FREE MOVEMENT OF PERSONS

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NTRODUCTION

  • Right of free movement of persons is more sensitive than that of goods ➔ greater security/welfare implications. Also, social burden being imposed on host state.
  • Over the years, the link between economic activity and free movement of persons has been eroded. This has culminated in the recognition of the status of citizen of the Union at Maastricht.
    • Art 20-25 TFEU
    • Recognises a general, free-standing right to move and reside, regardless of whether person is economically active.
    • Still subject to limitations and conditions laid down in Treaties/secondary legislation.
    • Grzelczyk, 2001: “Union citizenship is destined to be the fundamental status of nationals of the MSs” – principle of equal treatment regardless of nationality, subject to express exceptions.
    • Consolidated by the EP and Council Directive 2004/38 – Citizens’ Rights Directive (CRD)

 

Scope of Application of the Treaty Provisions

Personal scope

  • Is indiv/corporation a national of a MS?
    • Depends on national rules on nationality – MSs are the gatekeepers to Union citizenship and free movement rights.
    • Ex p Kaur, 2001: it is for each MS, having due regard to EU law, to lay down conditions for acquisition/loss of citizenship.
    • Ex p Commerzbank AG, 1993: for companies, look to company’s “seat” to determine nationality – where company has registered office/central admin/principal place of business.
  • Is he engaged in an economic activity?
    • Jundt, 2007: means that activity must not be provided for nothing, but no requirement for service provider to be seeking to make a profit.
  • Can he be classified as worker/self-employed/service provider/citizen?