Free movement of citizens

Article 20(1) TFEU establishes the concept of EU citizenship by stating that ‘Every person holding the nationality of a Member State shall be a citizen of the Union’, while Article 21(1) TFEU provides that ‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect’.

Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the European Union and their family members to move and reside freely within the territory of the EU brings together the complex body of legislation that existed in this area. It eliminates the need for EU citizens to obtain a residence card, introduces a permanent right of residence, defines more clearly the situation of family members and restricts the scope for the authorities to refuse or terminate residence of EU citizens who come from another Member State. The Member States have two years, until 30 April 2006, to transpose this directive.

Free movement of people has existed since the foundation of the European Economic Community in 1957. It was introduced from an economic point of view, since the right was linked to a person's status as a salaried worker. The right was then extended to self-employed persons and service providers. Family members were entitled to the same rights. In effect, free movement of people was part of the broader project of realising a common market with free movement of capital, goods and services.

The Treaty of Maastricht of 1992 introduced the concept of citizenship of the European Union which confers on every Union citizen a fundamental and personal right to move and reside freely without reference to an economic activity. The Treaty of Amsterdam, which came into force in 1999, further strengthened the rights linked to European Union citizenship.

EU citizens have the right to enter, reside and remain in the territory of any other Member State for a period of up to three months simply by presenting a valid passport or national identity card: no other formality is required. If they intend to remain for a period exceeding three months, a residence permit must be obtained. The conditions for granting a residence permit depend on the status of the citizen (employed or self-employed person, student, retired or inactive person).

Any EU citizen can take up an economic activity in another Member State either as an employed or self-employed person. In this case, he/she will be issued a residence permit by simply presenting an identity document (passport or ID) and proof of employment or self-employment. If a citizen wants to reside in another Member State without exercising any activity or to study, he/she can do so provided he/she can prove (and in the case of students, declare) that he/she has sufficient financial resources not to become a burden for the host Member State's social assistance system and that he/she is covered by a sickness insurance policy. He/she must also prove that he/she has sufficient financial resources and sickness insurance for each member of his/her family who is entitled to reside with him/her.

Family members, irrespective of their nationality, have the right to accompany and establish themselves with an EU citizen who is residing in the territory of another Member State. Family members who can enjoy rights under Community law include the spouse, minor (under 21) or dependent children, and dependent ascendants, though in the case of students only the spouse and dependent children enjoy this right. If the family members are not EU citizens, they may be required to hold an entry visa by the Member State where they intend to accompany the EU citizen. They shall be granted this visa free of charge and with all facilities by that Member State.

Article 45 TFEU includes a guarantee of free movement of workers, and that this ‘shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.’ However, it was not clear whether the reference to ‘workers of the Member States’ covered only EU nationals or also non-EU nationals resident and working within the Community, so that the same principle applied to all workers in the Community, regardless of their nationality. However, Council Regulation 1612/68 of 15 October 1968 on freedom of movement for workers within the Community specifically restricts its application to workers who are nationals of the Member States, and the European Court of Justice has interpreted the provision as applying only to EU nationals. Consequently, the status of third-country nationals who reside and work within the Community is different from that of EU nationals, even if Council Regulation 859/2003 of 14 May 2003 extended some provisions regarding the free movement of workers also to nationals of third countries.

See also: free movement and social security; portability of social security rights; portability of supplementary pensions; Schengen Agreement/Convention; self-employed person; social protection; third-country nationals; worker’s right to remain.