#17335 - Free Movement Of Persons - GDL EU Law

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”

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 treatment:

• Martinez Sala [1998] – ex worker who claimed residency and child welfare allowance. As an ex-worker court generously interpreted that she had right to the benefits.

• Grzelczyk [2001] – Belium paid a Minimex (a minimum subsistence allowance for people looking for a job having left university). Was denied this for not being German.

  • Under art 18 TFEU this was nationality based discrimination.

• Bidar [2005] – French national refused student finance from UK for being French. Held that UK could not refuse him on grounds of nationality alone.

  • But can put a limit by requiring Bidar to establish a real link between the job-seeker and the labour market of that State. In this case his residency was sufficient.

  • Some restrictions are legitimate and proportionate: otherwise the host would be burdened

• Vatsouras [2009] – concerned Greek job seekers in Germany. Held it was not possible to exclude job-seekers allowance from Art. 45, however it is legitimate for a MS to reserve this until worker has shown a real link to the labour market (i.e. just need to prove that you are genuinely seeking a job).

Court began to adopt stricter criteria after financial crash.

• Dano [2014] - Romanian citizen who moved to Germany to live with her sister (not a typical family member). Made no effort to learn German or seek a job.

  • Held that economic inactivity and request for welfare made them an ‘unreasonable burden.’

• Alimanovic [2015] - Swedish woman and her daughter who had worked in Germany less than a year, then lost their jobs. After six-months they lost ‘worker’ status. Held they had become an ‘unreasonable burden’

These rights have been abused:

• Zhu and Chen [2004] – Mother had child in Belfast as this granted the child automatic Irish nationality, this in turn allowed the parents’ right to stay.

• Akrich [2003] NI had a requirement that in order to bring spouse...