Damiano Duchemin, applicant GVC – Italy
This project has been the product of cooperation between six civil society organizations from five EU countries. This has allowed a comparative perspective that has shaped differences and uses of this legislation. The aim of project is raising awareness among EU citizens about their right to free move and reside. There has been 2 years of work on this field.
Neva Cocchi, national focal-point for Italy, partner Melting Pot Europa (TRC)
Introduction and moderation
Since the preparation-meetings for the research, one idea has been laying on the foreground of our approach on how EU citizens enjoy concretely the rights to free move and reside on the EU territory:
– to aknowledge citizenship means to aknoweledge rights to the citizen, but immediately this process marks off, closes a field of possibilities: it immediately indicates what is left outside of this field. Those who are not citizens do not benefit from these rights.
All citizens belonging to a Member State of the EU are European citizens. Those who are not member-states nationals cannot be EU citizens, although living and working on the Union territory, they do not enjoy rights attached to EU citizenship.
This leads to another consideration:
– if there is an inclusion defined by an exclusion, it is also true that we see that the exclusion/inclusion border-line is not so sharp and defined as it might seem. The case-law of the EU Court of Justice dealing with the juridical condition of EU citizens family members shows that the opposition between exclusion/inclusion is a relationship rich of shadows (interpretations) defined by an on-going tension, upon which any actors are trying to play a role and a pressure.
The activities of the project have confirmed that this issue is very actual and concreete. Freedom of movement and residence rights are not an asset of fixed and achieved rights: the findings of the research on the distance between Directive 38 and the everyday reality in partnership countries (CZ REP, FR, IT, SP, RO), show that. But also the Schengen treaty itself is nowadays contrasted in many ways: on one hand new political forces of the far-right wing (Front National-UKIP- even Lega Nord etc) are asking to put new boundaries and borders in the inner space of the Union (remove Schengen freedom of circulation bringing back inner controls) but also on the other Member States too are forcing till the extreme conditions and requirements to enjoy residence rights in thier territory, i.e. the Belgium case.
This brings us back to our awareness that the scope of EU citizens is the product of different variables, we could also dare to speak of a “layered citizenship”, where the status of the thousands and thousands of EU citizens daily moving to another member State, who exercise their circulation right is more and more precarious. This status is more and more the hanging result of a debate where we claim to have a role, both as EU citizens and project partners.
Anna Sibley, partner FASTI, France.
Overview of Citizens Without Borders project
The Directive transposition is somehow still in progress because of the gap existing between legal rules and reality. A big part of the project dealt with comparative research, taking special attention to some “vulnerable categories” such as family members, unregistered union, same sex spouses, minor communities.
Some steps of the project:
1) Study about the application of freedom of movement and residence rights, we have a real photograph of what is going on in the five countries. The focus was the consequences of transposition of the directive 38, transposition is still ongoing given the gaps existing, part of the project was to compare the different rights that citizens enjoy in the Member States, with a strong focus on families, same sex families, Roma people etc. Mainly difficulties are found in every country related to right of entry, right of residence, protection against expulsions, or access to health systems.
2) training action addressed to local authorities staff, legal practitioners, social workers etc with on-line follow-up.
3) Creating Infodesk (helpdesk) network: we have created a network of info-points involved in providing information to EU citizens about their rights
4) communication campaign to raise awareness on the European citizens themselves, as there are difficulties due to lack of information and knowlesge about the status of EU citizen.
5) Awareness-rising action addressed to political authorities and general pubblic through meeting, conferences, public debates to mitigate the perception of EU citizens more as a flow that has to be managed, rather than citizens who need to exercise their rights.
Alessandra Lang, Associate professor of EU law at University of Milan
The Union citizenship and Directive 38/2004/CE. Limits, challenges, perspectives.
First of all, Mss. Lang explained that the Directive 38/2004 is not the only source of law regarding freedom of movement. Clearly the problem is not so much legislation, as the transposition of the Directive is more or less in line with it, but the practice, also due to administrative instructions. There seems to be a bias in PA against EU citizens, and this is difficult to tackle from the point of view of the law, because when the law complies with EU standards and the problem is people’s minds, it is very difficult to change their mind.
There are no infringement procedures pending against the five countries considered by the project, and there have only been 3 preliminary rulings on Directive 2004/38 FoM addressing none of the problems examined in the report: France, c 325/08, Italy, 270/13 and Romania, 33/07:
– The Jipa case regards the possibility to limit free movement for Romanian nationals who have previously been removed from the EU. The problem for states is how to make expulsions more effective, in the Romanian case the court stated that a state can restrict the freedom of movement of its own citizens for reasons of national security and state interest, but the interest protected must be that of the state who is restricting the freedom, not of any other case. So in that case the limit was not acceptable, because it was imposed by Romania to protect other States’ interests.
– Case Olympique Lyonnaise concerned a young football player. Under French law, young players had to pay the club who trained them before they could move to another club, including if the new club was in another member state, the question was therefore if it was limiting free movement of workers. The court held that it is ok to ask for compensation for training, because training is costly, but how the scheme was designed violated eu law as the amount was not related to the costs incurred by the club who trained the football player.
– Case Harambydis, last month, against Italy. It is peculiar as this was a Greek national appointed as president of the port authority of Brindisi, he was Greek but his CV was the best one. Another candidate, of Italian nationality, contested the decision of the ministry and went to court. The first instance court declared that the president of the port authority must be italian bcs the function is linked to State functions, the second instance court asked the CJEU to rule. The court of justice examined the powers and functions of the president of the port authority, clarified that the law did not require italian nationality and concluded that italian nationality could not be required, as the post is one with management powers, not one where the person takes decisions as the State.
So if we only look at case law, we would conclude that there are no problems, because if there were problems, a national judge or the Commission would have started a case. Which did not happen.
The different sources of free movement rights will be
– The TFEU
– The Directive 38/2004 is just one of the secondary legislative tools that concern limits to FoM. It has a big field of application as it covers a lot of things, including pensioners etc.
– And a case law of the Cjeu also clarified the rights and limits for people who fall outside the scope of the directive, in some cases setting conditions even more favorable than the directive. In the majority of the case law, the right is granted to TCNs, provided they are parents or children of EU citizens, and most of these cases come from the UK, one of the states most vocal against FoM, or from the NL, who is also very vocal against it. So judges from states that are strongly vocal against free movement are more ready to go to the CJEU and expand the right.
Some special cases will be:
– Echternacht and Moritz, right for workers children to reside where they study, if the family moved there, even if the workers and family in the meanwhile left the country (1987), this is more favorable of the right of residence granted to students under directive 38 as it is not conditional upon any requirement, whereas the directive requires economic conditions
– Boumbast and then repeated in Texeira and Ibrahim: if the child of a worker has a right to reside in a State to study, and the child is young and requires the care of a parent to study, then a parent also has the right to reside there to take care of the child. Here there are no conditions attached (in Texeira and Ibrahim, the moms had no income and required social security but for the court, this did not matter) and regard TCNs too.
– Singh and Carpenter, the spouse of a EU national has a right to reside in the State of origin of the spouse, if doing otherwise would limit their free movement. In Singh, the family had been created in Germany and then the wife, a UK citizen, wanted to move back to the UK; the UK argued that there was no connection with EU law since the matter was one concerning a UK citizen and their spouse. The court denied that as the family had moved to DE to exercise free movement, and denying them the right to go back to the state of origin would limit their free movement as a family. The Carpenter case was similar, but the family had never moved away from the Uk; the wife had been expelled for overstaying the visa. The court said that EU law protects family life and the right to provide services, as Mr Carpenter provided services to other EU member states, as he sold advertisement space; expelling his wife, who took care of his family, would have limited his freedom to provide services.
– Chen, the child was an Irish living in the UK, and she was living there as a EU national in full compliance with the directive as she had economic resources provided by the mom, but the mom was Chinese. The mother was also granted the right to stay because otherwise the right to free movement of the child would not have been granted fully, as the child needed the mom. Here the mom was well off and had economic resources.
– Zambrano, a Belgian case: the children were Belgian but the parents were TCNs and the case did not involve more than a Member State, they had never moved out of BE. But the court of justice concluded that if the parents did not have the right to reside in BE, the children would also have needed to move away from BE.
There are also cases not falling under EU law, such as family reunification for citizens who live in their state of origin: so family reunification of an Italian in Italy is not regulated by Directive 38. Italian law equates the family reunification of italians to that of EU citizens, but it is a choice; States are free to regulate this as they wish, and it does not fall under EU law.
Directive 38 aims to strike a balance between rights of citizens and family members, and states interest. The court of justice has clarified that the provisions of Directive 2004/38 are also meant to protect the financial interests of the State.
The notion of social assistance has only been interpreted once, in the Bray case of 2013: only those measures of assistance intended to help people who don’t have sufficient resources to meet their basic needs and who therefore may become a burden for the assistance systems to the point to threaten the level of social assistance provided by the state.
The States complain that certain immigrants from other Member States use free movement without fulfilling the requirements for exercising this right. Two cases are made: marriages of convenience, and welfare tourism.
In reality, the Directive includes a provision on abuse, which allows states to withdraw benefits, or deny them, if benefits are requested under a marriage of convenient. But the directive requires a deep, case by case analysis of each single application, which can be difficult for the PA. It seems that States would prefer a system of automatic measures of reaction, without having to go into an in-depth analysis.
Commission delivered two hand-books, on marriages of convenience (40pp document trying to clarify the concept and how a marriage of convenience can be detected, but the Com wants States to have a case by case analysis and no prejudices against marriages btw EU citizens and TCN) and guidelines on the concept of habitual residence (which is key to coordinate social security scheme, so it is related to free movement, the state of habitual residence is the one whose law applies to social security)
Comission is ready to use existing EU funds to help member states addressing this problem. Comission will provide technical assistance to local authorities dealing with free movement.
European Council also mentioned free movement last June, but in a very worrisome manner (free movement is a fundamental right and must be protected, “including from possible misuse and fraudulent claims” – in her view, clearly abuse is a threat to the interest of states, it is not a threat to free movement which must be protected from such abuses).
Jan Juranek, from partner Soze Association, Czech Republic.
Access to free movement and residence rights for EU citizens in Czech Republic, France, Italy, Spain and Romania. CWB research on the implementation of Directive 38/2004/CE
Juranek explains the gaps more often met on the transposition of the Directive on the national States: the right of entry, the right of residence, the rights related them.
Definition of EU citizen is not problematic, but the definition of family member in article 2 (2) is crucial, since EU family members are in a much better position than general TCNs. So for a TCN, the first crucial issue is to understand whether they are family members of EU citizens.
For registered partners, the problem is that the Directive requires such partnership to be considered as equivalent to marriage in the host state. This is not true for instance in France.
Right of entry applies only to EU citizens family members (it is not a problem for EU citizens themselves since visa is not required).
Problems are also related to difficult and complex visa procedures:
– Excessive timelines (according to the Com guidelines, it should take 4 weeks, but this in not true in any country)
– Ineffective work of Embassies, who do not distinguish between ordinary TCNs and EU family members (Embassies have the right to refuse a visa even to persons who fulfil all requirements, if not EU family members, not however if family members)
– Lack of proper reasoning if the visa is denied (in this case, the person would have the right to get proper reasoning in order to enjoy right to appeal, but in Cz Rep, this hardly ever happens, the refusal is done via a form and the reasoning is not individualised, there is a form wi multiple choices of grounds and that is all). EU family members who come from states that have a fame of being places where marriages of convenience take place tend to have their visa refused by Cz authorities, and then they cannot appeal because the refusal is not grounded
– Too broad interpretation of SIS
Health-care insurance is a complex area as well. This is the area that is having the biggest impact on people. Access to healthcare insurance is subject to condition of residence and registration, which however should be voluntary. In Czech Repubblic, there are no precise rules or regulations on access to healthcare insurance, EU citizens only have access to the insurance if they conduct economic activities, but the problem is for people who come to Czech Repubblic looking for job. For theCzech Repubblic, they benefit of healthcare insurance only if the person is registered in the job-seekers register. In some states such as Spain the access to public health is also denied.
Right of residence is also complex because states might require documents that are not included in the directive. According to the directive, and EU citizen who stayed 3 months and now wants to register, must only give the authorities his address, and that is all. But national laws include a requirement of providing rent contracts / accommodation, with the signature of the landlord, which can be problematic (this happens eg in Cz rep, Fr). If a person is living on the verge of poverty, she might need to move to the other side. Of the city to get that signature, it might be too expensive and so the registration is denied.
On the same line, there is the issue of marriages of convenience: states such as Fr and Cz Rep tend to consider all marriages contracted with a person from a State known for this practice as a marriage of convenience (so all people from Egypt, Nigeria etc, their marriages to EU citizens are almost automatically considered as marriages of convenience).
Other conditions that may be difficult to achieve are those regarding the financial income and the healthcare insurance, where financial income is unclear and not specified.
In Italy and Romania, same sex partners are not recognised as family members.
In Italy and Cz Rep, the residence permit of family members, the residence card, is issued for 2 years instead of the 5 required by the directive, which is a restrictive interpretation and leads to more frequent needs and controls.
In Spain, marriage recognition takes too long, and administrative procedures take too long too.
Another issue is the excessively broad interpretation of what is a danger for public order and security based on criminal records, so a small crime committed years ago can be considered as a ground for expulsion.
Finally, also expulsions lack protections, with excessive interpretations of what constitutes public policy and public order, with an automatic issuance of expulsions even for EU citizens who committed petty crimes, and often the expulsion comes together with a long term entry ban; in Cz Rep, a TCN who provides for a EU citizen child, who has committed a petty crime 20 years ago, cannot regularise its legal status.
Debate with civil society organisations on recommendations and perspectives
Claude Charles, GISTI Association – France
Citizens Without Borders has underlined that in all the five countries analyzed, the Directive has been unsufficiently implemented. In my opinion we are going backwards: in the Treaty of Rome the right of free movement was accessible only for workers, only recently it has been extended to every citizen. Currently this “acquis” is challenged, and these advancements are under threat. Only the EU Court of Justice can make a breakthough, but the political context imposes to its actions a boundary.
It’s the notion of “serious threat to public order” which serves as a justification to restrict citizens’rights, but also that of “welfare tourism” or “abuse of rights”. Like other countries, also France expels prostitutes, when prostitution is not even a crime, or considers as a threat to public security beggars.
Problems our association is actually facing in France are connected to:
– the definition of family member: same sex married couples are not recognised, this means that the non EU spouse cannot be entitled the right od residence, contrasting the Directive provision of avoiding discriminations based on sexual orientation. This is a theme where we see room for introducing a breakthrough, since society develops and EU citizens must develop accordingly.
– Not recognised partners such as unregistered unions do not benefit form residence rights even if they are a family with children. It is necessary that the legislator recognises these kind of family: many times marriage is the only solution, this means that people are forced to get married against their will.
– marriage of convenience: authorities suspect “white marriages” in an authomatic way according to spouses’nationality. Very often that’s the reason to deny entry rights, while the Directive demand to recognise free entry and then verify.
As for possibile perspectives, the EU Parliament is co-legislator, this means that it has a responsability for the respect of Directive 38/2004. Gisti is working now on a petition for the EU Parliament about the notion of “right abuse” and the administrative detention of Eu citizens, which should be an extraordinary measure but is now the normality for romans people in France.
Paola Cammilli , La Comune del Belgio, Belgium
In 2014, the number of expulsions of EU citizens reached 6000. Initially the problem was presented as these citizens were representing an unreasonable burden for the State. The issue regards people who are working, but whose contracts are partly financed by the State. There are some special cases:
– Person of Moroccan origin (a TCN), who worked 23 years in Italy, in Biella, as a blue collar. He comes to Belgium, gets a work contract, works for 8 months in Belgium, then the employer closes due to the crisis, and he applies for unemployment benefits (which are not social assistance, but social security benefits, regulated under another EU regulation). He had totalled 23 years of benefits, and after 3 months he was expelled. Not knowing what to do, he left and went back to Italy. This shows the problems of implementation of the regulation on social security benefits.
– French girl working for the municipality, got a cancer, her employer was not paying her benefits which she needed for healthcare; she asked the State to anticipate the money, she got it, but then was expelled (this when the State was just anticipating the money, she had accumulated the right to those benefits by working in Belgium, so she had a right to it).
– Italian artist, who as such must work under a certain type of contract, got a contract of reintegration into the labor market, partly financed by the State, she got an order considering her an excessive burden and indicating that her child, who was born in Belgium and always lived here, was not integrated in Belgium.
In 2007, there were 2 million EU citizens having exercised their freedom of movement, now they are 7 million. According to a recent Commission study, most EU citizens moving abroad are employed, their employment rate is higher than for non- EU citizens and their recourse to the welfare state is only around 1%.
Citizens Without Borders is promoted by
Project co-funded by the Fundamental Rights and Citizenship Programme of the European Commission