FREE MOVEMENT OF EU CITIZENS WITHIN THE EU
- Introduction
1.1The right of EU nationals to move freely between the Member States is absolutely central to the EU project. With the foundation of the European Union and the increasing reach of its influence over domestic legal systems, the concept of European citizenship, the modern manifestation of free movement of persons, is of prime importance. The implementation of this right within the UK necessitated huge changes not only to the law governing immigration (so as to permit the entry and residence of those endowed with EU law rights of free movement), but also to a diverse range of other rules and regulations – such as those governing social security benefits and student grant allocation – so as to guarantee that EU nationals are treated equally once they have entered the UK. The status of EU citizen looks certain to provide the impetus for the removal of many of the remaining vestiges of discrimination against nationals of other Member States. But this deregulation to facilitate the readier cross-border movement of EU nationals within the borders of the EU may be considered as only the 'first circle' of the EU law concerning the free movement of people.
1.2The regulation of non-EU nationals who migrate to the EU and take up economic roles may be consider to form the 'second circle' of EU Treaty free movement law or EU migration law. Classically the position of 'economic migrant' to the EU was occupied by the so-called Gastarbeiter, primarily of Turkish origin, who moved in significant numbers to Germany from the 1960s on. Other EU Member States have attracted foreign workers from other non-EU countries. In the case of France and the UK, particular links exist with those now independent countries which formerly were taken up in the colonial ventures or imperial projects of these nations: thus France has a large community of residents emanating from the Maghreb and sub-Saharan Francophone Africa; while the UK has significant connections with communities of people having their immediate origins in the countries of south-east Asia, east and west Africa, and Australasia. Following the collapse of the Soviet bloc and prior to their admission as full Member States of the EU, economic migration from the States of central Europe (Mitteleuropa) was of concern to the EU legislature and to some of the existing Member States, anxious about an influx of Polish plumbers,[1] or Romanian builders or Hungarian musicians threatening to take, say, 'German jobs from German workers', or 'French contracts from French contractors'. The primary instrument of this branch of EU migration law was via the conclusion of Association Agreements between the EU and the States of origin of these 'guest workers'.[2] But further legal issues arise when the originally foreign 'guest workers' and their families stay on in the EU and become, effectively, permanent settlers.[3]
1.3Of increasing importance in recent years has been the large number of people crossing the external borders of EU to seek protection from persecution or endemic violence, whether State-sponsored or resulting from State failure. The 'third circle' of EU law concerned with the movement of peoples is, therefore, EU asylum law. But because EU asylum law is concerned with admission to a transnational area which aspires to the abolition of any official marking or policing of its internal national boundaries, it can properly be understood only against a background of understanding the development of the principles of free movement for EU citizens, and of rights of residence of those formerly known in EU-speak as 'extra-Communitarians' (though perhaps now more properly referred to as 'extra-Unionists').
2.The Concept of the EU Citizen in the EU Treaties
2.1Article 9 of the Treaty on European Union (TEU) provides that:
“Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship”.
No discrimination on grounds of (other) EU nationality
2.2Article 18 of the TFEU sets out the general prohibition of discrimination on grounds of nationality 'within the scope of application of the Treaties' and provides a legal basis for the EU legislature to make 'rules designed to prohibit such discrimination'.
EU citizenship rights
2.3Article 20(1) TFEU re-confirms the concept of EU citizenship which is automatically afforded to and supplements the national citizenship of 'every person holding the nationality of a Member State'.
2.4While the conferring on individuals of rights associated with national citizenship remains wholly within the exercise of the sovereign power of the Member States,[4] the withdrawal of national citizenship rights or status once conferred may bring matters within the ambit of EU law (and the supervision of the CJEU).
2.5Thus in Rottmann v Bavaria[5]the Grand Chamber of the CJEU found that as a result of the establishment of the concept of EU citizenship a Member State’s power – in relation to its own nationals - to lay down the conditions for the possible loss or deprivation of that of nationality now required to be exercised with due regard to the principles of EU law. The fact that such issues fell centrally within the legal competence of the Member States did not preclude the concurrent application of EU law in this area. Because the exercise of that Member State power against its own national also directly affected the rights conferred on that Member State’s national qua EU citizen, the matter was held to fall within the ambit of EU law. Among the rights conferred by EU citizenship are:
a)the right to move and reside freely within the territory of the Member States (Article 20(2)(a) TFEU). In Zambrano v Office national de l’emploi (ONEm)[6]the Grand Chamber of the CJEU held that Article 20 TFEU was to be interpreted as meaning that it precluded a Member State (Belgium) from refusing a third country national (upon whom his minor children, who were Belgian and hence European Union citizens, were dependent) a right of residence in Belgium as the Member State of residence and nationality of those children, and from refusing to grant a Belgian work permit to that third country national, in so far as such decisions deprived those children of the genuine enjoyment of the substance of the rights attaching to their status of European Union citizens. Thus the Grand Chamber interpreted the EU citizenship right set out in Article 20(2)(a) TFEU ‘to move and reside freely within the territory of the Member States’ as conferring — as a matter of EU law — on each and every EU citizen a primary right of residence within the Member State of which the EU citizen was also a national, and from which the EU citizen’s relatives could also derive secondary rights of residence within that State without need for any prior exercise of EU free movement rights to other Member States. [7] Article 21(2) TFEU gives the legal basis for the EU legislator 'to adopt provisions with a view to facilitating the exercise' of the right ‘to move and reside freely within the territory of the Member States’.[8]
b)the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections [9] in their Member State of residence, under the same conditions as nationals of that State (Article 20(2)(b) TFEU). In Eman and Sevinger v Netherlands[10] the Grand Chamber of the CJEU held that as a matter of EU law: (i) EU citizens had a right to vote in elections to the European Parliament regardless of whether they were residing in another Member State of which they are not nationals (ii) and that this right could be prayed in aid and directly relied upon by EU citizens against the Member State of which they were nationals to prevent unequal treatment by that Member States among its own nationals on the issue of this right to vote.[11] Separately, Article 22 TFEU provides the legal basis for a unanimous Council, after consulting with the European Parliament, to make detailed arrangements regarding the exercise of the right of every EU citizen resident in a Member State of which he is not a national – under the same conditions as that State’s own nationals – to vote and to stand as a candidate at that Member State’s municipal elections;[12] and in elections to the European Parliament in that Member State.[13]
c)the right to enjoy diplomatic and consular protection from the authorities of any other Member State on the same conditions as the nationals of that State, in third countries where their own Member State is not represented (Article 20(2)(c) TFEU). Article 23 TFEU requires Member States to adopt the provisions – if necessary, in accordance with any relevant EU directives establishing coordination and cooperation measures – and to start the international negotiations required to secure the entitlement of every EU citizen when in the territory of a third country in which the Member State of which he is a national is not represented, to protection by the diplomatic or consular authorities of any other Member State on the same conditions as the nationals of that State.;
d)the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the EU in any of the (currently 23) Treaty languages,[14] and to obtain a reply in the same language (Article 20(2)(d) TFEU). These rights are repeated in the same terms in Article 24 TFEU, which also provides a Treaty basis for the making of EU regulations setting out the procedures and conditions required for a citizens’ initiative within the meaning of Article 11 TEU.
The EU Charter of Fundamental Rights on Free Movement and the EU Citizen
2.6Article 15(2) of the EU Charter of Fundamental Rights (CFR) provides that
every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.
This Charter provision simply summarises the three fundamental freedoms – freedom of movement for workers, freedom of establishment and freedom to provide services – which are set out and guaranteed by Articles 26, 45, 49 and 56 TFEU.
2.7Article 21(2) CFR states that
within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
This Charter provision simply corresponds with and reflects the terms of Article 18(1) TFEU noted above. The Treaty prohibition against nationality discrimination has direct horizontal effect, and can therefore be prayed in aid by any individual before a national court of a Member State.[15] Further, the prohibition on nationality discrimination has been held to cover not only direct but also covert or indirect discrimination,[16] so that imposing criteria such as the place of origin or residence of a worker could be tantamount, in their practical effect, to discrimination on grounds of nationality.[17]
2.8Article 39 CFR restates the already noted EU citizen’s right to vote and to stand as a candidate at elections to the European Parliament – conducted under conditions of a free and secret ballot under direct universal suffrage; which body, under Article 44 CFR, any EU citizen (as well as 'any natural or legal person residing or having its registered office in a Member State') may then petition. Article 40 CFR repeats the EU citizen’s right to vote in and stand for Member State municipal elections; Article 43 CFR reiterates the EU citizen’s right to apply to the European Ombudsman; and Article 46 CFR again mentions the EU citizen’s right to diplomatic and consular protection from other EU Member States.
2.9Article 45 CFR reflects the right already guaranteed by Article 20(2)(a) TFEU, stating that 'every citizen of the Union has the right to move and reside freely within the territory of the Member States'. In Baumbast,[18] the Court of Justice expressly disengaged the free movement rights – which had originally been granted under the Treaty of Rome essentially to migrant workers – from any need to be economically active, finding instead that the status of being an EU citizen was sufficient to confer a right to residence in another Member State by virtue of the direct application of Article 21(1) TFEU (formerly Article 18(1) EC).
2.10In Konstantinidis v Stadt Altensteig, Advocate General Jacobs suggested in his Opinion that wherever an EU national goes to earn his living anywhere in the EU, he should be
entitled to assume that, wherever he goes ... in the European Union he will be treated in accordance with a common code of fundamental values, in particular those laid down in the European Convention on Human Rights. In other words, he is entitled to say ‘civis europeus sum’and to invoke that status in order to oppose any violation of his fundamental rights.[19]
2.11The grandiloquence of this statement and the sentiments underlying it are rather belied by the subject matter of the case, which involved a dispute about the correct spelling or transliteration into the Latin alphabet by the German authorities of the claimant’s Greek name.[20]
Free movement and the EU citizen
2.12A now standard cut-and-pasted passage from the case law of the CJEU is that:
The status of citizen of the Union is destined to be the fundamental status of nationals of the member states, enabling those among such nationals who find themselves in the same situation to enjoy the same treatment in law within the area of application ratione materiae of the EC Treaty irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard…[21]
2.13Each Member State remains entitled to determine the scope of its own nationality laws: under UK law, British citizens, British subjects with a right of abode in the UK and Gibraltarians qualify as British nationals for EU law purposes, and in this last case accordingly have a right to vote as part of the UK constituency in elections for the European Parliament.[22] As might be assumed from this, the territorial scope of the rules on free movement of EU citizens extends to Gibraltar. The rules do not, however, apply to the Channel Islands or to the Isle of Man.
2.14But nationals of the Member States, whatever their economic status, are also EU citizens; and the TFEU recognises that the EU citizen has the right to leave his own country and move to another Member State. This need not necessarily be for the purely economic reasons or motives covered by the original free movement provisions of the Treaty of Rome. That said, however, the underlying economic rationale of the original provisions of the Treaty of Rome means that distinctions continue to be made in the case law and EU secondary legislation between:
a)those who move abroad to work, whether in an employed or a self-employed capacity;
b)those who seek to study or take up vocational training abroad;
c)those who choose to retire abroad; and
d)those who move abroad simply because they can afford to and do not need or want to work.
2.15All of these categories are now dealt with in the consolidating provisions of the Citizenship (Free Movement) Directive 2004/38/EC, which sets out the various free movement rights and entitlement of EU citizens – whether they are workers, self-employed, students or trainees, retired or independently wealthy – and their family dependents.[23]And with a view to facilitating the freedom of movement of EU nationals, EU law grants dependent rights to the family members (regardless of their nationality) of EU nationals. Thus large numbers of non-EU nationals may claim the protection of EU Treaty free movement law on this dependent basis.[24]
Initial right of three-month residency
2.16Article 6 of the Citizenship (Free Movement) Directiveprovides that EU citizens have the right of residence in the host Member State for a period of up to three months without being subject to any conditions or any formalities, other than the requirement to hold a valid identity card or passport. This provision is without prejudice to any more favourable treatment which can be claimed by those EU citizens seeking to find work in that Member State: under the case law of the Court of Justice, such EU jobseekers may enter and stay for a sufficient period to apprise themselves of appropriate job opportunities.[25] As the Court has observed:
36.Nationals of a Member State seeking employment in another Member State fall within the scope of Article 39 EC [now Article 45 TFEU] and therefore enjoy the right to equal treatment laid down in paragraph 2 of that provision (Case C258/04 Ioannidis [2005] ECR I8275, paragraph 21).
37.Furthermore, in view of the establishment of citizenship of the Union and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State (Case C138/02 Collins [2004] ECR I2703, paragraph 63, and Ioannidis, paragraph 22).
38.It is, however, legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State (Case C224/98 D’Hoop [2002] ECR I6191, paragraph 38, and Ioannidis, paragraph 30).[26]
2.17Under Article 14(1) of the Directive this initial three-month right of residence is dependent on the EU citizen and family members not becoming an unreasonable burden on the social assistance system of the host Member State. Member States are permitted under Article 24(1) of the Citizenship (Free Movement) Directive 2004/38/EC to decide whether to give access to any social assistance during these first three months of residence (or for such longer period of entitled initial residence in the case of EU jobseekers) to EU citizens.