Free movement of Persons Flashcards
(7 cards)
key rights and legal provision
article 21 TFEU- creates a right to free movement and residency applicable to all EU citizens
-supported by art 18 TFEU which garuntees a right to non discrimination
-rights expanded in treaty articles that guartee free movement, residency and non discrimination right to EU citizens who are
1. workers- art 45 TFEU
2. exercising rights in connection with the activities of companies- art 49 TFEU
3. providing servies- art 56 TFEU
rights connected with art 21 and 45 (general freedom of moevement of citizens and for workers)
for detailed in 2 provisions
1. on general freedom of movement of citizens- directive 2004/38
2. on workers- regulation 42/2022
but interpretation and application of these controlled by art 21 and 45
directive 2004/38- general freedom of movement
sets out rights of residency and equal treatment for both workers and non-economic migrants (including family members of workers)
key provision of this directive-
-article 6 and 7
1. right to residency provides an automatic right to residency up to 3 months
2. residency for workers and self employed (economic migrants) beyond 3 months
3. residency right for non economic migrants beyond 3 months (where have sufficient resources to not become a burden on the state and have comprehensive health insurance)
-art 14- continuing right of residenct to economic migrants and family (non economic subject to recourses and insurance condition)
-art 16- a right to permanent residence after 5 years (solidfys rights and treated as citizen)
-art 24- equal treatment with nationals for economic migrants unless important reason to differentiate (non economic- no entitlement to social assistance or maintenance aid for studies during residency)
-art 27- general public reasons for restricting resifency right- public policy, security or health grounds (must be proportionate and achieve the relevant goal)- must be in accordance with the principle of proportionality
article 21 rights
-establishes a general right to move and reside freely within the territrory of any of the MS
-is the fundamental right for free movement- Baumbast and r v SOS for the home dept 2002
(evey other legislation an acts of MS are interpreted and reviewable under this)
-first implication- the right contained in article is capable of full direct effect because it is sufficienlty clear, precise and unconditional
-any limitations or conditions must be in accordance with heneral principles of EU law (e.g proportionality- Baumbast and discrimination- R Grzelczyk)
Grzelcyzk- student denied social security, right comes directly from article 21 so general principles (non- discrim) applied and state prevented from denying him on grounds of nationality
-second implication- rights deemed capable of having far reaching internal effects within MS even where no movement involved- Ruiz Zambrano 2011 (measures undermining the childrens right to reside in the EU would be prevented by EU law and includes the refusal of the father residency and work permit)
categories of migrants for article 21
non economic (not looking for work)- goverened by directive 2004/38
-initial right to residency for 3 months
-those not workers or self employed after entitled to residency where they have sufficient resources to avoid becoming a burden on the MS social scheme, and have comprehnsive sickness insurance
-right to permanent residency if resident for continous 5 years
(entitled to non discrimination provisions)
non econmic seek social benefits- entitled to benefits against discrimination is they are resident- Trojani v CPAS 2004
students
-conditions in article 24(2) od directive 2004/38- permits rules of acccess to maintenance grants to be restricted
-national rules of access to maintenance grants reviewable under art 18 TEU to ensure that they were based on non- discriminatory criteria- Bidar v London Borough
workers and jobe seekers-
- right to residence and non discrimination guaranteed in art 45 TFEU
-worker- a person working under the direction of another, in exchange for remuneration- Lawrie Blum v Land Baden
-worker status retained in art 7I3) 2004/38 for involuntary employement
-secondary regulation covering workers includes 22004/38 directive aswell as regulation 492/11
-job seekers entitled to residency under art 21 and 45
(confirmed in art 7(3) 2004/38 which includes those who enter as worker, become unemployed then looking for work)
-first time job seekers and for job seekers who no longer comply- art 7(3)
- art 14(4)(b)- cannot be expelled but their rights to non-discrimination are restricted in respect of social assistance by s. 24(2)
Member Staterules will be reviewed using the principle of non-discrimination and proportionality.
(Case C-258/04Ioannidis[2005] ECR I-82).
