September 29, 2015
Center for Comparative Law, Charles University in Prague, Czech Republic
- Freedom of movement, citizenship of the Union and general limits
Freedom of movement has been built progressively since the foundation of the European Economic Community in 1957, starting with the freedom of movement for workers, expanding to all Union citizens in 1993 and enlarging to the citizens of new Member states from Eastern, Central and Southern Europe during the 21th century.
This expansion of the mobility of Union citizens has been possible thanks to the granting of the citizenship of the Union to all national citizens of the Member States by the Maastricht treaty. This Union citizenship was accompanied by different rights, the most important being the freedom of movement and residence.
During the 21th century, the picture of freedom of movement of Union citizens has changed deeply since the coming of two main factors:
- the last enlargements of the European Union to economically poorer Member states from Eastern, Southern and Central Europe,
- and the occurrence of the global economic crisis.Recently, there has even been strong political pressure in some Member States to reconsider the benefits of the principle of free movement, which has been built progressively since the foundation of the European Community. This restrictive approach has arisen against the background of the global economic crisis, which occurred just after the enlargements of the EU, leading to more nationalistic and protectionist measures, which have legal consequences for Union citizens on the move.It is clear from case–law and from EU primary and secondary law that integrated migrants and economically active residents are privileged and who will benefit from more advantages than the temporary resident and the inactive resident. The citizenship of the Union stays fundamentally inegalitarian because there is still no equality of treatment between every union citizen.
- Nevertheless, the lawful economically inactive resident, despite not being having total equality of treatment with national residents, still benefits from freedom of movement and residence. The less favoured is certainly the economically inactive resident not fulfilling the conditions of article 7 (mainly lacking necessary financial resources) and therefore not being a lawful resident. Last few years, most of the cases of expulsion of Union citizens were concerning this category of Union citizens.
- Many steps have been taken to facilitate Union citizens’ entry to and residence since 1957. The status of Union citizens residing in a host Member State is becoming increasingly similar to that of nationals of the host Member State, even if total equality of treatment is still not possible in some areas, such as social assistance. Indeed, article 21.1 TFEU on freedom of movement and residence subjects this freedom to the necessary compliance with limitations and conditions imposed by EU primary and secondary law. The citizenship directive from 2004 is also imposing conditions to the freedom of movement and residence of Union citizens especially for long-term residence. This directive even allows Member states to terminate the residence of Union citizens in case of threat to public policy, public security and public health, of abuse of rights and of unreasonable burden on the social assistance system of the host Member state.
- More and more economically inactive Union citizens are using their right of freedom of movement to escape critical economic situation into their Member State of origin. They usually move from weakly economically Member States to economically more successful Member States with the hope to find a job and a better situation.
Download the full paper here: Solange_Maslowski
This article has been supported by the Czech Science Foundation – GAČR through its project N. 15-23606S Selective Issues Deriving from the Transposition and Implementation of Directive 2004/38/EC.
 At its beginning, freedom of movement of workers was concerning around 233.2 million persons.
 Ex-article 8aTEU (today 21.1 TFEU) has provided freedom of movement and residence for every Union citizen independently of its social status (worker or economically inactive resident).
 Today after the last enlargement in 2013, freedom of movement of persons is concerning around 506, 9 million persons, twice more persons than at the beginning of freedom of movement of workers.
 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
 Ségolène Barbou des Places, La non-discrimination entre les européens, horizon indépassable de la citoyenneté de l’Union? in Francette Fines, Catherine Gauthier, Marie Gauthier, La non discrinimation entre les européens, Editions Pedone, Paris 2012, p.199.
 Rémy Hernu, Principe d’égalité et principe de non-discrimination dans la jurisprudence de la Cour de justice des Communautés européennes, LGDJ, Collection Bibliothèque de Droit Public, 2003.