This document contains a detailed explanation of the law surrounding the free movement of persons in regards to EU law. This includes who is allowed to make use of this right, what laws introduce this rights, and when this right is stopped. This document also includes the law surrounding the rights...
WEEK 9 / LECTURE 18 & 19 – FREE MOVEMENT OF PERSONS
Sources:
- Treaties:
o Article 9-12 TFEU
o Article 18 TFEU (non-discrimination on nationality)
o Article 20 and 21 TFEU (EU citizenship)
o Article 45-48 TFEU (workers)
o Article 49-55 TFEU (establishment: the self-employed)
o Article 56-62 TFEU (services: the self-employed)
- Secondary legislation:
o Directive 2004/38
o Regulation 492/2011
- Case law
- EU Charter of Fundamental Rights
Article 3(2) TEU
- For the EU citizens an area of freedom, security and justice without internal frontiers
- The free movement of persons is ensured... with respect to external border controls, asylum,
immigration and the prevention and combating of crime
Article 20 TFEU: European Citizenship
- ‘Every person holding the nationality of a Member State shall be a citizen of the Union.
Citizenship of the Union shall be additional to and not replace national citizenship’
- ‘Citizens of the Union shall enjoy the rights and be subjected to the duties’
Article 21 TFEU (ex Art.18)
- 1. Every citizen of the Union shall have the right to move and reside freely within the
territory of the Member States, subject to the limitations and conditions laid down in the
Treaties and by the measures adopted to give them effect...
Article 22 TFEU
- Union citizens, residing in another Member State have the right to vote and stand as a
candidate at municipal election in the Member State in which they reside, have the right to
vote and stand as a candidate in elections to the EP in that MS, under the same conditions as
nationals of that State.
Article 23 TFEU
- Right to diplomatic protection.
Article 45 TFEU: Free movement of workers
- 1. freedom of movement for workers shall be secured within the Union...
- 2. Abolition of any discrimination based on nationality between workers of the MS as
regards to 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
Directive 2004/38: Citizen’s Directive
- Concerns the rights of EU citizens and their family members
Regulation 249/11 Article 7
- 1. a worker national of a MS may not, in another MS, be treated differently from national
workers by reason of his nationality in respect of any conditions of employment and work, in
particular as regards remuneration, dismissal, and, should he become unemployed,
reinstatement or re-employment.
- 2. same social and tax advantages as national workers
- 3. access to training in vocational schools and retraining centres
- 4. any clause of a collective or individual agreement or of any other collective regulation
concerning eligibility for employment, remuneration and other conditions of work or
dismissal shall be null and void in so far as it lays down or authorises discriminatory
conditions in respect of workers who are nationals of other MS.
- Replaced Regulation 1628/68, and concerns the equal treatment of workers and their family
members, especially with regard to social and tax advantages, education, etc.
EU Citizenship
- Article 20 TFEU defined an EU citizen as: ‘Every person holding the nationality of a Member
State shall be a citizen’
- Article 21 TFEU: ‘Every citizen of the Union shall have the right to move and reside freely
within the territory of the Member States’
- Articles 20-24 are the primary legislation regarding EU citizenship, but these rights were
developed by Directive 2004/38:
o Article 4: right of exit
1. ‘all Union citizens with a valid identity card or passport and their family
members who are not nationals of a Member State and who hold a valid
passport shall have the right to leave the territory of a Member State to
travel to another Member State’
o Article 5: right of entry
‘Member States shall grant Union citizens leave to enter their territory with
a valid identity card or passport shall grant family members who are not
nationals of a Member State leave to enter their territory with a valid
passport’
- Three categories of residence rights:
o 1) Right of residence for up to three months
Article 6 of Directive 2004/38
‘1. Union citizens shall have the right of residence on the territory of
another Member State for a period of up to three months without
any conditions or any formalities other than the requirement to hold
a valid identity card or passport.
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