Title: Critically discuss the significance of the creative activity of Union citizenship for the development of the free motion rights contained in Directive 2004/38. You should see, in peculiar, the several rights of Union citizens who are economically active or have “ sufficient resorts ” ; their household members who are Union citizens ; and their household members who are 3rd state subjects. You are non required to discourse the public policy ; public security and public wellness evidences of restriction



Directing 2004/38/EC [ 1 ] provides citizens of the European Union with a right to travel and shack freely within the Member States of the EU. It is a consolidating step, conveying together a hodgepodge of preexistent commissariats and replacing older disparate Torahs relevant to this affair [ 2 ] . Among other things, the Directive reduces the administrative formalities necessary for free motion to a bare lower limit, it provides a clearer and more concise definition of the position of household members and restricts the discretional range for declining entry or ending the right of abode for citizens. This paper discusses the germinating construct of Union citizenship and the rights based on that position in the context of Directive 2004/38.

From EEC worker to EU citizen: A displacement of accent?

It is submitted that this Directive represents a apogee of the early legislative attempts to switch the accent off from the construct of worker towards the construct of citizenship in the ascription of free motion rights. The European Union started life as the European Economic Community in 1957, with the acceptance of the Treaty of Rome by the founding six member provinces: France, Germany, Italy and the Benelux provinces. At this early phase in the Community’s development and for several decennaries thenceforth the EEC had an about entirely economic focal point and rights and liabilities were mostly bestowed and imposed on the footing of economic standards. As a effect, free motion rights were restricted to EEC workers and enterprisers and their households.

One of the alterations brought approximately by the Treaty on European Union ( 1992 ) , which is normally known as the Maastricht Treaty, was the renaming of the European Economic Community as the European Community. The dropping of the word ‘Economic’ from the rubric of the organic structure is easy overlooked by it is argued it was extremely important. It represented a desire to develop the Community from its sole economic foundations to encompass a much broader and deeper scope of activities and legal power. [ 3 ] In switching the accent off from worker free motion rights to rights based on citizenship Directive 2004/38 has played its portion in that general procedure to spread out the base of the Union and the range of its Torahs. In simple words Directing 2004/38 can be seen as one of the many steps introduce to convey forward the overarching Union program for the farther and deeper integrating of the member states.. Directive 2004/38 contributes to this program by doing the position of EU citizenship more meaningful and lawfully utile, in the hope that EU citizenship will come to fit and finally supersede national citizenship in footings of its significance.. As Directing 2004/38 provides in clause 3 of its preamble:

“Union citizenship should be the cardinal position of subjects of the Member States when they exercise their right of free motion and residence.” [ 4 ]

This right is besides conferred on household members of EU citizens irrespective of their nationality.. It is submitted that this removes some of the societal barriers and hindrances to the exercising of the right of free motion. Clause 5 of the preamble to the Directive provinces:

“The right of all Union citizens to travel and shack freely within the district of the Member States should, if it is to be exercised under nonsubjective conditions of freedom and self-respect, be besides granted to their household members, irrespective of nationality.” [ 5 ]

All that said nevertheless, it is interesting to observe that the European Union establishments, or instead the national constituents that comprise their rank, have yet to get jointly the full assurance, committedness or desire to dispose wholly of the nexus to economic activity that has been indispensable to free motion rights since the organic structures origin. [ 6 ] In fact, Article 6 of the Directive merely allows an unchained right to liberate motion based on citizenship entirely ( including non-citizen – 3rd state national – household members of a citizen ) for a period of three months.

It is of import to observe that there is no substantial differentiation between household members who are themselves EU subjects and household members who are 3rd state subjects. It is besides interesting that this passage towards a focal point on citizenship has seen a more generous line taken towards the definition of ‘family’ than old statute law given that it extends the definition of ‘family member’ to include civil spouses every bit good as single heterosexual spouses and any kids and ascendents of such spouses. [ 7 ] However, this will merely be applicable where the twosome are in an established relationship and it can be proved that it is a ‘durable relationship’ .

In order to bask a right of abode for a period transcending three months it is still necessary for Union citizens to indicate to economic factors. Article 7 provinces that it is necessary for citizens either to go workers or self-employed in the host member province or to demo that they have ‘sufficient resources for themselves and their household members’ so as to avoid going a load on the societal security and benefits system of the host member province. [ 8 ] In footings of the inquiry of sufficient resources Article 8 of Directing 2004/38 provides that member provinces may non put down a fixed sum which they regard as ‘sufficient resources’ . They must alternatively use an person, subjective analysis to the personal state of affairs of the person concerned. In any instance this sum must non transcend the threshold below which the subjects of the host Member State become eligible for societal assistance.. To necessitate otherwise would be excessively discriminate below the belt against going EU citizens in comparing to the domestic population. Therefore, it is submitted that the construct of sufficient resources represents a reasonably low hurdle, unlike in other international out-migration contexts where millionaire bank balances are sought, nevertheless it does look that at least a lower limit of economic activity deducing basic autonomy is sought. [ 9 ]

In add-on to consolidating the statute law Directive 2004/38 codifies some of the rules established in the law of the European Court of Justice in recent times. For illustration, reflecting the determinations inEchternach and Moritz[ 10 ] andBaumbast[ 11 ] , where an EU citizen has established a right of abode, the household of that EU national will non lose their right of abode simply by virtuousness of the decease or independent going of the EU national from the member province. [ 12 ] In this peculiar state of affairs it is clear that the construct of citizenship does take precedency over a demand to set up and keep economic activity.

Reasoning Remarks

Directing 2004/38 represents a conjunct attempt to set the construct of Union citizenship centre-stage in the legal model applicable to the ascription of free motion and abode rights in the EU. However, when one scratches the surface of the 2004 Directive it becomes evident that the economic factors associating to working activity and ego sufficiency are still paramount in deducing the most of import and long term freedoms in this respect. [ 13 ] In the instance ofRudy Grzelczyk V Centre Public d’Aide Sociale d’Ottignes-Louvain-la-Neuve, [ 14 ] the European Court declared that citizenship of the EU:

“…is destined to be the cardinal position of subjects of the member provinces, enabling those who find themselves in the same state of affairs to bask the same intervention in jurisprudence irrespective of their nationality, capable to such exclusions as are expressly provided for” [ 15 ] .

It is submitted that, as is so frequently the instance, the statute law of the EU, which must in pattern represent a via media between the aspirations of different member provinces, is still dawdling behind the expansive announcements of the European Court, which does non hold to compromise on political footings and has a good deserved proactive and purposive repute for forcing frontward the ‘European ideal’ . Directing 2004/38 does non harmonize Union citizenship crowned head significance over free motion rights for Union citizens and their household members ( of any nationality ) . The chief accounts for this are political and economic. Among the member provinces at least, the construct of Union citizenship is non yet so extremely prized as to animate them to presume the hazard of supplying societal aid for economically inactive and demanding citizens on an indefinite footing.

THE EndWORD COUNT: 1546 ( excepting footers )


Directing 2004/38/EC on the right of citizens of the Union and their household members to travel and shack freely within the district of the Member States:Official Journal of the European Union, L229/35, 29.6.2004.

EC Legislation 2005-2006, Foster ( 2005 ) Blackstones Legislative acts

The Treaty of the European Union ( Maastricht Treaty )( 1992 )

Law of the European Union, Kent, P. , ( 2001 ) Longman

Pamela Fitzpatrick,New rights of abode for EU subjects,Welfare Rights Bulletin190 February 2006.

Reich, Norbert ( 2005 )The Constitutional Relevance of Citizenship and Free Movement in an Enlarged Union,European Law Journal11 ( 6 ) , 675-698.

Shuibhne, Niamh, ( 2004 )Legal deductions of expansion for the person: EU citizenship and free motion of individuals,ERA – Forumvol. 3, pp. 355-369.