Free Movement of Persons

• Initially free movement only covered workers, but since Maastricht in 1993 EU recognised the rights of all EU citizens.

  • Article 18 TFEU: Principle of Non-Discrimination prohibits discrimination on grounds of nationality.

  • Article 20 TFEU: Every person holding the nationality of a Member State shall be a citizen of the Union.

  • Article 21 TFEU: Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States

• The rising age of EU citizenship:

  • Martinez Sala [1998] – first case of EU citizenship. A Spanish legal resident in Germany claiming welfare benefits of her child. Germany tried to claim because she wasn’t working she shouldn’t be allowed to stay.

    • Held she could not be treated any different from German nationals.

  • Baumbast [2002] – Mr Baumbast, a German, had a Colombian family, lived in the UK. Was now working in asia, and did not have emergency health insurance.

    • Held they were not a burden on the state and Purely as a national of a Member State, and consequently a citizen of the Union, Mr Baumbast therefore has the right to rely on Article [21(1) TFEU].

  • Grzelczyk [2001] – Belgium refused to provide its minimax allowance to a French student. Held this was discrimination.

    • “Union citizenship is destined to be the fundamental status of nationals of the Member States”

Directive 2004/38: Citizens’ Rights Directive

• Codified case law (did not replace it).

  • Article 2 & 3: Scope

    • Includes EU nationals and their family members regadless of nationality,

      • Spouse

      • Registered partner (if recognised by MS: Netherlands v Reed)

      • Direct descendants under 21 or any dependant direct descendants

      • Dependant direct relatives/family members

      • the partner with whom the Union citizen has a durable relationship.

  • Article 6: Right to Short Stay

    • Any EU citizen can reside in any EU state for <3 months.

  • Article 7: Right to Temporary Residence (3 months – 5 years)

    • 1) Workers, or

    • 2) Citizens with sufficient resources for themselves so as not to become a burden, and have comprehensive sickness insurance; or,

    • 3) Those enrolled at a private or public establishment following a course of study, including vocational training; or,

    • 4) Family members of the above.

  • Article 16: Right to Permanent Residence

    • Citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there.

    • Need not ‘do’ anything, it arises naturally.

• Family Residence Conditions:

  • Material support for the family member must be provided by the EU citizen.

  • This means the family needs to be a worker, or have sufficient resources/health insurance so as not to become an unreasonable burden on state.

  • Zhu and Chen [2004] – Mother had child in Belfast as this granted the child automatic Irish nationality.

    • Held a minor who is a national of a European Union member state has the right to reside in the European Union with his or her third-country national parents

    • It is clear that enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his or her primary carer

  • Baumbast [2002] – had sufficient resources he did not have comprehensive health insurance (only emergency health insurance). The court generously interpreted provisions to allow them to stay under the principle of proportionality.

• Article 24: Right to Equal Treatment

  • Derogations (Art 24(2)):

    • Residence of <3months no right to benefits.

    • Residence of 3 months – 5 years may also restrict benefits.

    • Prior to acquisition of permanent residence can restrict benefits for students and other people who don’t work.

• Cases on Equal...

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