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In recent years, France has embarked on a controversial program of expelling Roma people. The controversy is partly about the allegation that France expels people based on ethnic rather than legal criteria. Wikipedia describes both sides of the argument pretty well.

My question is about another aspect. I thought that, under European Union (EU) regulations, any citizen of the EU is free to relocate within any other country in the EU. This rule is one of the reasons for political opposition to admitting new member states into the EU. From BBC News:

Romanian President Traian Basescu said he understood "the problems created by the Roma camps outside the French cities" but he insisted on the "right of every European citizen to move freely in the EU".

But from the same article:

They have the right to enter France without a visa, but under special rules they must have work or residency permits if they wish to stay longer than three months.

(...)

From January 2014, or seven years after the two countries' accession, Romanians and Bulgarians will enjoy full freedom of movement anywhere in the EU.

What does this full freedom of movement mean? Does it mean the freedom for EU citizens to enter any country and stay as long as they want, or can countries still impose restrictions on immigration from other EU countries, as France has done with immigrants from Romania and Bulgaria?

  • Is there any reason to doubt that "full freedom of movement" means anything other than that? – user4012 Feb 14 '13 at 21:14
  • @DVK, the complexity of European Union rules with all its exceptions and interpretations are by themselves sufficient reason to ask if it means legally what it means to a layman. – gerrit Feb 14 '13 at 21:16
  • Fair enough... I'll favorite this in case it produces unexpected asnwers. – user4012 Feb 14 '13 at 21:20
  • @DVK and gerrit Just noticed the remark about “full” freedom of movement, I added a note about that to my answer. Briefly, it means without the transitory restrictions that applied during the first seven years of membership for Romania and Bulgaria. – Relaxed Dec 1 '14 at 14:36
  • Joining the EU happens in stages, so it's a moving target. However, nations have a habit of ignoring treaties and such when it suits. I'm not sure if the French are an exception in the EU but they have historically set fire to trucks importing live sheep from the UK so free movement of goods and people has been an issue for a while. – Phil Lello Apr 1 '16 at 0:29
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The right of Union citizens (and their families) to move and reside freely within the Member States that originated with the Schengen Agreement in 1985 is regulated by Directive 2004/28/EC of the European Parliament and Of the Council (emphasis mine):

(9) Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to job-seekers as recognised by the case-law of the Court of Justice.

(10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions.

(12) For periods of residence of longer than three months, Member States should have the possibility to require Union citizens to register with the competent authorities in the place of residence, attested by a registration certificate issued to that effect.

While the freedom to move exists, it's not unrestricted and the aforementioned articles are the legal basis for France's expulsion of the Bulgarian & Romanian Roma populations. The Directive also allows Member States to place additional restrictions, even within the first three months of residence:

(21) However, it should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of job-seekers, to Union citizens other than those who are workers or self-employed persons or who retain that status or their family members, or maintenance assistance for studies, including vocational training, prior to acquisition of the right of permanent residence, to these same persons.

(22) The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health.

Further reading:

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    Outstanding answer. I wonder what was the legal basis for EU Justice Commissioner Viviane Reding who threatened France over the issue? (OK, I probably shouldn't expect an EU bureaucrat to need a sound backing before issuing political grandstanding... but still) – user4012 Feb 15 '13 at 14:27
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    @DVK Ms. Reding's concern is that France is targeting all Roma immigrants, regardless of whether they were involved in the Saint-Aignan disturbances or not. I'm guessing France didn't follow the expulsion procedure described in 2004/28/EC to the letter, and was, at least at first, in violation of the Charter of Fundamental Rights of the EU (and of course in violation of 2004/28/EC, but that's a far lesser issue). – yannis Feb 15 '13 at 14:52
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    @DVK : France can't legally expel Roma on the charge that the are ethnic Roma. That would be ethnic discrimination and illegal. France can have a general policy to expel Romanian and Bulgarian immigrants who fit certain objective criteria. Viviane Reding probably asserts that France threw out the Roma because they are Roma. – Christian Feb 16 '13 at 14:54
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    This answer hopelessly confuses different things. Freedom of movement (first for workers and, since Maastricht, for economically non-active persons) has been in the treaties since the beginning and has nothing to do with Schengen. It applies equally to the UK or Romania, which are not part of the Schengen area. – Relaxed Oct 3 '14 at 1:51
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    Also, the quotes are not “articles” of the directive but bits of the motivations published before the actual directive. The courts do consider them but that's not the legal basis for anything. – Relaxed Oct 3 '14 at 2:43
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Summary: In general, EU citizens can enter any other EU country and travel or work freely but not necessarily stay as long they want, especially if they don't have a job. Full freedom of movement means that Romanian and Bulgarian citizens now have the same rights than other EU citizens, without the job market restrictions that applied to them until 2014.

The free movement of persons is, together with the free movement of goods, services and capital, one of the cornerstones of the single market. It's been in the treaties since the beginning (the 1959 treaty of Rome establishing the European Economic Community).

There is an extensive body of secondary legislation and case law about it but it is all rooted in what is now article 45 of the TFEU:

  1. Freedom of movement for workers shall be secured within the Union.

[…]

The details are complex but as you can plainly read, it only applies to workers.

On top of this fundamental principle, the 1992 Maastricht treaty created the notion of an EU citizenship and added a right to move and reside freely for economically non-active people, as laid out in article 21 (1) of the TFEU:

  1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

Here again, the details are complex, there is a lot of secondary legislation and the court has interpreted this right pretty liberally but you can already notice that the language is more guarded.

Consequently, the right to reside for economically non-active persons is more restrictive than the freedom of movement for workers. Specifically, the most important “limitations and conditions” are laid out in article 7 of Directive 2004/38/EC (emphasis mine)

  1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

    (a) are workers or self-employed persons in the host Member State; or

    (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

    (c) – are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study […]

    (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

So there is no absolute right to reside in other EU countries but four different ways to gain this right. Point (a) is for workers, point (c) is for students and point (d) is for family members accompanying another EU citizen who qualifies under (a), (b) or (c) (it's a derived right).

If you don't qualify for either of those, you're left with point (b) and it comes with a big caveat: you should not “become a burden on the social assistance system”. In practice, it means you must have resources above the level to qualify for welfare benefits in the host country. That's the legal basis for France's treatment of Romas, for the requirements to get residence cards in Spain or Portugal, for Belgium expelling EU citizens, etc.

France therefore cannot apply restrictions to Bulgarian and Romanian citizens per se and cannot require them to apply for a permit to work in France anymore. But it can still ask EU citizens (from all member states) to leave under certain conditions. Also note that when it happens, EU citizens are not detained or forcibly removed like non-EU citizens regularly are; they are asked to leave and sometimes given a bit of cash to pay for their trip (there have also been media reports of “camps” being “evacuated” or destroyed by the police but that's an internal police matter based on building regulations, zoning, laws against trespassing and loitering, etc. but not directly on residency requirements).

By contrast, the rights to visit for less than three months or to reside as a worker or a family member are more extensive. They can only be restricted (e.g. by denying entry or actually detaining and deporting someone) on grounds of “public policy, public security or public health”. It might sound a bit vague but that's a very stringent test, narrowly interpreted by the court. It could for example be the case of someone found guilty of a serious crime and under a deportation order.

Consequently, the people who were asked to leave France or Belgium because they do not qualify for the “right of residence” can typically come back more-or-less immediately. They can be denied the right to stay in the country long-term without a job or financial resources but not banned entirely or prevented from travelling or working freely. Any such ban would also be very difficult to enforce given France's situation in the Schengen area (for third-country nationals, wanted criminals, etc. it's possible to communicate a ban or request to arrest a person to all Schengen countries using somethign called the SIS but it's not possible to use that for EU citizens who committed no crime).

That's what “freedom of movement” means in the EU but the sentence you quoted also adds a small nuance. After the last three waves of enlargement of the union (the 2004 and 2007 Eastern enlargements and Croatia in 2013), older member states reserved the right to apply additional transitory restrictions and in particular to restrict access to their job market for citizens of the new member states. Some countries like the UK decided not to do it but many did. As of writing, such restrictions still apply to Croatia but the last ones for Romania and Bulgaria expired at the beginning of 2014 (7 years after these two countries became EU members).

So “full freedom of movement” does not mean absolute or without limitation but it means that Bulgarian and Romanian citizens are now finally able to enjoy this freedom of movement to the same extent than citizens from other EU nations, everywhere in the EU (but not in Switzerland yet as the bilateral agreements between the EU and Switzerland add another layer of complexity to all this).

Incidentally, none of this has anything to do with Schengen at all (but that didn't stop the French government from making noise about Romania's entry into the Schengen area just to show it was “doing something” about immigration from Romania, which is absurd because it does practically nothing to stop Romanian citizens from coming to France).

When a Romanian citizen shows up at a Schengen external border, he or she only needs to show his ID and would be let through without any question or further control, except perhaps a database check (article 7(2) of the Schengen Borders Code). Their ID should be checked but that's to establish that they are in fact who they say they are and therefore covered by the EU freedom of movement. Beyond that, border guards have very little discretion in this case.

  • "does absolutely nothing to discourage Romanian citizens to come to France": as a practical matter it would make it easier to prevent a Romanian or Bulgarian who was found to be ineligible to enter the country on grounds of pubic security, health, or policy from entering the country. – phoog Nov 13 '16 at 16:24
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    @phoog True, it can only make it (ever so slightly) easier. But even in that respect, as a Schengen member state with relatively long land borders, France is in a very different position than, say, the UK. As a practical matter, I would bet that many Romanian citizens (especially poorer ones) enter by road and cross the external Schengen border in Hungary and not at a French airport. From this perspective, keeping Romania out achieves almost nothing to stop even those Romanian citizens that France could legally prevent from entering (which is probably a tiny minority to begin with). – Relaxed Nov 16 '16 at 17:04
  • Wouldn't France be able to list people in some database so they would be denied entry at the Hungarian border? (I agree that the numerical scope of the problem is probably very small, and that the political considerations far outweigh the practical, but "absolutely nothing" is a very strong statement!) – phoog Nov 16 '16 at 17:49
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    @phoog AFAIK, bans from the whole Schengen area are for third-country nationals only (cf. article 96 of the Convention implementing the Schengen agreement, read together with the definition of “alien” provided in article 1). For EU citizens, the SIS can only contain other type of entries (arrest, covert surveillance, etc. as provided in articles 95 and 97-99, which all use the word “person” instead of “alien”). I reworded the statement. – Relaxed Nov 16 '16 at 18:12

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