Tuesday 8 March 2016

UK and the EU (4) - Freedom of movement of persons

Previous posts in this series:

This post looks at freedom of movement of workers considered by the EU to be essential for a successful internal market.  Previous posts in this UK and the EU series are:

UK and the EU (1) - History and Background

UK and the EU (2) - The EU Treaties - key points

UK and the EU (3) - The Parliament, the Commission and the Court

Link to the Consolidated Versions of the Treaties.

Freedoms fundamental to the European Union:

The European Union is based on the notion of an internal market within which goods, persons, services and capital may move unless the Treaties provide otherwise.  Thus, we see set out in Parts Two and Three of the Treaty on the Functioning of the EU the ground rules:

Part Two - Non-discrimination and Ciitzenship of the Union

Article 21 -

Every citizen of the Union shall have the right to move and reside freely within the territory of Member States, subject to limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

Part Three - Union Policies and Internal Action

Article 26 -

1.  The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties .... 2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

Article 45 - Freedom of movement for workers shall be secured within the Union .....

Article 49 - Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited ..... 

Article 56 - Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are  .....

(There can be no doubt that the rights set up by Arts. 49 and 56 are of immense importance to many British businesses seeking to trade abroad).

Article 63 - Within the framework of the provisions set out in this Chapter, all restrictions on the
movement of capital between Member States and between Member States and third countries
shall be prohibited .....

(Again of major importance since monetary payments across national boundaries are crucial if a business trades internationally).

Freedom of movement of persons - a closer look:

TFEU Art 45 - states that "..... such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment."

Art 45 then goes on to say that freedom of movement entails "the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

However, Art.45 does not apply to employment in the public service.

TFEU Art 46 enables "directive or regulations" to be made setting out the measures required to bring about freedom of movement for workers.

TFEU Art 48 enables social security measures to be adopted "as are necessary to provide freedom of
movement for workers ....

To drill down further would take us into the complex territory of the EU legislation enacted to further implement the freedom of movement principle.  An excellent article is available via the European Parliament - Free movement of workers factsheet   Please read it for a fuller picture including some amplification of the basis for restrictions on grounds of public policy, public security or public health.

At the end of 2012, according to Eurostat data, 2.8% of EU citizens (14.1 million people) resided in Member States other than those of which they are citizens. According to a 2010 Eurobarometer survey, 10% of people polled in the EU replied that they had lived and worked in another country at some point in the past, while 17% intended to take advantage of the right to free movement in the future.  It is therefore important to note that freedom of movement is a right available to British citizens many of whom have chosen to work abroad.  There isn't just an "inbound to UK" flow.  This point was also noted by the House of Lords EU Select Committee at an evidence session held on 8th March 2016 - discussed in UK and the EU (6).  The House of Lords noted that it has been estimated that some 2 million "Brits" are living in other EU countries.  The "acquired rights" of such individuals would be a matter to be addressed as part of any withdrawal agreement.  Whether the net in/out flow of persons is beneficial to the UK economy is a complex question and is not pursued further here but see Telegraph 8th March 2016; Full Fact 6th October 2015 and OECD May 2014

It is obviously vital to the application of the right of freedom of movement for workers to be clear about who is a worker.  More detail is in EU Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.

Nationals of Member States of the EU also have EU citizenship and this confers on them the rights granted by the Treaties including freedom to move and reside freely within the territory of member states.  The Directive states that "Union citizenship should be the fundamental status of nationals of the member states when they exercise their right of movement and residence.

Remember at this point that EU directives have to be implemented into national law.  This was done within the UK by means of legislation - see Consolidated Immigration (European Economic Area) Regulations

Enough has been said to indicate the complex legislative framework involved in applying the apparently simple idea that workers should have freedom of movement.  This is an area fraught with legal and practical difficulties.


"Economic migration" has added even more complexity and the EU is struggling to achieve any satisfactory answer.  See European Political and Strategy Centre - April 2015 - Legal migration in the EU: from stop gap solutions to a future-proof policy  and also European Parliament - Briefing September 2015 - The EU Migratory Challenge

Migration has placed the Schengen arrangements under considerable stress and some Schengem members imposed their own border controls.

The migration issue adds petrol to the fuel tanks of those seeking BREXIT since the struggle to secure the UK borders and to apply greater control over immigration is continually in the news.  Immigration, and any consequential inability to cope of infrastructure services such as education and health is a major plank in the BREXIT argument.

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