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.
Article 3(2) of the Treaty on European Union; Article 21 of the Treaty on the Functioning of the European Union (TFEU); Titles IV and V of the TFEU; Article 45 of the Charter of Fundamental Rights of the European Union.
The concept of the free movement of persons has changed in meaning since its 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.
A. The Schengen area
The key milestone in establishing an internal market with free movement of persons was the conclusion of the two Schengen agreements, i.e. the Agreement proper of 14 June 1985, and the Convention implementing the Schengen Agreement, which was signed on 19 June 1990 and entered into force on 26 March 1995. Initially, the Schengen implementing Convention (signed only by Belgium, France, Germany, Luxembourg and the Netherlands) was based on intergovernmental cooperation in the 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 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 and home affairs measures, including on Schengen, although it is bound by certain measures under the common visa policy. On 30 December 2023, the Council agreed to remove air and maritime internal border controls with Bulgaria and Romania. Controls at the internal borders with Cyprus have not yet been lifted.
The Schengen area’s achievements include:
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
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 persons other than workers: Council Directive 90/365/EEC on the right of residence for employees and self-employed persons who have ceased their occupational activity; 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 do not enjoy this right under other provisions of Community law and for members of their families).
2. Directive 2004/38/EC
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, a new comprehensive directive was adopted in 2004 – 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. The directive is designed to encourage EU citizens to exercise their right to move and reside freely within the Member States, to cut back administrative 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:
A large majority of Member States also apply the directive to guarantee free movement rights to same-sex registered partners and partners in a durable relationship.
a. Rights and obligations:
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 States in 2013-2014 on the alleged abuse of free movement rules by EU citizens for the purposes of ‘benefits tourism’ led to discussions at EU level on possible reforms, in the meantime set aside after the decision of the UK to leave the EU.
c. Third-country nationals
Provisions applying to third-country nationals who are not family members of an EU citizen are explained (4.2.3).
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 Union has deprived free movement of one of its main critics.
With regard to the Schengen area, in its resolution of 30 May 2018 on the annual report on the functioning of the Schengen area, Parliament condemned ‘the continued reintroduction of internal border checks’, as they are ‘detrimental to the unity of the Schengen area and harmful to the prosperity of European citizens and the principle of freedom of movement’.
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 EU countries, although these were partially eased with the introduction of the EU Digital COVID Certificate. In various resolutions, Parliament repeatedly expressed its concerns and called for improved coordination at EU level and for a swift return to a fully functional and reformed Schengen area. It also adopted a proposal for a reformed 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