Lecture 27 Free Movement of Persons

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 27.1
Key Rights and Core Legal Provisions

27.2
The Fundamental Article 21 Right

An Overview of Movement, Residence and

27.3
Non-Discrimination Rights for Different
Categories of Migrants
2
 Key Rights and Core Legal
27.1 Provisions

The three key rights that EU citizens enjoy under

the various provisions are the right to free
movement, right to residency and the right to non-
discrimination

The underlying principle in the area is contained

in Article 21 TFEU which creates a right to free
movement and residency applicable to all EU
Citizens

This is supported by Article 18 TFEU which

guarantees a right to non-discrimination.
 These basic rights are then
expanded in a further set of Treaty
articles that guarantee free 1 Workers (Article 45 TFEU)
movement, residency and non-
discrimination rights to EU citizens
who are

2 Exercising rights in connection 3 Providing Services (Article 56

with the activities of companies TFEU)
(Article 49 TFEU)
The full set of rules In this lecture, we
relating to Article will primarily focus
49 and Article 56 on rights and EU
rights will be rules connected
discussed in a with Article 21
more detail in a TFEU and Article
separate lecture 45 TFEU
 The rights connected with
Article 21 TFEU and Article
45 TFEU are also fleshed out
in more detailed provisions of
secondary legislation

1 On General
Freedom of 2 On Workers
Movement of Citizens Regulation 42/2011
Directive 2004/38

The two key

instruments
The interpretation and application of these
instruments is controlled by the overarching
provisions contained in Article 21 TFEU and Article
45 TFEU

The instruments should not be read as a self-contained code of

the rules governing this area of law

However, where a right is set out in a more specific piece of

legislation, the legislation is the direct source of the right
It should be noted that all the detailed Treaty articles as well as
the relevant pieces of secondary legislation, set out key rights
to free movement and equal treatment, but these rights are also
subject to public policy derogations that must respect
fundamental rights.
Directive 2004/38 sets out the general
citizenship rights of residency and
equal treatment for both workers and
non-economic migrants (including
family members of workers)

Key provisions
include
 Article 6 and 7

1 The right to residency contained in

Article 6 provides an automatic right
to residency up to 3 months

2 Residency for workers and self-

employed (economic migrants) beyond 3
months

3 Residency rights for non-economic

migrants beyond 3 months where they

3.1 Have sufficient resources to not become a burden on the State

3.2 Have comprehensive health
insurance
 Provides a
Article 14 continuing right of
residency to
economic migrants
and their family.

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Article 16 A right to
permanent
residence after
5 years
 Equal treatment
Article 24 with nationals for
economic
migrants. For non-
economic
migrants, there is
no entitlement
provided for social
assistance or
maintenance aid
for studies during
their residency
(24(2))
 The Directive sets
out further conditions
that make the
threshold for lawful
This article sets out action relatively high
Any measures taken
general public policy
must be in
reasons for
accordance with the
restricting residency
principle of
rights on public
proportionality and
policy, public security
must respect
or public health
fundamental rights.
grounds

Article 27
 The Fundamental Article 21 Right
27.2

Article 21 TFEU establishes a general right to move and reside

freely within the territory of any of the Member States

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Article 21 TFEU is the fundamental right in the area of free
movement (Case C-413/99 Baumbast and R v Secretary of
State for the Home Department [2002] ECR I-7091).

This means that all other EU legislation and all other acts of
Member States that put into effect that right to free movement
are interpreted and reviewable on the basis of the standard set
out by Article 21
The first sort of implication that follows from the fundamental
status of Article 21 is that the right contained in the Article is
deemed capable of full direct effect because it is deemed to be
sufficiently clear, precise and unconditional to be enforced in
national courts
 Because the Article 21 right is
the basic right any limitations or
conditions must be in
accordance with general
principles of EU law

The key principles in this respect

are: proportionality as employed
in Baumbast and discrimination
as employed in Case C-184/ 99
R Grzelczyk [2001] ECR I-6193

Crucially, this means that

Member State action that limits
or conditions the Article 21 right
can be reviewed for conformity
with these principles
In the Grzelczyk case for example, a student was
resident in another country and was denied a
social security benefit available to nationals of
that country

The terms of the secondary EU legislation

suggested that his right to residency as a student
was premised upon having sufficient resources
so as not to be a burden on the State

The same provisions are now contained in

Directive 2004/38
 However, the
CJEU concluded
that his right to
Because he had
residency derived
a right to
directly from
residency under The State was
Article 21 and as
EU law, the accordingly
such they
general principles prevented from
decided that it
of EU law applied denying him the
could not be
to the case and in state benefit
narrowly
this case the right simply on the
construed to
to non- grounds of his
mean that the
discrimination of nationality
residency right
grounds of
ceased when the
nationality
student sought to
claim state
benefits
 A further point that stems
from the fundamental nature
of the Article 21 right is that it The key example of this is
is deemed capable of having Case C-34/09 Ruiz
far-reaching internal effects Zambrano v ONEM [2011]
within Member States even ECR I-1177
where no movement is
involved
 The case involved a father of two
children. The father was not an EU
citizen (a third country national). His
two children were EU citizens

The father sought to challenge an

attempt by the State to deny him
access to residency and a work permit

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The Court decided that the fundamental status conferred on the
children by Article 21 gave them an overriding right to residence
in the Member State in question

Any measure that the Member State took that would undermine
the substance of that right would be precluded under EU law

The sort of measure precluded included a refusal of the fathers

residency and work permit
 An Overview of Movement, Residence
27.3 and Non-Discrimination Rights for
Different Categories of Migrants

The basic right contained in Article 21 is subject

to limitations and conditions set out in the
Treaties and in subsidiary legislation

Article 21 can be used to ensure an expansive

interpretation and application of this body of
legislation
 As we have seen, the
principal instrument There is an initial right to
governing non-economic residency for three months
migrants is Council Directive
2004/38

3.1 Non-Economic Migrants

Thereafter persons who are not

workers or self-employed are
entitled to residency where they 1) They acquire a right to
have sufficient resources to avoid permanent residency is they
becoming a burden on the
Member States social assistance are resident for a continuous
scheme and 2) have period of 5 years
comprehensive sickness
insurance
Any citizens lawfully resident are as explained above entitled to
benefit from non-discrimination provisions and other principles
of EU law

Where a non-economic migrant seeks to apply for social

security benefits, they are entitled to benefit from the protection
against discrimination if they are resident (Case C-456/02
Trojani v CPAS [2004] ECR I-7573).

Such residency must be in accordance with EU law not just

national law to benefit from EU law protection (Case C-333/13
Dano v Jobseeker Leipzig)

This raises the question of
whether a Member State is
entitled to refuse social assistance
to a non-economically active
migrants where they seek to claim
a social security benefit
If they are not resident in
accordance with EU law, the State
is not bound by principles of EU
law like non-discrimination
This would be on the basis that
they do not meet the sufficient
resources condition for residency
after 3 months and that they are
excluded from the equal treatment
provision under article 24(2) of the
Directive for the first 3 months.
Does this argument work?
The argument was tested in the case of Brey
(Case C-140/12)

The Austrian governments rules stated that non-

economic migrants would be refused benefits
where their stay exceeded a 3 month initial
period on the basis that further residency was on
the condition of access to sufficient resources

The refusal of benefits was challenged

 However, the CJEU emphasized the
further condition laid down in s. 7(1)(b)
of Directive 2004/38 which was that the
burden placed on the national social
security system by administering
benefits would have to be unreasonable

Applying the principle of proportionality

to the Austrian governments refusal,
they concluded that it was not
proportionate because the decision-
making process did not give sufficient
consideration to this issue
However, the decision in Brey has in effect been
sidelined in recent cases to the extent that it is
not clear to what extent it still applies.

The cases in question were Dano, Case

C67/14 Alimanovich, C-299/14 Garcia Nieto

The key feature was that the CJEU applied a

strict reading of the Citizenship Directive to
decide whether social assistance' should be
provided and they did not override its limits with
reference to any underlying right.
 It is important to note that the strict
approach to entitlement in recent cases
applies to benefits that can be
described as social assistance rather
than benefits related to access to the
labour market.

Social assistance benefits are defined

as minimum subsistence costs
necessary for a dignified life (see para.
45 Alimanovic)
3.2 Students

In this area, the principle of Equal treatment is subject to the limitations

contained in Article 24(2) of Directive 2004/38 which permits rules of access
to maintenance grants to be restricted (tuition fees are handled differently
on the basis that they are not social assistance).

However, national rules of access to maintenance grants are reviewable

under Article 18 TEU to ensure that they were based on non-discriminatory
criteria (Case C-209/03 Bidar v London Borough of Ealing [2005] ECR I
2119).

This is due to underlying importance of the Article 21 TFEU right


In Bidar, the national legislation
set out a minimum residency
period to qualify as well as a
requirement that they be
settled in the UK
The CJEU concluded that the
rule was indirectly
discriminatory. It had a
legitimate purpose (viability of
State financing of higher
education) but the settlement
requirement was
disproportionately restrictive
 This rule was held to be
proportionate restriction of
Article 18 and Article 20 TFEU
rights
However, in Frster a Member
State refused to provide a
maintenance grant for a student
because she had not been
resident for 5 years (Case C-
158/07 Frster v. Hoofddirectie
van de Informatie Beheer Groep
[2008] ECR I-8507)

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Overall, this is an area of law in
which Article 21 and 18 TFEU
play a key role in assessing
Member State rules on
students access to benefits
This is despite specific
provisions on the point in Article
24(2) of Directive 2004/38 that
appear to allow States greater
licence in derogating from non-
discrimination rules
3.3 Workers and Job Seekers

3.3.1 Scope of Protection

The rights of workers in relation to residence
and non-discrimination are primarily guaranteed
by the historically central Article 45 TFEU
subject to exemptions on grounds of public
policy, public security or public health.
Derogations must always respect fundamental
rights.

The definition of a worker is 1) a person working

under the direction of another; 2) in exchange for
remuneration (Case 66/85 Lawrie-Blum v. Land
Baden Wrttemberg [1986] ECR 2121)

Worker status is retained in accordance with

Article 17(3) of the 2004/38 Directive in
circumstances like involuntary unemployment
 Job seekers are
entitled to
Secondary
residency
regulation
primarily under
covering workers This is confirmed
both Article 21
include the in Article 14(4)(b)
TEU and more
2004/38 Directive of the 2004/38
particularly under
as well as Directive
the free
Regulation
movement of
492/11
workers provision
(Article 45).