Saturday, 24 January 2009

EU freedom of movement: Overseas countries and territories

The Treaty establishing the European Community provides for the principle of free movement for workers (persons) between the associated overseas countries and territories (OCTs) and the EU member states, but to be governed by agreements requiring unanimous approval by the member states. Article 186 TEC:

Article 186 TEC

Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the countries and territories, and within the countries and territories for workers from Member States, shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States.



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Original ToL

The original Treaty of Lisbon (ToL) contained the explicit but small amendment to the current TEC that agreements are to be replaced by legislative acts:

152) At the end of Article 186, the words ‘shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States’ shall be replaced by ‘shall be regulated by acts adopted in accordance with Article 187’


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TFEU consolidated

The unanimity requirement stands, although the procedure is described in other words, in Article 202 of the Treaty on the Functioning of the European Union (TFEU), in the consolidated Lisbon Treaty published OJEU 9.5.2008 C 115/138:

(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)



Article 202 TFEU
(ex Article 186 TEC)

Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the countries and territories, and within the countries and territories for workers from Member States, shall be regulated by acts adopted in accordance with Article 203.


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Special territories generally

If you want an introduction to the geographical scope of the EU treaties and the various special territories in general, you could read the Wikipedia article Special Member State Territories and the European Union, which discusses the outermost regions, the overseas countries and territories (OCTs) we have looked at in the latest blog posts, as well as special cases (latest update 12 January 2009):


http://en.wikipedia.org/wiki/Special_member_state_territories_and_the_European_Union


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OCTs and freedom of movement for workers


Article 17 TEC establishes EU citizenship for every person holding the nationality of a member state and Article 18 TEC, in principle, lays down the right to move and reside freely within the territory of the member states, subject to the treaty and secondary legislation. (More detail is provided by the so called Citizenship Directive 2004/38/EC for EU citizens and notably their family members, but excluding social security.)

This means that the free movement rights of OCT residents depend on their citizenship. If they are full citizens of the “mother country”, they enjoy the rights of EU citizens.


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Green Paper


The Commission’s Green Paper on the overseas countries and territories, COM(2008) 383 final, gives the following description of the situation (page 6 and 7):


In addition, unlike with third countries, all OCT nationals are in principle European citizens in the sense of Article 17 of the EC Treaty, which states that every person holding the nationality of a Member State is a citizen of the Union. More precisely, all nationals of Greenland and the French and Dutch OCTs also have the nationality of the related Member State automatically. As from 21 May 2002, the citizens of all the British OCTs are also British citizens, but they can renounce it in favour of remaining British overseas territories citizens only and are not obliged to have a passport describing them as a British citizen. As European citizens, OCT nationals are in principle also entitled to the rights conferred by Union citizenship (as laid down in Articles 18 to 22 of the EC Treaty), such as the right to move and reside (but not work) freely within the territory of the Member States. Moreover, OCT nationals can be granted the right to vote for and participate in the election of the European Parliament, subject to the conditions defined by the related Member States in compliance with Community law. This is, for example, the case for nationals of the French OCTs.


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Commission Staff Working Document


The Staff Working Document SEC(2008) 2067 with the Annexes, accompanying the Green Paper gave the following additional information (page 31):

It is important to recall that, though not third countries, the OCTs do not form part of the Community single market. Therefore, the related four freedoms (free movement of people, goods, services and capital) that apply within the Community do not cover the OCT-EC association, although this does not affect the rights conferred upon OCT inhabitants by citizenship of the Union within the meaning of the EC Treaty. Instead, the above-mentioned arrangements for trade in goods, establishment and the provision of services apply to trade and economic relations between the Community and the OCTs. The Overseas Association Decision also contains provisions on current payments and capital movements. Furthermore, the free movement of workers between the OCTs and the Member States is mentioned in the EC Treaty, but this issue is to be governed by agreements to be concluded subsequently with the unanimous approval of the Member States. However, given this very cumbersome procedure laid down in Article 186 of the EC Treaty, such agreements have never been adopted so far. In this respect, it should be noted that the Treaty of Lisbon of 13 December 2007 makes the regulation of the free movement of workers between the OCTs and the Member States subject to the common procedure of Article 187 of the EC Treaty for adopting the detailed rules and procedures for the OCT-EC association, which could facilitate regulation of this issue.


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Because no agreements have been concluded between the EU member states, citizenship determines the right to move and reside freely.


Ralf Grahn