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 d’Aide Sociale d’Ottignes-Louvain-la-Neuve (CPAS) [2001] ECR I-6193
Case C-207/78 Ministere Public v Even and ONPTS [1979] ECR 2019
Case C-209/03 R (Bidar) v London Borough of Ealing, [2005] ECR I-2119.
Case C-267/83 Diatta v Land Berlin [1985] ECR 567
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 Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the 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] ECR I-2691
Case C‑200/02 Zhu and Chen [2004] ECR 1-9925.
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Charter of Fundamental Rights of the European Union: 2010 O.J. (C83) 389
Treaty on European Union, 7 February 1992, 1992 O.J. (C191) 1, 31 I.L.M. 253.
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
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Bauböck, R, de Witte, F & Shaw, J (eds.) ‘Freedom of movement under attack: Is it worth defending as the core of EU citizenship?’ Robert Schuman Centre for Advanced Studies, EUI Working Paper RSCAS 2016/69.
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O’Leary S and others, ‘Developing an Ever Closer Union between the Peoples of Europe? A Reappraisal of the Case Law of the Court of Justice on the Free Movement of Persons and EU Citizenship’ [Oxford University Press] 27 Yearbook of European law 167
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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.
