The Citizens’ Rights Directive 2004/38/EC (also sometimes called the “Free Movement Directive”) defines the right of free movement for citizens of the European Economic Area (EEA), which includes the member states of the European Union (EU) and the three European Free Trade Association (EFTA) members Iceland, Norway and Liechtenstein. Switzerland, which is a member of EFTA but not of the EEA, is not bound by the Directive but rather has a separate bilateral agreement on free movement with the EU.
It consolidated older regulations and directives, and extended the rights of unmarried couples. It gives EEA citizens the right of free movement and residence across the European Economic Area, as long as they are not an undue burden on the country of residence and have comprehensive health insurance. This right also extends to close family members that are not EEA citizens.
After five years, the right of residence becomes permanent, which means it does not depend on any precondition any longer.
Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States was introduced to enhance the free movement principles for EU citizens (i.e. cementing the purposive approach to free movement supported by the European Court of Justice (ECJ) (now the Court of Justice of the European Union (CJEU)). The attempts by Member States to impose restrictions on the free movement of EU citizens were sought to be redressed through Directive 2004/38. The rationale is that there has to be a balance between the fundamental right for the EU citizen to move freely throughout the Union and Member States limiting the burden that the citizen may pose. For example, the Directive supports ECJ principles that allow students and job seekers to move freely in the union. However, the Member State has the right to restrict the movement of citizens with the purpose of welfare tourism. This is supported in the text of Article 1 of Directive 2004/38, which provides that the State has the right to restrict movement of EU citizens when there is public policy, public security or public health grounds. Thus, the rationale of the Directive is to ensure that there is a fair and balanced model to enhance citizenship rights whilst allowing Member States to implement fair restrictions, in order to allow Member States to protect their own borders.
The Maastricht Treaty introduced the principle that citizens of EU States are also EU citizens, regardless of age or residence status. Directive 2004/38 extended this principle to ensure that there is free movement principle was extended from the worker to citizens in general, as well as the family of the citizen (as provided for in Article 3(1) Directive 2004/38). This extension has been controversial, because it has opened up the right for dependant non-EU citizens to be afforded the same rights as EU citizens. In fact, one of the key controversies of Directive 2004/38 is that it is undermining the right of the Member State to control its borders when the individual is a non-EU citizen. Nonetheless, the ECJ (CJEU) has developed a broad understanding of citizenship, which includes the right of the individual to a family life.
Article 2 of Directive 2004/38 indicates that worker rights include a wide number and can be extended to the following groups, which include:
(2) partners under a valid contracted relationship; and
(3) direct descendants or dependents of an EU citizen under the age of 21 years of age; and
(4) other dependent relatives.
It does not matter whether these individuals are EU citizens or not. The inference is that Directive 2004/38 has had a significant impact on the competencies of the EU and the Member State to determine its immigration policy when an non-EU citizen may be linked through dependence to an EU citizen. This change is significant, but is based upon the general principle of balance (i.e. citizen rights cannot be abused).
2. Article 21 TFEU- Union Citizens:
Article 21 TFEU solidifies the principle of free movement for citizens, which marks the movement to an internal market that is not only focused upon economic integration but also social integration. The text of Article 21(1) TFEU supports the social/economic integrative model, which states:
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
The operation of Article 21 TFEU centres upon the fact that free movement is a substantive citizenship right, which means that the traditional economic focus has been watered down through the operation of this Article. Article 21(2) TFEU then extends the powers and purpose of the EU Parliament and Council in the development of legislation to support the purposive model of free movement provided for in Article 21(1) TFEU. The implication is that the Member State now has to meet a high threshold to limit the free movement of citizens (and their families).
The scope of Article 21 TFEU still has an economic basis, because free movement of the citizen is integrally linked to the movement of goods, service, establishment and workers. The interlinking nature of the Four Freedoms hinges on the physical right of the citizen to move freely throughout the union. In fact, Article 21 TFEU extends the principle of mutuality of obligations, which was clearly espoused in the Rottmann Case where AG Poiares Maduro opined that the Union:
Presupposes the existence of a political relationship between European citizens, although it is not a relationship of belonging to a people… It is based on their mutual commitment to open their respective bodies politic to other European citizens… It does not require the existence of a people, but is founded on the existence of a European political area from which rights and duties emerge.
The Rottman Case clearly highlights that there is now a common EU citizenship, which is based upon a political (and economic) framework where free movement is at the centre of citizenship rights. The implication is that the operation of Article 21 TFEU is that the political (and economic) framework has created a social dimension that has been solidified in Article 21 TFEU. For example, Marie-Nathalie D’ Hoop v Office national de l’emploi held that the restriction of tide over allowances to EU citizens were only permissible after the citizen has completed their secondary education.
In fact, the social extent of citizenship rights can be seen in Carlos Garcia Avelo v État Belge. This case held that the Belgium authorities’ refusal to register dual surnames in the line with Spanish tradition was a breach of citizen rights under Article 21 TFEU, because it may affect the social rights associated with free movement if the children were to move/visit Spain (i.e. there may be cultural obstacles to free movement).Therefore, Article 21 TFEU looks beyond the political (and economic) rights of free movement to include the cultural and social impacts to create all-encompassing EU citizenship rights.
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- C- 413/99 Baumbast and R v Secretary of State for the Home Department, ECR  I-7091;
- Case C-127/08 Metock & Others v Minister for Justice, Equality and Law Reform (2008) IEHC 77;
- Case C-138/02 Collins v Secretary of State for Work and Pensions 
- Case C-148/02 Carlos Garcia Avello v État Belge, ECR  I-11613,
- Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, ECR  I-6193
- Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, ECR  I-9925
- Case C-413/99 Baumbast, R v Secretary of State for the Home Department, ECR  I-7091
- ECJ, Case C-224/98 Marie-Nathalie D’Hoop v Office national de l’emploi, ECR  I-6191
- ECJ, Case C-300/04 M.G.Eman, O.B. Sevinger v College van burgemeester en wethouders van Den Haag, ECR  I-0000.
- Ninni-Orasche v Bundesminister fur Wissenschaft, Verkehe und Kunst (Case C-413/01) 
- Patmalniece v SSWP  UKSC 11
- Rottmann (Case C-135/08)  ECR I-1449
- Ruiz Zambrano  2 CMLR 46
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, OJ 2004 L 158/77.