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Free movement of persons in the EU: how free, under what conditions and for whom?

Updated on 29 November 2013

EU citizens’ right to move freely within the EU is central to the European project. Initially established as a freedom designed exclusively for workers (Article 48, Treaty of Rome), the free movement of persons is nowadays enshrined as one of the EU citizenship rights in Article 21 TFEU. Therefore, “every citizen“, irrespective of his/her age, professional activity or status as a salaried worker has the “right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in[the] Treaty and by the measures adopted to give it effect“. The importance of the free movement provisions has also been highlighted in Article 45 of the Charter of fundamental rights of the EU. Nevertheless, the challenges currently confronting Europe have put this cornerstone of the EU construction under attack. Firstly, in dealing with local unemployment and pressure on social security systems, some scholars see a tendency on the part of national authorities to reinstall a certain degree of labour market protectionism and invoke the so-called “social benefits tourism” argument in order to launch a renegotiation of the free mobility terms. Secondly, on the 31 December 2013 restrictions on the right of Bulgarian and Romanian nationals to work in several Member States are to be lifted. The end of this transitional period is prompting anxious debate across Europe with some politicians warning against an alleged flood of immigration from these two countries. This collection of sources aims at presenting the ongoing interaction between national Governments, EU institutions and civil society on these controversial issues.

Overviews

Social care sign

© kikkerdirk / Fotolia

Free movement of persons in the enlarged European Union (2nd edition) / Nicola Rogers, Rick Scannell and John Wash, Sweet and Maxwell, 2012.

The authors offer a perspective on the different categories of beneficiaries of the free movement provisions within the EU including both the economically active (workers, services providers) and the economically inactive EU citizens, as well as their family members.

Freedom to move and live in Europe: a guide to your rights as an EU citizen / European Commission – DG Justice, 2010.

Summing up the provisions of the 2004/38 Directive, this EC guide provides information about the conditions an EU citizen has to fulfil in order to be able to travel or reside in a different Member State and the benefits arising from the equal treatment principle guaranteed by article 18 TFEU. The document also includes information about possible restrictions to EU citizens’ freedom to move.

Migration in the EU / Eulalia Claros, European Parliament Library Statistical Spotlight, 2013

Library statistical spotlight focusing on the impact of migration on national labour markets and analysing the living conditions migrant workers are faced with in their host societies.

Recent developments: “social benefits tourism”

Letter from Johanna Mikl-Leitner (Federal Minister of the Interior – Austria), Hans Peter Friedrich (Federal Minister of the Interior – Germany), Fred Teeven (Minister for Immigration – The Netherlands) and Theresa May (Secretary of State for Home Department – United Kingdom) to the EU Council Presidency and to Commissioners Viviane Reding, Cecilia Malström and László Andor, 23rd of April 2013(Document not listed in the Public Registers of the EU institutions)

The four Ministers express their concerns related to the abuses of the free movement Directive (2004/38). Bemoaning the impact on their social welfare systems, the four Governments consider that they should have at their disposal legal tools to prevent and fight this kind of fraud.

Cameron’s proposals to limit EU citizens’ access to UK: lawful or not, under EU rules? / Elspeth Guild, CEPS, 29 November 2013, 4p.

Commentary discussing the British Prime Minister’s proposed changes to EU citizens’ free movement with regard to the UK, and assessing to what extent the proposed tightening of benefits provision may be in accordance with EU law.

Strong attack against the freedom of movement of EU citizens: turning back the clock / Yves Pascouau, European Policy Center, 2013

The researcher denounces the abovementioned letter with regard to its wording as well as concerning the suggestions made by its authors. He is particularly dissatisfied with the employment of immigration field terminology when talking about the free movement of EU citizens. Furthermore, he is worried about the aspiration of the four Ministers to install re-entry bans for EU citizens as a sanction against fraud and abuse. The author condemns the intention to limit the free movement provisions to economically active citizens and notes the unfortunate coincidence of launching such an initiative during the “European Year of Citizens”.

Free movement of workers: Commission improves the application of worker’s rights / European Commission, 2013

In this press release launched for the publication of the Proposal for a Directive on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers (aiming at giving full effect to the application of article 45 TFEU andRegulation 492/2011), the European Commission underlines that “no Member State has given the Commission any statistical evidence that “social benefits tourism” exists to any significant extent”.

Social security benefits: Commission refers UK to Court for incorrect application of EU social security safeguards / European Commission, 2013

Considering that the “right to reside” test applied by the UK authorities in order to decide whether EU nationals are entitled to social security benefits discriminates unfairly against nationals from other Member States, the EC decides to take Britain to Court.

Social Benefits and Migration: A Contested Relationship and Policy Challenge in the EU / Guild, Elspeth ; Carrera, Sergio ; Eisele, Katharina, CEPS, 2013

“The book analyses these controversies as they affect different categories of non-citizens in the framework of EU law and policy. This is coupled with an examination of the uses or misuses of data, information and social science knowledge in the debates on the reliance by non-citizens on social benefits. The book concludes with a set of recommendations addressed to EU policy-makers.”

How free is free movement? Dynamics and drivers of mobility within the European Union / Meghan Benton and Milica Petrovic, Migration Policy Institute, 2013

One of the interesting findings of this study is related to the impact of intra-EU migration on the hosting countries’ labour markets. The researchers consider that “while EU migrants appear to be low consumers of public services and amenities, some groups may place burdens on certain groups and communities”.

A fact finding analysis on the impact on the Member States’ social security systems of the entitlements of non-active intra-EU migrants to special non-contributory cash benefits and healthcare granted on the basis of residence / Study conducted by ICF GHK in association with Milieu Ltd for DG Employment, Social Affairs and Inclusion, 2013, 282p.

This recent report published by the European Commission shows that the EU citizens from other MS use welfare benefits no more intensively than host country’s nationals. The majority of EU nationals moving to another EU country do so to work. Consequently, economically non-active mobile EU citizens have a very small impact on the host country’s social systems. 

End of labour market restrictions for Bulgarians and Romanians

At the moment of writing nine Member States still impose labour market restrictions on the right of Bulgarian and Romanian nationals to work on their territories: Austria, Germany, Belgium, France, Luxembourg, Malta, the Netherlands, Spain and the United Kingdom. According to their accession treaty the current restrictions can no longer be maintained after the 31st of December 2013. Consequently, several Western Member States fear a large influx of Romanian and Bulgarian citizens. This section collates Governments’ reactions, impact studies conducted by NGOs, think tanks and declarations made by several Embassies.

Benefits tourism: A real danger for the EU or is it just hype?, DPA analysis, 2013

This dossier presents the Romanian and Bulgarian responses to the fears brought forward by the four Western Governments. Equally important is the section dedicated to the Parliamentary debate launched on this issue.

Labour mobility within the EU: the impact of enlargement and the functioning of the transitional arrangements – Country case studies / National Institute of Economic and Social Research, 2011

This research analyses the labour migration trends in two origin countries (Romania and Bulgaria) and four destination countries (UK, Spain, Italy, Germany). It contains relevant statistics about level of education of Bulgarian and Romanian nationals residing abroad, the sectors in which they are employed and examines the push and pull factors of this type of migration.

Country profile

Bulgaria  

Bulgarian Ambassador, Konstantin Dimitrov, on EU immigration / 26 April 2013 (video interview)

The Ambassador regrets the UK media and political approach towards migration from Bulgaria which is likely to emerge with the removal of labour market restrictions for Bulgarian citizens. However, he expects the UK Government to live up to its obligations and eliminate these restrictions by the end of 2013.

Germany  

EU admonishes Germany to deliver proof on benefit tourism claim / DPA InsightEU article, 2013

Article focusing on Minister Hans Peter Friedrich’s declarations related to “benefits tourism” with which he considers Germany is confronted and the reactions these declarations brought at EU level.

The Netherlands 

The Netherlands and Romania / Nederlandse Ambassade in Boekarest, Roemenië, 2012

The Dutch Embassy in Romania underlines the problems faced by the Dutch Government in dealing with the large flows of Central and Eastern European migrants and explains, in the labour migration section, that according to the Netherlands Bureau for Economic Policy Analysis, a maximum of 20,000 Romanians and Bulgarians are expected to head towards the Netherlands once restrictions are lifted.

Romania

Some aspects concerning the Romanian labour market in the context of emigration / Pociovălişteanu, Diana Mihaela and Badea Liana in The USV Annals of Economics and Public Administration, vol. 12, issue 1, pp. 24-31, 2012.

The authors look at the implications (both negative and positive) of the Romanians’ emigration towards foreign labour markets.

UK 

Potential impacts on the UK of future migration from Bulgaria and Romania / National Institute of Economic and Social Research, 2013

The findings of this study reveal that there is limited evidence on the impact migrants have on the welfare system. However, the authors underline that the majority of social benefits claims are child benefits.

Immigration from Romania and Bulgaria / Migration Watch UK, 2013 

Migration Watch estimates that around 50,000 Romanians and Bulgarians (per year) are likely to migrate towards the UK during the next five years. The report also stresses the bad working conditions East European are ready to accept and the preference UK employers will grant these new migrants.

Ending of transnational restrictions for Bulgarian and Romanian workers / Commons Library Standard Note, 2013 

This standard note interprets the forecasts made by Migration Watch and highlights its limits. Furthermore, an interesting chapter is dedicated to the UK Government’s response to the expected immigration.

Inquiry into EU free movement and immigration: the lifting of transitional controls for Bulgaria and Romania / UK’s All Party Parliamentary Group for European Reform, 2013 

The “options for change” section of this report is particularly interesting as it summarises the Government’s alternatives to reduce the attractiveness of the British benefits system such as toughening the “habitual residence test”. The report also presents Bulgarian and Romanian positions jointly denouncing the focus of debate as being about “migration” rather than “intra-European mobility”.

Case law

As highlighted by Koen Lenaerts in his article European Union citizenship, national welfare systems and social solidarity (in Jurisprudencija, vol. 18, issue 2, pp. 397-422, 2011) there is a directly proportional relationship between the degree of integration of an EU citizen in the host society and the social benefits he is entitled to.

Workers: economically active persons

Consequently, as EU migrant workers contribute to the social welfare system of the host country, they should benefit from the same social advantages as national workers. This equal treatment provision is present in article 45 TFEU – and reaffirmed in several secondary legislation instruments: Regulation 883/2004 on the coordination of social security systems and Regulation 492/2011 on freedom of movement for workers within the Union. The ECJ defended this provision on several occasions: C-237/94, O’Flynn v Adjudication Officer, (23.05.1996), C-337/97, Meeusen v Hoofddirectie van de Informatie Beheer Groep (8.06.1999), C-212/05, Hartmann v Freistaat Bayern (18.07.2007), C-527/06, Renneberg v Staatssecretaris van Financiën (16.10.2008). The EU judges consider for example that imposing a residence requirement for the financing of studies of migrant workers’ children only (whereas no such requirement exists for nationals) is contrary to the principle of equal treatment (C-337/97). The ECJ also held that despite the fact that tax legislation remains a competence of the Member States, they cannot impose different (less advantageous) income taxation schemes for migrant workers (C-527/06).

Job seekers

A tougher regime can nevertheless be imposed on job seekers as an intermediate category between workers and economically inactive persons. The Court has held that a Member State may subordinate the entitlement to a job seeker’s allowance to a residence requirement if such a requirement complies with the proportionality test and is independent of the nationality of the person concerned (Case C-138/02, Collins v Secretary of State for Work and Pensions, 23.03.2004). Furthermore, the EU judges found that article 24(2) of the 2004/38 Directive does not apply in relation to job-seekers’ allowances, which can be granted under conditions such as the one in the Collins case, when a “real link” with the host country’s labour market has been created (Case C-22/08 and C-23/08, Vatsouras and Koupatantze v Arbeitsgemeinschaft 4.06.2009).

Citizens: economically inactive persons

Economically inactive persons benefit from even fewer social assistance rights. The ECJ has nevertheless stated that a student’s temporary lack of resources does not automatically make him a burden for the host society (Case C-184/99, Grzelczyk v Centre public d’aide sociale d’Ottignies-LLN, 28.09.2000). This ruling is now codified in article 14(3) of the 2004/38 Directive. Similarly as for the “job seekers” category, the ECJ considers that Member States can refuse social assistance such as loans or grants to students who cannot “demonstrate a certain degree of integration” into its society  (Case C-209/03, Bidar v London Borough of Ealing and Secretary of State for Education and Skills, 15.03.2005) – the three year residence condition imposed by the British authorities was judged by the ECJ as being a guarantee of sufficient integration into the society of the host Member State.

However, it is worth mentioning that the 2004/38 Directive introduced the right of permanent residence – and in its Lassal ruling (CaseC-162/09, Secretary of State for Work and Pensions v Lassal, 7.10.2010) the ECJ confirms that once this right acquired, EU citizens residing in a different Member State than their country of origin are entitled to social assistance, even if they become a social burden for the host society.

For more case law on the free movement of persons, see: La condition des personnes dans l’Union européenne: recueil de jurisprudence / Jean-Yves Carlier, Larcier, 2012, available in the Library (“reserve this book”).

Discussion

7 thoughts on “Free movement of persons in the EU: how free, under what conditions and for whom?

  1. Freedom to move and live in Europe: a guide to your rights as an EU citizen hyperlink returns an error. Where can i access this publication?

    Like

    Posted by Nancy | April 20, 2015, 12:13

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