The document provides detailed notes on free movement of persons provisions, covering rights under the TFEU as well as citizenship rights. It refers to all of the important legislative provisions and case law, citing academic commentary where relevant.
European Internal Market Law - Complete and Extensive summary - Radboud University
Free Movement of Services, Problem and Essay Question Approach
Summary EU Internal Market Law: The Substantive Law of the EU
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The EU is a single market: free movement of goods, services, capital and labour (the so-called four
freedoms)
A closer form of integration than in a Customs Union
Free movement of persons does not refer to workers only
Covers all citizens of the EU (who may or may not be engaged in an economic activity)
This results in overlapping rights
Workers + establishment + services were part of the original Treaty of Rome (1958)
A form of negative integration
These provisions had an economic rationale and were intended to facilitate the pursuit of occupational
activities
One of the aims included the distribution of labour across Europe
Factors of distribution can move freely and will be allocated more efficiently
A practical consideration
BUT it was also necessary to ensure adequate conditions (i.e., an incentive to move)
It was not enough to simply declare the abolition of discrimination+ the right to move
The idea was to implement or give effect to these provisions gradually
Implementing (secondary) legislation was adopted to enable the movement
e.g., Regulation 1612/68 which allowed migrant workers the right to enjoy the same social and tax
advantages as national workers
Note that this is now Regulation 492/11; this Regulation has not been absorbed by the CRD and so
remains valid
In the 1990s, free movement rights were extended to some non-economically active groups,
including:
● Retired persons
● Students
● Self-sufficient persons
These are also known as the ‘residence directives’
1992: an additional layer of rights; e.g., the right to move and reside and the right to
non-discrimination
European citizenship as introduced by the Treaty of Maastricht (1993)
AIMS:
● Enhancing legitimacy; a political project
● Strengthening the bond between the EU and its citizens
,An entirely different rationale
Universal application: applies to economically active and non-economically active persons alike
The scope of European citizenship was at first unclear; the concept was primarily developed through
the case law of the CJEU
A gradual expansion took place
e.g., the CJEU took EU citizenship together with Article 18 TFEU (a general guarantee of equal
treatment) to expand individuals’ right to move, or the rights applicable once they have moved
Subsequently codified in the CRD
2004: the Citizens’ Rights Directive (secondary legislation)
This sought to codify previous secondary legislation and the CJEU case law (i.e., the different sources
of rights), as well as providing some new rights
Note the controversy surrounding EU migration- backlash against the free movement of persons
European Citizenship now defined by Articles 20-24 TFEU
Of course, these provisions do not provide an exhaustive list of rights
Acquiring the status of EU citizen
The status as EU citizen comes with the conferral of nationality of a Member State
Thus, it is a matter for the Member State to determine
Member States as gatekeepers of EU citizenship
EU citizenship can be described as a corollary of being a national of a Member State
See for instance Kaur, where it was held that EU citizenship cannot be acquired separately from
Member State nationality
EU Member States are bound to recognise the conferral of nationality by another Member State and
so cannot impose additional requirements (e.g., the requirement to prove a ‘genuine link’ with the host
state)
Micheletti and others:
Born in Argentina; had an Italian nationality; applied to the Spanish authorities for a community
residence card and for the recognition of his university qualifications, which would allow him to
practise as a dentist in Spain
Submitted a valid Italian passport; rejected by the Spanish authorities; where a person has dual
nationality, Spanish law determines the nationality as corresponding to the habitual residence of that
person before arriving to Spain (in this case, Argentina- a non EU member state)
The Court rejected this, stating that ‘it is not permissible for the legislation of a Member State to
restrict the effects of the grant of the nationality of another Member State by imposing an additional
condition for recognition of that nationality’
,This principle was confirmed in Chen:
The case concerned a child born in Ireland to Chinese parents
Under Irish laws, any person born on the island of Ireland could acquire Irish citizenship
automatically
The applicant wished to reside in the UK
The UK objected to this, arguing that the Irish nationality was acquired solely to secure a right of
residence under Community law
The Court rejected the UK’s argument, affirming that EU Member States are bound to recognise the
conferral of nationality by another Member State
A genuine link was not required
Losing the status of EU citizen
EU law requires a case-by-case analysis of whether the loss of nationality was arbitrary or
disproportionate, as it would deprive the individual of the benefits of the Treaty
Constraining Member State discretion in this area
Rottmann:
Born in Austria; tried by the Austrian Criminal Court in an investigation for fraud; moved to
Germany; Austria issued an arrest warrant
While in Germany, he applied for nationality but did not mention the criminal proceedings; the
nationality was issued, and his Austrian nationality was subsequently lost
Upon discovering the arrest warrant, German authorities withdrew naturalisation with retroactive
effect; the German nationality was obtained by deception
The Court brought the matter within the ambit of EU law
Member states must, when exercising their powers in the sphere of nationality, have due regard to EU
law; EU law requires a case-by-case assessment of whether the loss of nationality was
arbitrary/disproportionate
BUT note that the matter was left for the national court to decide
‘Golden passport’ schemes
European Parliament 2014 report: the European citizenship is not a tradable commodity
Brexit
The relationship between the Union and the UK is now governed by a free trade arrangement:
● The Withdrawal Agreement
● The Trade and Cooperation Agreement; concerns future mobility rights; much more
limited than the rights found under free movement of persons
Free movement of persons as one of the central debates during the Brexit referendum
General concerns regarding the expansion to the east and the influx of new workers
, Scope of application of the free movement of persons provisions
TERRITORIAL SCOPE:
The Treaties apply in the territory of the EU Member States (Articles 52 TEU and 355 TFEU)
PERSONAL SCOPE:
(i) economic freedoms:
● An individual/company with nationality of an EU Member State (see above: Member States
are exclusively competent to confer nationality, as emphasised in cases like Meade)
● Cross-border element
● Economic activity as a (i) worker, (ii) self-employed person or (iii) service provider or
recipient
(ii) EU citizenship:
● An individual with nationality of an EU Member State
● Cross-border element (with certain exceptions)
● Not necessarily engaged in an economic activity
Economic activity
(a) Free movement of workers
Article 45 TFEU
‘workers’- an autonomous EU definition (Unger)
It is not for national courts/legislatures to define
In Lawrie-Blum, the CJEU held that worker relationships are characterised by subordination, for a
certain period of time, and for remuneration
On the facts, a trainee teacher was a worker; clearly, the individual need not be engaged in full-time
work
Reaffirmed in Levin: part-time workers earning less than the minimum legal wage were ‘workers’ for
the purposes of the Treaty
‘The effectiveness of Community law would be impaired and the achievement of the objectives of the
Treaty would be jeopardised if the enjoyment of rights conferred by the principle of freedom of
movement for workers were reserved solely to persons engaged in full-time employment’
The court applies a non-formalistic approach here
See also Steymann:
A German plumber who came to the Netherlands for a brief period; carried out plumbing work
through a temporary employment office; he subsequently became a member of a religious community
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