Summary EU Law; citizens, workers services Establishment Review

Free movement of citizens/workers,
services, establishment
Cross-border/EU element 2

For citizens and family members 2

For workers 7

For those with professional qualifications 10

For lawyers 12

For students moving and residing in another MS 14

Freedom to provide services 15

Freedom of establishment 18

Remedies 20

Always apply secondary law e.g. Directives and Regulations (if applicable) first, before
moving onto the Treaties if necessary, and then case law!

Remember! To fall under the scope of EU law, there must be a cross-border element (see
below and also in each section). Also consider whether, if one of the parties is a private
individual, if the EU law has direct effect/applicability (yes for Treaty articles and
regulations, no for Directives)

For self-employed individuals, the main considerations are Treaty provisions on freedom to
provide services or freedom of establishment, and possibly also the Directive on those with
professional qualifications

For workers, the main consideration are the Regulation on workers and the Treaty provision on
freedom of workers, and possibly also the Directive on those with professional qualifications

For citizens, the main considerations are the Citizens’ Rights Directive and the Treaty provision
on EU citizenship

For family members, the main considerations are the Citizens’ Rights Directive

NB art.18 TFEU: ‘any discrimination on grounds of nationality shall be prohibited’

,Cross-border/EU element
Situations wholly internal to 1 MS aren’t covered, there must be a cross-border element for EU
free movement rights to be invoked

Cases
- Kraus: there is a cross-border element where citizens seek to invoke their free
movement rights on return against an MS of which they are a national
- Scholz: there is a cross-border element where citizens seek to invoke their free
movement rights against the MS whose nationals they have become
- Zhu and Chen: there is a cross border element where a citizen of one MS lives in
another MS, even where they have never left the host MS
See also below on Ruiz-Zambrano


For citizens and family members
Treaties:
● Art.18 TFEU: no discrimination on grounds of nationality
● Art.20 TFEU: EU citizenship
○ Right to move and reside freely within EU
○ Right to vote and stand in EU and municipal elections
○ Right to enjoy diplomatic protection of any MS in a 3rd country
● Art.21 TFEU: right to reside and move freely within the EU
○ BUT, art.21 says it’s subject to the ‘limitations and conditions laid down by the
measures adopted to give them effect’, and the Citizens’ Rights Directive is such
a measure

NB that the Directive is vertically directly effective, so individuals can enforce it in a national
court, and equally, the Regulation is directly applicable

Citizens’ Rights Directive 2004/38
Who is covered:
● Art.3: citizens of a MS who move to or reside in another MS
● Art.2: family members of such citizens, meaning: spouse, registered partner, children
under 21 (of citizen or his spouse/partner), dependent children or parents (of citizen or
his spouse/partner)
● Art.3: MS shall also facilitate entry/residence for beneficiaries of the EU citizen who
don’t fall under art.2 who are: dependents or household members of the EU citizen;
require the EU citizen’s care due to serious health reasons; and partners with whom
the EU citizen has a durable relationship, duly attested
○ Under art.3 the MS must undertake an extensive examination of these people’s
circumstances and justify any denial of entry/residence to them

, Who is not covered:
● Any EU citizen who is not moving to or residing in another MS
● Citizens of 3rd countries who are not travelling with or joining their family member EU
citizen

Right of residence/movement:
● Art.4: MS is required to grant EU citizens and their family members the right to leave and
work in another MS, simply on producing a passport/ID card with minimum 5 years left
○ No exit visa requirements allowed
● Art.5: MS is required to grant EU citizens and their family members entry on
producing a passport/ID card
○ No entry visa requirements allowed for EU citizens
○ For 3rd country family members, entry visa requirements are permissible if:
■ The family member doesn't have a residence card under art.10
■ The visas are issued for free
■ The visas are issued ASAP
○ Where the EU citizen or family member doesn't have the necessary documents,
the MS must give them every reasonable opportunity to obtain them or prove
their right to residence/movement by other means
● Art.6: initial right of residence for up to 3 months for EU citizens and family members
○ No conditions allowed except requirement to present passport/ID card
● Art.7: all EU citizens and family members have the right of residence for more than
3 months if:
○ EITHER they are workers/self-employed individuals
○ OR they have health insurance in the host MS, and have sufficient resources
for themselves and family members so as not to be a burden on the host MS’
welfare system
○ OR if they are a student in the host MS
■ And have health insurance in the host MS
■ And have sufficient resources for themselves and family members so
as not to be a burden on the host MS’ welfare system
○ Art.7(3): and workers/self-employed individuals retain their status if sick/injured;
registered as a job-seeker after having been involuntarily employed for over a
year; or in vocational training
○ BUT, only the spouse, the registered partner provided for in Article 2(2)(b) and
dependent children shall have the right of residence as family members of
a EU citizen meeting the conditions under 1(c) above!
● Art.8: for periods of longer than 3 months, the host MS may require EU citizens (and
their EU citizen family members) to register
○ On presentation of passport/ID card, proof of employment, and document
attesting to family relationship (for EU citizen family members)
○ EU citizen will receive certificate of registration
● Art.9: 3rd country family members planning to reside in the host MS for more than 3
months will be issued with a residence card