The Union citizenship and Directive 38/2004/CE

Limits, challenges, perspectivesAlessandra Lang

University of Milan

Control on the implementation of directive 2004/38 in the 5 countries• No infringement procedure pending• Just three preliminary rulings on the free movement of persons and

none on the problems emerging from the report• France → C-325/08 [2010] Olympique Lyonnais• Italy → C-270/13 [2014] Haralambidis• Romania → C-33/07 [2008] Jipa

Free movement of persons

• Directive 2004/38 is not the only source of relevant law• Right to reside stemming from other sources of EU law

• Right for workers’ children to reside where they study (case 389-390/87 [1989] Echternach and Moritz)

• Right to reside for the parent of the worker’s child who studies (C-413/99 [2002] Baumbast)• Right to reside for the spouse of the citizens of the Union in their State of origin if not recognizing it

amounts to an obstacle to free movement (C-370/90 [1992] Singh; C-60/00 [2002] Carpenter)• Right to reside for the parent of minor children who reside in a MS under EU law (C-200/02 [2004]

Chen)• Right to reside for the parents of minor children who are citizens of the Union living in their State of

origin (C-34/09 [2011] Zambrano)

• Cases not dealt with by Directive 2004/38• Family reunification of citizens of the Union in their State of origin

Directive 2004/38

• Giving rights to the citizens of the Union and their family members• Protecting the interests of the States

How does Directive 2004/38 protect the interests of the States?• Free movement for many, but not for all• First 3 months: no right to social assistance benefits under the

directive and removal if the citizen of the Union becomes an unreasonable burden on the social assistance system of the MS• Up to permanent residence: • Right to reside if and until the citizen of the Union is economically self-

sufficient• Entitlement to social assistance benefits, but the State may check if the

citizen of the Union still meets the conditions for residence

• Departure on grounds of public order and public security

Social assistance system

for the purposes of Article 7(1)(b) of Directive 2004/38, the concept of ‘social assistance system’ “must be interpreted as covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by that State” (Brey C-140/12 [2013] paragraph 61).

Some States complain about abuses and frauds“certain immigrants from other Member States … avail themselves of the opportunities that freedom of movement provides, without, however, fulfilling the requirements for exercising this right.”

• Marriages of convenience• Welfare tourism

The Directive offers answers, but requires in-depth case-by-case scrutinyStates prefer automatic reactions

The EU’s response

• Council of Ministers• Commission• Handbook on marriages of convenience• Guidelines on the concept of habitual residence on coordination of social

security schemes• Better use of EU financial resources • Helping local authorities apply EU fee movement rules

• European Council

A reversal of perspective?

European Council, 26/27 June 2014, Conclusions, EUCO 79/14“12. As one of the fundamental freedoms of the European Union, the right of EU citizens to move freely and reside and work in other Member States needs to be protected, including from possible misuse or fraudulent claims.”

Future

• Amendments to the Directive?• Fine tuning by the Court of Justice• Right of permanent residence • Directive 2004/38 does not offer an answer to poverty