Free movement of persons – fundamental right or privilege?

The free movement of persons (or workers) is at least as old as the process of European integration and represents one of the four fundamental rights on which the EU is based. The range of rights expanded through the years, specially via the EU Court rulings, and today we are allowed to move, live and work in any EU country. When we are asking ourselves what the EU has done to/for us, we can without any doubt say that the free movement of its citizens is one of the most important achievements of the EU. In fact it is so important, that we consider it as granted. Unfortunately, actions from some countries (particularly those of the UK who wants to limit the free movement of EU citizens) show that even if something is considered as granted, we have to keep working to maintain it.

FREE MOVEMENT OF CITIZENS – WHAT THE EU RULES SAY

The predecessor of the free movement of persons is the free movement of workers, granted by Article 45 of the Treaty on the functioning of the EU (TFUE). The article says that EU citizens can move freely on the territory of the country where they are working and to live there. Moreover, the Treaty forbids any discrimination based on nationality.

The concept of free movements of citizens is broader – as it confers the right of free movement and residence to all EU citizens – and newer – as it was firstly introduced by the Treaty of Maastricht as part of the fundamental rights of EU citizenship (Article 21 of TFEU). Even though it is broader, this right has also some more limitations.

These limitations are listed in Directive 2004/38, the basic piece of legislation that regulates the free movement of persons within the EU. Based on the directive, every citizen of the EU has the right to reside in any EU country for 3 months after his arrival. During this period he doesn’t need to fulfill any special requirement or to obtain any specific permit.

After the 3 months, the right to reside depends on the economic status of the person – employed and self-employed can continue to reside without fulfilling any specific requirement, job seekers can continue to reside if they are actively looking for a job (for a maximum of 6 months), students and other economically inactive persons (pensioners, unemployed, etc.) can continue if they demonstrate to have sufficient resources and a health insurance.

After someone has been living continuously for 5 years on the territory of the hosting country, he obtains the right to permanent residence.

The directive deals also with social security benefits and determines when a person who moved to another country has the right to obtain them. The basic rule is non discrimination – a citizen that moves has the same rights as the citizens of the hosting country.

However there are some safeguards that aim to prevent the so-called “benefit tourism” of economically inactive persons. During the period of the first three months the host country is not obliged to give any social security benefit. After this period an economically inactive person living in another EU country who has not sufficient resources  loses the right to stay on the territory of the country.

However, if someone has had sufficient resources and his economic situation changes afterwards, the host country has to treat the case equally as for its own citizens, as the person in the first moment fulfilled all the requirements.

This safeguard measure was again confirmed in yesterday’s ruling  in the “Dano case” (the whole text of the ruling is available here, the summary is available here) by the EU Court. In this case a Romanian citizen (Dano), who moved to Germany together with her son in 2010, requested the German state to give her special social security benefits for job seekers, as is foreseen for German nationals. In this case she invoked the clause of non discrimination.

In the ruling the Court identified that Ms Dano didn’t come to Germany to look for a job and that she has never been economically active (neither in Germany or Romania). The Court confirmed that a citizen of another country can claim the same treatment as nationals of the hostng country (non discrimination) only if he is on the territory of the hosting State in compliance with the requisites from Directive 2004/38. This is not this case as Ms Dano hasn’t ever had sufficient resources and because she didn’t come to Germany to find a job.

The Court has therefore confirmed the provisions of the Directive, which gives to the Member States the right to adopt rules to avoid abuses of their social security systems by economically non active persons, who come to the country just to abuse of the social security rights.

FREE MOVEMENT OF PERSONS – A THREAT TO THE STATE WELFARE SYSTEM?

Despite the fact that the above mentioned Directive contains clear safeguards to prevent or at least limit abuses of the right to free movement of persons (the enforcement of such safeguards is up to the Member States), some countries indicate as the main (and only) argument for the limitation of the free movement of persons the fact that immigrants abuse these rights and pose a threat to their public finances.

However official data deny this claims. A study, published last year by the European Commission, shows that EU citizens who move to another country use welfare benefits no more intensively than the nationals of that country, while economically non active citizen get special (non-contributory) social security benefits in very limited occasions. Economically non active mobile EU citizens represent just 1% of the total EU population and among them a maximum of 5% (in the case of 11 States that were included in the study) get special (non-contributory) social security benefits

Moreover this and other studies (the list and links to them is available here) show that workers from other countries contribute more to the public finances than they get back in the form of benefits. The same applies to the UK, who wants to implement quotas and limits for the immigration of EU nationals and like that limit the free movement. A study, published recently by the University College London, shows that between 2001 and 2011 immigrants from other EU countries contributed 20 billions pounds (almost 25 billions euros) to the British economy. Immigrants from the so-called “old member states” contributed 64% more than they received in benefits, while immigrants from “new member states” contributed 12% more than they received.

FREE MOVEMENT OF PERSONS – FUNDAMENTAL RIGHT OR PRIVILEGE

Last Sunday we celebrated the 25th anniversary of the Berlin Wall fall, which was the introduction into several changes on our continent. Every time someone proposes to restrict the free movement of the European people within their own continent we need to keep in mind this event. Certainly we can’t compare the total ban of border crossing during the Cold War and the restrictions of free movement today. However, any attempt of restriction can provoke a building of new walls – if not physical ones, at least those in our heads.

Those who try to abuse the system would always exist. But it is unfair that those who failry contribute to this system  are punished. It is up to the countries to use all the possibilities that the EU laws give to them to punish the abusers. General restrictions are just a sign of the inability and unwillingness to systematically tackle the problem.

The free movement of persons is certainly one of the most important things that the European Union brought to us. Therefore we need to protect it and in some cases also expand, not restrict. It has to remain the fundamental right of everybody and not just the privilege of a limited group of lucky people.