The Free Movement of Persons

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1 The Free Movement of Persons Workers (Art 45(1) TFEU) Self-employed (establishment)(art 49 TFEU)

2 Free movement of persons One of the four freedoms envisaged in 1957 Central feature of the internal market Article 45(1) TFEU Free movement of workers Article 49 TFEU freedom of establishment (self-employed persons) Article 56 TFEU freedom to provide and receive services

3 Article 45 TFEU Para. 1 Freedom of movement for workers shall be secured within the Union. Para 2 FM shall entail the abolition of any discrimination based on nationality between workers as regards employment, pay and work conditions Para 3 sets out the rights and limitations to the fundamental right on grounds of public policy, public security, public health Para 4 Exemption for employment in the public service

4 Economic nexus To fall within Article 45 TFEU (ex-39 EC) the migrant must be engaging in an economic activity they must be a worker i.e. factors of production

5 The Free Movement of Persons Soon became clear that this policy area, which directly benefits human beings, must have implications beyond the economic of market integration

6 Breaking the economic nexus This has been done incrementally, over time ECJ and the legislature began to reflect the human dimension of this field.

7 Breaking the economic nexus ECJ broad interpretations of Treaty provisions and secondary legislation worker Levin 53/81 services performed for and under the direction of another for remuneration. Activity must be effective and genuine and not purely marginal or ancillary Includes right to enter and remain to seek work Antonissen C-292/89

8 Breaking the economic nexus A range of ancillary rights in order to remove disadvantages associated with exercising FM rights Right to receive social advantages under the same terms and conditions as host-state nationals Right of entry and residence for family members of the worker. Family rights = derivative / dependent These rights fleshed out in secondary legislation

9 A breakthrough Residency directives early 1990s Designed to extend protection of Community law by offering residency rights to certain categories of person Directive 90/365 retired workers Directive 93/96 students Directive 90/364 all others (the playboy directive ) No need to be a worker/economically active but must be economically self-sufficient

10 Secondary legislation Directive 2004/38 citizens rights directive This consolidated the caselaw and provides clearer and more coherent statement of rights Right to equal treatment Article 24 Codification of exceptions in Articles Confers rights on migrants according to their length of residence in the host state Regulation 1612/68 substantive rights and social advantages

11 The biggest breakthrough! EU citizenship Articles TFEU inserted into EC Treaty by the EU Treaty (Maastricht) Complementary status to nationality of MS Raft of rights Most significant Article 21(1) TFEU Every citizen of the Union shall have the right to move and reside freely within the territory of the MS, subject to the limits and conditions laid down in this Treaty and by the measures adopted to give it effect

12 What potential? Mere codification of pre-existing rights or basis for rethinking free movement rights? ECJ crucial role in developing the concept of EU citizenship It has interpreted Article 21 TFEU in combination with the Article 18 TFEU principle in order to create rights for citizens when they are in other MS irrespective of any economic nexus

13 Some key caselaw Non-workers C-85/96 Martinez Sala right to claim social security benefit Work-seekers C-138/02 Collins right to claim social security benefit C-258/04 Ioannidis

14 Some key caselaw Education and rights of students C-184/99 Grzelczyk -EU Citizenship is the fundamental status of nationals of the MS C-413/99 Baumbast Concerned residence rights -Article 21(1) (ex-18(1)) is capable of having direct effect. Any limitations on exercise of Treaty rights must be compatible with the principle of proportionality C-209/03 Bidar Equality of treatment in access to maintenance grants R. Greaves 2011

15 Some key case law Freedom from other discriminatory or restrictive national measures C-224/02 Pusa C-406/04 De Cuyper national legislation which places MS nationals at a disadvantage simply because they have exercised their right to FM is a prima facie restriction on the freedoms conferred by Article 21(1) TFEU (ex-18(1)ec) C-192/05 Tas-Hagen Transformative power of EU citizenship C-200/02 Chen

16 Incremental approach to residence and equality Case law does not suggest that all migrant EU citizens have immediate right to claim all benefits in the MS on the same terms as nationals Incremental approach - also reflected in Directive 2004/38 Residence integration - solidarity