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The Free Movement of Persons

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The Internal Market and the Free
Movement of Persons
R.Greaves, 2008
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
R.Greaves, 2008
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
R.Greaves, 2008
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
R.Greaves, 2008
The Free Movement of
Soon became clear that this policy
area, which directly benefits
human beings, must have
implications beyond the economic
of market integration
R.Greaves, 2008
Breaking the economic nexus
This has been done incrementally, over
ECJ and the legislature began to reflect
the human dimension of this field rg
Regulation 1612/68
R.Greaves, 2008
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
R.Greaves, 2008
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)
R.Greaves, 2008
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
No need to be a worker/economically active
but must be economically self-sufficient
R.Greaves, 2008
Secondary legislation
Directive 2004/38 – citizens’ rights
This consolidated the case law and
provides clearer and more coherent
statement of rights
 Right to equal treatment – Article 24
пЃ· Codification of exceptions in Articles 27-33
пЃ· Confers rights on migrants according to their
length of residence in the host state
R.Greaves, 2008
Secondary legislation cont’d
Regulation 1612/68 – substantive rights
and social advantages- extended to
пЃ· 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”
пЃ· Art 9(1) public housing
R.Greaves, 2008
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
R.Greaves, 2008
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”
R.Greaves, 2008
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
C-85/96 Martinez Sala 85/96– right to
claim social security benefit
C-138/02 Collins 138/02– right to claim
social security benefit
R.Greaves, 2008
Employment rights
Access to employment
direct discrimination - Bosman 283/99;
Code Maritime Case 167/73
Indirect discrimination – Collins 138/02;
Groener 379/87;Angonese 281/98
Non-discriminatory - Bosman 283/99
R.Greaves, 2008
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
C-209/03 Bidar –Equality of treatment in access
to maintenance grants
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Transformative power of EU
C-200/02 Chen
R.Greaves, 2008
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
R.Greaves, 2008
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