Legal framework

The free movement (of workers) is enshrined in the European treaties and is spelled out in more detail by EU Directives and Regulations

The free movement of EU citizens comprises the right to move freely within the European Union (EU) and to enter any member state and reside there. It is enshrined in Article 21 of the Treaty on the Functioning of the European Union (TFEU) and in conjunction with Article 18 of the TFEU it also encompasses non-discrimination on the grounds of nationality. The right to free movement is especially fleshed out in Directive 2004/38/EC /(Free Movement Directive) and was transposed into German national law by the Freedom of Movement Act/EU.

The Free Movement Directive (cited with articles below) and the Freedom of Movement Act/EU (cited with sections below) provide for an incremental right of residence for different groups of persons and constellations:

  • Permanent residence status usually after five years of uninterrupted, lawful residence (Article 16; section 2 (2) no. 7)
  • Employment status (as an employee or self-employed person) as well as a status tied to employment (Art. 7 (1) (a); section 2 (2) no. 1 or Art. 7 (3); section 2 (3)
  • Economically inactive persons with adequate means of subsistence and health insurance coverage (Art. 7 (1) (b), section 2 (2) no. 5)
  • Jobseekers usually for a period of six months and longer if there is a prospect of employment (CJEU ruling “Antonissen” [C-292/89]; section 2 (2) no. 1a)
  • Unconditional right to freedom of movement for EU citizens during the first three months of residence (Art. 6; section 2 (5))
  • Family members of the groups of persons listed above (Art. 6 - 18; section 3)

The free movement of workers under Article 45 TFEU and the freedom of establishment for self-employed persons and companies within the EU under Article 49 of the TFEU constitute special forms of the free movement of persons.

The free movement of workers set out in Article 45 of the TFEU is spelled out in further detail in Regulation (EU) No 492/2011 for migrant workers and their family members. In particular, mobile workers may not be treated differently from domestic workers when it comes to access to employment and working conditions and they have a right to the same social or tax advantages. A worker from another EU member state may also not be treated worse than domestic workers when it comes to access to housing or training or assistance provided by employment agencies.

Directive 2014/54/EU contains provisions facilitating the enforcement of these rights to free movement of workers for migrant workers and their family members in practice.