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Free Movement of Persons
within the EU
Mgr. Iveta Rohová
December 5, 2019
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Lecture outline
̶ Global context, historical comparison
̶ Categories of persons (from the EU law perspective)
̶ EU citizenship and citizens’ rights
̶ the Schengen Area
̶ Free movement of citizens, requirements and restrictions thereto
̶ Workers within the EU and their rights
̶ Freedom of establishment („free movement of entrepreneurs“)
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Global Context
̶ Generally, being a citizen of a State allows you to freely leave and enter the territory of that
State (x few restrictions)
̶ There is no right to enter any other States‘ territory, no freedom to move and reside abroad in
contemporary world
̶ States strictly control and impose various restrictions on admission of foreigners
̶ Few exceptions: short-term visits (tourists, businessmen, politicians, artists), research and
academic purposes – generaly welcomed
̶ States focus on restriction of mass migration, long-term or permanent residence of non-
citizens
̶ Treatment of „troublesome foreigners“
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̶ there have always been migration flows throughout the world over
the history… only the reasons and background differed
̶ economical, political, social, religious inducement
̶ being a problem for economically strong (wealthy), democratic,
and politically stable countries
̶ Emigration is free (dictatorships, communist regimes!) x imigration
is stricly controlled and limited
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A control tool? VISAs.
̶ an instrument for controlling and imposing limits upon migration
̶ Assesed (granted/ denied) on individual (personal-investigation)
basis by consular/ diplomatic missions of a host state
̶ States may agree on mutual visa-free régime for their citizens
̶ limited only to short-term stays (countries willingly welcome tourists..)
̶ Long-term stays (>90 days) – subject to more complicated
procedures (workers, entrepreneurs, students)
x asylum seekers (often missused)
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The EU is „one of a kind“…
̶ All EU citizens can now move freely among MS and reside in a
MS of their own choice (reagardless the reasons)
̶ only few requirements to be met …
̶ Free movement of individuals is not only an economic freedom
(historical context), but also percieved as a political freedom
̶ Whereas there is a far-reaching liberalization in trade of goods
world-wide (the EU is not so unique in this aspect), no comparable
liberalization of migration exists elsewere
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Categories of „persons“ under EU Law
̶ Natural persons (individuals)
̶ pursuing an economic activity
• dependant (workers) => free movement of workers (art. 45 TFEU)
• independent (self-employed persons) => freedom of establishment (art. 49 TFEU)
̶ “all and the rest“ (without an economic activity in the host MS) = all EU citizens
=> free movement of EU citizens (art. 20 TFEU
̶ Legal persons
̶ pursuing an economic activity => freedom of establishment (art. 49 et seq TFEU)
̶ no economic activity = no special status or rights under EU Law
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The EU Citizenship
̶ Until late 1980s, the free movement of individuals was perceived exclusively
as an economic freedom (x consumption of services)
̶ Late 1980s/early 1990s – EC measures that extended the free movement to
students, pensioners, people living on rents
̶ 1993 – The Maastricht Treaty => EU citizenship (a citizen of any of the MS is
automatically, ipso facto a citizen of the EU)
̶ Auxiliary nature
̶ MS continue to exclusively determine conditions and administrative
procedures / practice in order to obtain the national citizenship
̶ Rules: ius soli x ius sanguini, rules for naturalization, multiple citizenships
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EU Citizens‘ Rights
̶ Art. 20 TFEU (Arts. 39-46 EU Charter of Fundamental Rights!)
̶ To move and reside freely within the territory of MS
̶ To vote and to stand as a candidate in elections to the European Parl. in the MS in which the reside
̶ To vote and to stand as a candidate at municipal elections in the MS in which the reside
̶ Diplomatic protection in a third country by diplomatic authorities of any MS (on the same basis as nationals of that
MS)
̶ Citizens initiative and right to petition the EP, right to apply to the EU Ombudsman
̶ Equality of (official) langugages
̶ „National treatment in the host MS“ = principle of non-discrimination based on
nationality (art. 18 TFEU)
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The Schengen Area
̶ „Area of Freedom, Security, and Justice“
̶ Freedom = free movement of citizens, no border controls at internal borders, common
migration, visa, and asylum policies
̶ Security = strict external border controls, police cooperation, administrative and judicial
cooperation in criminal matters
̶ Justice = rules for determining applicable law and court jurisdiction in cross-border civil
law cases, recognition and enforcement of foreign judgements in civil and commercial
matters („European Private International Law“)
̶ 1985 – Schengen Agreement, 1990 – Implementing Convention
̶ 1995 – implementation
̶ 1993 – Maastricht - 1999 – Amsterdam– 2009 - Lisabon
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26 countries
- EU but
- GB, IRL
- HR, RU, BG, CY
- From outside EU
- NO, IS, CH, LI
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„The Schengen Area of Freedom“
̶ Inner aspect
̶ Free movement of individuals – EU citizens, as well as third-country nationals, no internal
border checks; internal borders may be legally crossed at any point, any time
̶ - does not affect the respective State authorities powers within the MS territory (spot-checks)
̶ Outer dimension
̶ Common migration and visa policy + asylum policy
̶ Strict, two-step checks at external borders (inlcuding inland international airports)
̶ An EU citizen is „home“ in the entire Schengen area
̶ External borders may be crossed only at border-crossing point within the indicated opening
hours
̶ Schengen Borders Code – Regulation of the EP + C (EU) No. 2016/399
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EU Citizens residency rights
̶ Directive 2004/38
̶ Short-term stay – up to 3 months
̶ Subject to having a valid ID, there are no requirements
̶ Tourists are welcomed – they subject to simple evidence in hotels,
̶ Long-term stay – over 3 months
̶ Requirements
Right to permanent stay – after 5 yrs
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Accompanying Family Members
̶ Art. 2 para. 2 of the 2004/38 EC Directive
̶ Spouse
̶ Partner (registred partners/same-sex marriages)
̶ Children
̶ Parents, grandparents
̶ Third-country nationals; host MS may admit other relatives
̶ Auxiliary, subsidiary rights (dependent on the status of the EU citizen)
̶ Right to follow the EU citizen and to reside with him/her in the host MS,
right to economic activity, integration in social life, acces to healthcare,
education, etc
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Restrictions upon free movement
̶ Public policy and security
̶ Threat to public health
̶ Proportionality!
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Free movement of workers (Art. 45 TFEU)
̶ Who is a „worker“ ?
̶ What rights does the Treaty confer?
̶ Principle of non-discrimination
̶ To whom is the provision adressed? (direct effect)
̶ Exercise of public power (Case 14/79 Commission vs Belgium
„Public Service“ )
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Freedom of establishment (Art. 49 et seq TFEU)
̶ „free movement of entrepreneurs“ – both self-employed individuals
and companies
̶ Problem with legal persons
̶ Exercise-of-public-power (official) exemption (Art. 51 TFEU)
̶ Restrictions – justified by reasons of public order, security or
health + proportionate
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Language requirements and the principle of
non-discrimination
̶ Provided that the requierement of knowledge of a particular
language (including the level of knowledge, proof, examination)
must be proportionate to the nature of a particular profession and
the capability to its good exercise, as well of non-discriminatory
nature
̶ It cannot be means of disguised discrimination