Name

Course: AUL 102

Professor:
Date: May 4, 2016

F R E E M O V E M E N T O F E U AN D N O N - E U C I T I Z E N S

INTRODUCTION

The Directive 2004/38 is, as the study points out, a landmark policy development that has
consolidated free movement rights:
It grants the right to cross borders and right of residence for up to three months without any
conditions or any formalities other than the requirement to hold a valid passport or ID card.
It establishes progressive residence rights - unconditional residence right up to three months;
residence right up to the acquisition of the permanent resident status; permanent residence.

 It confirms equal treatment rights and protection of migrant Union citizens in a host Member
State.
It defines the status of workers families and makes travelling and residence easier for family
members1, and many others.
It is important to understand at the outset that rights relating to free movement are generally,
only directly provided to citizens of the EU.2 This citizenship has been established by Article
20 TFEU which also provides that this citizenship should not be replaced by the national
citizenship, but only added to it. Equally important as part of Article 20 TFEU are the rights
that have been established within the scope of it. These include the right to reside freely
within the Member State, to vote and to apply as candidates in elections to the European
Parliament, the right to enjoy the protection of the diplomatic and consular authorities, and the
right to petition the European Parliament. Crucial is that the person who is moving to a host
Member State has to be provide certain contribution to it in order to be eligible to be granted
these fundamental rights.
When it comes to the free movement of non-EU citizens, they may have the right to work in
an EU country or to be treated equally with EU nationals as regards conditions of work. These
rights depend on their status as family members of EU nationals and on their own nationality.3
At this point, Directive 2004/38 established that non-EU citizens should obtain their
opportunity to move to a Member State by applying for a visa. A case that has been peculiar
for establishing the rights after obtaining the visa was the case Gl v. Regierungsprsident
Dsseldorf. The judgment of the Court in this case was that the spouse and other family
members are entitled to equal treatment in employment and social security. This is only one
example of a case that has been discussed in the courts for the purpose of clarifying and make
more unit the laws that apply to EU citizens, or in this case to non-EU citizen. Similar cases
regarding these issues will be further discussed in the essay.
DI RECT I VE 2004/ 38: RI G HT OF ENT RY AND RESI DENC E

As already mentioned in the introduction, the Directive is of landmark importance, which

means that with its application, fundamental rights are to be secured. Its main objective is
the question on the right of citizens of the Union and their family members to move and
reside freely within the Member States of the EU. The right of exit and entry have been
1 European Citizen Action Service. (2009, February). APPLICATION OF DIRECTIVE 2004/38/EC 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 [Executive Summary].
European Parliament, Brussels.

2 Davis, K. (2003). Understanding European Union Law 2/e (2nd ed.). Retrieved May 5, 2016, from
https://books.google.ba/books?id=_sfWB5q2dMkC&pg=PA103&dq=Free
movementofEUcitizens&hl=hr&sa=X&ved=0ahUKEwjLx4bw5cLMAhXJL8AKHZEzA6IQ6AEINjAC#v=one
page&q=Free movement of EU citizens&f=false

3 European Commission. (n.d.). Non-EU nationals. Retrieved May 05, 2016, from
http://ec.europa.eu/social/main.jsp?catId=470

discussed in Articles 4 and 5. Article 5 for example provides the following: The right of all
Union citizens to move and reside freely within the territory of the Member States should, if it
is to be exercised under objective conditions of freedom and dignity, be also granted to their
family members, irrespective of nationality.4 To make a concluding point from the so far
provided information, it is to be noted and again to refer to the fact that Directive 2004/38 is
concerned with rights that must ensure every citizen equal protection, including being
protected against discrimination. In other words, no matter which Article we provide as an
example, the conclusion will always be based on the same grounds.
Here is one case that might better explain under what circumstances and in which situations
the Directive 2004/38 is applied. In Metock and Others v. Minister for Justice, Equality and
Law Reform, the Court was faced with the question of whether Irish legislation is contrary to
the Directive 2004/38. More precisely, the issue arose under the question of whether a
national who was a family member of an EU citizen could only reside in Ireland if he was
resident in another Member State. For quick clarification, cases regarding EU citizenship and
the rights of EU citizen most common include more than only one issue. There was hardly
ever a case that could have been solved by applying principles and statutes to only one issue.
Referring back to the case Metock v. Minister for Justice, this is what the Irish legislation
transposing Directive 2004/28 provides: A national of a third country who is a family member
of a Union citizen may reside with or join that citizen in Ireland only if he is already lawfully
resident in another Member State.5 As stated earlier, one of the objectives that are granted
with the Directive is to define the status of workers families and to make travelling and
residence easier for family members. This leads us to the clear conclusion that the Irish
legislation is not compatible with the Directive. The case has finally been brought before the
European Court of Justice, where the judges reached the verdict that the Directive is not
conditional on the prior legal residence of third country family members.6
REST RI CT I ONS O N THE RI GHT OF E NT RY

Along with the rights that are granted to EU citizens, there, of course, have be some
restrictions too that are being applied when ones conduct seriously threatens the interest of
the society. If the host Member State has serious grounds to believe that a persons conduct
might harm the public policy or security, the host Member State has the right to require
information about the persons police records in his or her home Member State. The request is
to be made by the host Member State:

When issuing the registration certificate

4 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION. (n.d.). Council
Directive 2004/38/Ec 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. Basic Documents on International Migration
Law Third Revised Edition, 329-352. doi:10.1163/ej.9789004152397.i-850.

5 Fairhurst, J. (2007). Law of the European Union. Harlow, England: Pearson/Longman.

6 Hagenfeldt, V. (2007, January 7). The Implications of the Metock Judgment: A critical assessment of this case
[Scientific Essay].

If there is no registration system, no later than three months from the date of the
persons arrival in the host Member State
When issuing the residence card7

But what happens if the person actually gets expelled from the Member State? Is he allowed
to return? The answer to such questions can be found in Art 27(4), which states that a person
who has been expelled from a Member States because his conduct threatened either the public
policy, public security or public health, can re-enter the Member State the person has been
issued with a passport or identity card. It is important to add that one can be expelled on
strictly serious grounds, and this cannot become part as a routine procedure.
FREE MOVEMENT RIGHTS OF NON EU CITIZENS

Non EU citizens are not to be allowed to benefit from free movement of persons provisions.8
The most peculiar case for the purpose of non EU citizens was the Simuntekov case. Before
going into important facts of the case, it should be mentioned that this was the first case
brought before court that involved an agreement between the European Union and a nonMember State. Namely, the main issue that was raised before the Court with this case was
whether Article 23(1) of the Communities-Russia Partnership Agreement is to be construed as
precluding the application to a professional sportsman of Russian nationality, who is lawfully
employed by a club established in a Member State, of such rules.9 This is one of the many
cases that involved the issue of discrimination that has been experienced by an employee in a
Member State. The Court relied on Article 23(1) which specifically provides that these
nationals are to be protected from discrimination that is based on nationality, in regard of
working conditions and dismissal. This prohibition has been mentioned in the final ruling of
the Court, who stated that the Article 23(1) lays down, in clear, precise and unconditional
terms, a prohibition precluding any Member State from discriminating on grounds of

7 Fairhurst, J. (2007). Law of the European Union. Harlow, England: Pearson/Longman.

8 Davies, G. (n.d.). European Union Internal Market (2nd ed.). Retrieved May 5, 2016, from
https://books.google.ba/books?id=PueOAgAAQBAJ&pg=PA206&dq=free movement of
noneucitizens&hl=hr&sa=X&ved=0ahUKEwjZv8PO2cPMAhWICsAKHYwyArcQ6AEIJzAA#v=onepage&q=f
ree movement of non-eu citizens&f=false

9 Rules of a sports federation. (n.d.). Retrieved May 05, 2016, from http://www.caselawofeu.com/rules-of-asports-federation-providing-that-clubs-may-field-in-competitions-organised-at-national-level-only-alimited-number-of-players-from-non-member-states-cannot-be-justified-on-sporting-grounds/

nationality, against Russian workers.10 The importance thus of this case is in the fact that it
set a basis for further cases that involve free movement of non EU citizens.
CONCLUSION

We can see that the law still is not fully shaped on the questions on EU citizenship. Even
though the fundamental rights have been specifically stated in Articles, many unpredictable
misconceptions have been left out. Discussing free movement of persons is a discussion that
involves much research that is focused on the main cases that have already been before the
Court of Justice in order to understand the application of the law in certain circumstances.
Nonetheless, if we engage in examining the general meaning of the free movement of
persons, whether EU or non-EU citizens, we can see how law approaches the attempt of
maintaining justice and an effective judicial system.

BIBLIOGRAPHY

10 Igor Simutenkov v Ministerio de Educacin y Cultura and Real Federacin Espaola de Ftbol (Grand
Chamber April 12, 2005).

European Citizen Action Service. (2009, February). APPLICATION OF DIRECTIVE

2004/38/EC 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 [Executive Summary]. European
Parliament, Brussels.

Davis, K. (2003). Understanding European Union Law 2/e (2nd ed.). Retrieved May
5, 2016, from https://books.google.ba/books?
id=_sfWB5q2dMkC&pg=PA103&dq=Free
movementofEUcitizens&hl=hr&sa=X&ved=0ahUKEwjLx4bw5cLMAhXJL8AKHZE
zA6IQ6AEINjAC#v=onepage&q=Free movement of EU citizens&f=false

European Commission. (n.d.). Non-EU nationals. Retrieved May 05, 2016, from
http://ec.europa.eu/social/main.jsp?catId=470

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN

UNION. (n.d.). Council Directive 2004/38/Ec 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. Basic Documents on International Migration Law
Third Revised Edition, 329-352. doi:10.1163/ej.9789004152397.i-850.

Fairhurst, J. (2007). Law of the European Union. Harlow, England: Pearson/Longman.

Hagenfeldt, V. (2007, January 7). The Implications of the Metock Judgment: A critical
assessment of this case [Scientific Essay].

Fairhurst, J. (2007). Law of the European Union. Harlow, England: Pearson/Longman.

Davies, G. (n.d.). European Union Internal Market (2nd ed.). Retrieved May 5, 2016,
from https://books.google.ba/books?id=PueOAgAAQBAJ&pg=PA206&dq=free
movement of
noneucitizens&hl=hr&sa=X&ved=0ahUKEwjZv8PO2cPMAhWICsAKHYwyArcQ6
AEIJzAA#v=onepage&q=free movement of non-eu citizens&f=false

Rules of a sports federation. (n.d.). Retrieved May 05, 2016, from

http://www.caselawofeu.com/rules-of-a-sports-federation-providing-that-clubs-mayfield-in-competitions-organised-at-national-level-only-a-limited-number-of-playersfrom-non-member-states-cannot-be-justified-on-sporting-grounds/

Igor Simutenkov v Ministerio de Educacin y Cultura and Real Federacin Espaola

de Ftbol (Grand Chamber April 12, 2005).