The Internal Market and the Free

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• The Internal Market and the Free
• Movement of Persons

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Free movement of persons

• One of the four freedoms envisaged in 1957
  (Arts 39-55 EC Treaty)
• Central feature of the internal market
• Article 39(1) Free movement of workers
• Article 43 EC freedom of establishment
  (self-employed persons)
• Article 49 EC freedom to provide and receive
  services

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Article 39 EC

• Para. 1 Freedom of movement for workers shall be
  secured within the Community.
• Para 2 FM shall entail the abolition of any
  discrimination based on nationality between
  workers as regards employment, pay and work
  conditions
• Para 3 limitations to the right on grounds of
  public policy, public security, public health
• Para 4 Exemption for employment in the public
  service

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Economic nexus

• To fall within Article 39 EC the migrant must be
  engaging in an economic activity they must be a
  worker i.e. factors of production

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The Free Movement of Persons

• Soon became clear that this policy area, which
  directly benefits human beings, must have
  implications beyond the economic of market
  integration

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Breaking the economic nexus

• This has been done incrementally, over time
• ECJ and the legislature began to reflect the
  human dimension of this field rg Regulation
  1612/68

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Breaking the economic nexus

• ECJ broad interpretations of Treaty provisions
  and secondary legislation
• worker Levin 53/81 services performed for
  and under the direction of another for
  remuneration. Activity must be effective and
  genuine and not purely marginal or ancillary
  (Lowrie-Blum 66/85)
• Includes right to enter and remain to seek work
  Antonissen C-292/89
• Hoeckx (Unger) 249/83 access to social
  advantages

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Breaking the economic nexus

• A range of ancillary rights in order to
  remove disadvantages associated with exercising
  FM rights
• Right to receive social advantages under the same
  terms and conditions as host-state nationals
• Right of entry and residence for family members
  of the worker. Family rights derivative/
  dependent Lebon 316/85
• These rights fleshed out in secondary legislation
  (Regulation 1612/68 directives)

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A breakthrough Residency directives early
1990s

• Designed to extend protection of Community law by
  offering residency rights to certain specific
  categories of persons
• Directive 90/365 retired workers
• Directive 93/96 students
• Directive 90/364 all others (the playboy
  directive)
• No need to be a worker/economically active but
  must be economically self-sufficient

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Secondary legislation

• Directive 2004/38 citizens rights directive
• This consolidated the case law and provides
  clearer and more coherent statement of rights
• Right to equal treatment Article 24
• Codification of exceptions in Articles 27-33
• Confers rights on migrants according to their
  length of residence in the host state

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Secondary legislation contd

• Regulation 1612/68 substantive rights and
  social advantages- extended to family
• Marked change of direction for the scope of the
  freedom- 5th indent of Preamble refers to
  exercise of the right in freedom and dignity
• Art 7(2) social advantages
• Art 9(1) public housing

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The biggest breakthrough! EU citizenship

• Articles 17-22 EC inserted into EC Treaty by the
  EU Treaty (Maastricht)
• Complementary status to nationality of MS
• Raft of rights

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EU Citizenship

• Most significant Article 18 (1)
• Every citizen of the Union shall have the right
  to move and reside freely within the territory of
  the MS, subject to the limits and conditions laid
  down in this Treaty and by the measures adopted
  to give it effect

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What potential?

• Mere codification of pre-existing rights or basis
  for rethinking free movement rights?
• ECJ crucial role in developing the concept of
  EU citizenship
• It has interpreted Article 18 in combination with
  the Article 12 principle in order to create
  rights for citizens when they are in other MS
  irrespective of any economic nexus

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Some key case law

• Non-workers
• C-85/96 Martinez Sala 85/96 right to claim
  social security benefit
• Work-seekers
• C-138/02 Collins 138/02 right to claim social
  security benefit

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Employment rights

• Access to employment
• direct discrimination - Bosman 283/99 Code
  Maritime Case 167/73
• Indirect discrimination Collins 138/02 Groener
  379/87Angonese 281/98
• Non-discriminatory - Bosman 283/99

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Some key caselaw

• Education and rights of students
• C-184/99 Grzelczyk -EU Citizenship is the
  fundamental status of nationals of the MS
• C-413/99 Baumbast Concerned residence rights
  -Article 18(1) is capable of having direct
  effect. Any limitations on exercise of Treaty
  rights must be compatible with the principle of
  proportionality
• C-209/03 Bidar Equality of treatment in access
  to maintenance grants

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Transformative power of EU citizenship

• C-200/02 Chen

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Incremental approach to residence and equality

• Caselaw does not suggest that all migrant EU
  citizens have immediate right to claim all
  benefits in the MS on the same terms as nationals
• Incremental approach - also reflected in
  Directive 2004/38
• Residence integration - solidarity