The right to reside in a Member State – to remain as a resident – is a central element in the exercise of the right to free movement of persons in the EU. The right of free movement was initially limited to economically active persons and their families, but now concerns students and pensioners also and is declared to be a right of all EU citizens by the Treaty. Article 21(1) TFEU states: ‘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 the Treaties and by the measures adopted to give them effect.’ Council Directive 90/364 of 28 June 1990 on the right of residence requires Member States to grant the right of residence to nationals of Member States ‘who do not enjoy this right under other provisions of Union law and to members of their families’.
Restrictions on residence can impede the right of residence and, in relation to employment, conditions surrounding residence permits and access to employment can provide examples of unequal treatment between migrant workers and host-country workers. For example, migrant workers may be required to pay for a temporary residence permit before being granted a full residence permit. Where a full residence permit is made a condition of being allowed to work in the country, this constitutes a substantial obstacle to free movement. Both requirements, therefore, are contrary to EU law (see Commission Communication of 11 December 2002 on Free movement of workers – achieving the full benefits and potential).
A Report from the Commission to the Council and the European Parliament of 17 March 1999 on the implementation of Directive 90/364 (and also Council Directive 90/365 on the right of residence for employees and self-employed persons who have ceased their occupational activity and Council Directive 93/96 on the right of residence for students) found that infringement proceedings had been necessary against nearly all Member States, although the necessary measures had gradually been adopted. However, there remained considerable difficulties and uncertainties for citizens seeking to exercise their right to residence. Therefore, the European Parliament and the Council eventually adopted Directive 2004/38/EC (190kb pdf file) of 29 April 2004, which specified the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.