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 the 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repealed and its provisions replaced by Directive 2004/38 art.7 (1) (b)].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, maintained 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) TFEU) ... is conferred
directly on every citizen of the Union by a clear and precise provision of the
E.C. Treaty (now TFEU). 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 this 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, that 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 States 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.
Tuesday 26th February 2019
Jorge Emilio Núñez
Twitter: @London1701
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