European Parliament and Council Directive 2004/38/EC of 29 April 2004 is about the right of citizens of the Union and their family members to move and reside freely within the territory of the EU and EEA member states.
This new directive brings together most of the piecemeal measures found in European law previously. The new measures are designed, among other things, to encourage Union citizens to exercise their right to move and reside freely within Member States, to cut back administrative formalities to the bare essentials, to provide a better definition of the status of family members and to limit the scope for refusing entry or terminating the right of residence. Also it broadens the definition of family to also include non-married partners.
Who is covered by Directive 2004/38/EC?
- Citizens of an EU or EEA member state who visit, live, study or work in a different member state
- The EU citizen’s direct family members, including their non-EU spouse and the spouse’s direct family members (such as children)
- Other family members who are “beneficiaries”, including common law partners, same sex partners, and dependent family members, members of the household, and sick family members
- Family members (as outlined above), where the EU citizen has worked in another member state and now wishes to return to their “home” country to work [Singh]
Who is NOT covered by Directive 2004/38/EC?
- If a citizen is living in their home EU member state and has not worked in other EU member state, then this Directive does not apply. All movement of non-EU family members into the home state is governed by national law.
- Some old-EU member states have special “transitional” arrangements that curb the ability of citizens of new EU states (Bulgaria and Romania) to move freely for work. The curbs can be maintained until 2014. Citizens of new EU member states can however travel without visas throughout Europe, and their non-EU family members can travel freely with them.
- Citizens of non-EEA countries who are not travelling with or joining family members who are EU/EEA citizen.
What is covered?
- No-cost, easy, fast issue of visas
- Easy right to stay for up to 90 days if so desired. EU citizens and their non-EU family can work if desired in this period, or play.
- Easy right to stay longer if the EU citizen is working, is a student, or has medical insurance and is self sufficient
- Permanent residence after 5 years
- Right of facilitated entry if passports have been lost, or if a visa has not been obtained
- Applications can only be turned down in three limited circumstances (public health, public policy, national security), or when a marriage is determined to be fraudulent. Reasons for refusal must be spelled out in detail and there is a right of appeal.
- EU citizens and their non-EU family members can not legally be treated differently than citizens of their EU host country
What 2004/38/EC means
- Summary of the key features of Directive 2004/38/EC
- (2010) Freedom to move and live in Europe – A Guide to your rights as an EU citizen (also available in other EU languages)
- (2007) European Commission: Guide to free movement. This is an informative guide which goes point by point through the Directive explaining the intent, implications and limits. Includes an introduction by Franco Frattini, Vice President of the European Commission, entitled “Civis europaeus sum“
- (2010) European Commission: Reaffirming the free movement of workers: rights and major developments COM(2010)373 final Brussels, 13.7.2010
- Differences between Directive 2004/38/EC and previous EU law is decent review of the changes in the Directive, including the free movement case law incorporated into it
Things to be aware of
- There is no requirement that non-EU family members have previously been resident in the EU. An EU citizen and family members can move from outside the EU to an EU country (but not directly to the EU citizen’s home country!) on the basis of this Directive
- Family members must be travelling with or joining the EU citizen, in which case they have the same free movement rights as the EU citizen. They do not, in general, have an independent right of free movement to new places.
- What is an EU Directive? (wikipedia)
- Directive 2004/38/EC amends Regulation (EEC) No 1612/68 and repeals 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
- The Directive does not directly apply to Switzerland, but a similar free movement agreement is in place
Reviews of national implementation of European free movement law (which often include good reference to relevant ECJ case law)
- 2002 – Communication from the Commission – Free movement of workers : achieving the full benefits and potential /* COM/2002/0694 final */ (This document was written in 2002, before Directive 2004/38/EC, but much of the ECJ case law it refers to is still relevant)
- 2003 – Second Commission Report to the Council and Parliament on the implementation of Directives 90/364, 90/365 and 93/96 (right of residence) /* COM/2003/0101 final */ (Older, but talks in more detail about developments which are just assumed in more recent documents)
- 2008 – Compliance across all member states in implementing Directive 2004/38/EC – A horizontal study (PDF from 2008) Detailed reports on each member state’s compliance are available on this blog in the section “How well has the Directive been implemented?” of the individual pages for each member state.
- 2009 – Communication from the Commission to the European Parliament and the Council on Guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [Commission Communication COM (2009) 313 final]
- 2010 – Communication from the European Commission: Reaffirming the free movement of workers: rights and major developments Brussels, 13.7.2010 COM(2010)373 final Includes descriptions of the various aspects of the right of free movement, as well as extensive lists of ECJ case law references