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Free Movement of Persons

Free Movement of Persons. Lecture Aims. Be able to define the scope of the provisions relating to the free movement of persons Knowledge and understanding of the specific Treaty articles and secondary legislation in relation to the free movement of persons

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Free Movement of Persons

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  1. Free Movement of Persons

  2. Lecture Aims • Be able to define the scope of the provisions relating to the free movement of persons • Knowledge and understanding of the specific Treaty articles and secondary legislation in relation to the free movement of persons • Examination of the case law in order to understand how these rights have been interpreted • Understand the circumstances in which a Member State can derogate from the free movement provisions

  3. Community aims Article 3 (c) EC an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital Article 14 EC The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.

  4. Principle of non-discrimination • Article 12 • Within the scope of application of this Treaty,and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited • scope ratione materiæ (material scope) • scope ratione personæ (personal scope)

  5. Nationality • The EC Treaty only confers rights of movement on persons who nationals of a Member State • Case C-192/99 Kaur • Case C-369/90 Micheletti

  6. Persons? • Workers (Article 39) • Self Employed (Article 43) • Service Providers (Article 49) • Service receivers (Article 49)

  7. Persons • Arts 39, 43 and 49 relate to economically active persons • social dimension-provisions confer enforceable rights on individuals • However these rights have been extended to certain categories of non economically active persons

  8. Non-economically active persons • Family members (Regulation 1612/68/EEC) • RESIDENCY DIRECTIVES • Directive 90/366/EEC (replaced by Directive 93/96/EC )-free movement of students • Directive 90/365/EEC-workers/self employed who have ceased to work • Directive 90/364-general free movement ...but only to those persons of independent financial means who will not become a burden on the ‘host’ state

  9. Directive 2004/38/EC • Directive 2004/38/EC on the right of the citizen of the Union and their family members to move and reside freely within the territory of the Member states • amends Regulation 1612/68/EEC • will repeal Directives 64/221/EEC, 68/360/EEC, 90/364/EEC, 90/365/EEC and 93/36/EC. • Directive to be implemented by April 30 2006.

  10. Directive 2004/38/EC • Directive 2004/38/EC (due to be implemented by 30 April 2006) • Citizens have a right of residency in host state for up to 3 months without need for any formalities other than entry documents (passport/ID card) • Longer period of residency for workers, self employed, persons who have sufficient resources not to become a burden on social assistance scheme of host state (and have comprehensive sickness cover), students (if they have comprehensive sickness insurance and sufficient resources), and their family members.

  11. Summary • Treaty provisions- relate to economically active persons (workers, self employed, service providers) (and by virtue of secondary legislation their family members) • EC secondary legislation extended rights to certain categories of non-economically active persons providing they are not a financial burden on the host state’s social assistance system. • These directives will be repealed and consolidated by Directive 2004/38/EC.

  12. Citizenship • Article 17 • Every person holding the nationality of a Member State shall Citizen of the Union. • Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. • Article 18 • Every citizen of the Union shall have the rightto move and reside freely within the territory of the Member State subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

  13. Citizenship • Every person holding the nationality of a Member State shall Citizen of the Union • Case C-192/99 Kaur • Case C-369/90 Micheletti

  14. Citizenship • What rights does Article 18 confer? The right to move and reside in another Member State (subject to limitations and conditions) • Is this a free standing right for all Union citizens or just a restatement of existing rights (for those covered by Treaty and secondary legislation)? • Case C-413/99 Baumbast • ECJ held that Article 18 (1) was directly effective • Although Art 18 is subject to the conditions and limitation sunder the Treaty and secondary legislation these limitations are subject to judicial review and do not prevent Art 18 (1) from being directly effective • “As regards, in particular, the right to reside within the territory of the Member state under Article 18, that right is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty”.

  15. Citizenship • Case C-413/99 Baumbast • German national living in UK- no longer a worker • Did not fully comply with requirements of Directive 90/364 • ECJ said he, as a citizen, had a right to reside in UK subject to limitations in Treaty/secondary legislation • These limitations/conditions subject to the principle of proportionality

  16. Citizenship • What rights? • Citizens have rights of residence but does citizenship confer any other rights on a person when he readies in a host state?

  17. Citizenship • Case C-85/96 Martinez Sala v Freistaat Bayern • “It follows that a citizen of the European Union...lawfully resident in the territory of the host Member State, can rely on Article 12 (then Art 6)...in all situations which fall within the scope ratione materiæ of Community law, including the situation where that member state delays or refuses to grant to that claimant a benefit that is provided to all persons lawfully resident in the territory of that state on the ground that the claimant is not in possession of a document which the nationals of that same state are not required to have and the issue of which may be delayed or refused by the authorities of that state”.

  18. Citizenship • Case C-184/99 Grzelczyk • “Union citizenship is destined to be the fundamental status of nationals of the Member States,enabling those who find themselves in the same situation to enjoy the same treatment in law, irrespective of their nationality, subject to such exceptions as are expressly provided for” Paragraph 31 • “As the Court held in...Martinez Sala...a citizen of the European Union, lawfully resident in the territory of a host Member State, can rely on Article 12 (ex 6)...in all situations which fall within the scope ratione materiæ of Community law”.

  19. Citizenship • Case C-224/98 D’Hoop • “In that a citizen of the the Union must be granted in all Member States the same treatment in law as that accorded to the nationals of those Member States who find themselves in the same situation, it would be incompatible with the right of freedom of movement were a citizen, in the Member State of which he is a national, to receive treatment less favourable than he would enjoy if he had not availed himself of the opportunities offered by the Treaty in relation to freedom of movement” Paragraph 30 • “such inequality of treatment is contrary to the principles that underpin the status of citizen of the Union, that is, the guarantee of the same treatment in law in the exercise of the citizen’s freedom to move” Paragraph 35

  20. Schengen Agreement • Schengen Agreement-1985 Agreement & implementing Convention 1990 • 5 member states reached agreement (outside auspices of EC) to remove internal borders and all checks on the movement of people across the borders • Germany, France, Belgium, Luxembourg, Netherlands-later joined by Spain, Portugal and Greece • Schengen Agreement incorporated into EC Treaty by Treaty of Amsterdam (UK, Ireland not part of agreement-Denmark-has an opt out )

  21. Directives 68/360 & 73/148 Art 2-Right to leave home state Art 3 (1)-Right of entry of another Member State on production of passport or valid ID Art 3(2) Entry visas are not required except for family members who are not EU nationals (and States must accord to such persons every facility for obtaining necessary visa). Case C-68/89 Commission v Netherlands Case 157/79 R v Pieck- Member State cannot grant limited leave to enter Rights of entry

  22. Residence Permits • Directive 68/360/EEC- • Art 4- Right to obtain residence permit on production of document of entry and certificate of employment (for family members proof of relationship/dependency.) • Article 6-Residence permit must be valid throughout the whole territory and valid for at least 5 years • automatically renewable • Temporary permit may be issued for temporary employment (between 3 and 12 months). Those who work for less than 3 months/seasonal workers are not entitled to residence permit

  23. Residence Permits • Right to reside stems from the Treaty and not the residence permit and a (lawfully resident) person may not be deported simply because they do not possess a residence permit - Case 48/75 Royer • Case 157/79 R v Pieck- Member State cannot grant limited leave to enter • Failure to obtain a residence permit may give rise to sanctions but these must be comparable to those attaching to minor offences by nationals

  24. Loss of right to reside • The right to reside is for an indefinite duration but can be lost • Departure-absence for more than 6 months (other than for military service) can terminate a residence permit • Unemployment -Art 7(1) 68/360/EEC- residence permit may not be withdrawn from a worker solely because he is temporarily no longer in employment either because he is temporarily incapable of work (as a result of an accident or illness) or he is involuntarily unemployed • Art 7 (2) where a residence permit is renewed for the first time the period or residence may be restricted to not less than 12 months if the worker has been involuntarily unemployed for more than 12 consecutive months • Case Giangregorio v Secretary of State for the Home Department-the onus is on the worker to prove that he has been made involuntarily unemployed.

  25. Administrative Formalities • A Member State may require person to comply with administrative formalities providing • they are not unduly restrictive/unreasonable and sanctions for non-compliance are proportionate (not deportation) • Case 118/75 Criminal Proceedings against Watson and Belmann • Case -C-265/88 Messner

  26. Restrictions on entry and residence • Article 39 (3) Free Movement of Workers • It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: • Substantiated by Directive 64/221/EEC • Applies to all persons seeking to exercise the freedom of movement (i.e. self employed, students, family members)

  27. Directive 64/221 • Articles 1- • The provisions of this directive shall apply to any national of a Member state who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self employed person or as a recipient of services

  28. Directive 64/221 • Article 2 (1) • This directive relates to all measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health • entry • residency • deportation • Article 2 (2) • Such grounds shall not be invoked to service economic ends

  29. Restrictions on movements • Only applies to entry/residence or deportation • Case 36/75 Rutili

  30. Restrictions on movements • Case C-100/01 Olazabal • A Member State can restrict movement within the territory providing certain conditions are satisfied • The action is justified by reasons of public order/public security based on the conduct of the individual • The reasons were so serious that otherwise he would have been expelled/deported from the whole of the territory • The state would impose punitive measures or other genuine measures to prevent its nationals from engaging in that conduct

  31. Public Policy & Public Security • Article 3 (3) • Expiry of the identity card or passport used by the person concerned to enter the host country and to obtain a residence permit shall not justify expulsion from the territory.

  32. Public Policy • Article 3 (1) measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned. • Case 67/74 Bonsignore • 41/74 Van Duyn v Home Office • Personal conduct did not need to be unlawful before a MS could invoke this public policy exception • it was sufficient that the personal conduct was socially harmful (however see later cases on this point) • present membership/association with an organisation could constitute personal conduct (but previous membership could not)

  33. Public Policy • R v Bouchereau Case 30/77 • “ a genuine and serious threat to the requirements of public policy affecting one of the fundamental interests of society”

  34. PUBLIC POLICY • Cases 115&116/81 Adoui and Cornuaille • conduct which, if it were engaged in by the state’s own nationals would give rise to “repressive measures or other genuine and effective measures intended to combat such conduct”

  35. PUBLIC POLICY • Article 3 (2)-previous criminal convictions shall not in themselves constitute grounds for taking such measures • R v Bouchereau Case 30/77 • criminal conviction could only be take into account if the circumstances leading up to the offence were evidence of personal conduct constituting a present threat to the requirements of public policy by showing a propensity to commit similar acts again

  36. Public Policy • Case C-348/96 Calfa • Calfa was a tourist • expelled for life from Greece because she had committed a drugs offence • she could not be expelled for life because a decision as to deportation/entry could only relate to present conduct (not future conduct)

  37. Public Policy • Where a person has been deported/expelled then he still has the right to reapply at some future date. • Expulsion cannot be indefinite • Case C-65/95 Shingara

  38. Directive 64/221/EEC • Member State can refuse entry/residency or deport a person on the basis of public policy or public security • However this decision must be based exclusively on that persons personal conduct • this personal conduct must present a genuine and serious threat to public policy • Criminal convictions in themselves cannot constitute grounds • Measures must not serve economic ends

  39. Directive 2004/38 • Measures taken on the grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. • The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

  40. PUBLIC HEALTH • Diseases/disabilities listed in Annex A and B • Annex A-diseases which might endanger public health • (reference to International listing of diseases subject to quarantine, TB, Syphilis, other infectious diseases) • Annex B-diseases and disabilities which might threaten public policy or public security • Drug addiction; profound mental diseases or contagious parasitic diseases)

  41. PROCEDURAL SAFEGUARDS • Art 8 Member states must make available to persons subject to derogations the same remedies as are available to nationals in respect of acts of the administration (in England this is judicial review) state • Art 9 a person shall not be deported until an opinion has been received from a competent authority of the host country before taking the decision. The competent authority must be separate from the authority taking the decision.

  42. Conclusion • Specific Treaty Articles for economically active (workers, self employed, service providers) plus secondary legislation • Citizenship and evolving case law • Directive 68/360/EEC -re formalities and entry • Directive 64/221/EEC regarding exceptions to free movement • Directive 2004/37 Citizens Rights • Freedom of movement is a fundamental freedom and any exceptions are restricted

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