Freedom of movement for persons

LEGAL BASIS

— Article 14 of the Treaty establishing the European Community (EC): establishing the internal market, free movement of persons.

— Article 18 EC: Union citizens have the right to move and reside freely within the territory of the Member States.

— The Treaty of Accession signed on 16 April 2003, Part IV: Temporary Provisions.

— Title IV (Article 61 et seq. EC): ‘Visas, asylum, immigration and other policies related to free movement of persons’ (*4.11.2. and *4.11.3. for measures related to third-country nationals).

OBJECTIVES

Freedom of movement for persons and the abolition of controls at internal frontiers form part of a wider concept, that of the internal market, in which it is not possible for internal frontiers to exist or for individuals to be hampered in their movements. The concept of the free movement of persons has changed in meaning since its inception. The first provisions on the subject referred merely to the free movement of individuals considered as economic agents, either as employees or providers of services. (*3.2.2 and *3.2.3). The concept has gradually widened to encompass all EU citizens, irrespective of their economic activity, as well as nationals of third countries, because after controls were abolished at internal borders people could no longer be checked for nationality.

ACHIEVEMENTS

A. Changes introduced by the Treaty of Amsterdam

1. The Schengen area

The most significant development in setting up the internal market without obstacles to the free movement of persons has been the conclusion of the two Schengen agreements, the Schengen Agreement of 14 June 1985, and the Schengen implementing convention of 19 June 1990 which came into force on 26 March 1995.

The Schengen rules apply among most European countries, covering a population of over 400 million and a total area of 4 268 633 km².

a. Incorporation of the Schengen system and other parts of cooperation in the fields of justice and home affairs (CJHA) in the ‘Community pillar’

Initially, the Schengen implementing convention formed part of the cooperation in the fields of justice and home affairs (CJHA) within the European Union. This meant that it was not part of Community law but took the form merely of intergovernmental cooperation. A protocol to the Amsterdam Treaty provides for transfer of the ‘Schengen acquis’ into a new Title IV, comprising Articles 61 et seq. EC on ‘Visas, asylum, immigration and other policies related to free movement of persons’. Many of the areas covered by Schengen have therefore now been transferred to the Community sphere. As most of Schengen is now part of the EU acquis, at the time of the last EU enlargement of 1 May 2004 it was no longer possible for accession countries to ‘opt out’ (Article 8 of the Schengen protocol).

b. Participating countries

There are currently 24 full Schengen members and Monaco (treated as part of France): Belgium, Germany, France, Greece, Italy, Luxemburg, the Netherlands, Portugal, Spain, Austria, Denmark, Finland, Iceland, Norway, Sweden, Poland, the Czech Republic, Slovakia, Hungary, Estonia, Latvia, Lithuania, Malta and Slovenia. For nine of the Member States joining in May 2004 (Cyprus did not meet the criteria) internal land and sea border checks on persons were abolished as of 21 December 2007, while restrictions on air borders were lifted on 30 March 2008.

Not all Schengen members are members of the EU. Ireland and the UK are not Schengen members but have an opportunity to ‘opt in’ to the application of selected parts of the Schengen body of law.

On 1 January 2007 two new countries (Bulgaria and Romania) became members of the EU. The two new Member States have not automatically become fully operational members of the Schengen cooperation. Membership of the Schengen cooperation is a process in two steps. During the accession negotiations the new Member States accepted the Schengen acquis. For the internal border controls to be lifted there has to be a separate verification and a specific European Council decision.

Switzerland signed the Schengen Convention on 26 October 2004. It will have full membership to the Schengen system following a European Council decision. This procedure is similar to what happened when the Nordic countries became full members of Schengen

Cyprus and non-EU member Switzerland hope to join this year and Romania and Bulgaria by 2011.

c. Scope

— Abolition of internal border controls for all people.

— Measures to strengthen and harmonise external border controls:

• all EU citizens may enter the Schengen area merely by showing an identity card or passport;

• common visa policy: nationals of third countries included in the common list of non-member countries whose nationals need an entry visa are entitled to a single visa valid for the entire Schengen area; however, Member States may require a visa for other third countries.

— Harmonisation of the treatment of asylum-seekers: This was taken over by the Dublin Convention, which entered into force on 1 September 1997 for the 12 original signatories, on 1 October 1997 for Austria and Sweden, and on 1 January 1998 for Finland. As of 1 September 2003, the Dublin II regulation provides the legal basis for establishing the criteria and mechanism for determining the State responsible for examining an asylum application in one of the Member States of the EU (excluding Denmark) and in Iceland and Norway by a third-country national. However, from that date, the Dublin Convention remains in force between Denmark and the other Member States of the EU and Iceland and Norway.

— Police and judicial cooperation: police forces assist each other in detecting and preventing crime and will have the right to pursue fugitive criminals into the territory of a neighbouring Schengen State.

The Schengen information system (SIS) is essential for effective operation of the Convention: it supplies information on the entry of third-country nationals, the issue of visas and police cooperation. Access to the SIS is primarily restricted to the police and the authorities responsible for border checks. In addition, the present Schengen information system (SIS) database has limited capacity. A new system, SIS II, should be in place by 31 December 2008. Due to the delays in the SIS II deployment, Portugal offered a modified version of its SIS 1+ system, which it called ‘SIS one4all’. ‘SIS one4all’ is a temporary solution designed to enable the EU Member States who acceded in 2004 (the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia) to join Schengen.

d. institutional consequences

— With the entry into force of the Treaty of Amsterdam, the Council replaced the Executive Committee of the Schengen Convention. The Council also had, pursuant to Title IV EC, to adopt measures within a period of five years ‘to establish progressively an area of freedom, security and justice’ in the field of visas, asylum, immigration and other policies related to free movement of persons, to ensure that Union citizens and third-country nationals are not checked when crossing internal borders. It is also responsible for regulating standard measures for checks on persons at external borders and standard rules for issuing visas and granting freedom of travel within the Member States’ territory to third-country nationals. The Council focused on these accompanying measures of secondary legislation in its resolution of 18 December 1997 laying down the priorities.

— Following the transfer of parts of CJHA to the Community sphere, the Court of Justice has received new powers, as measures under the new Title IV EC are actionable in the Court, provided that they do not concern the abolition of frontier controls, the maintenance of law and order or the safeguarding of internal security under Article 68(2).

2. European Union area

As the Schengen Convention is not yet being effectively applied in all the EU Member States, Union territory as a whole should be considered separately from the Schengen area.

a. EU nationals and their families

With the aim of transforming the Community into an area of genuine freedom and mobility for all Community citizens, the Council had guaranteed rights of residence to persons other than workers:

— retired persons: employees and self-employed persons who have ceased their occupational activity (Directive 90/365/EEC);

— students: exercising the right to vocational training (Directive 90/366/EEC);

— others: all persons who do not already enjoy a right of residence (Directive 90/364/EEC).;

— family members (spouses and children under 21, irrespective of their nationality): these have the right to reside with a national of a Member State who is employed in the territory of another Member State (Regulation (EEC) No 1612/68, Directive 73/148/EEC, Directive 90/364/EEC, Directive 90/365/EEC, Directive 93/96/EEC).

These directives require Member States to grant the right of residence to those persons and to some of their family members (including in certain cases family members in the ascending line), provided that they have adequate resources so as not to become a burden on the social assistance schemes of the Member States and are covered by sickness insurance. However, the rights of the family members are derivative and not independent of the right of the EU citizen in the respective family; the latter must actually have exercised his or her own right of free movement. If the family members are not EU citizens they may be required to hold an entry visa by the Member State of their residence.

In 2004, the Union adopted a directive on the right of citizens of the Union to move and reside freely within the Member States:Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 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.

b. Current legislation

Directive 2004/38/EC brings together the piecemeal measures found in the complex body of legislation that has governed this matter to date. The new measures are designed, among other things, to encourage administrative formalities to the bare essentials, to provide a better definition of the status for family members and to limit the scope for refusing entry or terminating the right of residence. It also broadens the definition of family to include non-married partners. Within the scope of Directive 2004/38/EC, family members include: the spouse; the registered partner, if the legislation of the host Member State treats registered partnerships as equivalent to marriage; the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined above; the dependent direct relatives in the ascending line and those of the spouse or partner.

This directive has been transposed into national law and has started to be implemented by all Member States since 30 April 2006. It has now replaced all the aforementioned legal measures.

c. Transitional period for workers from new EU Member States

The Treaty of Accession signed on 16 April 2003 (Act of Accession, Part IV: Temporary Provisions) allows the ‘old’ EU-15 Member States to introduce the so-called ‘transitional arrangements’ to nationals from the 10 Member States that acceded in 2004; for the particular cases of Cyprus and Malta. The Treaty of Accession signed on 25 April 2005 allows the EU-25 Member States to introduce those arrangements to nationals from the two EU Member States that acceded in 2007.

The transitional periods are divided into three different stages.

For the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovenia and Slovakia they are as follows.

— During the first stage, between 2004 and 2006 the free movement of workers was left exclusively in the hands of the EU-15 Member States. Ireland, the United Kingdom and Sweden have been the only three Union members not closing transitionally doors for mobility into their labour markets. As required by the Treaty of Accession, the Commission drafted a report on the first stage of the transitional arrangements, which was submitted to the Council of Ministers on 8 February 2006. Following the Council’s review of the Commission’s report, EU-15 Member States had until 30 April 2006 to notify the Commission whether or not they plan to retain the barriers on the free movement of workers from the new Member States or to continue applying the bilateral agreements for up to a further three years (i.e. 2009). Currently, 10 of the EU-15 Member States have opened their labour markets completely: Ireland, Greece, Spain, Luxembourg, the Netherlands, Portugal, Sweden and the United Kingdom. Belgium, Denmark, Germany and France have simplified their procedures or have reduced restrictions in some professions.

Hungary still applies reciprocal measures. Slovenia ceased to apply reciprocity on 25 May 2006 and Poland on 17 January 2007. None of the eight new EU Member States applied for permission to restrict access by workers from other new Member States.

— Finally, by 2009 all the national legislations should not apply any transitional measures limiting the access to their labour markets. Yet, any of these Member States facing particular difficulties that may lead to ‘disturbances of the labour market or a threat thereof’ can ask the Commission for a further two-year extension based on exceptional or unexpected circumstances.

Therefore, for a period of up to seven years (what has been officially qualified as ‘the 2 + 3 + 2 formula’), which may potentially last until 2011, not much will change for workers and service providers from the new eight Member States who may wish to exercise fully their free movement rights and fundamental freedoms.

During a transitional period of up to seven years after accession of two Member States on 1 January 2007 (Bulgaria and Romania), certain conditions may be applied that restrict the free movement of workers:

— Firstly, between 2007 and 2009 access to the labour markets of the 25 Member States will depend on national measures and policies, as well as bilateral agreements they may have with the new Member States.

— Secondly, by 2009 the European Commission will draft a report, which will be the basis for a review by the Council of Ministers of the functioning of the transitional arrangements. The Member States must notify the Commission whether they plan to continue with national measures for the next period of up to three years or allow free movement of workers.

— Finally, by 2012 there should be free movement of workers. However, any of the 25 Member States can ask the Commission for authorisation to continue to apply national measures for a further two years if it is experiencing serious disturbances on its labour market. Therefore, from 2014 — seven years after accession — there will be complete freedom of movement for workers from new Member States.

d. Third-country nationals

In the provisions of the Treaty of Amsterdam, third-country nationals have finally found their place in Community law. Certain categories of third-country nationals already benefited from the protection of Community law. These are:

— members of the family of an EU national;

— nationals of States connected to the EU by an association or cooperation agreement;

— workers of a company based in one Member State on whose behalf they carry out services in another Member State (see European Court of Justice (CJ) ruling in the Vander Elst case — CJ Case C-43/93 whereby the CJ decided that third-country nationals participating in the freedom to provide services enjoyed by their employer, do have a right to enter other Member States in order to fulfil their labour contracts).

The main EU legislative measures to extend free movement rights to third-country nationals are:

— Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ L 251, 3.10.2003);

— Council Directive 2003/109/EC of 25 November 2003 concerning long-term resident third-country nationals to extend their free movement rights, on the basis of Article 63(4) (OJ L 16, 23.1.2004);

— Council Directive 2004/114/ECof 13 December 2004 on the conditions of entry and residence of third-country nationals for the purpose of studies, unremunerated training or voluntary service (OJ L 375, 23.12.2004);

— a Council directive and two proposals for recommendations on the admission of third-country nationals to carry out scientific research in the European Union (COM(2004) 178 of 16 March 2004);

— Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualification (OJ L 255, 30.9.2005);

— Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ L 289, 3.11.2005);

— Commission Regulation (EC) No 635/2006 of 25 April 2006 repealing Regulation (EEC) No 1251/70 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ L 112, 26.4.2006);

— Council Directive 2006/100/EC of 20 November 2006 adapting certain directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania (OJ L 363, 20.12.2006);

— Council Decision of 18 December 2006 appointing Italian, Maltese and Swedish members and alternate members of the Advisory Committee on Freedom of Movement for Workers (OJ C 320, 28.12.2006);

— Commission Regulation (EC) No 1430/2007 of 5 December 2007 amending Annexes II and III to Directive 2005/36/EC of the European Parliament and of the Council on the recognition of professional qualifications (OJ L 320, 6.12.2007);

— Commission Decision 2007/172/EC of 19 March 2007 setting up the group of coordinators for the recognition of professional qualifications (OJ L 79, 20.3.2007);

— a proposal for a Council directive on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (SEC(2007) 1393) (SEC(2007) 1408); and

— a proposal for a Council directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (SEC(2007) 1382) (SEC(2007) 1403).

e. Restrictions on freedom of movement

Freedom of movement for people is subject to limitations justified on grounds of public policy, public security or public health (Articles 39(3), 46(1) and 55 EC). These exceptions must be strictly interpreted and the limits to their exercise and scope are set out by the general principles of law such as the principles of non-discrimination, proportionality and protection of fundamental rights.

B. Changes introduced by the Treaty of Nice

Under the Treaty of Nice, visa, asylum and immigration policy are to be decided mainly by the co-decision procedure. The shift to qualified majority voting is provided for under Article 63 of the EC Treaty for matters concerning asylum and temporary protection, but subject to prior unanimous adoption of common framework legislation on asylum.

According to the statement signed by the Heads of State or Government, the shift to qualified majority voting and co-decision would take place as of 1 May 2004 (without the need for a unanimous decision) for:

— Article 62 of the EC Treaty, for measures setting out the conditions for free circulation of non-Member State nationals legally resident on EU territory;

— Article 63 of the EC Treaty, for illegal immigration and the repatriation of illegally resident persons.

ROLE OF THE EUROPEAN PARLIAMENT

Parliament wants to secure the greatest possible measure of freedom to travel for all persons within the Union’s internal frontiers. In its view, this is an essential condition for the operation of the internal market.

Parliament warmly welcomed Directive 2004/38/EC as its correct and quick transposition into the national legislations of the Member States would involve very beneficial improvements. The barriers still facing citizens wishing to exercise their rights would almost disappear. Moreover, Parliament believes there should be no distinction within the internal frontiers between freedom of movement for Community nationals and that of third-country nationals. Freedom of movement is a fundamental human right; any restriction on that freedom hinders third-country nationals’ access to the internal market. While the abolition of internal borders requires some accompanying measures, this must not be a pretext for introducing systematic controls in border areas or hermetically sealing off external borders.

Parliament is adamant that, in the post-Nice process, the co-decision procedure is extended to all areas within justice and home affairs, including the rights of third-country nationals. It believes that it is vital to ensure a balance between the aims of freedom, security and justice, taking account of fundamental rights and citizens’ freedoms. To this end, the European Parliament supports very much the developments which the Treaty on the Functioning of the European Union, as amended, particularly its Article 294 would bring to the field of freedom, security and justice, such as co-decision powers in almost all area of freedom, security and justice (AFSJ) matters. Moreover most decisions in the Council would be taken by qualified majority voting which would accelerate the speed of development of the AFSJ.

Joanna Apap

July 2008