Week 7 - Free movements of Persons
Introduction of free movement of persons & EU citizenship
THEMES:
● Who can freely move and reside within the territory of the Union?
○ Who can leave their state of nationality and move to another state
● Under what conditions to be able to do this?
Important distinction between:
● Economically active persons: workers, self-employed persons, service providers
→ directly contributing to the economy of a MS through being part of the
active workforce
● Economically inactive persons: unemployed persons, job-seekers, students, etc.
Why is there a focus on economic activity?
From market-oriented freedom to an EU citizenship right
Internal market reasoning behind free movement rights:
● economically active persons are privileged under EU law – in principle, more rights, and
fewer limits and conditions apply
● Idea: all factors of production (incl. Persons, workers and businesses) can move freely
within MS
→ remove all barriers so that moving within the internal market is possible as
moving within one MS
Article 26 TFEU
(ex Article 14 TEC)
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of
the internal market, in accordance with the relevant provisions of the Treaties.
2. The internal market shall comprise an area without internal frontiers in which the free
movement of goods, persons, services and capital is ensured in accordance with the provisions
of the Treaties.
Article 26 (2) TFEU: free movement of person has always been one of the pillars of the internal
market
BUT: ”market citizenship” becomes “EU citizenship” in the 1990s
→ with status of EU citizenship, question whether you still need a link to the internal
market / economic activity to be able to move within the EU
,Legal Framework before the introduction of EU citizenship
Economically active persons
● contribute to the economy of the host State (ie the State in which they work), through
their labour and by paying taxes
● Were considered as benefit to the host state
Article 18 TFEU: right of equal treatment applies to everyone, despite which category they
would fall in
→ all have a right to move to another MS, MS have an obligation to make sure that
the people have equal access to the labor market
CENTRAL PROHIBITION: no restrictions on circulation of labour force
ECONOMIC DIMENSION: no discrimination in accessing the job market
1992 Maastricht Treaty 👉 INTRODUCTION OF EU CITIZENSHIP
Change: includes economically inactive persons
Article 20 TFEU - EU citizenship
Every person holding the nationality of a MS shall be a citizen of the Union (...) and shall have
inter alia the right to move and reside freely within the territory of the Member States
→ Free movement of persons is connected to the EU citizenship status
Article 21 TFEU
Every citizen of the Union shall have the right to move and reside freely within the territory of
the Member States, ...
→ Free movement of persons is GENERAL RIGHT: ...in principle, any EU national enjoys it
→ not linked to the categories anymore
,→ before: economically inactive persons could not enjoy protection to reside in a
host MS → no Freedom of movement (now students, retired, jobseekers, family
members, …)
→ gives them certain rights to free movement, whether they are economically
active or not
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.
→ But it does not have GENERAL APPLICABILITY: ...in practice, it can be invoked only
when certain conditions are satisfied.
Legal Framework now
After introduction of EU citizenship: differentiation between economically active and inactive
persons
Primary law:
Article 18 and 21 TFEU: Residual rights
= if a more specific right applies, then the benefit is not from Article 21 TFEU, but from Article 45
or 49 TFEU
→ Article 45 and 49 TFEU protect workers: if they don't fall within those provisions,
they can rely on Article 21 TFEU
● Article 45 TFEU
○ Freedom of movement for workers
, ● Article 49 TFEU
○ restrictions on the freedom of establishment of nationals of a Member State in
the territory of another Member State shall be prohibited
Secondary law:
● Citizenship Directive applies to all 3 categories
● Only the workers Regulation only applies to Workers / Employed persons
Free movement of workers & the principle of non-discrimination
MATERIAL SCOPE:
● When does a worker benefit from EU law?
○ Key here: is there a cross-border element? (more on this in the next bundle)
● How do they benefit (which rights do they have)?
● Which obligations does it impose (on MS, employers etc.)?
PERSONAL SCOPE:
● Who is considered a “worker” in EU law?
● How do we distinguish between employed persons (workers) and self-employed
persons?
Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union. → Principle
2. Such freedom of movement shall entail the abolition of any discrimination based on
nationality between workers of the Member States as regards employment,
remuneration and other conditions of work and employment. → Obligations
3. It shall entail the right, subject to limitations justified on grounds of public policy, public
security or public health: → Grounds for limitations (not absolute right)
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions
governing the employment of nationals of that State laid down by law, regulation or
administrative action;
(d) to remain in the territory of a Member State after having been employed in that State,
subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
= rights of workers?
4. The provisions of this Article shall not apply to employment in the public service. →
Exception
→ does not apply to public service
E.g. guards, officers, governmental employment especially : CIVIL SERVICE
1) Does Article 45 TFEU have direct effect?
