European Union: Free Movement of Persons

Introduction

Since 1957, the treaty founding the EEC has contained provisions to ensure the free movement of workers within the European Union (in addition to Norway, Iceland and Lichtenstein). This was to allow mobility within the single market. The basic principle is laid down in Article 45 TFEU.

The purpose was to allow labour to move around the EEC from areas where labour was in higher surplus, to areas where labour was in higher demand.

Other relevant EU rules include:

Article 20 -Establishes the concept of Union Citizenship

Article 48 - Reduce barriers caused by differing national social securities.

Article 49 - Reduce barriers for individuals wishing to move to another State for business or self-employment reasons.

Article 56 - Reduce barriers for individuals who want to provide and receive services.

Article 20 TFEU - Union Citizenship

Following the Maastricht Treaty (1993) provisions on ‘EU citizenship’ were included (Now Articles 20-25 TFEU) – this was a status automatically attained by nationals of Member States.

D'Hoop - Article 20 has direct effect. (D'Hoop)

Non-Economically Active Persons

Three Non-Economically Active groups permitted Freedom of Movement by directives.

  1. Retired Persons Directive 90/365*
  2. Students Directive 93/96*
  3. Those of Independent Means (The 'playboys directive') Directive 90/364*

*Note that these three directives have now been repealed and rolled into the CRD.

Citizen's Rights Directive (CRD) (2004/38)

This repealed, replaced or amended much of the earlier legislation (with the notable exception of Regulation 1612/68 on freedom of movement for workers) and simplifies and strengthens the right of free movement and residence of all Union citizens. The CRD purports to implement what is now Article 21 TFEU and essentially codifies the right to move and reside freely by laying down common rules/rights for all Union citizens, albeit with some specific rules applying to certain categories of citizen (ie those who are economically active, work seekers and students).

3 Main Categories of Beneficiary

  1. Article 45 TFEU (Workers)
  2. Article 49 TFEU (Establishment)
  3. Article 56 TFEU (Services)

Article 45 TFEU

45 (1) "Freedom of movement for workers shall be secured within the Union."

45 (3) Elaborates on various freedoms, read full text of Article.

Article 49 TFEU

Paragraph 1, "restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited."

Article 49 has direct effect (See case of Reyners v Belgium)

Article 56 TFEU

Paragraph 1, "restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended."

Article 56 has direct effect (See case of van Binsbergen)

ENFORCEMENT:

  • Individuals can enforce these rights against public bodies (Steinhauser v City of Biarritz)
  • Individuals can also enforce them horizontally against other private actors. (Walrave v Association Union Cycliste Internationale) The case of Angonese confirmed this as 'limiting discrimination prohibition to acts of public authorities risks creating inequality in its application.'

Companies

Articles 49 and 56 can be claimed by 'legal persons' which includes companies.

A company's nationality is determined by the MS in which it has its seat (Commission v France (tax credits).

Two main theories:
1. Siege Reel: A company is established where it has its main administration.

2. Siege Statutaire: A company is established where it has its formal head office.

Article 45 TFEU

Article 45 text
(ex Article 39 TEC)

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions
governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.


4. The provisions of this Article shall not apply to employment in the public service.

Ancillary Rights

Supporting Article 45 TFEU there are also a range of ancillary rights which make it easier for workers to move with their families, to receive the same social advantages as citizens of the country they are moving to etc. Most of this ancillary legislation was adopted in the late sixties to early seventies which expanded the scope of the Free Movement Of Workers. (FMOW)

Who Benefits From Free Movement Provisions?

Articles 20, 45, 49 and 56 TFEU have two common themes running through them in respect of who they apply to; these are:

  1. Nationality; and
  2. Migration v. Internal Situation

45, 49 and 56 have an additional requirement:
....3. Economic Nexus.

Nationality

Rights in Article 20 are granted to all European citizens. Article 20 defines European Citizens as 'Every person holding the nationality of a Member State.'
A 'worker' in Article 45 must be a national of one of the Member States.

To benefit from the freedom to provide services an EU national must be established in a Member State. In the case of Fidium Finanz AG v Bundesantalt a Swiss company providing credit services could not rely on Article 56 TFEU to challenge German rules.

The Double Requirement
This is when nationality and residence must both be satisfied, see the Scorpio case where a receipient of sercvices was contracting with a party in another Member State. Normally this would have been covered by Article 56, but the contracting party, although established in another MS, did not have the nationality. Thus the double requirement was not met.

Who is a national?
It is up to each Member State to decide for itself who is to be considered a national of that Member State.
Micheletti case, CJ held that the Spanish could not challenge the citizenship of Maicheletti, a half Italian, half Argentinian citizen simply because the Spanish didn't recognise dual citizenships.

Migration and Internal Situation

Relevant Cases

Case 66/85 Lawrie-Blum v Land Baden Wűrttemberg [1986] ECR 2121

Case 75/63 Hoekstra [1964] ECR 177

Case 53/81 Levin [1982] ECR 1035

Case 139/85 Kempf ECR 1741

Case 344/87 Bettray [1989] ECR 1621

Case C-292/89 Antonissen [1991] ECR I-745

Case C-456/02 Trojani [2004] ECR I-7573

Case C-85/96 Martinez-Sala [1998] ECR I-2691

Angonese - Discrimination law is horizontally effective, because it would create an unequal application if it was not equally applied to the acts of Public Bodies and private actors.

Chen - Catherine Chen was born in Northern Ireland where dual citizenship was permited. She was Irish. Member States can't challenge another MS's choice about refusing or restricting citizenship nationally. Thus, many Russian citizens living in Europe have been denied Union Citizenship.

D'Hoop - Article 20 has direct effect./Also, girl was studying abroad, parents were working back in home Member State. She was held not to fall within Article 45 as it was the parents who were the workers, and they had not moved from their state of origin. She fell within the Union law by virtue of Article 20 though.

de Coster case - The CJ accepted the potential for movement as sufficient to fulfill the movement requirement. De Coster concerned a tax on the isntallation of satelite dishes. Because the dishes were transnational and could receive transmissions from other Member States the CJ assumed a cross-border element.

Fidium Finanz AG v Bundesantalt a Swiss company providing credit services could not rely on Article 56 TFEU to challenge German rules.

Micheletti case, CJ held that the Spanish could not challenge the citizenship of Maicheletti, a half Italian, half Argentinian citizen simply because the Spanish didn't recognise dual citizenships.

Scorpio case where a receipient of sercvices was contracting with a party in another Member State. Normally this would have been covered by Article 56, but the contracting party, although established in another MS, did not have the nationality. Thus the double requirement was not met.

Nino case - An Italian law made it an offence to practice as a doctor without proper authorisation, Nino and other Italian nationals were charged as a result of this, they were biotherapists and pranotherapists. The CJ held that Article 49 did not apply as the situation was wholly internal in Italy.

Relevant Legislation

TFEU

Articles 20-25
Article 26
Article 45
Article 46
Article 48
Article 49
Article 56

Directives

Citizen's Rights Directive (CRD) (2004/38)

Regulations

Regulation 1612/68

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