Question 2

In a Union of economic origins, the extension of free movement rights to all citizens of the European Union, whether economically active or not, was a significant step forward. However, whilst the Court of Justice seized upon the new citizenship status as a vehicle for extending such rights, Directive 2004/38 has now re-imposed boundaries by rebasing rights upon economic status.

Critically assess the accuracy of this statement.

Answer 1

The European Economic Community was created by the European Community Treaty, signed by the six original Members States in 1957. The EEC Treaty set up the common market, now known as the internal market, in which goods, persons, services and capital move freely between the Member States. The Treaty on European Union 1992 created the European Union and renamed the EEC the 'EC' and the EEC Treaty the 'EC Treaty'. There have been later Treaties that have amended the two founding Treaties and the six original Member States increased to 28, with further enlargement planned. Notably, the UK left the EU in January 2020 leaving the current number of Member States at 27. This means that the area within which Union citizens can move freely has been considerably extended since the Union's beginnings. The EU has both economic and political origins. The founding states were driven by high political ideals, including a strong desire for peace in Europe following the devastation of two major wars during the first half of the twentieth century.

All nationals of the Member States are citizens of the European Union and, as such, have the right to move freely around the European Union. Workers and the self-employed and their families have more extensive rights than Union citizens who are not economically active. Whilst the Treaties give no definition of 'worker', the Court of Justice has given an indication of the scope of this term. It includes, for instance, a person who has lost their job but is capable of finding another and part-time workers. These persons can not only move around freely but also have the right to non-discrimination on grounds of nationality. They must be treated equally to host state nationals with regard to employment.

The Court of Justice seized upon Union citizenship status as a vehicle for extending rights of free movement and non-discrimination. A Spanish widow living in Germany was held to have the right to a welfare benefit to which German nationals were entitled. A German national was held to have the right to remain in the UK. Union citizenship was created by the Treaty of Maastricht, but the scope of citizenship rights is still uncertain. It is clear, however, that there is a general right of non-discrimination under Article 18 TFEU and that the economically active have the right to move. The economically active and their families have more extensive rights than the economically inactive.

However, Directive 2004/38 does not accord with the Court of Justice’s judgments. The Directive clearly indicates that the creation of Union citizenship should have no impact on free movement rights. The Directive gives no rights of free movement to Union citizens other than those who are economically active and their families, although it reaffirms the very limited rights of two other groups, namely students and the financially independent.

Importantly, the right to equality, under current provisions, is limited to the economically active and their families. This right is more extensive for workers than for any other group, as is demonstrated by Regulation 492/2011.

Bad points

This is a weak answer. It makes an attempt to address the question but does not succeed very well.

The answer begins with a very long introduction in the first paragraph, which is only partially relevant to the question. This candidate has evidently learned certain information about the origins of the EC and EU and was determined to demonstrate this knowledge, whether relevant or not. Similarly, the candidate has learned the case law on the definition of 'worker' and has included this irrespective of the focus of the question. If this case law, or any other information, is to be included, an answer should make clear how it is relevant. Here it could be stated, for instance, that the cases demonstrate that, whilst the legislation generally limits free movement rights to the economically active, the Court of Justice has broadened the scope of the rights by interpreting 'worker' generously. In planning an answer, make sure that you address the question and include only relevant material. It is tempting to 'write all you know' but you must resist this temptation.

Cases concerning the meaning of 'worker' and the rights of Union citizens are referred to but not named. To adopt a methodology that excludes all case names is far from impressive. Precise references to the legislation are not always given, for instance there is no reference to Article 20 TFEU.

There are structural weaknesses in this answer, including repetition of points. Note how the candidate first mentions Union citizenship in the second paragraph but does not make the necessary preliminary statements about the introduction of this status by the Treaty of Maastricht until the end of the third paragraph. The statement in the second paragraph that workers, the self-employed and their families have more extensive rights than Union citizens who are not economically active is later repeated, almost word for word, at the end of the third paragraph.

It is not correct to state that Directive 2004/38' clearly indicates that the creation of Union citizenship should have no impact on free movement rights'.

There is an inconsistency in the final sentence of the fourth paragraph. The Directive cannot both give rights of free movement only to Union citizens who are economically active and their families, and also reaffirm the very limited rights of students and the financially independent.

Regulation 492/2011 needed to be covered, but this answer merely mentions the Regulation, giving no explanation of its relevance. 

There is no conclusion.

Good points

The answer does manage to highlight some of the relevant areas and includes some relevant discussion, for instance on the cases concerning Union citizenship, the groups of persons entitled to free movement rights, and the associated right of non-discrimination.

Despite the incorrect statements, this candidate demonstrates basic understanding of the topic area and knowledge of some of the relevant case law.

Answer 2

Originally, free movement rights were granted to economically active persons and their families. Such rights were then extended to other groups including students, retired persons and persons of independent means. With the adoption of the Maastricht Treaty, the status of Union citizenship was introduced into the EC Treaty (now TFEU) and the right of free movement was granted to all Union citizens. However, this right was made subject to the limitations and conditions in the Treaty and secondary legislation.

Following the creation of Union citizenship, the Court of Justice began to use this status as a basis for granting non-discrimination rights, as in Sala and Grzelczyk, and even residency rights, as in Baumbast. However, the scope of Union citizenship rights was not really clarified until the adoption of Directive 2004/38. This Directive, often referred to as the 'Citizenship Directive', reiterates the Court of Justice’s statement in Grzelczyk that Union citizenship is destined to be the fundamental status of the nationals of the Member States. However, the provisions of the Directive extend rights little further than the original legislation, limiting them largely to the economically active and their families, and the other groups – students and persons of independent means – who enjoyed such rights under the previous secondary legislation.

It is true to say that there is some further extension of rights, in that all Union citizens now have the right to leave their home state, to enter another Member State and remain there for up to three months. However, this is the limit of the rights for the economically inactive. By contrast, economically active persons have the right to remain in another Member State, along with their family members, for more than three months and acquire a right of permanent residence after having exercised this right for five years. Moreover, Union citizens have the right to move around to seek work. 

It should always be remembered that Member States may limit free movement rights on grounds of public policy, public security, or public health, though their actions must be proportionate. If a Member State seeks to rely on a public policy or public security justification for limiting rights, that justification must be based on the personal conduct of the individual.

Whilst the creation of Union citizenship and the Court of Justice's interpretation of the scope of citizenship rights seemed to indicate that rights of free movement could be extended to all Union citizens with little limitation, Directive 2004/38 demonstrates that this is not the case and that rights are to a considerable degree still based on economic status.

Bad points

One of the major weaknesses of this answer is that it makes no specific reference to the relevant TFEU provisions; Articles 18 (non-discrimination), 21 (Union citizenship), 45 (workers' rights), 49 (right of establishment), 56 (right to provide services) or to the specific provisions of Directive 2004/38. Indeed, it is not always clear which pieces of legislation contain the statements of law referred to.

Much of the required detail is lacking, particularly on the rights that are afforded to the economically active and the other groups who enjoy rights under Directive 2004/38. These should have been discussed in some detail, with a comparison drawn between the broad extent of their rights and the limited rights of the economically inactive.

The penultimate paragraph is not relevant to this question, which requires discussion of the development of rights in relation to economic status, not derogation from those rights.

Good points

The basic answer framework and structure are reasonably good. Most of the relevant ground is covered (though the detail is lacking, as noted above).

The answer is clear and generally well argued, with points following on logically from each other in an orderly fashion. It is sensibly paragraphed, which helps move the argument along and assists the reader's understanding.

The answer avoids the mistake of a lengthy and cumbersome introduction, by coming straight to the point in the first paragraph, and there is a concise conclusion to round off the answer.

Suggested answer

In line with the EU's economic origins, the provisions of the founding EEC Treaty granted free movement rights to the economically active; workers, persons exercising the right of establishment, and persons providing services in another Member State. These provisions remain today and are now set out in Articles 45 TFEU (workers), 49 TFEU (the right of establishment) and 56 TFEU (service providers). Additionally, case law extended the right of free movement to nationals of the Member States who wished to seek work in another Member State (Royer, Antonissen). Associated with the right of free movement is the right to non-discrimination on grounds of nationality 'within the scope of application of this Treaty', now contained in Article 18 TFEU.  The right of free movement was extended to other groups by secondary legislation. Most notably, family members became entitled to move around with the worker (Directive 68/360) and rights were granted to students, retired persons, and persons of independent means (Directives 90/364/365/366). However, before the adoption of the Maastricht Treaty, free movement rights remained largely tied to economic status.

The introduction of Union citizenship into the EC Treaty by the Treaty of Maastricht, in Article 17 EC (now Article 20 TFEU), seemed to herald a new approach to free movement rights. The new Article 18 EC (now Article 21 TFEU) granted free movement rights to all Union citizens, though this right was made subject to 'the limitations and conditions' in the Treaty and secondary legislation. The scope of these limitations and conditions was not precisely defined, and the Court of Justice began to use Union citizenship as a basis of rights, declaring that 'Union citizenship is destined to be the fundamental status of the nationals of the Member States' (Grzelczyk). The Court used Union citizenship as a starting point for the right to non-discrimination (Sala, Grzelczyk) and the right to residence in another Member State (Baumbast).

The Citizenship Directive 2004/38, in Recital 3, affirms the principle that Union citizenship is destined to be the fundamental status of the citizens of the Member States, suggesting a move away from rights based upon economic status. Nonetheless, the substantive provisions of the Directive confirm that a strong link still remains between economic status and the rights of free movement and non-discrimination. However, in exceptional circumstances, the Court has used the status of Union citizenship as the basis for granting derivative rights of residence to parents or carers of children with Union citizenship on the basis that they would otherwise be prevented from ‘genuine enjoyment’ of such rights (Zambrano).

All Union citizens, and their family members irrespective of nationality, have a right under the Directive to leave their home state and to enter and reside in another Member State (Articles 4, 5). However, that right is limited to residence for up to three months, unless the Union citizen is economically active, a worker or self-employed, or is a member of one of the other groups which previously had rights under the earlier secondary legislation or case law, students, persons of independent means and jobseekers (Articles 7, 14). All these persons have the right to stay for more than three months (Article 7).

For family members, rights of free movement and residence are dependent, or 'derivative', upon the rights of the economically active Union citizen, as the primary right-holder. This means that family members who are themselves Union citizens, should the primary right holder cease economic activity, die, or return to the home state, have the right to remain only if they become economically active, unless they have already acquired the permanent residency right set out in the Directive. In such circumstances the position of family members who are not Union citizens is much more precarious, since they have the right to remain only in the event of divorce or the death or departure of the Union citizen and only if certain conditions are satisfied. Most notably, unless they have already acquired a permanent residency right, their right to remain is subject to them becoming economically active (Directive 2004/38, Articles 12, 13).

With regard to non-discrimination, economic status still forms the basis of the relevant provisions. In particular, Member States are not obliged to grant welfare benefits during the initial three-month period of residence, save to workers, the self-employed and their families (Directive 2004/38, Article 24). Workers enjoy the benefit of the range of equality rights set out in Regulation 492/2011. These concern not only equal access to employment and conditions of employment but also extend more broadly, for instance to equal tax and social advantages not necessarily linked to the employment contract (Regulation 492/2011, Article 7, Cristini). The equality rights embodied in Article 24 of Directive 2004/38 apply to family members but, as with rights of entry and residence, these rights are dependent on the rights of the economically active Union citizen.

In conclusion, whilst the creation of the status of Union citizenship by the Treaty of Maastricht, along with the associated rights of free movement and non-discrimination, seemed to indicate a breaking of the link between free movement rights and economic status, Directive 2004/38 affirmed and reiterated the pre-existing limitations. Despite the attempts of the Court of Justice to base rights on citizenship status (which have been successful in exceptional circumstances), Directive 2004/38 has re-imposed boundaries by rebasing rights upon economic status.