The Internal Market and the Free Movement of Persons

1. The Internal Market and the Free Movement of Persons R.Greaves, 2008

2. 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

3. 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

4. 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

5. 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 R.Greaves, 2008

6. 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 R.Greaves, 2008

7. 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” R.Greaves, 2008

8. 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

9. 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 R.Greaves, 2008

10. 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 R.Greaves, 2008

11. Secondary legislation cont’d • 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 R.Greaves, 2008

12. 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

13. 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

14. 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 R.Greaves, 2008

15. 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 R.Greaves, 2008

16. 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

17. 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 R.Greaves, 2008

18. Transformative power of EU citizenship • C-200/02 Chen R.Greaves, 2008

19. 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