bidar) v London Borough of Ealing, paras
39–40.

[18] Case C‑333/13 Dano v Jobcenter Leipzig (2014), para 89.

[18] Case C-140/12 Pensionsversicherungsanstalt v Peter
Brey, para
41.

[20] CaseC-67/14 Jobcenter Berlin Neukölln v Nazifa,
Sonita, Valentina and Valentino Alimanovic [2015] and Case C-299/14 García-Nieto, EU:C:2016:114.

[21] Case C-308/14 Commission
v United Kingdom.

[22] Regulation (EU) n. 492/2011 on freedom of
movement for workers within the Union (codification) Official Journal of the European Union L141 of 27.5.2011, pg. 1

[23] Koutrakos P, Nic
Shuibhne N and Syrpis P, Exceptions from EU free movement law: derogation,
justification and proportionality, vol 66. (Hart Publishing 2016), pg. 45.

[24] European Union, Consolidated
version of the Treaty on the Functioning of the European Union, 13 December
2007, 2008/C 115/01

[25] Koutrakos P., Nic
Shuibhne N. and Syrpis P., Exceptions from EU free movement law: derogation,
justification and proportionality, vol 66. (Hart Publishing 2016), pg. 32

[26] Case 149/79 Commission v Belgium [1980]
ECR 3881

[27] Case
C‑33/07 Jipa [2008] ECR I‑5157 at paragraph 23, where it states
that “justification for a derogation from the fundamental principle of free
movement of persons, those requirements must be interpreted strictly, so that
their scope cannot be determined unilaterally by each Member State.”

[28] A Dashwood and S O’Leary (eds), 2e Principle of Equal Treatment in E.C. Law
(Sweet and Maxwell, 1997) pp. 105–136.