Elspeth Guild
The European Union is currently suffering a minor identity crisis. Let us hope that this
episode will pass rapidly, but for the moment it is causing headaches for civil servants
in the EU institutions and the member states as well as uncertainty and a little anxiety
among EU citizens and third-country nationals in long-term residence in the EU. The
problem is that some member states are no longer sure that all EU citizens should be treated
equally – the fundamental claim of citizenship dating from the 1789 French revolution –
while others are outraged that their citizens might be treated as less equal EU citizens than
others.
Let us look at what has happened in as dispassionate a framework as possible. According to
EUROSTAT, the number of EU citizens using their right to free movement to improve their
lives and/or try life in another country has increased over the past ten years from about 1.8%
of the total EU population to around 3%. In an EU of 506 million people, this means that
there are about 17.2 million people living in an EU member state other than that of their
nationality. This figure is surprisingly low given the volume of noise in the media on the
subject, but it does represent an increase. Moreover, some member states are more affected
by the departure of their citizens (e.g. Lithuania and Romania) than others, and some
countries are more affected by the arrival of other citizens, such as Luxembourg and Cyprus.
Ireland meanwhile has people both coming and going. The last 10 years have witnessed the
three enlargements towards the East and the South of Europe – thus incorporating many
people as EU citizens who are curious to see their EU world.
Why is this a problem? Actually, it is not a problem at least as far as EU law is concerned.
The EU institutions revised the Directive on movement of EU citizens and the Regulation on
coordination of social security in 2004, precisely with enlargement in mind. In fact, both the
directive and regulation were adopted the day before enlargement, which meant that the
then new member states could not vote on either of them. Both measures were adopted
unanimously (as they predated the Lisbon amendments). The rules are clear – all EU citizens
have the right to move and reside, acquiring rights the longer they stay in a host member
state.
For the first three months, there are no conditions on EU citizens’ entry and residence. This
sounds fine, but for those member states that are concerned about who is residing on their
territory, there is an anxiety here – what about those people who reside for just under three
months, go to another member state and then come back? Are they still beyond the
administrative reach of the member states’ authorities as regards conditions of residence?
After three months, EU citizens have to exercise an economic activity or be self-sufficient to
enjoy a continuing right to reside. While the anxious member states (four in particular –
Austria, Germany, the Netherlands and the UK – that wrote to the Presidency expressing
their concerns in April 2013) have couched their reservations in terms of the economically
inactive, it is in fact those exercising minor economic activities that are the real source of their
worries. The reason for this is that once an EU citizen is a worker (as defined generously by
the Court of Justice of the European Union back in the 1980s), he or she is entitled to equal
access to all social benefits available to nationals of the state who are also in minor
employment. So, little part-time jobs count for all EU citizens to be entitled to ‘top up’
benefits in their host member state.
Then the third step in the acquisition of rights comes at the five-year stage. After living and
working or being economically active or self-sufficient (including students), EU citizens
automatically acquire permanent residence status and accompanying entitlements, with no
further questions, to all social benefits, whether they are working or not. Many of the 17.2
million EU citizens living in a member state other than that of their nationality have now
acquired this permanent residence right, but because its acquisition is automatic, the host
member state authorities are often not aware of their entitlement until they need social
benefits of some kind.
The coordination of social security systems, which was also revamped in 2004, was also
made more generous for those moving around the EU. The rules on non-discrimination were
tightened up, the entitlement to aggregate contributions made in different member states to
calculate entitlements was strengthened and the right to export benefits to one’s country of
residence was clarified. Since then, some member states have questioned why they have to
export ‘their’ benefits to EU citizens who have acquired rights in their state. Officials tend to
forget very quickly that social benefits do not belong to them, but rather to those who are
entitled to them.
All this legislative activity, approved by the member states in 2004, strengthened the position
of all EU citizens. But now some EU member states are having doubts, notably the four
mentioned above. This has sparked a strong riposte from the four Visegrad states (Czech
Republic, Hungary, Poland and Slovakia), which in December 2013 wrote to the Presidency
insisting on the equality of all EU citizens and their rights of free movement and residence.
Why have EU citizens’ free movement rights become so contentious now? Much was made
of the final deadline for lifting the transitional restrictions on free movement of workers who
are nationals of Bulgaria and Romania on 1 January 2014 – although the majority of member
states either had never applied the restrictions or had lifted them well before the final
deadline. From EUROSTAT’s information, it seems that most nationals of these two member
states moved to host member states well before 1 January 2014, if that was what they wanted
to do (moving primarily to Italy and Spain over the ten-year period).
What seems to have triggered a reaction now is what one might call the ‘shock of poverty’.
Yes, there are people who are miserably poor in a number of the 2004 and 2007 member
states. From the work of the Fundamental Rights Agency, it seems that the poorest of the
poor also tended to be lumped together under the ethnic banner ’Roma’. For these EU
citizens, too, the reality of free movement of citizens is a promise of escaping deep povertyand cumulative discrimination. But when they arrive in a host member state, the officials,
often at the local level, are shocked at the depth of poverty in which these people have been
living and to which they are accustomed. Sadly, instead of a generous reaction – that these
people are entitled to the same poverty-reduction measures that states apply to their own
nationals (particularly when these EU citizens are working, even if at odd jobs, or are selfemployed,
as most of them are) including access to housing on a non-discriminatory basis,
social benefits, health coverage, etc. – these officials seek to find arguments to justify
expelling them. What they are doing is clearly contrary to EU law, but the objections that
these officials raise about abuse and fraud are expressed at a very high pitch precisely
calibrated to silence those quieter and more juridical voices insisting on the correct
application of the Directive and Regulation.
When member states’ officials behave badly towards EU citizens from other member states
and deny them EU rights, they shatter the principle of equality of citizens and seek to
disaggregate Europe into nationals of the member states who can be treated differently
depending on where they come from. This hurts all of us who live in the EU and benefit
from the internal market.
http://www.ceps.eu/book/social-impact-migration-and-notion-citizenship-eu-ensuing-challenges-and-opportunities-union
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