Free Movement of Persons under EU Law: Merits and Demerits.
One of the reasons behind the founding of the European Union1 was to reduce the prospects of recurrent military action, the past examples of which worked to crumple once powerful states; it was envisaged that greater economic reliance amongst the relations the States would make their leaders think twice before deploying their armies.2 It could be argued that the threat of war between European States is no longer nearly as prevalent as it was; however, the economic element clearly subsists. European law now caters for four freedoms of movement: persons,3 capital,4 services,5 and goods;6 which make up the foundations of the internal market. The aim of this essay is to focus on the first of those mentioned, the freedom of movement of persons, to compare the historical and current rationale behind such a freedom and evaluate the tension such freedom can cause against the Member States’7 who will, particularly in light of the current economic climate and pressures facing public institutions,8 be mindful of the burdens free movement can place on their budgets and will wish to prevent these.
Free Movement of Persons: The Economic Element
Free movement, as part of the internal market largely centred around economic sentiments. It was envisaged; and interpretations of past treaty provisions are indicative of this, that the free movement of vital economic elements, including persons, was fundamental competitiveness of the EU as useful sources could move to the MSs where they were best utilised.9 Article 45 TFEU is indicative of this economic element for the free movement of persons in that it allows for the free movement of workers.
The case law behind the development of who constitutes a worker, and, therefore, who has this right to move, demonstrates this economic element. Bettray10 is a prominent example. In Bettray, a German national was employed in the Netherlands who applied for a work permit on the basis that he was a worker in the Netherlands which was refused and led to action against the relevant authorities. The European Court of Justice11 held that the test for finding that someone is a worker must be done on an objective basis, with three fundamental criteria:12
(1) The person performs services for a certain period of time
(2) Under the direction of another
(3) For which they receive remuneration.
Furthermore, in order for something to classify as a “genuine economic activity” it cannot be solely for the purpose of rehabilitation, the German national being a drug addict under a rehabilitation programme – however, in this case it was found to be a genuine economic activity. However, the strict economic requirement has been stretched, though not surmounted,13 by certain ECJ decisions. For examples, cases such as Royer held that seeking employment in other MSs invokes protection from discrimination under the free movement provisions.14
Free Movement of Persons: The Social Sentiment
Not all EU citizens are economically active migrants moving to work or with a view of finding employment. The above discussion has so far shown that freedom of movement of persons has seen an extended definition, but some element of work has been required. But what for the economically inactive?
The right to movement alone can rarely be enough, as Giubboni notes, access to welfare is fundamental to many citizens15 and, as such a lack of it can discourage movement. Martinez Sala16demonstrates that the non-discrimination principle strengthens the power of the free movement in stating that not granting the same rights to European citizens resident in the host state as are granted to domestic citizens constitutes unlawful discrimination on the grounds of nationality. The case, concerning child-raising allowance for a Spanish national resident in Germany, is a significant divergence away from the pure economic logic of market citizenship and a step in the direction of a European citizenship “freed from the requirements and limits of economic integration”.17
Grzelczyk18 was the first case deciding over the right to move and reside in another state for an economically inactive person: a student. The case owes its importance to the fact that like Martinez Sala, it states that depriving an EU citizen access to benefits on the grounds of nationality is unlawful discrimination, but, unlike Martinez Sala, this case involved an economically inactive migrant. Both the above cases are seen as putting all EU citizens on an equal footing, regardless of their economic origins or whether they derive their right to move from being a worker or a European citizen.19 The next significant step in the biography of freedom of movement of persons is the Citizens’ Free Movement Rights Directive20 which confers a right for workers and their families to move and reside freely within the EU. Case law flowing from this directive has allowed non-EU carers to be granted residence when their dependent children are EU citizens21 and it has even been held, contrary to previous belief, that there does not need to be any cross-border movement by the EU citizen in order for right to be conferred on their families: measures that threaten “the substance of the rights conferred by virtue of that status” would suffice.22 This wider approach has however been constrained somewhat by the case of McCarthy23and could be seen as justified on the grounds of not wishing to create a further imbalance on the equilibrium of powers divided between the Union and MSs.24 Though, others have argued the nuances between the cases do not exist and detract from certainty.25
Regardless of this uncertainty, the case law extended the free movement of persons to economically inactive migrants, on the grounds of the rights being conferred to citizens, and the Directive has extended this right to their families.
Free Movement of Persons: The Ideology that Produced a Burden on the State?
As we have seen, free movement of persons was attractive to MSs through the selfish element in which valuable resources (the skills of workers) could be used for economic gains. However, possibly through the culpability of poor policy planning and implementation, the free movement provisions have in many cases, especially in the UK, led to an influx of migrants with a relatively small skill set26 which has caused a grave problem for MSs already struggling to cater for the demand in resources and the fight against depleting levels of employment.27
Clearly there is a need for some limit on free movement so as to not have an adverse impact upon the MSs’ resources. The strongest provisions for this are set out within the CFMRD, which provides that the right to residence for more than three months is contingent upon the citizen either being economically active, having sufficient resources to for them and their family to not become a burden on the social assistance system of that MS, are an enrolled student, and they have sufficient insurance.28 It is argued that this requirement may be worded in an overly strict fashion stemming from the inconsistency that recital 16 of the Directive allows residence so long as the EU citizens don’t become an unreasonable burden, whereas Article 7 has removed the “unreasonable” qualification, potentially allowing MSs to expel those who are initially self-sufficient but become the smallest of a burden on the host state; a matter, it is claimed, that needs clarification for the sake of certainty.29
Conclusion
It was probably unrealistic to assume the freedom of movement of workers alone would be workable. Social needs go hand-in-hand with our economic wants and, in conjunction with this, access to welfare can play a strong part. What started off as a freedom to move for workers within the confines of a narrow definition has, over time, afforded a greater circle of rights to those wishing to move. Welfare is now accessible and families are able to move, one can be forgiven for sceptically believing that such an extension of the freedom of movement was necessary in order to encourage economic actors to move away from their host states; however, the benefits are reciprocal. Undoubtedly, with a finite amount of resources, an “open-door” policy could drain the resources of MSs, as has been seen, therefore it is important that the freedom of movement operates within sensible and fair boundaries. The CRFMD achieves this, but may give too much protection to MSs upon strict interpretation.
1 Hereinafter “EU”.
2 Jay Gajjar, ‘Your Dominion or Mine? A Critical Evaluation of the Case Law on Freedom of Establishment for Companies and the Restrictions” (2013) 24(2) I.C.C.L.R. 50, 50.
3 Article 45 TFEU.
4 Article 63 TFEU.
5 Article 56 TFEU.
6 Article 28 TFEU.
7 Hereinafter “MSs”.
8 Theodora Kostakopoulou, ‘Political Alchemies, Identity Games and the Sovereign Debt Instability: European Identity in Crisis or the Crisis in Identity-Talk?’, (2011) 63 The Review of International Affairs 97, 108.
9 Julio Bacquero Cruz, Between Competition and Free Movement, (Hart Publishing, 2002), 82.
10 Case C-344/87 Bettray v Staatssecretaris van Justitie [1989] ECR I-1621.
11 Hereinafter “ECJ”.
12 Ibid, para 12.
13 Christopher Cassise, ‘The European Union v. The United States Under NAFTA: A Comparative Analysis of the Free Movement of Persons Within the Regions’, (1995-1996) 46 Syracuse.L.Rev 1343, 1351,
14 Case C-48/75, Procureur du Roi v. Royer, [1976] E.C.R. I-497.
15 Stefano Giubboni, ‘Free Movement of Persons and European Solidarity’ (2007) 13(3) E.L.J. 360, 368.
16 Case C-85/96 María Martínez Sala v Freistaat Bayern [1986] ECR I-1612.
17 Giubboni, S. (fn 12), 368.
18 Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve, [2001] ECR I- 06193.
19 Catherine Jacqueson, ‘Union Citizenship and the Court of Justice: Something New Under the Sun? Towards Social Citizenship’ (2002) 27(2) E.L.Rev. 260, 279.
20 Directive 2004/38 OJ L158/77 (hereinafter “CFMRD”)
21 C-00/02 Chen [2004] E.C.R. I-9925
22 Case C-34/09, Ruiz Zambrano v Office National de l'Emploi (ONEm) [2011] ECR I-0000, para. 42.
23 Case C-434/09 McCarthy v Secretary of State for the Home Department [2011] ECR I-000.
24 Alicia Hinarejos, ‘Citizenship of the EU: Clarifying "Genuine Enjoyment of the Substance" of Citizenship Rights’, (2012) 71(2) C.L.J. 279, 282.
25 Niamh Nic Shuibhne, ‘(Some of) The Kids Are All Right’ (2012) 49 C.M.L.Rev. 349, 380.
26 Jonathan Portes and Simon French, The Impact of Free Movement of Workers from Central and Eastern Europe on the UK Labour Market: Early Evidence, (Department for Work and Pensions, 2005) Working Paper No. 18, 25.
27 Catherine Barnard, ‘British Jobs for British Workers’: The Lindsey Oil Refinery Dispute and the Future of Local Labour Clauses in an Integrated EU Market’, (2009) 38(3) Ind.Law.J. 245.
28 Article 7(1) CFMRD 2004/38.
29 Anthony Valcke, ‘Five years of the Citizens Directive in the UK: Part 2’, (2011) 25(4) J.I.A.N.L 331, 351.
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