The Free Movement of Persons under the European Union Law

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Table of Contents

Introduction
Free movement of workers
Free movement of students
Conclusion
Bibliography
Footnotes

Introduction

The free movement of people under the European Union law is set forth in Articles 14(7a) ECT, 1818(8a) ECT, and 61 (73i) ET Seq (IV).¹ The free movement of persons is meant to establish a free market. In order to achieve this, it was also deemed necessary to establish the free movement of capital, goods and services within the jurisdiction of the EU².

The efforts to establish a non-restrictive union have been met with several challenges and some resistance in other instances. Article 39 (ex 48) ECT allows the citizens of EU member states to look for job opportunities, move freely and reside in other member states. However, several limitations are attached to these provisions, such that the movement is not as free as it seems.

The rights mentioned above ought to be justifiable on the basis of public policy and health, as well as public security. Furthermore, the rights do not apply to any person seeking a job opportunity in the public service. A case that was solved in 1980 attempted to solve the problem set forth by the latter condition.

The public service commission held that EU member states ought to clearly tell the difference between public service job opportunities which lie within Article 39 such as the judiciary, police and diplomatic jobs, and those that are not governed by the service such as civil research and educational establishments³.

This paper aims at uncovering such tensions which arise from economic and human aspects of the free movement of persons within the EU. These tensions cannot be measured to any degree but it is agreeable that the EU law and case laws decided upon by the EU’s Court of Justice have played key roles in dealing with these tensions as they arise.

Free movement of workers

The original Treaty that formed the EU did not contain the humanitarian reasons establishing the free movement of persons. These were incorporated later via the Amsterdam Treaty⁴. Before this treaty, the ECT viewed people as economic actors and as such their free movement was allowed on the basis of participation in productive or economic activities. The current treaty that governs free movement of persons under the EU does not discriminate on citizens on the basis of their nationality.

The EU law has helped to deal with tensions by allowing member states to choose whether to allow, restrict or prohibit worker movement (commonly referred to as labor migration) from newly incorporated EU member states⁵. This choice is given bearing in mind that mass movement of unemployed people from a new member may disrupt the activities of the employed people in the already established state.

These restrictions only cover a period of seven years during which the restricting state has to communicate the reasons for restrictions to the Commission. This helps to protect the economic environment of the host country, although on a minimal level. The EU law advises member countries to open up their economic environments to free trade which involves free movement of persons, services, capital and goods.

Ideally, this is an imperative move in enhancing economic development but can be burdensome to some members due to unequal status of economy. This has been of concern to developed economies that run to the EU law for protection against unscrupulous measures that would emanate from developing economies.

The EU law provides for free movement of non-EU workers in an EU member state⁶. The non-EU family members have a conditional right to the freedom of movement within the EU. This is founded on their status as family members of the worker and their nationality. Directive 2004/38/EC allows for entry of non-EU family members into the host country of the worker⁷.

These could be spouses, descendants or dependent children and ascendants. The legal residence of the EU-citizen family member is the ultimate requirement for most cases⁸. It gives the non-EU member a right to reside in the host country. They also retain the right upon the demise of a spouse, separation and when the citizen stops working.

Permanent Residence (PR) is only allowed after five years of legally residing in the host country. Once issued with the PR, the non-EU family member can permanently reside in the host member state irrespective of the relationship with a citizen of the EU. An exception to this was justified in a 2011 case involving a Moldovan wife of a citizen from Romania.

The Irish court sets forth a denial of EU free movement of people’s rights⁹. The woman was denied entry into Ireland even after presenting her Residence Card and a marriage certificate. The Court of Justice is charged with the responsibility of interpreting and ruling on cases brought forth by member states.

In a bid to reduce economic and social tensions, the court has made numerous attempts of combating illicit unemployment, preventing social dumping and unfair competition among members. Its efforts in curbing disturbances to domestic labor markets can also not go unmentioned. Such cases are brought to the court as a way of enhancing protectionist measures aimed at safeguarding a member’s economic interests¹⁰.

The Court often uses the “test of proportionality” to rule on such issues and this plays a major role in reconciling the member interests with those of the EU. The Court of Justice at times justifies the discrimination based on nationality on the criterion of ‘objective grounds’ between citizens and non-citizens of EU member states¹¹.

For instance, the non-discriminatory provisions of Article 48 (2) ECT came into play in a 1998 case. The court held that “…nationals of a member-state shall enjoy, in the territory of another member-state, the same tax advantages as national workers”.¹²

The court had ruled in a similar case in 1994, where it asserted that indirect discrimination came into force in a scenario whereby a member state failed to evaluate the periods of public service work for a citizen of a different EU member. The two cases in point show how the Court of Justice helped to deal with tensions.

Free movement of students

For any student to be accorded the free movement within the jurisdiction of the EU he or she must fulfill two conditions; they must be in possession of adequate resources within their reach. This ensures that they are not a burden on the host country in terms of social aid. The second condition that they are subjected to is possession of health insurance in a bid to deal with risks that they would be exposed to in the receiving country¹³.

Students have a pre-condition of years of residence, when they are viewed as people who have been integrated fully into the host country. Thus, they are eligible for some privileges such as student loans services¹⁴. Under the EU law, free movement of students can only be curtailed on the basis of public health and policy, and national security¹⁵.

The EU law holds that such exceptions must be proportionate and grounded on legal evidence or proof. The student also has a right to appeal, in case they feel the freedom was denied on unfair grounds. With regard to citizenship, the Court of Justice supports assimilation without discrimination on nationality.

It states that “union citizenship is destined to be the fundamental status of nationals of Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for”.¹⁶

Exceptions to this provision came into play in a 1998 case whereby the court found a Portuguese national by the name Sala, not to be qualified as a worker and therefore not eligible for EU citizens social benefits¹⁷. However, students are allowed to enjoy equal benefits as the citizens of the host country, for as long as they fulfill the two conditions set forth.

Conclusion

The EU law and the Court of Justice have played leading roles in eliminating the tensions propagated by economic and human issues in free movement of persons within the union. The Court is quite efficient in dealing with cases as they arise, and it is significant in providing legal advice on how to deal with economic and social tensions.

One cannot lay a claim that the EU law and the Court have reached a certain measurement in diffusing the tensions. However, the roles they play in the same are felt from time to time. The fact that member states petition their cases in the Court of Justice clearly highlights that people have confidence in the Union laws as well as the Court’s justice system.

Bibliography

Baldono E, ‘The Free Movement of Persons in the European Union: A Legal-Historical Overview’, Pioneur Working Paper, 2003, p. 6.

Commission of the European Communities v. Kingdom of Belgium [1980] ECR 3881.

Craig P and G de Búrca, EU Law, Text, Cases and Materials. (5th edn, Oxford University Press, 2011). P Craig and, EU Law: Text, Cases and Materials (3rd edn, OUP, 2003).

Craig P.P. & G de Búrca De, EU law: Text, cases, and materials (Oxford University Press, 2011).

El-Agraa A. M, The European Union: Economics and Policies (Cambridge University Press, 2011).

European Commission. Non-EU Nationals. Web.

European Parliament, Freedom of movement for persons,European Parliament Fact Sheets, 2001. Web.

Foster, N.G. EU law: 2007 and 2008. (Oxford Univ. Press, 2007).

Guild, E & S Carrera, ‘Labour migration & unemployment- what can we learn from EU rules on the Free Movement of Workers?’ CEPS Paper in Liberty and Security in Europe, 2012, p.2.

Jacques Foster v. Hoofddirectie van de Informatie Beheer Groep Case C- 158/07 [2008] ECR I-8507.

Klaus Biehl v. Administration des Contributions du Grand-Duche de Luxembourg [1990] FN1 175/88.

Klaus-Dieter, B. The ABC of European Union law. (European Union Press, 2010).

Margot H, and M Humphreys, European Union law. (7th ed. Oxford University Press, 2012).

Martinez Sala v. Freistaat Beyern Case C-85/96 [1998] ECR I-2691.

R Grzelczyk v Centre Public d’Aide social Case C-184-99 [2002] ECR I-6153 Raducan & Anor -v- MJELR & Ors [2011] IEHC 224.

Scholz v. Opera Universitaria di Cagliari and Cinzia Porcedda C-419/92 [1994] ECR 1-505.

Footnotes

¹ European Parliament, Freedom of movement for persons, European Parliament Fact Sheets, 2001.

² P Craig and G de Búrca, EU Law, Text, Cases and Materials. (5th ed, Oxford University Press, 2011) 1-15.

³Commission of the European Communities v. Kingdom of Belgium [1980] ECR 3881.

⁴ E Baldono, ‘The free movement of persons in the European Union: A legal-historical overview’, Pioneur Working Paper, 2003, p. 6.

⁵Margot H, and M Humphreys, European Union law. (7th ed. Oxford University Press, 2012)110-126.

⁶ A. M, El-Agraa The European Union: Economics and Policies (Cambridge University Press, 2011)45-68.

⁷ B Klaus-Dieter, The ABC of European Union law. (European Union Press, 2010)67.

⁸ European Commission. Non-EU Nationals.

⁹ Raducan & Anor -v- MJELR & Ors [2011] IEHC 224.

¹⁰ E Guild and S Carrera, ‘Labour migration & unemployment- what can we learn from EU rules on the Free Movement of Workers?’ CEPS Paper in Liberty and Security in Europe, 2012, p.2.

¹¹Scholz v. Opera Universitaria di Cagliari and Cinzia Porcedda C-419/92 [1994] ECR 1-505.

¹²Klaus Biehl v. Administration des Contributions du Grand-Duche de Luxembourg [1990] FN1 175/88.

¹³ N.G Foster, EU law: 2007 and 2008. (Oxford Univ. Press, 2007)34-55.

¹⁴Jacques Foster v. Hoofddirectie van de Informatie Beheer Groep Case C- 158/07 [2008] ECR I-8507.

¹⁵ P.P Craig and BG De, EU law: Text, cases, and materials (Oxford University Press, 2011)65.

¹⁶R Grzelczyk v Centre Public d’Aide social Case C-184-99 [2002] ECR I-6153.

¹⁷Martinez Sala v. Freistaat Beyern Case C-85/96 [1998] ECR I-2691.

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