Our
previous post referred to free movement of persons and citizenship with
particular focus on European Union treaty law. The post introduced arts. 21-24
TFEU and showed treaty law only acknowledges certain rights. The question
today’s post will cover is whether the European Court of Justice has been able
to interpret these articles more generously.
The European Court of Justice, free
movement of persons and citizenship
In
Baumbast (C-413/99), a German national was a worker in United Kingdom until
1995. In 1995, on retirement, he applied for renewal of residence permit but
this was refused by the Home Secretary on grounds that he was no longer a worker
in the country nor able to fulfil conditions for general right of residence
under Directive 90/394 (now repealed and its provisions replaced by Directive
2004/38 art.7 (1) (b)). He had sufficient resources but lacked comprehensive
sickness insurance.
The
ECJ, on one hand, that the right to reside in another Member State is conferred
directly on every E.U. citizen by “clear and precise provision” of the Treaty. The
ECJ, on the other hand, stated that it is granted subject to conditions and
limitations laid down elsewhere in Treaty. The ECJ made clear that such
conditions are subject to its own interpretation of fundamental right to free
movement. In other words, conditions be interpreted in light of principle of
proportionality. This was first pronouncement of the ECJ attempting to place
fundamental right to move and reside freely across Union above purely economic
considerations. In what is important here, the ECJ stated:
“The right to reside within the
territory of the Member States under art.18 (1) E.C. (now art.21 (1)
T.F.E.U.)...is conferred directly on every citizen of the Union by a clear and
precise provision of the E.C. Treaty (now T.F.E.U.). Purely, as a national of a
Member State, and consequently a citizen of the Union, Mr. Baumbast therefore
has the right to rely on art.18 (1) E.C. (now art.21 (1) T.F.E.U.).”
In
Olazbal (C-100/01), the ECJ held, “art.45 T.F.E.U.…finds specific expression in
art.45 T.F.E.U.” In case and that of Stylianakis (C-92/01), it was held that
right of movement and residence in art. 21 TFEU is subject to limitations and
conditions laid down elsewhere in Treaty and secondary legislation.
These
cases fail to affirm “compromise” position offered in Baumbast; that art.21 (1)
T.F.E.U. contains clear and fundamental right to free movement but that is
subject to limitations and conditions, interpreted in light of principle of
proportionality.
From
Baumbast and later cases of Zhu and Chen (C-200/02), Trojani (C-456/02) and
Commission v Belgium (C-408/03) appears, however, art. 21 TFEU does not constitute directly
effective, unconditional and independent right to free movement.
While
free movement may, according to Court, constitute fundamental right of Union
citizenship under art.21 TFEU, conferred directly on European Union citizens, may
only be exercised in conjunction with provisions laid down in other parts of
Treaty and secondary legislation (for example, art. 45 TFEU, Directive 2004/38 EC., etc.),
in light of principle of proportionality.
In principle,
it seems there is no right of unconditional free movement for those who are
economically inactive (exceptions may be that European Union citizens have
permanent right of residence under Directive 2004/38 EC. art. 16 after 5 year’s
lawful residence and all European Union citizens have the right of residence in
Member Srates for up to 3 months without having to fulfil economic conditions
under Directive 2004/38 EC. art. 6).
The
post tomorrow will introduce art. 18 TFEU (principle of non-discrimination) and
discuss whether the European Court of Justice has been able to broaden the
scope for European Union rights conferred to citizens by means of interpreting
this article.
Jorge
Emilio Núñez
04th July 2018
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