Transcript Slide 1

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
provisions
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
capital
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 nondiscrimination
• 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)
Nationality
• 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
Persons?
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Workers (Article 39)
Self Employed (Article 43)
Service Providers (Article 49)
Service receivers (Article 49)
Persons
• 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
persons
Non-economically active persons
• Family members (Regulation 1612/68/EEC)
• RESIDENCY DIRECTIVES
– 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.
Summary
• Treaty provisions- relate to economically active
persons (workers, self employed, service providers)
(and by virtue of secondary legislation their family
members)
• 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.
Citizenship
• 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.
Citizenship
• Every person holding the nationality of a Member
State shall Citizen of the Union
• Case C-192/99 Kaur
• Case C-369/90 Micheletti
Citizenship
• What rights does Article 18 confer? The right to move and reside
in another Member State (subject to limitations and conditions)
• 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”.
Citizenship
• Case C-413/99 Baumbast
– German national living in UK- no longer a worker
– Did not fully comply with requirements of Directive
90/364
– ECJ said he, as a citizen, had a right to reside in
UK subject to limitations in Treaty/secondary
legislation
– These limitations/conditions subject to the
principle of proportionality
Citizenship
• What rights?
• Citizens have rights of residence but does
citizenship confer any other rights on a
person when he readies in a host state?
Citizenship
• 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)...in 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
state”.
Citizenship
• 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)...in all situations which fall within the scope
ratione materiæ of Community law”.
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Citizenship
• 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, Netherlandslater joined by Spain, Portugal and Greece
• Schengen Agreement incorporated into EC Treaty by
Treaty of Amsterdam (UK, Ireland not part of agreementDenmark-has an opt out )
Rights of entry
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Directives 68/360 & 73/148
Art 2-Right to leave home state
Art 3 (1)-Right of entry of
another Member State on
production of passport or valid
ID
Art 3(2) Entry visas are not
required except for family
members who are not EU
nationals (and States must
accord to such persons every
facility for obtaining necessary
visa).
•
Case C-68/89 Commission v
Netherlands
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Case 157/79 R v PieckMember State cannot grant
limited leave to enter
Residence Permits
• Directive 68/360/EEC•
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Art 4- Right to obtain residence permit on production of document of
entry and certificate of employment (for family members proof of
relationship/dependency.)
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
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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
unemployed.
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
residence
• 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
members)
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
deportation
• 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
territory
• 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
territory.
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
Cornuaille
• 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
measures
• 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
offence
– she could not be expelled for life because a decision as to
deportation/entry could only relate to present conduct (not future
conduct)
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
grounds
• 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.
PUBLIC HEALTH
• Diseases/disabilities listed in Annex A and B
– Annex A-diseases which might endanger public
health
• (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)
PROCEDURAL
SAFEGUARDS
• 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.
Conclusion
• 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
movement
• Directive 2004/37 Citizens Rights
• Freedom of movement is a fundamental freedom and
any exceptions are restricted