A closer look into free movement law

This article deals with the meaning of the concept of ‘free movement’ of persons. Note that below, in the ‘downloads’ section, a number of charts are mentioned that may help you gain a better understanding of the subject matter of this article.

What, then, does free movement mean? First of all, there is a basic distinction between market access, on the one hand, and certain additional, specific rights, on the other hand. In the context of the free movement of natural persons, market access concerns the right of the migrating person to enter the market for employment and self-employment of another European Union (EU) Member State and the right to a certain treatment on this market. The relevant legal provisions are Art. 45 of the Treaty on the Functioning of the European Union (TFEU) (workers) and Art. 49 et seq. TFEU (self-employed). Both are complemented by additional Union legislation (regulations and directives).

Market access means the right not to be discriminated against on grounds of one’s foreign (EU) nationality (right to equal treatment) and not to be restricted in other ways. Both the State and private entities (eg employers) are prohibited from treating nationals of other Member States worse than their own nationals (discrimination) and from making free movement more difficult or less attractive (restriction). Note that migrant workers within the EU do not need a work permit. Further, for them Regulation 492/2011 explicitly lists the areas where equal treatment is mandated. Through Art. 7(2) this includes, among others, social and tax advantages. [1]

It is important to understand that there are two forms of discrimination, direct and indirect. Direct discrimination exists, for example, where a job is open only to nationals or only to a limited number of foreign nationals. Indirect discrimination is less obvious. It exists, for example, where a job is open only to people who have already resided for some time in the country. As it is usually mostly nationals who can meet such a criterion, this still leads to a particular disadvantage of foreigners.

As for the additional, specific rights, they concern the right to leave one’s country of origin, to enter the host country and to reside there, as well as the right to bring certain family members to the host state, even if they are not EU nationals. All of these issues are regulated in a directive that goes beyond economic matters, namely the so-called Union Citizenship or Free Movement Directive 2004/38. [2]

Note that the various rights are not absolute, there are possibilities of derogations, most notably for the protection of public health, public security and public policy.

The same regime of full free movement applies in the framework of the European Economic Area Agreement and, thereby, also in Iceland, Liechtenstein and Norway in their relations to the EU Member States and among each other.

Conversely, the Swiss–EU Agreement on the free movement of persons has taken over only part of the EU law on the free movement of persons. Indeed, the statement in the preamble to the Agreement, according to which the parties are ‘resolved to bring about the free movement of persons between them on the basis of the rules applying in the European [Union]’ applies only within the framework of the agreement. For example, the circle of family members under the agreement is smaller than under EU law. This is because Directive 2004/38 so far has not been incorporated into the bilateral acquis. Instead, the rules provided by the agreement are on the level of previous EU legislation. Further, it is not clear whether free movement under the agreement includes only the right to equal treatment (non-discrimination) or also the right not to be burdened with restrictions. There are so far no clear court decisions on this matter. In your course educator’s view it is unlikely that an encompassing prohibition of restrictions is included.

Note also that in the case of the Swiss–EU Agreement on the free movement of persons, and only here, the accession of a new state to the European Union requires a formal amendment of the agreement in order to include the new EU Member State into the system of the agreement. So far, the Swiss Federal Government has signed three accession protocols, most recently with respect to Croatia, which is the youngest EU Member State, in spring 2016.

Finally, the Convention on the European Free Trade Association (EFTA) contains similar rules to those of the Swiss–EU Agreement, for the four EFTA States Iceland, Liechtenstein, Norway and Switzerland.

Further reading

We provided a few charts in the ‘downloads’ section that we recommend you to read.

References

[1] Regulation 492/2011/EU on freedom of movement for workers within the Union, OJ 2011 L 141/1.

[2] Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ 2004 L 158/77.