Citizenship - Free Movement of Persons

"Social entitlement under 'Citizenship of the Union' (Article 17 EC) has very much developed out of the rights attached to the free movement of persons provisions. To what extent does the personal scope of these rights result in a hierarchy of entitlement and forms of social exclusion?
How Have recent decisions of the European Court of Justice affected this situation?"

It is an important feature of Article 17 EC, that the concept of citizenship of the European Union is explicitly made subject to the principle of subsidiarity. Citizenship of the European Union in this context is not intended to represent a floor of rights, or to ensure some sort of equality in terms of social provisions across the Union. To do so would be to usurp national autonomy for the welfare state and one of the most crucial issues behind any party mandate or electoral platform. Citizenship of the European Union is complementary and ancillary, a framework within which the rights granted by the EC treaty are co-ordinated and underpinned. It was made abundantly clear in Uecker case 1 that citizenship was not intended to extend the scope of the Treaty by creating rights dependent for their effectiveness on Articles 17 and 18 not otherwise recognised in Community law.

This approach is reflected in the wording of Article 17(2) EC:
"Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby." In this context, the dual nature of the rights which are conferred by the treaty is evident from the original preamble to the Treaty of Rome 2, which identified its six signatories as: "Resolved to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe." It was the concept of negative integration and the removal of barriers that came first to the European scene; positive integration, aimed at achieving economic and social progress beyond the removal of discrimination was a much later addition 3.

This aim of eliminating barriers can be seen most clearly in those provisions relating to the free movement of persons, and this is backed up by Article 18 4which expands upon the basic ideas of citizenship as laid out above: "Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down by this treaty…" To see this in isolation as some kind of philanthropic socialism however, is to overlook the historical developments of the European Community and European Union from the tightly regulated European Coal and Steel Community of 1951. The provisions for free movement of persons, be they workers or the self-employed, are critical economic, as well as social measures, aimed at combating the extreme inflexibility of European labour markets that has so long held them at a competitive disadvantage against the United States and more recently the so-called 'Tiger' economies of East and South Asia.

The motivation behind the concept of European citizenship, is a rather awkward attempt to harmonise more market-orientated policies with broader social ideals, such as those underpinning Article 19 (on the right to stand in both Municipal and European elections). It should be remembered that direct universal suffrage came late to the European Community in 1979 5 , whereas many of the treaty articles on free movement of workers, freedom of establishment, and freedom to provide services were part of the original, more economically orientated provisions that were initiated in Rome in 1957. This paper therefore aims to analyse the concept of hierarchy from an economic viewpoint as well as merely a social one and will argue that there are two forms of hierarchy - not merely one based on nationality, which puts the EU national to the fore and potentially discriminates against third party nationals in a variety of contexts, but also an economic hierarchy within which those with greater potential for economic productivity are empowered with a greater level of rights and protection thereof.

Indeed the position of the individual within the economic systems of the European Community was admirably summed up by Weatherill who stated 6:

"Because those rules of law, which permit regulation of the economy, directly affect individuals, the procedures must respect the position of the individual. Community law accordingly contains important principles protecting the individual. The legislative and administrative tasks performed by the Community institutions are subject to review on the basis of these principles. ...The Treaty contains some explicit principles which protect the individual…however, the Court has proved vigorous in developing a substantial body of principles independent of Treaty support."

Though in making such a statement Weatherill may well have been thinking of cases such as the Internationale Handelsgesellschaft 7 litigation, which recognised the concepts of fundamental human rights (as derived from the West German constitution) as part of European Law, the decision in Cristini v SNCF 8is a good example of the ECJ's willingness to find a very broad scope behind legislative provisions that afford rights to the individual citizen. In the Cristini case the court not only adopted a wide view of what constituted 'social advantages' for the purpose of Article 7(2) of directive 1612/68, but also extended those rights to family members of a deceased worker on the basis of Regulation 1251/70.

Whilst the ECJ has on many occasions been proactive in identifying and extending rights to individuals, in legal and historical terms there is a clearly evident hierarchy in the rights arising from the free movement provisions. The principle rights for the EU national were those based on non-discrimination as enshrined in article 12 EC and defined in most detail in relation to sex discrimination 9 . The concept of Citizenship was not introduced into EC law until the Treaty of European Union in 1992, reflecting the way in which economic concepts, especially negative integration, were originally a priority over the citizen as individual. And it was not until the Treaty of Amsterdam of 1997, which did not take effect until May 1999, that the position of third country nationals was directly brought into the framework of EC law. It introduced a new EC Treaty title on 'visas, asylum, immigration and the free movement of persons' which has shifted much of the erstwhile third pillar (pre-Amsterdam) into the Community pillar and raised a number of important questions with regard to entry conditions imposed on third country nationals and the treatment accorded to them.

The position of third country nationals working within the EU is often in sharp contrast to the position of EU nationals, even where those nationals are in fact employed outside of the EU. In Walrave and Koch v Association Union Cycliste Internationale 10for example, it was held that article 39 providing for free movement of workers, would apply even where the actual work was conducted outside the community as long as the legal relationship of employment was entered into inside the community. This was confirmed and to a degree broadened in the case of Boukhalfa 11 . In spite of many pieces of secondary legislation that have attempted to define much of the scope of Article 39, many of the basic terms have been determined by the ECJ, including the meaning of worker.

A key issue that is not in any way evident from the text of Article 39 moreover was whether the phrase 'workers of the Member States' covered only Member State nationals or also included non nationals resident in and working in the Community. It was subsequently clarified by Regulation 1612/68 that application is restricted to workers who are nationals of Member states and the ECJ, though usually very progressive, has hitherto been content to adopt this line. The position is somewhat unsatisfactory; in that it allows Member States to exploit the value of migrant workers without them being accorded similar rights to citizens at either a national or a European level.

This is in obvious contrast to cases such as Levin 12, where the ECJ was insistent that the Dutch authorities could not artificially restrict the meaning of the term 'worker', by excluding part time workers, where this would place nationals of other member states at a disadvantage. The priority treatment accorded the European national was thus evident long before the concepts of citizenship became enshrined in EC or EU law. In abolishing one level of hierarchy, namely that between Member State nationals, and nationals of other Member States (an area of common ground across all the free movement provisions) the ECJ has effectively reinforced the distinction between EU nationals and third party nationals. Indeed it would be fair to say that in certain cases the ECJ has been explicit in its recognition that Member States may have reasons for wishing to keep in check the flow of peoples into their territories 13 .

Given this fact and the obvious concerns of Member States on this issue, it has long been debated whether the goal of Article 14 can ever be realised in the creation of an internal market that is "…an area without internal frontiers in which the free movement of goods, persons, services and capital…" is to be ensured. The very question of border controls and complete freedom of movement within the community for non-nationals are closely intertwined. At present the rights of non-nationals under Community law are extremely limited (see for example M. Hedmann-Robinson in [2001] 38 CML Rev. 525). This is in spite of the stated view of the Commission that the elimination of border controls within the EC applies to all persons irrespective of nationality 14 .

By 1996 this position was reflected in the commitments of the Member States, with only the UK and Ireland, in part due to their historical difficulties with one another, remaining outside the Schengen agreement, which agreed on cooperation between Member States in the fields of visa policy, and the abolition of checks at shared borders. Following the Treaty on European Union moreover matters of immigration from third countries were, under the third pillar, dealt with on an inter governmental basis.

This area however was, following the Treaty of Amsterdam, made part of the new title IV of Part III of the EC Treaty, whose overall aim as set out in Article 61EC is the progressive establishment of 'an area of freedom, justice and security.' Whether this applies to those national of countries outside of 'fortress Europe' however is a matter of some debate. The treatment of third party nationals has both an internal and external dimension, and it has been an evident part of the Schengen agreement that greater internal freedom and the concept of citizenship, have come at the expense of tighter external borders and greater difficulties for third country nationals, especially in the wake of the events of September 11. Illegal immigration for example was high on the agenda of the European Council meeting at Seville in June 2002.

There is also an internal dimension; it is important to note that there is no codified or coherent body of rights governing the position of third country nationals under EC Law. Their rights, often limited, are usually parasitical on family members who are EC nationals, or derived from contracts of employment with EC companies, or as subjects of certain international agreements with third countries. The introduction of EU citizenship has brought this contrast into sharp relief. At present proposals to reduce this obvious social divide are in their infancy, albeit that they represent a step in the right direction e.g. a proposed directive on the status of third country nationals who are long-term residents of Member States, aimed at giving them equal access to employment, education and social protection; 15 or the initiative concerning conditions of entry and residence for third country nationals who seek employment within the EU 16. However there is a notable reluctance on the part of some member states to be more liberal and progressive in this area; it seems an inevitable result of enlargement post 2004 that this trend will continue as new accessions will wish to guard the benefits of their hard-won membership more zealously.

Whilst the most obvious distinction in terms of social entitlement exists between those of EU nationality and third party nationals, there is furthermore delineation at an economic level as well, a product of the economic focus of many of the earlier treaty articles and accompanying secondary legislation. One crucial restriction imposed by Article 18 EC, is that the right to move is subject to such limits and conditions as are laid down in the Treaty and by the measures adopted to give it effect. Where specific legislation has been enacted rights will be subject to the conditions contained therein.

One might look for example at three directives from 1990: directive 90/366 concerned students exercising their rights to vocational training; directive 90/365 concerned the employed and self employed once they had ceased work; directive 90/364 aimed to catch all those persons who did not all ready enjoy rights of residence under community law. These required Member States to grant the relevant individuals residence permits, along with certain family members, but all were subject to an over-riding proviso that they had sufficient means to avoid burdening the social welfare schemes of the Member States concerned. In other words the limitations identified in Article 18 include financial conditions imposed by these directives, such that no rights of residence are available to many EU citizens who lack the financial resources to ensure their own welfare. This was confirmed by the case of Rudy Grzelczyk, C-184/99. This confirms the position outlined earlier, that the hierarchy of entitlement to social welfare schemes under EU law is doubly determined, both by nationality and by financial means, and it is the third party nationals and the financially insecure who thereby enjoy the fewest rights under EU law at present.

In the Grzelczyk case itself17 the ECJ observed:
"Union citizenship is destined to be the fundamental status of nationals of Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality…" This is a very similar idea to that expressed in Cowan v Tresor Public18 , wherein it was held that a British tourist in France should be treated the same as a French national in the sphere of Criminal injuries compensation, on the basis that as a recipient of services a tourist was entitled to take advantage of the freedom of provision of services concept set out in Article 49EC. It was because in both cases the subject was a Union citizen lawfully present in another Member State's jurisdiction that they were both able to avail themselves of rights provided elsewhere in the treaty. This emphasises the fact that articles 17 and 18 do not create rights ab initio, but rather provide a scope within which existing rights are recognised; this only serves to underline the priority given to EU citizens.

Citizenship is a level of rights that operates in addition to, not in isolation from, citizenship of Member States. It was underlined in Micheletti19 that each Member State remains free to determine those it considers worthy of its citizenship; this inevitably is to factor in another layer in the hierarchical structure, as citizenship of say France and the UK is easier for those untied by historical (i.e. more often than not colonial) ties, which may seem somewhat arbitrary in a modern context and often hardly reflective of pressing political needs on the part of migrants themselves. The narrow and often exclusionary nature of EU citizenship has inevitably been the subject of much adverse comment.20

Criticism has been directed at the absence of any participatory demands made of EU citizens, the fact that rights of residence are subject to conditions laid down in earlier directives that pre-date the very notion of citizenship, and the discrimination against otherwise lawfully resident third state nationals, who may not wish, or be able, to claim the nationality of their host state. The Commission has also identified a certain reluctance amongst some member states to accord recognition and enforcement to the Community rights that do exist.21 Set against this however, as Shaw and others identify, is the need to consider the practical realities and treat certain Treaty amendments as aspects of a more integrative concept of citizenship; for example the broader non discrimination clause contained in Article 13 and more open access to information afforded by Article 255.

Much of the outdated secondary legislation on free movement is moreover to be replaced by a new general Directive on the rights of free movement for citizens and their family members 22. However, whilst clarification and updating of the law in this area is welcome, it is arguable that few of the problems that constitute the EU's 'hierarchy of entitlement' will really be solved. Article 2 of the proposed directive still retains the definition of an EU citizen as an individual who has the nationality of a member state. Rights of family members remain parasitical upon those of the citizen of the EU and must be backed up by a valid passport or identity card 23.

Moreover rights of residence for more than six months, under Chapter III, are only accorded to the employed and self-employed and those with sufficient resources to avoid becoming a burden on the host state24 . Even though in many situations, e.g. ex parte Antonissen c292-89 and many others, the ECJ has put a very broad construction on the rights afforded to individuals under EC law, particularly migrant workers, in other circumstances it has been shown that it reinforces the existing hierarchy of entitlement.

The introduction of the concept of citizenship has only served to emphasise the privileged status held by citizens of Member States above the rights of third party nationals. Within this there is also an important distinction drawn between the economically productive or financially independent and those who lack sufficient means to support themselves. Issues of social welfare entitlement and matters of immigration policy are admittedly extremely sensitive political issues and it would be unreasonable to expect the ECJ, or the issue of EU citizenship in isolation, to reach any sort of adequate solution to the satisfaction of all member states. However, the law as its stands only serves to underline the differing strata of entitlement, and the more that issues such as those of visas, asylum, immigration and other title IV issues are dealt with at a European level, the more these demanding social problems will require a European solution.
Bibliography:

Tillotson: European Union Law, Text, Cases and Materials 3rd ed.
Craig and de Burca: EU Law, Text Cases and Materials 3rd ed.
Butterworth's student statutes: EC Law 3rd ed.
Roy Denham: Missed Chances: a history of Britain and Europe
M. Hedmann-Robinson: [2001] 38 CML Rev. 525
Shaw and More (eds.): New legal dynamics of the European Union 1995
The European Union Online / EUR-lex

  1. C 64/96 and 65/96[^ Return]
  2. 1957[^ Return]
  3. See for example the argument of Pinder in European Community: the building of a Union 1998[^ Return]
  4. Ex Article 8a[^ Return]
  5. The legal basis for direct elections was Article 138 (3)[^ Return]
  6. Weatherill, S: Cases and Materials on EC Law[^ Return]
  7. C 11/70[^ Return]
  8. C 32/75[^ Return]
  9. See Tillotson chapter 13.[^ Return]
  10. [1974] ECR 1405[^ Return]
  11. [1996] ECR I-2253[^ Return]
  12. [1982] ECR 1035[^ Return]
  13. e.g. C 321/87 Commission v Belgium[^ Return]
  14. COM (97) 230[^ Return]
  15. COM (2001) 127[^ Return]
  16. COM (2001) 386[^ Return]
  17. [2001] ECR I-6193[^ Return]
  18. [1989] ECR 195[^ Return]
  19. [1992] ECR I-4239[^ Return]
  20. See for example, M. Everson, The Legacy of the Market Citizen[^ Return]
  21. COM (97) 230[^ Return]
  22. COM (2001) 257[^ Return]
  23. Ibid. Article 6[^ Return]
  24. Ibid. Article 7[^ Return]


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