The indicating European integration.[1] Although Article 3 (1)(c)

The
free movement of persons constitutes one of the most successful implementing
schemes inside the European Union and a very noteworthy factor indicating
European integration.1
Although Article 3 (1)(c) of the Treaty Establishing the European Community2
(which now is repealed) provided that the Community aimed to the “abolition , as between Member
States, of obstacles to freedom of movement for…persons”, the real situation
was different at least for the first 40 years of the EU’s life.3
The considerable provisions of the Treaty of Rome did not provide to all people
and companies a general right of free movement. There were two requirements
which needed to be fulfilled.4
The first requirement was that individual and companies had to be both a Member
State’s national. The second requirement pertained to the necessity of an
individual or company to be involved in an economic activity as a ”worker”5(Articles
45-8TFEU), a ”self-employed
person/company/branch or agency”6
(Article 49-55 TFEU), or as a ”provider
or receiver of services”7
(Article 56-62 TFEU).8

The removal of some of the obstacles
to the free movement of persons came with the adoption of secondary legislation9 in
the late 1960s/early 1970s. Later in 1990, the European Union adopted three
specific directives. These directives provided a right of movement and
residence to the retired, students and those with independent means.10  These entitlements were subject to the
condition that every single person must have sufficient resources and medical
insurance.11 The aim
of these requirements was to cease benefits12
and tourism relating to healthcare.13     However, a very important change came to the
fore with these three directives and this change constitutes a cornerstone for
the fundamental freedom of movement within the European Union.14
This change concerns the progressive disappearance of the link between the economic
activity and free movement. Moreover, the perception that the migrants
constitute nothing more than a factor of production was dissolved. These three
directives managed to introduce migrants as individuals with specific rights
which could be imposed against the host Member State. This change resulted in
the acceptance of the status of ‘citizen of the Union’ for every national of a
Member State, with specific rights and duties attached’ in the Maastricht
Treaty15
at 1992.16    Last judgments of the Court signify that
citizens of EU at
present take advantage of a more general, independent right to move and reside
without reservations17
inside the Union under Article 21(1) of the TFEU18,
whether they are economically active or not.19
It is obviously of course that this right is subject to restrictions and
requirements established in the Treaty and secondary legislation. Moreover,
Article 20 (1) TFEU provides that ”Every
person holding the nationality of a Member State shall be a citizen of the
Union. Citizenship of the Union shall be additional to and not replace national
citizenship”. The importance of the citizenship provision is highlighted
in the outstanding ”Grzelczyk case”.20
In this case the ECJ emphasized that Union citizenship is predetermined to
constitute the fundamental status of the Member States,21
permitting people who are in the same situation as nationals of a host Member
State to enjoy the same treatment irrespective of their nationality.22
Moreover the ECJ stated that this treatment will be ”subject to such
exceptions as are expressly provided for.”23                                                                         The
complete establishment of the citizen’s right came with the adoption of
European Parliament and Council Directive 2004/3824
on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States (Citizen’s Right
Directive- CDR). The previous secondary legislation adopted in the 1960s,
together with the 1990 Residence Directive repealed by the CDR. The latter has
fundamentally modified25
and enhanced the rights of migrant EU citizens and their families.26

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II.
The most fundamental provisions of EU Law concerning the concept of ”free
movement of persons”

 

Article 21(1) TFEU and the CDR constitutes fundamental
provisions of EU Law related to the free movement of persons. The former
highlights that EU citizens and their families have the right to move freely
and reside within the European Union on condition that they either participate
in the internal market economy activity or are financially independent.27                                                                                                           In
this point we have to clarify the clear definition of the ‘economic activity’
sense.28
The TFEU differentiates between categories of economic activity. First of all,
in Articles 45 to 48 TFEU we meet the employment/workers’ right. This category
of economically active persons pertains to the rights of wage and salary
employee to accept an employment and residence in a host Member State. The
second category of economic activity relates to the rights of the self-employed
and businesses to set up a regular base in a host Member State. Articles 49 to
55 TFEU concern this category. The third category is founded to Articles 56 to
62 TFEU and refers to the right to enter a host Member State so as to provide
services without, usually, establishing a regular base in the host State. 29                                                                                                            In
the category of EU citizens who do not constitute economically active persons30
are included the unemployed people, children, carers of children, retired
persons, students and those unable to work because of illness.31                                    CDR
forms an answer to problems encountered by citizens of EU wanting to enjoy the
rights conferred by Article 21(1) TFEU.32
It based on the concept that the longer an individual dwell in a host state the
more rights he/she enjoys. This directive has also confirmed what was clarified
in the three directives adopted in 1990s with regard to the disappearance of
the link between the economic activity and the free movement.33
The erosion of the necessary link between the free movement of persons inside
the Union and the engagement of an economic activity by these people
constitutes one of the important characteristic of the CDR. This is obvious by
the fact that during the first three months of the migration period and after
five years of residence there is no necessity for a person to indicate any
economic activity

1Catherine Barnard, The Substantive Law of the EU: The four
Freedoms (first published 2004, 4th edn, Oxford University Press
2013) 229

2Consolidation
Version of The Treaty Establishing the European Community 2002 OJ C325/33

3 Barnard (n1) 231

4 Eleanor Spaventa,
”Seeing the Wood Despite the Trees? On the Scope of Union Citizenship and its
Constitutional Effects” 2008 45 CMLR 13, 15

5 Neither the Treaty
nor secondary legislation conferred a specific definition of the ‘worker’ term.
Case law has played a major role to provide definitions about the term
‘worker’. ECJ has clarified that the ‘worker’ concept is a European Union
concept and only the Court has the authority to define what actually included
in this term. This element tracked down at Case 75/63, Hoekstra (nee Unger) v.
Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten 1964 ECR 177.
Based on that, Member States are not in position to define a narrow definition
about this term. Although the term ‘worker’ concerns an employed person, this
term has been broadly interpreted. The important characteristic of the worker
concept is that an individual must perform services for a specific period under
the direction of another individual in return of remuneration. The activities
carried out by the worker must be effective and genuine. In this category are
not included purely marginal and ancillary activities. These activities must
have an economic nature.

6 ”Self employed
person” is an individual ”who engages in independent gainful activity as his
or her sole or principle occupation and thereby generates income equal to at
least the statutorily defined minimum salary’. Moreover, a self-employed person
is recognized ”as a person who pursues a trade or profession in his or her own
name (person pursuing a trade) or is comparable to such a person on the basis
of his or her corporate responsibility.” See: Eeva Nyk?nen, Elina
Pirjatanniemi, Olli Sorainen, Ida Staffans, Migration
Law in Finland (first published 2009, 2nd edn, Kluwer Law
International 2011) 245; see also Paul Schoukens, The Social Security Systems for Self-Employed People in the Applicant
EU Countries of Central and Eastern Europe (first published 2002,3rd
edn, Intersentia 2002) 356

7 A service provider
is a person, company or organization which provides service to somebody in
return of money.

8 The persons
included in these fundamental freedoms enjoyed and continue to enjoy the
entitlement of free movement subject to limitations on the grounds of public
policy, public security and public health. Moreover, these persons are subject
to the exception for employment in the public service.

9 This legislation
has been broadly interpreted by the Court.

10 Council Directive
90/364/ECC on the right of residence 1990 OJ L180/26, Council Directive
90/365/ECC on the right of residence for employees and self-employed persons
who have ceased their occupational activity 1990 OJ L180/28, and Council
Directive 90/366/EEC on the right of residence for students 1990 OJ L180/30
repeated and replaced by Council Directive 93/96/EEC on the right of residence
for students 1993 OJ L317/59

11 Stefano Giubboni,
”Free movement of Persons and European Solidarity” 2009 46 CMLRev 587, 588

12 Kay Hailbronner,
”Union Citizenship and Access to Social Benefits” 2005 42 CMLRev 1245,
1247-1248

13 Case C-456/02
Michel Trojani v. Centre public d’aide sociale de Bruxelles (CPAS) 2004 ECR
I75-73

14 Centre for
European Policy Studies, What Does Free Movement Means in Theory and Practice
in an Enlarged EU? (Working Document No 208, 2004) 1-4

15 Treaty on European
Union 1992 OJ C191/01

16 These provisions
are now placed at Articles 20-25 of the Treaty on the Functioning of the
European Union.

17 Anthony Arnull,
Damian Chalmers, The Oxford Handbook of
European Union (1st edn, Oxford University Press 2015) 479-481

18 Consolidation
Version of the Treaty on the Functioning of the European Union 2012 OJ
C326/47

19 Case C-413/99
Baumbast and R. v. Secretary of State for the Home Department 2002 ECR I-7091

20 Case C-184/99 Rudy
Grzelczyk v. Centre public d’aide sociale d’ Ottignies-Louvain-la-Neuve 2001
ECHR I-6193, para. 31

21 The Jean Monnet
Centre for International and Regional Economic Law and Justice, Citizenship of the Union: Towards
Post-National Membership? (Jean Monnet Working Paper 97/6, 2004) 12

22 Paul Craig, Gránne
De Búrca, EU Law: Text, Cases and
Materials (first published 1999, 6th edn, Oxford University
Press 2015) 837

23 Seyla Benhabib,
Judith Resnik, Migrations and Mobilities:
Citizenship, Borders and Gender (1st edn, New York University
Press 2009) 417

24 Directive
2004/38/EC of the European Parliament and of the Council on the right of
citizens of the Union and their family members to move and reside freely within
the territory of the Member States 2004 OJ L158/78

25 Barnard (n1) 231

26 Damian Chalmers,
Gareth Davies, Giorgio Monti, European
Union Law (first published 2006, 3rd edn, Cambridge University
Press 2014) 464

27 Francis G. Jacobs,
”Citizenship of the European Union- A Legal Analysis” 2007 13/5 ELJ ,   accessed 20 November 2017

28 Saara
Koikkalainen, ”Free Movement in Europe: Past and Present” (Migration Policy
Institute, 21 April 2011) accessed 21 November 2017

29 Karen Davies, Understanding European Union Law (6th
edn, Routledge 2015) 142

30 Barnard (n 1) 230;
see also Davies (n 29) 158

31 The judgement of
the ECJ indicates that the concept of EU citizenship is more narrowly linked to
people who are not economically active and as a consequence these persons are
not falling within the scope of the generous provisions of the Treaties
concerning the free movement of economically active persons, particularly
workers, self-employed persons and providers of services. It is more than
obvious that there is no need to consider the applicability of Articles 20 (1)
and 21(1) TFEU if other more specific provisions of the Treaty are applicable
unless these Articles cover only some parts and not the entire matter. As a
consequence, Articles 20(1) and 21(1) TFEU have been used mostly to confer
rights to EU citizens who do not constitute economically active persons.

32 Barnard (n 1) 231;
see also Craig, De Búrca (n 22) 786

33 Davies (n 29) 158