Friday, 7 March 2008

TFEU: Citizen’s right to move and reside freely

The EU Law Blog published a post ‘Fifth Commission Report on Citizenship’ on 5 March 2008, with essential links to case law of the Court of Justice and to Commission documents on citizenship of the Union:

http://eulaw.typepad.com/eulawblog/2008/03/fifth-commissio.html

Here, we look at the basic treaty provisions on EU citizenship in the light of the Treaty of Lisbon, offering the reader possibilities to compare the current Treaty establishing the European Community with the intermediary Convention and Constitution stages leading up to the amending Lisbon Treaty.


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In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed to change the Treaty establishing the European Community (TEC), which becomes the Treaty on the Functioning of the European Union (TFEU). In the renamed Part Two Non-discrimination and citizenship of the Union, Article 18 is amended as follows (Official Journal, OJ, 17.12.2007 C 306/51):

35) Article 18 shall be amended as follows:

(a) in paragraph 2, the words ‘the Council may adopt’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt’ and the last sentence shall be deleted;

(b) paragraph 3 shall be replaced by the following:

‘3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.’

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Since inserting innovations agreed in the 2004 IGC into the Treaty ‘by way of specific modifications in the usual manner’ does not begin to make sense for the normal reader, the following step is to fetch the patient to be operated on, namely retrieve the text of the current provision (in the latest consolidated version of the existing treaties OJ 29.12.2006 C 321 E/49-50):

Article 18 TEC

1. 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 in this Treaty and by the measures adopted to give it effect.

2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.

3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.

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Then, the horizontal and the express amendments have to be inserted to arrive at a consolidated version of the Article according to the Lisbon Treaty:

Article 18 TFEU (ToL), renumbered Article 21 TFEU

1. 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 in the Treaties and by the measures adopted to give them effect.

2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.

3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.

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The European Convention, chaired by Valéry Giscard d’Estaing, tabled the following proposal in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/30):

Article III-9 Draft Constitution

1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Article I-8, of every Union citizen to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose.

2. For the same purpose and unless the Constitution has provided for powers of action in this area, measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection may be laid down by a European law or framework law of the Council of Ministers. The Council of Ministers shall act unanimously after consulting the European Parliament.

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The IGC 2004 agreed on the following text in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/56-57):

Article III-125 Constitution

1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Article I-10(2)(a), of every citizen of the Union to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose.

2. For the same purposes as those referred to in paragraph 1 and if the Constitution has not provided the necessary powers, a European law or framework law of the Council may establish measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.

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For a short description of the proposed Article, we can quote the UK House of Commons Library Research Paper 07/86 (page 24):

Article 18 (Constitution Article III-125), like present Article 18 TEC, allows the Union to enact the necessary legislation to ensure freedom of movement, even where the Treaty does not expressly provide for it, specifying measures concerning social security or social protection for which the Council must act by unanimity after consulting the EP.

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The freedom of movement and the freedom to reside within the EU follows from our status as citizens of the Union, not only if we are, for instance, workers or self-employed.

In each version, paragraph 1 spells out the important principle that every citizen of the European Union, namely every person who is a citizen of a member state, has the right to move and reside freely within the territory of the member states.

Paragraph 1 of the TEC and the ToL is essentially the same. Although the treaties contain the germ of equality between EU citizens, the right to move and reside is subject to limitations and conditions, of which more when we glance at the secondary legislation.

Between themselves the draft Constitution and the Constitution were almost identical.

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The substance of paragraph 2 of the current TEC and the ToL is essentially the same, the co-decision procedure having become the ordinary legislative procedure, as elsewhere in the Lisbon Treaty.

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In paragraph 3 TFEU, the sensitive questions of social security and social protection, hitherto exempt from action within the context of Article 18 TEC, open up to a special legislative procedure where the European Parliament is consulted, but they require unanimity by the Council.

The Article 18(3) provisions on passports, identity cards, residence permits or any other such document have been deleted from paragraph 3 TFEU, but moved to Title V, Chapter 2 Policies on border checks, asylum and immigration, which introduces a special legislative procedure, with consultation of the European Parliament and unanimous Council acts.

As Steve Peers points out in his EU Reform Treaty Analysis no. 3.2 this power has been inserted into the external borders provisions, where the UK, Ireland and Denmark will be able to opt out of it (page 5).

See OJ 17.12.2007 C 306/59:

Article 62(3) TFEU (ToL), renumbered Article 77(3) TFEU

3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 17(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.

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The right to move and reside freely within the European Union is important for millions of EU citizens, who reside in another member state.

For them and their family members 30 April 2006 was a milestone, because Directive 2004/38/EC entered into force, codifying, clarifying and extending their rights (OJ 30.4.2004 L 158/77):

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,
68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance)


Article 1 Directive2004/38/EC
Subject

This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

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For workers’ free movement there is the amended Council Regulation No 1612/68 Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (A consolidated version is available.)


Ralf Grahn


Source:

UK House of Commons Library Research Paper 07/86: The Treaty of Lisbon: amendments to the Treaty establishing the European Community; 6 December 2007

Steve Peers: Statewatch Analysis, EU Reform Treaty Analysis no. 3.2: Revised text of Part Two of the Treaty establishing the European Community (TEC); Version 2, 23 October 2007