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The Right of Free Movement

by Mark Sultana – Pardee & Partners Liaison Officer

The notion of the Freedom of movement of person within the European Union (EU) finds its roots in the Treaty of Rome where the founding Member States have agreed that their citizens may move freely within the community.

The EU citizenship and Free movement of workers legislations has received great impetus with the adoption of the Maastricht Treaty. For the first time the Member States made a specific reference to the freedom of movement of persons rather than workers. In the Lisbon Treaty, the right of free movement of persons within the territory of the Union was reconfirmed. Article 3 (2) of the Treaty of the European Union (TEU) states that “The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured……..”. The crux of everything was reached with the Treaty on the Functioning of the European Union (TFEU) whereby the Citizenship of the Union has been established and it is in addition to the national citizenship.

Consequently, Article 20 (2) states that “Citizens of the Union shall enjoy rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; ………”.

Regulations and Directives started to be legislated in the field of migration and the free movement of person. As a result, the free movement rights were being tackled on the basis of dispersed, sector-specific or fragmentary approach which led the Court of Justice of the European Union (CJEU) to compile a body of jurisprudence linked to this matter.

The Citizen Directive, known as The Free Movement of EU Citizens and their family members Directive (2004/38/EC) merged different pieces of legislations. It was designed to boost EU citizens to take advantage from their rights and to move and reside freely within the Member States. Furthermore, it considered case-law which were delivered by the CJEU in relation to the free movement of persons. The Directive, however, did not expressly amend the terms and conditions which had been laid down in the previous Regulations/Directives, but it applied an important Treaty-based right of residence for citizens, rather simply a legislative right.

Complications, however, started to arise with regards to the interpretation of the articles. Article 3(1) of the Directive 2004/38/EC states that the Citizen Directive is applicable to all Union citizens and their family members “who move to or reside in a Member States other than that of which they are a national…..”.

What does this mean?

It means that the Directive cannot be invoked by EU citizens on the territory of which they are nationals, but it is only applicable when he/she is exercising his/her right, as established by the Treaty, in another Member State. By this reasoning, if an EU Citizen is returning back to his home country, after establishing himself in another member State he cannot invoke the Treaty rights conferred upon him. This reasoning was clarified in the Surinder Singh case where the CJEU held that free movement laws:

“require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State”.

The notion of free movement of persons is described by Foster as one of the fundamental foundations of the Union beside with the freedom of goods, services and capital. This is the reason why the Citizen Directive is vital; the perception of free movement of persons has changed its concept throughout the years.

In another other article to follow in the next weeks, we will see how the judgments of the CJEU widened this notion even further and on which grounds this right can be restricted.

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Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Mark Sultana on mark.sultana@pardee.eu.