A. The Past
Contained in the Treaty of Rome 1957, free movement of workers was the natural economic complement of free movement of goods, services and capital. The logic of the production of consumer goods which is at the heart of internal movement in the EU, immediately raises the question already under discussion at this time, the future policy of European migration : in order to compete with foreign imports, is it advisable to use customs barriers, move our businesses outside the EU or ‘import’ labour ? The past development, however, of internal free movement in the Union permits us to note a number of other consequences. This development has been characterised by considerable quantitative and qualitative enlargement brought about by revisions of the texts and their interpretation by the European Court of Justice. On the one hand quantitatively, free movement has widened geographically, even if the either new Member States remain subject to constraints, the result of the fears of the others, the old Member States (B. Nagy). One might note as well that not only the free movement of workers and other economically active persons but also those with sufficient means has been partially opened to some categories of third country nationals, such as family members of citizens of the Union (Urbano de Sousa). This does not exclude the continued existence of difference of treatment over which the question whether they amount to unlawful discrimination hangs (K. Groenendijk). On the other hand, a qualitative extension is the result of the aggregate and complex arrival on the scene of a regional European citizenship and the universal application of human rights which raise the question of the intrinsic nature of citizenship (E. Guild), particularly as regards social rights which may be recognised as the key to a real link, as evidence of belonging to a community which could be the link of nationality or residence (K. Hailbronner). At the same time, at the heart of these changes and in their interpretation, the jurisprudence of the Court in Luxembourg (D. Martin) as that in Strasbourg, is not without its paradoxes. Already by 1996, the European Court of Human Rights had rejected the discriminatory treatment of a Turkish national by the Austrian authorities as regards a social right on the basis that « very weighty reasons would have to be put forward before the Court would regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention. » (Gaygusuz v Austria, para 42). But it allowed as admissible the difference of treatment in the expulsion between a Moroccan and an European on the basis that « such preferential treatment is based on an objective and reasonable justification, given that the member States of the European Union form a special legal order, which has, in addition, established its own citizenship. » ( C v Belgium, para 38). Perhaps the concern for absolute coherence, dear to jurists, cannot be translated into the complexities of life of which these judgments are a reflection. It remains for the new directive 2004/38, to seek to bring these judgments into harmony, but always bearing in mind that horizontal harmonisation also risks minimising some advantages (P. De Bruycker) which also has as a consequence that there is not shortage of issues for the future of the common area both culturally and geographically (B. Coulie).
B. The Future
Free movement of persons in the European Union is both banal and intensely contexted as the chapters of this book reveal. There is no aspect of this freedom which is not disputed, cherished, reviled or taken for granted. This freedom is banal to the extent that nationals of the 17 Member States (the old 15 plus Cyprus and Malta) are encouraged to move as factors of economic activity – workers, self employed, service providers and recipients (E. Guild, K. Hailbronner). But this economic freedom of movement is denied to eight of the Member States new on 1 May 2004 (B. Nagy). The freedom to move for nationals of the old Member States is controversial as regards social equality (E. Guild, K. Hailbronner). Here the concept of citizenship by T.H. Marshall as only moving into the sphere of social rights in the 20th century is easily transposed from the British to the EU context (unlike to much political theory). What future is there for citizenship of the Union ? First it is clear that a uniform status including the nationals of the new Member States (both those of 2004 and those of 2007 and beyond) will be necessary before any further consideration can be assessed (B. Nagy). Yet both the legislator (Ph. De Bruycker) and the Court (D. Martin) are moving in tandem, though not always synchronised, towards an ever more complete legal framework of equality for citizens of the Union. The legislator takes on board the Court’s jurisprudence (Urbano de Sousa) and the Court gives effect to the legislator’s objectives as interpreted in ‘real time’. Even the conundrum of the family and third country national family members is gradually achieving autonomy even though reverse discrimination against families which do not move remains (Urbano de Sousa). As Bauman identifies in a world where globalisation is privileged those who are caught in the local are punished. As a number of authors remind us, the European Court of Justice has decreed that citizenship of the Union is destined to be the fundamental status of nationals of the Member States. It is ironic that exactly these beneficiaries of the status in France and the Netherlands rejected the Constitutional Treaty in their referenda thus confounding the triumphal march towards ever greater Union proclaimed in the EC Treaty (J. Handoll). Directive 2004/38, nevertheless, moves substantially in the direction of consolidating the aspirations of citizens of the Union to achieve freedom in at least some domains. The abolition of residence permits must be among the greater achievements (K Groenendijk). The right not to encounter the administrative authorities of a Member States is particularly sweet for anyone moving across the EU borders and residing. Surprisingly, perhaps, in the framework of this integration of rights is the fact that it does not appear to be achieved at the expense of demonising the other (K. Groenendijk). If citizenship of the Union can move towards rights by building on those EU law has granted to third country nationals and bring to Europe’s third country nationals rights which have been attached to citizenship then EU law will indeed be moving in a virtuous direction. That precious but elusive right – equality – has been at the heart of all revolutions in Europe over the past 300 years. Equality both among citizens and human beings is the difficult objective which has been put into play. An inclusive understanding of rights of individuals as nationals of a Member State, citizens of the Union or third country nationals appears to be the direction which the EU has taken. The consolidation of that equality is the challenge which now lies before the Union.
This book is the result of a conference organised in April 2005 at Louvain la Neuve by the Odysseus Network in collaboration with the Centre for Human Rights and the Department of International Law, catholic University of Louvain. Organisers enjoyed the support of the European Commission, the FNRS, the French Community of Belgium and the indefatigable loyalty of the publishing house Bruylant. On behalf of both organisers, it is necessary to thank Anne Dikenstein, Bernadette Martin-Bosly, Marianne Saenen and Rita Vandenplas (UCL – Department of International Law) and Nicole Bosmans (ULB- Odysseus network).
Thanks is only a pale reflection of the fact that without the dedication of these people, neither the conference nor the book would have seen the light of day.
TABLE OF CONTENTS
Préface – Foreword
Jean-Yves Carlier – Elspeth Guild
Un espace européen pour la libre circulation
Recteur de l’Université catholique de Louvain(UCL, Louvain-la-Neuve, Belgique)
La libre circulation des citoyens européens entre codification et réforme
Philippe De Bruycker
Professeur à l’Institut d’études européennes de l’Université libre de Bruxelles et
coordonnateur du Réseau académique Odysseus d’études juridiques sur l’immigration et l’asile en Europe
Citizenship and fundamental rights
Professor of European Migration Law, Radboud University, Nijmegen and partner, Kinsgsley Napley, London
Union citizenship and social rights
Professor at the Universitat Konstanz, Director of the Centre for European Law on Immigration and Asylum
Citizens and third country nationals : differential treatment or discrimination ?
Professor, Radboud Universiteit Nijmegen
Le droit des membres de la famille du citoyen de l’union européenne de circuler et de séjourner sur le territoire des états membres, dans la directive 2004/38/CE
Constança Urbano De Sousa
Professeur à l’Universidade Autónoma de Lisboa et à la Faculté de droit de l’Universidade Nova de Lisboa
Enlargement and the free movement of persons
Professor of Public international Law, Eötvös Lorand University, Budapest
De Martinz Sala à Bidar, les paradoxes de la jurisprudence sur la libre circulation des citoyens
Service juridique de la Commission européenne
Annexes – Annex
- Bibliographie – Bibliography
- Directive 2004/38/CE du Parlement européen et du Conseil du 29 avril 2004 relative au droit des citoyens de l’Union et des membres de leurs familles de circuler et de séjourner librement sur le territoire des États membres, modifiant le règlement (CEE) n° 1612/68 et abrogeant les directives 64/221/CEE, 68/360/CEE, 72/194/CEE, 73/148/CEE, 75/34/CEE, 75/35/CEE, 90/364/CEE, 90/365/CEE et 93/96/CEE
- 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
- Proposition de directive du Parlement européen et du Conseil relative au droit des citoyens de l’Union et des membres de leurs familles de circuler et de séjourner librement sur le territoire des États membres (COM/2001/0257 final)
- Proposal for a European Parliament and Council Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (COM/2001/0257 final)
- Odysseus – Présentation – Composition – Informations et activités
- Odysseus – Presentation – Composition – Informations and activities