What Does Free Movement Mean in Theory and Practice in an Enlarged EU?

AuthorSergio Carrera
Date01 November 2005
Published date01 November 2005
What Does Free Movement Mean in
Theory and Practice in an Enlarged EU?
Sergio Carrera*
Abstract: The purpose of this article is to review the main challenges to the principle of
free movement of persons in theory and practice in an enlarged European Union. The right
to move freely represents one of the fundamental freedoms of the internal market as well
as an essential political element of the package of rights linked to the very status of EU
citizenship. The scope ratione personaeand the current state of the principle of free move-
ment of persons is assessed by looking at the most recent case law of the Court of Justice
and the recently adopted Directive on the rights of citizens of the Union and their family
members to move and reside freely within the territory of the Member States. But what
are the hidden and visible obstacles to free movement of persons in Europe? How can these
barriers be overcome to make free movement and residence rights more inclusive? This
article addresses these issues along with the following questions: Who are the benef‌icia-
ries of the free movement of persons in an enlarged Europe? What is the impact of the
recent legal developments in the freedom of movement dimension, such as the
European Court of Justice case law and the new Directive? And to what extent are pro-
security policies such as the Schengen Information System II and an enhanced inter-
operability between European databases fully compatible with the freedom of movement
IGeneral Overview of the Free Movement of Persons in an Enlarged EU:
Who are the Benef‌iciaries?
The abolition of border controls on persons while crossing the internal frontiers in the
European Union constitutes a key ingredient of the freedom rationale in the EU area
of freedom, security, and justice.1The freedom to move and reside in the EU has
European Law Journal, Vol.11, No. 6, November 2005, pp. 699–721.
© 2005 The Author
Journal compilation © 2005 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
*Research Fellow at the Centre for European Policy Studies, CEPS, Brussels. The research on which this
article is based was made possible by the generous funding of the European Commission (Directorate
General Research) in the context of the Fifth Research Framework Programme project: ELISE
(European Liberty and Security: Security Issues, Social Cohesion and Institutional Development of the
European Union).
1See Presidency Conclusions of the Tampere European Council, 15–16 October 1999, SN 200/99; see also
J. Apap and S. Carrera, ‘Progress and Obstacles in the Area of Justice and Home Affairs in an Enlarg-
ing Europe’, in J.Apap (ed.), Justice and Home Affairs in the EU;Liberty and Security Issues after Enlarge-
ment (Edward Elgar, 2004) pp. 1–24.
become one of its essential political symbols, and a milestone of the Internal Market.
In this section, a general overview of the free movement of persons is provided along
with a specif‌ic look at the personal scope of this freedom.
For the establishment of a common market, the abolition of any obstacles on the
mobility of people was deemed to be a necessary pre-condition. Hence the traditional
internal border checks of those not holding the nationality of the sovereign state con-
cerned needed to be abolished.2The Single European Act (SEA) called for the achieve-
ment of an internal market3comprising a space without internal frontiers, in which the
free movement of persons, goods, services, and capital needed to be guaranteed.4
The Schengen agreement aimed at establishing the principle of free movement of
persons in the European Community.5The degree of insecurity that shifting the old
border controls was expected to involve at the national level justif‌ied the diff‌iculties of
reaching an agreement on the ‘freedom to move’. The dismantling of the border checks
as well as the increased permeability of frontiers also led to many fears at the national
level of the potential increase of massive irregular immigration and transnational
organised crime.6It was felt that the right to move and reside freely within the EU
(openness) needed to be accompanied by a security framework (control). The Schen-
gen agreement was thus supplemented by the Schengen Implementing Agreement of
1990, which brought into the common borders of the EU various measures meant to
compensate the apparent security def‌icit resulting from the abolition of internal border
controls. One of these key security tools foreseen by the Convention was the estab-
lishment of the Schengen Information System (SIS).7As we see later, in Section IIIA,
the compatibility between the second generation of the SIS with the freedom of move-
ment paradigm remains an issue very much open to discussion.
The Maastricht Treaty (TEU) in 1993 brought a rethink about the economic nature
previously attributed by the SEA to the principle of free movement through the cre-
ation of the concept of EU citizenship. The TEU attempted to convert ‘market citi-
zenship’ (i.e. whereby the individual is a holder of economic freedoms) into a broader
idea of ‘Union citizenship’. If free movement was f‌irst conceived as a purely economic
phenomenon, the TEU provided a brand new political and social meaning to the whole
European Law Journal Volume 11
700 © 2005 The Author
Journal compilation © Blackwell Publishing Ltd. 2005
2See European Commission (1985), ‘Part One: The Removal of Physical Barriers’, Completing the Inter-
nal Market,White Paper from the Commission to the European Council, COM(85) 310 f‌inal, Brussels,
14 June.
3The f‌irst concept used by the original treaty was the one of the common market; see Art 3 of the EC
Treaty, which provides that ‘For the purposes set out in Art. 2, the activities of the Community shall
include...(c) an internal market characterized by the abolition, as between Member States, of obsta-
cles to the free movement of goods, persons, services and capital’; see also P. Craig and G. de Búrca, EU
Law: Text, cases and materials (Oxford University Press, 1998).
4Art 14(2) EC provides that ‘The internal market shall comprise an area without internal frontiers in which
the free movement of goods, persons, services and capital is ensured in accordance with the provisions
of this Treaty’.
5The original Schengen Agreement was signed on 14 June 1985 by Germany, France, and the Benelux
6M. Anderson, ‘The Transformation of Border Controls: What is different about Europe?’, in J. Apap
(ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after Enlargement (Edward Elgar
Publishing, 2004).
7The SIS was developed to enable the authorities designated by each Member State to have access by an
automated search procedure to alerts on persons and property for the purpose of border checks and
other police and customs checks.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT