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FREE MOVEMENT OF PERSONS

Freedom of movement and residence for persons in the European Union is the

cornerstone of EU citizenship, established by the Treaty of Maastricht in 1992.

The gradual phasing-out of internal borders under the Schengen agreements was

followed by the adoption of Directive 2004/38/EC on the right of EU citizens and

their family members to move and reside freely within the EU. Notwithstanding the

importance of this right, substantial implementation obstacles persist.

inception. The first provisions on the subject, in the 1957 Treaty establishing the

European Economic Community, covered the free movement of workers and freedom

of establishment, and thus individuals as employees or service providers. The Treaty

of Maastricht introduced the notion of EU citizenship to be enjoyed automatically by

every national of a Member State. It is this EU citizenship that underpins the right of

persons to move and reside freely within the territory of the Member States. The Lisbon

Treaty confirmed this right, which is also included in the general provisions on the Area

of Freedom, Security and Justice.

ACHIEVEMENTS

A. The Schengen area

field of justice and home affairs. A protocol to the Amsterdam Treaty provided for the

transfer of the ‘Schengen acquis’ into the Treaties. Today, under the Lisbon Treaty, it is

subject to parliamentary and judicial scrutiny. As most Schengen rules are now part of

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the EU acquis, it has no longer been possible, since the EU enlargement of 1 May 2004,

for accession countries to ‘opt out’ (Article 7 of the Schengen Protocol).

1. Participating countries

There are currently 27 full Schengen members: 23 EU Member States plus Norway,

Iceland, Switzerland and Liechtenstein (which have associate status). Ireland is not

party to the Convention but can ‘opt in’ to selected parts of the Schengen body of law.

Denmark, while part of Schengen since 2001, enjoys an opt-out for any new justice

a. The abolition of internal border controls for all persons;

b. Measures to strengthen and harmonise external border controls (4.2.4):

all EU citizens need only show an identity card or passport to enter the

Schengen area;

c. A common visa policy for short stays: nationals of third countries included

in the common list of non-member countries whose nationals need an

entry visa (see Annex II to Council Regulation (EC) No 539/2001) may

obtain a single visa, valid for the entire Schengen area;

d. Police (4.2.7) and judicial cooperation (4.2.6): police forces assist each

other in detecting and preventing crime and have the right to pursue

While the Schengen area is widely regarded as one of the primary achievements of

the European Union, it has recently faced an existential threat due to the COVID-19

pandemic, with Member States closing borders to control the virus’s spread, before

introducing the EU Digital COVID Certificate in July 2021. Before that, the main

challenges have been the considerable influx of refugees and migrants into the EU, as

well as terrorist attacks.

B. Free movement of EU citizens and their family members

1. First steps

In a bid to transform the Community into an area of genuine freedom and mobility for

all its citizens, directives were adopted in 1990 in order to grant residence rights to

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Council Directive 90/366/EEC on the right of residence for students; and Council

Directive 90/364/EEC on the right of residence (for nationals of Member States who

In order to consolidate different pieces of legislation (including those mentioned above)

and take account of the large body of case law linked to the free movement of persons,

formalities to the bare essentials, to provide a better definition of the status of family

members, and to limit the scope for refusing entry or terminating the right of residence.

Under Directive 2004/38/EC, family members include:

— The spouse (also of the same sex, as clarified by the Court of Justice of the

European Union (CJEU) in its Coman judgment C-673/16);

— The registered partner, if the legislation of the host Member State treats registered

partnerships as equivalent to marriage;

— Direct descendants who are under the age of 21 or are dependants, and those of

the spouse or registered partner;

— Dependent direct relatives in the ascending line and those of the spouse or

working – must have sufficient resources and sickness insurance to ensure that

they do not become a burden on the social services of the host Member State

during their stay. EU citizens do not need residence permits, although Member

States may require them to register with the authorities. Family members of EU

citizens who are not nationals of a Member State must apply for a residence permit,

valid for the duration of their stay or a five-year period.

— Right of permanent residence: EU citizens acquire this right after a five-year period

of uninterrupted legal residence, provided that an expulsion decision has not been

enforced against them. This right is no longer subject to any conditions. The same

rule applies to family members who are not nationals of a Member State and who

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lost only in the event of more than two successive years’ absence from the host

Member State.

Finally, the directive enables Member States to adopt the necessary measures to

refuse, terminate or withdraw any right conferred in the event of abuse of rights or fraud,

such as marriages of convenience.

b. The implementation of Directive 2004/38/EC

The directive has been beset by problems and controversy, with evidence emerging of

serious shortcomings in implementation and continuing obstacles to free movement,

as highlighted by Commission reports and Parliament studies on the application

of the directive, infringement proceedings against Member States for incorrect or

incomplete transposition, the large volume of petitions submitted to Parliament and

the considerable caseload before the CJEU. The criticism raised by some Member

c. Third-country nationals

Parliament has long fought hard to uphold the right to free movement, which it regards

as a core principle of the European Union. In its resolution of 16 January 2014 on

respect for the fundamental right of free movement in the EU, Parliament rejected

efforts to curtail free movement rights and called on the Member States to comply with

the Treaty provisions on EU rules governing freedom of movement and to ensure that

the principles of equality and the fundamental right of freedom of movement are upheld

for all Member States. In its resolutions of 15 March 2017 on obstacles to EU citizens’

freedom to move and work in the internal market, and of 12 December 2017 on the EU

Citizenship Report of the same year, Parliament called once more for the removal of

obstacles to the right to free movement. The decision by the UK to leave the European

The COVID-19 pandemic led the majority of Member States to reintroduce internal

border controls, close borders and apply temporary restrictions on travel from other

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EU countries, although these were partially eased with the introduction of the EU

Digital COVID Certificate. In various resolutions, Parliament repeatedly expressed its

Schengen Borders Code, strengthening free movement, clarifying rules and reducing

temporary border controls.

Parliament repeatedly called on the Council to agree to the full application of the

provisions of the Schengen acquis in Bulgaria and Romania, leading the Council in

December 2023 to remove air and maritime internal border controls.

Ottavio Marzocchi