EU Directive 2004/38/EC: Free Movement Rights

Posted on Feb 17, 2025 in Law

Study of Directive 2004/38/EC

Directive 2004/38/EC regulates the right of Union citizens and their family members to move and reside freely within the territory of the Member States. It is an amendment to Regulation EEC No 1612/68 and repeals several directives. The Directive provides:

  • a) The conditions for exercising the right of free movement and residence within the territory of the Member States of the Union citizens and members of their family.
  • b) The right of permanent residence in the territory of Member States of Union citizens and members of their family.
  • c) Limitations on the rights set out in points a) and b) for reasons of public order, public security, or public health.

Right of Residence for up to Three Months

  1. EU citizens have the right of residence in the territory of another Member State for a period not exceeding three months without any other condition or formality than being in possession of a valid identity document or passport.
  2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying the citizen of the Union or joining them.

Right of Residence for More Than Three Months

1. Every citizen of the Union has the right of residence in the territory of another Member State for a period exceeding three months if they:

  • a) Are an employee or self-employed in the host Member State; or
  • b) Have, for themselves and their family members, sufficient resources to avoid becoming a burden on the social assistance system of the Member State during their period of residence and have health insurance covering all risks in the Member State; or
  • c) Are enrolled in a public or private establishment, accredited or financed by the host Member State under its laws or administrative practice, with the main purpose of study, including vocational training; and

Have health insurance covering all risks in the host Member State and assure the competent national authority, by a declaration or any other equivalent means of their choice, that they have sufficient resources for themselves and their family members.

Freedom of Movement for Workers

Free movement of persons is a basis of the European Community (Treaty of Rome, 1957). It is a demonstration of the principle of no discrimination based on nationality for workers, the establishment of services, and the impact of the ECJ.

Treaty on the Functioning of the European Union (Consolidated Version)

Articles 45 to 48. No discrimination based on nationality between workers of Member States.

Limits to freedom of movement for workers from non-EU countries resident in a Member State. The concept includes the abolition of barriers to entry, stay, and departure of the Member States in order to seek employment or effectively respond to an offer of employment, and the elimination of all discrimination based on nationality with regard to conditions of work.

Implementation of Community Law (Regardless of Nationality)

  • Spouse: Reference to State regulations for the acceptance of “partnership” within the definition of a family member.
  • Descendants of the worker: Under 21 years of age, and older if they depend on the worker.
  • Ancestors of the worker or the spouse, who depend on them.

Exceptions

  • 1. Jobs in public administration: Performance, in administrative or employment, of decision-making roles in public administration, or significant and specific tasks related to state sovereignty (ECJ).
  • 2. For reasons of public order, public health, and safety.

Status of Third-Country Nationals Who Are Long-Term Residents

Integration after five years of continuous residence. Proof of adequate resources (“stable and regular resources not less than the threshold amount below which social assistance may be granted in the Member State concerned”) and health insurance. General rule of equal treatment with nationals of the State. Restricting access to a job where the activities are related to the exercise of public authority. Possible limitation by the States of equal treatment of “basic benefits” of social assistance and social protection.