Free Movement of Persons
Art. 3(2) TEU:
• Freedom, Security, and Justice: The Treaty on European Union (TEU) envisions the EU as an area of freedom, security, and justice, ensuring the free movement of persons within its internal borders. This commitment aims to create a seamless space where citizens can move without restrictions, reflecting the EU's broader objectives of integration and cooperation.
Art. 20(2) TFEU:
• Right to Move and Reside: The Treaty on the Functioning of the European Union (TFEU) grants EU citizens the right to move and reside freely within the territory of Member States (MS). This provision reinforces the fundamental principle of free movement, allowing EU citizens to live, work, and study anywhere in the Union.
Categories of Persons in EU Law
1. Workers (Art. 45 TFEU):
• Freedom of Movement:
◦ Secured Rights: Art. 45 TFEU ensures the freedom of movement for workers within the EU. This provision is one of the strongest and most established rights in EU law, allowing workers to move across MS for employment opportunities without facing barriers related to nationality.
• Abolition of Nationality-Based Discrimination:
◦ Anti-Discrimination Principle: Art. 45 extends the anti-discrimination principle of Art. 18 TFEU to workers, prohibiting any discrimination based on nationality. This means that workers from one MS should not face discrimination in terms of employment, remuneration, or working conditions when they move to another MS.
• Limitations:
◦ Public Policy, Security, or Health: The free movement of workers is subject to limitations justified by public policy, public security, or public health. These limitations must be proportionate and non-discriminatory, ensuring that any restrictions do not undermine the fundamental right to free movement.
• Exclusions:
◦ Public Service Exclusion: Art. 45 TFEU does not apply to positions in public service. This exclusion allows MS to restrict access to certain public service roles to their own nationals, reflecting the specific needs of national public administration.
2. Establishment (Art. 49 TFEU):
• Self-Employed Individuals:
◦ Freedom to Establish: Art. 49 TFEU provides for the freedom of establishment, allowing self-employed individuals to set up and manage businesses in any MS. This right is crucial for entrepreneurs and professionals seeking to operate across borders within the EU.
3. EU Citizens (Non-Economically Active):
• Broader Rights:
◦ Movement and Residence: EU citizens who are not economically active (e.g., retirees, students) also benefit from the right to move and reside freely within the EU. Their rights are protected under EU law, reflecting the Union's commitment to providing a comprehensive framework for freedom of movement.
4. Third-Country Nationals (TCNs):
• Derivative Rights:
◦ Rights Derived from EU Citizens: Third-country nationals, such as Brazilian or South African nationals, derive their rights primarily from their relationship with EU citizens. For instance, family members of EU citizens who are third-country nationals may have specific rights to reside and work in the EU based on their family connection.
Art. 45 TFEU - Workers: Key Details
1. Freedom of Movement for Workers:
• Secured by EU Law: Art. 45 TFEU guarantees that workers have the right to move freely across the EU. This legal framework facilitates labor mobility and supports the integration of the European labor market.
2. Abolition of Nationality-Based Discrimination:
• Extension of Anti-Discrimination: Art. 45 TFEU extends the anti-discrimination principle from Art. 18 TFEU to workers, ensuring that EU nationals are treated equally in terms of employment opportunities and working conditions, regardless of their nationality.
3. Limitations Justified by Public Policy, Security, or Health:
• Proportionality Requirement: Any limitations on the free movement of workers must be justified by public policy, public security, or public health reasons. These restrictions must comply with the principle of proportionality, meaning they should be necessary and not more restrictive than required to achieve the intended objective.
4. Exclusion of Public Service Employment:
• Specific Exemption: Art. 45 TFEU excludes certain public service positions from its scope. This exemption allows MS to reserve specific public service roles for their own nationals, reflecting the need for certain national roles to be filled by individuals with a direct connection to the state.
Directive 2004/38 - Art. 27(2):
• Conditions for Restrictions:
◦ Proportionality and Individual Conduct: Measures taken by MS to restrict the rights of EU citizens on grounds of public policy, public security, or public health must comply with the principle of proportionality and be based solely on the individual conduct of the person concerned. This ensures that any restrictions are fair and tailored to the specific circumstances of the individual, rather than being applied broadly or discriminatorily.