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					Free Movement of Persons
               Lecture Aims
• Be able to define the scope of the provisions relating
  to the free movement of persons
• Knowledge and understanding of the specific Treaty
  articles and secondary legislation in relation to the
  free movement of persons
• Examination of the case law in order to understand
  how these rights have been interpreted
• Understand the circumstances in which a Member
  State can derogate from the free movement
             Community aims
Article 3 (c) EC an internal market characterised by
the abolition, as between Member States, of obstacles
to the free movement of goods, persons, services and

Article 14 EC 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 this
Treaty   .
          Principle of non-
• Article 12
  – Within the scope of application of this Treaty,and
    without prejudice to any special provisions
    contained therein, any discrimination on grounds
    of nationality shall be prohibited
        – scope ratione materiæ (material scope)
        – scope ratione personæ (personal scope)
• The EC Treaty only confers rights of
  movement on persons who nationals of
  a Member State
• Case C-192/99 Kaur
• Case C-369/90 Micheletti
•   Workers (Article 39)
•   Self Employed (Article 43)
•   Service Providers (Article 49)
•   Service receivers (Article 49)
• Arts 39, 43 and 49 relate to economically
  active persons
• social dimension-provisions confer
  enforceable rights on individuals
• However these rights have been extended to
  certain categories of non economically active
Non-economically active persons

• Family members (Regulation 1612/68/EEC)
  – Directive 90/366/EEC (replaced by Directive 93/96/EC )-
    free movement of students
  – Directive 90/365/EEC-workers/self employed who have
    ceased to work
  – Directive 90/364-general free movement ...but only to
    those persons of independent financial means who will
    not become a burden on the „host‟ state
      Directive 2004/38/EC
• Directive 2004/38/EC on the right of the
  citizen of the Union and their family members
  to move and reside freely within the territory
  of the Member states
  – amends Regulation 1612/68/EEC
  – will repeal Directives 64/221/EEC, 68/360/EEC,
    90/364/EEC, 90/365/EEC and 93/36/EC.
  – Directive to be implemented by April 30 2006.
      Directive 2004/38/EC
• Directive 2004/38/EC (due to be implemented
  by 30 April 2006)
  – Citizens have a right of residency in host state for up to 3
    months without need for any formalities other than entry
    documents (passport/ID card)
  – Longer period of residency for workers, self employed,
    persons who have sufficient resources not to become a
    burden on social assistance scheme of host state (and have
    comprehensive sickness cover), students (if they have
    comprehensive sickness insurance and sufficient resources),
    and their family members.
• Treaty provisions- relate to economically active
  persons (workers, self employed, service providers)
  (and by virtue of secondary legislation their family
• EC secondary legislation extended rights to certain
  categories of non-economically active persons
  providing they are not a financial burden on the host
  state‟s social assistance system.
• These directives will be repealed and consolidated by
  Directive 2004/38/EC.
• Article 17
   – Every person holding the nationality of a Member State shall
     Citizen of the Union.
   – Citizens of the Union shall enjoy the rights conferred by this
     Treaty and shall be subject to the duties imposed thereby.

• Article 18
   – Every citizen of the Union shall have the right to move and
     reside freely within the territory of the Member State subject
     to the limitations and conditions laid down in this Treaty and
     by the measures adopted to give it effect.
• Every person holding the nationality of a Member
  State shall Citizen of the Union
• Case C-192/99 Kaur
• Case C-369/90 Micheletti
• What rights does Article 18 confer? The right to move and
  reside in another Member State (subject to limitations and
• Is this a free standing right for all Union citizens or just a
  restatement of existing rights (for those covered by Treaty and
  secondary legislation)?
• Case C-413/99 Baumbast
    – ECJ held that Article 18 (1) was directly effective
    – Although Art 18 is subject to the conditions and limitation sunder the Treaty
      and secondary legislation these limitations are subject to judicial review and
      do not prevent Art 18 (1) from being directly effective
        • “As regards, in particular, the right to reside within the territory of the
          Member state under Article 18, that right is conferred directly on every
          citizen of the Union by a clear and precise provision of the EC Treaty”.
• Case C-413/99 Baumbast
  – German national living in UK- no longer a worker
  – Did not fully comply with requirements of Directive
  – ECJ said he, as a citizen, had a right to reside in
    UK subject to limitations in Treaty/secondary
  – These limitations/conditions subject to the
    principle of proportionality
• What rights?

• Citizens have rights of residence but does
  citizenship confer any other rights on a
  person when he readies in a host state?
• Case C-85/96 Martinez Sala v Freistaat Bayern

   – “It follows that a citizen of the European Union...lawfully resident in
     the territory of the host Member State, can rely on Article 12 (then
     Art 6) all situations which fall within the scope ratione materiæ
     of Community law, including the situation where that member state
     delays or refuses to grant to that claimant a benefit that is provided
     to all persons lawfully resident in the territory of that state on the
     ground that the claimant is not in possession of a document which
     the nationals of that same state are not required to have and the
     issue of which may be delayed or refused by the authorities of that
• Case C-184/99 Grzelczyk
  – “Union citizenship is destined to be the fundamental status of
    nationals of the Member States,enabling those who find themselves
    in the same situation to enjoy the same treatment in law,
    irrespective of their nationality, subject to such exceptions as are
    expressly provided for” Paragraph 31
  – “As the Court held in...Martinez Sala...a citizen of the European
    Union, lawfully resident in the territory of a host Member State, can
    rely on Article 12 (ex 6) all situations which fall within the scope
    ratione materiæ of Community law”.
• Case C-224/98 D’Hoop
  – “In that a citizen of the the Union must be granted in all Member States the
    same treatment in law as that accorded to the nationals of those Member
    States who find themselves in the same situation, it would be incompatible
    with the right of freedom of movement were a citizen, in the Member State
    of which he is a national, to receive treatment less favourable than he would
    enjoy if he had not availed himself of the opportunities offered by the Treaty
    in relation to freedom of movement” Paragraph 30
  – “such inequality of treatment is contrary to the principles that underpin the
    status of citizen of the Union, that is, the guarantee of the same treatment in
    law in the exercise of the citizen‟s freedom to move” Paragraph 35
     Schengen Agreement
• Schengen Agreement-1985 Agreement &
  implementing Convention 1990
  – 5 member states reached agreement (outside auspices of
    EC) to remove internal borders and all checks on the
    movement of people across the borders
     • Germany, France, Belgium, Luxembourg, Netherlands-
       later joined by Spain, Portugal and Greece
     • Schengen Agreement incorporated into EC Treaty by
       Treaty of Amsterdam (UK, Ireland not part of agreement-
       Denmark-has an opt out )
                    Rights of entry

•   Directives 68/360 & 73/148
•   Art 2-Right to leave home state    •   Case C-68/89 Commission v
•   Art 3 (1)-Right of entry of            Netherlands
    another Member State on
    production of passport or valid    •   Case 157/79 R v Pieck-
    ID                                     Member State cannot grant
•   Art 3(2) Entry visas are not
                                           limited leave to enter
    required except for family
    members who are not EU
    nationals (and States must
    accord to such persons every
    facility for obtaining necessary
               Residence Permits
• Directive 68/360/EEC-
•   Art 4- Right to obtain residence permit on production of document of
    entry and certificate of employment (for family members proof of
•   Article 6-Residence permit must be valid throughout the whole territory
    and valid for at least 5 years
•   automatically renewable
•   Temporary permit may be issued for temporary employment (between
    3 and 12 months). Those who work for less than 3 months/seasonal
    workers are not entitled to residence permit
           Residence Permits

• Right to reside stems from the Treaty and not the residence
  permit and a (lawfully resident) person may not be deported
  simply because they do not possess a residence permit - Case
  48/75 Royer
• Case 157/79 R v Pieck- Member State cannot grant limited
   leave to enter
• Failure to obtain a residence permit may give rise to sanctions
  but these must be comparable to those attaching to minor
  offences by nationals
            Loss of right to reside
•   The right to reside is for an indefinite duration but can be lost
     – Departure-absence for more than 6 months (other than for military
       service) can terminate a residence permit
     – Unemployment -Art 7(1) 68/360/EEC- residence permit may not be
       withdrawn from a worker solely because he is temporarily no longer in
       employment either because he is temporarily incapable of work (as a
       result of an accident or illness) or he is involuntarily unemployed
     – Art 7 (2) where a residence permit is renewed for the first time the
       period or residence may be restricted to not less than 12 months if the
       worker has been involuntarily unemployed for more than 12
       consecutive months
          • Case Giangregorio v Secretary of State for the Home Department-the
            onus is on the worker to prove that he has been made involuntarily
    Administrative Formalities
• A Member State may require person to comply with
  administrative formalities providing
   – they are not unduly restrictive/unreasonable and
     sanctions for non-compliance are proportionate
     (not deportation)
   – Case 118/75 Criminal Proceedings against
     Watson and Belmann
   – Case -C-265/88 Messner
       Restrictions on entry and
• Article 39 (3) Free Movement of Workers
   – It shall entail the right, subject to limitations
     justified on grounds of public policy, public security
     or public health:

   – Substantiated by Directive 64/221/EEC
   – Applies to all persons seeking to exercise the freedom
     of movement (i.e. self employed, students, family
           Directive 64/221
• Articles 1-
   – The provisions of this directive shall apply to any
     national of a Member state who resides in or
     travels to another Member State of the
     Community, either in order to pursue an activity as
     an employed or self employed person or as a
     recipient of services
             Directive 64/221
• Article 2 (1)
   – This directive relates to all measures concerning entry into
      their territory, issue or renewal of residence permits, or
      expulsion from their territory, taken by Member States on
      grounds of public policy, public security or public health
             – entry
             – residency
             – deportation
• Article 2 (2)
   – Such grounds shall not be invoked to service economic ends
Restrictions on movements
• Only applies to entry/residence or

• Case 36/75 Rutili
Restrictions on movements
• Case C-100/01 Olazabal
  – A Member State can restrict movement within the
    territory providing certain conditions are satisfied
     • The action is justified by reasons of public order/public
       security based on the conduct of the individual
     • The reasons were so serious that otherwise he would
       have been expelled/deported from the whole of the
     • The state would impose punitive measures or other
       genuine measures to prevent its nationals from engaging
       in that conduct
  Public Policy & Public Security

• Article 3 (3)
      • Expiry of the identity card or passport used by the person
        concerned to enter the host country and to obtain a
        residence permit shall not justify expulsion from the
                  Public Policy

• Article 3 (1) measures taken on grounds of public
  policy or public security shall be based exclusively on
  the personal conduct of the individual concerned.
          – Case 67/74 Bonsignore
          – 41/74 Van Duyn v Home Office
             » Personal conduct did not need to be unlawful before a
               MS could invoke this public policy exception
             » it was sufficient that the personal conduct was socially
               harmful (however see later cases on this point)
             » present membership/association with an organisation
               could constitute personal conduct (but previous
               membership could not)
               Public Policy

• R v Bouchereau Case 30/77
• “ a genuine and serious threat to the
  requirements of public policy affecting one of
  the fundamental interests of society”
           PUBLIC POLICY
• Cases 115&116/81 Adoui and
• conduct which, if it were engaged in by the state‟s
  own nationals would give rise to “repressive
  measures or other genuine and effective measures
  intended to combat such conduct”
             PUBLIC POLICY
• Article 3 (2)-previous criminal convictions shall not in
  themselves constitute grounds for taking such
• R v Bouchereau Case 30/77
   – criminal conviction could only be take into account if the
     circumstances leading up to the offence were evidence of
     personal conduct constituting a present threat to the
     requirements of public policy by showing a propensity to
     commit similar acts again
                 Public Policy
• Case C-348/96 Calfa
  – Calfa was a tourist
  – expelled for life from Greece because she had committed a drugs
  – she could not be expelled for life because a decision as to
    deportation/entry could only relate to present conduct (not future
             Public Policy
• Where a person has been deported/expelled
  then he still has the right to reapply at some
  future date.
• Expulsion cannot be indefinite
•   Case C-65/95 Shingara
           Directive 64/221/EEC

• Member State can refuse entry/residency or deport a
  person on the basis of public policy or public security
• However this decision must be based exclusively on
  that persons personal conduct
• this personal conduct must present a genuine and
  serious threat to public policy
• Criminal convictions in themselves cannot constitute
• Measures must not serve economic ends
        Directive 2004/38
– Measures taken on the grounds of public policy or public
  security shall comply with the principle of proportionality and
  shall be based exclusively on the personal conduct of the
  individual concerned. Previous criminal convictions shall not
  in themselves constitute grounds for taking such measures.
– The personal conduct of the individual concerned must
  represent a genuine, present and sufficiently serious threat
  affecting one of the fundamental interests of society.
  Justifications that are isolated from the particulars of the
  case or that rely on considerations of general prevention
  shall not be accepted.
• Diseases/disabilities listed in Annex A and B
  – Annex A-diseases which might endanger public
     • (reference to International listing of diseases subject to
       quarantine, TB, Syphilis, other infectious diseases)
  – Annex B-diseases and disabilities which might
    threaten public policy or public security
         – Drug addiction; profound mental diseases or
           contagious parasitic diseases)
• Art 8 Member states must make available to persons
  subject to derogations the same remedies as are
  available to nationals in respect of acts of the
  administration (in England this is judicial review) state
• Art 9 a person shall not be deported until an opinion
  has been received from a competent authority of the
  host country before taking the decision. The
  competent authority must be separate from the
  authority taking the decision.
• Specific Treaty Articles for economically active
  (workers, self employed, service providers) plus
  secondary legislation
• Citizenship and evolving case law
• Directive 68/360/EEC -re formalities and entry
• Directive 64/221/EEC regarding exceptions to free
• Directive 2004/37 Citizens Rights
• Freedom of movement is a fundamental freedom and
  any exceptions are restricted