The evolution of EU Freedom of Movement and Citizenship – a brief overview
Since the establishment of the European Economic Community in 1957, European leaders have viewed the free movement of workers as a logical corollary to the free movement of capital, goods and services and integral to the establishment of a common (and later single) European market.
The key stages in the development of EU freedom of movement and citizenship provisions are set out in the table below.
|Treaty of Rome 1957 - establishing the European Economic Community, set out the four fundamental freedoms of the common market: free movement of goods, services, capital and workers. Article 48 established the principle of free movement of workers. Article 7 prohibited discrimination between nationals of member states.|
Single European Act 1986 - reformed the European community with the aim of hastening the establishment of a single European market.
|Treaty on European Union (Maastricht Treaty) 1992 - provided a framework for monetary union and closer political co-operation and broadened the European Community into the European Union.
Article 8 TEU established European Citizenship for all nationals of member states (complimentary to national citizenship), involving:
* freedom of movement and freedom of residence in the territory of members states
* the right to participate in municipal/European Parliamentary (but not national) elections
* the right to petition the European Parliament
The Treaty of Rome
The Treaty of Rome establishing the European Economic Community in 1957, referred to four fundamental freedoms of the common market: free movement of goods, services, capital and workers.
Article 48 of the Treaty established the principle of the free movement of workers and outlawed discrimination between workers of the member states (the prohibition of discrimination between nationals of the member states was also set out in Article 7).
The Council of Ministers (comprised of the relevant government ministers of each of the member states) was mandated to adopt measures to facilitate this free movement. Between 1961 and 1986 a number of regulations (applying in the member states) were adopted to this effect. This included Council Regulation 1612/68 in 1968 which removed restrictions on the movement of workers from one member state to another, permitting such movement without the offer of an actual job, and Council Regulation 1251/70 in 1970 on the right of workers to remain in the territory of a Member State after having been employed in that state.
Council Regulation 14808/71 in 1971 established the principle that migrant workers from within the Community were eligible for the same social security benefits as workers of their host state. It also allowed for social insurance contributions and social security entitlements to be transferred from one member state to another.
Council Directive 77/486 (requiring implementation in law by the member states) required the children of migrant workers from the Community to be treated equally in terms of access to the state education system of the host state.
The accession of the UK, Ireland and Denmark to the European Community in 1973
The accession of three new member states to the European Community (EC) in 1973, including Denmark and Ireland, as well as the United Kingdom, extended the Community right of free movement to the workers of these member states. Hence, UK workers and those of the other new member states were automatically entitled to work in the original six member states, and workers from these states could take up employment in the new member states.
There were no arrangements in place to delay the application of these rights for a transitional period. However, such transitional arrangements would later be put in place for the Mediterranean enlargements of the 1980s, and the Eastern and Mediterranean island enlargements of the EU in 2004 and 2007.
Single European Act 1986
A more generalised free movement of persons for nationals of the member states within the enlarged European Community was hastened following the Single European Act, which came into force in 1987. The treaty was championed by UK Prime Minister Margaret Thatcher, who wished to see the European customs union developed more fully into a single market, with the removal of internal barriers impeding the free flow of capital, goods, and services. A more generalised free movement of persons was viewed as necessary to realise a genuine single market.
In revising the Treaty of Rome, the new Article 8a required the Community to `progressively establish’ the internal market, which would 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.’
In 1990 Council Directives 90/364 and 90/365 conferred more general rights of residence in a member state of their choosing to Community nationals provided they had the means to support themselves.
Treaty on European Union (Maastricht Treaty) 1992
The Single European Act unleashed an accelerated drive to economic and monetary union (including the establishment of a single currency) and deeper political co-operation which was reflected in the Treaty on European Union (or Maastricht Treaty) signed in 1992.
In revising the previous treaties, a new Article 8 established European citizenship, bringing together the existing rights already enjoyed by EC citizens including that of free movement, and creating new citizenship rights. These include:
The right of every citizen of the EU to move and reside freely within the territory of the Member States (Article 8a)
the right of every EU citizen to stand and vote in municipal and European Parliaments elections (but not national ones) in the member state in which they reside
the right to petition the European Parliament and to submit complaints to the ombudsman
the right to consular/diplomatic representation by any member state in third country.
European Economic Area
In 1992, the European Community free movement provisions were also extended to six additional states (Austria, Finland, Sweden, Iceland, Lichtenstein, Norway – the first three of which would then join the EU in 1995). These states formed the European Economic Area (EEA) with the then EC members. Nearly all single market provisions (including the four freedoms) apply across the EEA.
The European citizenship and freedom of movement provisions were not substantially altered by subsequent treaty changes agreed at Amsterdam (1997), Nice (2001) and Lisbon (2007). However, the accession treaties which led to further enlargements of the EU in 2004 (to include eight central and Eastern European states, plus Cyprus and Malta), 2007 (Romania and Bulgaria) and 2013 (Croatia) set temporary limits to freedom of movement. These accession treaties gave the existing member states the right to impose transitional arrangements to restrict access to their labour market for workers from the new member states, initially for two years. This can then be extended for a further three years. If after this period there is sufficient evidence that the free entry of labour from the new states could cause disruption to the labour market, the old member states have the right to block this for a further two years. These transitional controls cannot be extended beyond the overall seven year period.
Freedom of Movement in practice
While some of the wording of the Single European Act and the Treaty on European Union may give the impression that freedom of movement should be enjoyed as an untrammelled right for EU citizens, the actual wording of regulations and directives implementing this principle gives member states the right to impose certain restrictions in terms of the right to reside. However, once all transitional controls with regard to new member states have been lifted (and they cannot remain in place beyond seven years), access to labour market cannot be blocked for EU citizens for labour market or economic reasons.
The European Parliament and Council of Ministers adopted a Directive in 2004 (2004/38/EC) consolidating and further developing the various key regulations and directives implementing free movement principles.*
It states that the right of residence in a member state for EU citizens (other than that of which they are a citizen) for more than three months remains subject to certain conditions. That is, they must:
either be engaged in economic activity (on an employed or self-employed basis);
or have sufficient resources and sickness insurance to ensure that they do not become a burden on the social services of the host Member State during their stay. The Member States may not specify a minimum amount which they deem sufficient, but they must take account of personal circumstances;
or be following vocational training as a student and have sufficient resources and sickness insurance to ensure that they do not become a burden on the social services of the host Member State during their stay;
or be a family member of a Union citizen who falls into one of the above categories.
It is also notable that the Directive states that the host Member State is not obliged to grant entitlement to social security during the first three months of residence to persons other than employed or self-employed workers and the members of their family.
Moreover, EU citizens or members of their family may be expelled from the host Member State on grounds of public policy, public security or public health. However, under no circumstances may an expulsion decision be taken on economic grounds. Decisions to exclude certain EU citizens must be ‘proportional’ and based exclusively on the personal conduct of the individual concerned. Such conduct must represent a sufficiently serious and present threat which affects the fundamental interests of the state.
Blocking entry to an EU citizen or a group of EU citizens simply because they are from a particular EU member state would clearly contravene EU law as set out in this directive, as well as breaching broader EU anti-discrimination principles which were enshrined in the original Treaty of Rome and have been further developed since.