Free movement of persons
17 important questions on Free movement of persons
Free movement of persons:
1. Workers
1. Workers (economically active persons)
2. Students
3. ETC.
Free movement of persons: The common market
Why? Because the common market includes not only the free movement of goods, such as the free trade union or customs union, but this includes the free movement of:
- Goods
- Persons (workers, students, job seekers)
- Capital
- Services
Different categories of 'persons' (EU citizens)
1. EU citizens
A. Economically active EU citizens
- Workers
- Self employed
--> Free movement rights can be claimed by economically active AND inactive EU citizens
- Although there are still slightly more advantages for economically active citizens
B. Economically inactive EU citizens
- Job seekers
- Students
- Retired persons
- Family member of economically active EU citizens
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Different categories of 'persons' (Third country nationals)
A. Third country nationals without a special status
B. Third country nationals with a special statues (defined in secondary leg.)
- Highly skilled people
- Family members of EU citizens
- Refugees
- People originating from third countries BUT with which EU has an Association Agreement
- Etc.
For each of these categories, the EU applies a different legal regime based on secondary legislation
Participants of the Schengen Area
- Both EU countries and non- EU countries are part of the Schengen Area
- Even though with the signing of the Treaty of Amsterdam (1999), the Schengen Convention + Area were now part of EU law, it still has relevancy of an independent treaty because other countries are participants of the Schengen Area
- Iceland
- Norway
- Switzerland
- Opt-out: Ireland
- Candidates: Croatia, Bulgaria, Romania, etc
EU citizenship (politically)
- EU citizenship was only introduced in the 1990's (Treaty of Maastricht 1992)
- First idea was in 1975: Tindemans Report during the first European integration crisis (Eurosclerosis) to stimulate cohesion between citizens of the member states
--> So, go beyond economic integration and focus more on the people (as European citizens)
EU citizens (legally)
Article 18 TFEU (awards EU citizen the right to non discrimination)
Essence:
- Every citizen of one of the member state shall be able to be a citizen of the Union
--> So, EU citizenship is only added to national citizenship, you can never just be an EU citizen, it starts with the citizenship of one of the member states of the EU in order to protect sovereignty
Is EU citizenship more than just symbolical meaning?
- EU Commission has awarded certain (legal) rights to EU citizenship which go beyond expectation
--> Week 12
Because of the meaning and the introduction of EU citizenship:
- Equal treatment because of the introduction of EU citizenship, so the idea of non discrimination based on nationality could now also be claimed by INACTIVE EU citizens (claim free movement rights)
EU citizenship rights in the TFEU
Article 20 TFEU
Also political rights
EU citizenship rights in secondary legislation
- Right to movement and short- term residence (less than 3 months)
- Residence in another Member State (more than 3 months)
- Right to permanent residence (after a minimum of 5 years of legal stay)
There different administrative requirements on length of stay and on status (whether you are an economically active or inactive person)
A) Free movement of economically active EU citizens
- Workers --> Article 45 TFEU + Regulation 492/2011
- Entrepreneurs --> Free movement of establishment (week 13)
Free movement of workers (Art. 45 TFEU)
"Free movement for workers [employees] shall be secured within the Union"
Article 45 (2) TFEU:
"Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, renumeration and other conditions of work and employment"
--> More specified from Article 18 TFEU, as this applies specifically for workers
The rights that come with Article 45 are divided in 2 distinctive rights
+ Article 45 TFEU is only applicable with cross border activities
In other words: The right to pursue an occupation abroad has two aspects:
1. Right to take up economic activities (to enter the host market)
--> Entry on the market had to be safeguarded
MARKET ACCESS
2. Right to pursue these activities (to execute activity in host state)
--> competitive position of the migrant worker within the host state has to be ensured
NON-DISCRIMINATION
Exceptions to Article 45 TFEU
- Public policy
- Public health
- Public security
Article 45 (4) TFEU: excludes certain work relationships from the scope of application of Article 45 TFEU
- Article 45 TFEU does NOT apply to employment in public service
(Narrow --> services that lie on the hart of public power and demand a particular loyalty to the state --> judiciary, armed forces, etc.)
Mandatory requirements/Rule of Reason:
- applicable as well, only in case of indistinctive applicable rule
Are language requirements in conformity with Article 45 TFEU?
Language requirements as such are not allowed:
- A company cannot enforce applicants to only apply if they speak the national language
B) TCN: Highly skilled migrants (Blue card directive 2009/50/EC)
Gives very highly skilled TCN the possibility to apply for residency in the EU without having to fulfill the requirements of TCN's in general
such as income requirements, insurance, integration requirements...
Requirements:
- Work contract or binding offer
- Salary > 1.5 times average gross annual salary paid in the MS
- Valid travel document (passport or ID card)
- Document providing higher professional qualifications
C) TCN: Refugees (Dublin Regulations)
because it is still the individual member states who decide on asylum applications. No overarching EU wide system, so:
--> Country of first entry is responsible for asylum application
--> Consequence: Uneven distribution of refugees in EU (Italy, Greece..)
The EU as an imperial fortress:
- EU has implemented so many legal barriers to entry for asylum seekers, that Europe has become a fortress
- Claim has some value, since EU has cooperated and is implemented in bilateral agreements with third countries: EU and Turkey
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