European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Beyond the freedom of establishment, EU nationals must be able to move within the European Union and reside in the various Member States. The right of residence is the corollary of the right of establishment for natural persons. According to Article 21 TFEU, “every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitati …

Entry and residence

Beyond the freedom of establishment, EU nationals must be able to move within the European Union and reside in the various Member States. The right of residence is the corollary of the right of establishment for natural persons. According to Article 21 TFEU, “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 it effect”. The right of EU nationals to enter the territory of another Member State and reside there is a right conferred directly by the Treaty . It is not conditional upon the completion of administrative formalities . The Member States also do not have the authority to expel their own nationals from the national territory or to deny them entry thereto . By contrast, a similarity in the wording of the provisions of an international agreement between the EU and a non-member country and of Article 49 TFEU on the right of establishment does not in itself enable nationals of that non-member State to claim rights of entry and residence which would be conferred on them as a consequence of the right of establishment .

In order to simplify and strengthen the right of free movement and residence of all citizens of the Union, the Parliament and the Council adopted Directive No 2004/38 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, which codifies and amends all the existing European provisions referring, separately, to employees, self-employed persons, students and unemployed persons. Every Union citizen has the right of residence in another Member State for a period up to three months without any formalities (Art. 6). After three months, he must bring evidence of an activity justifying that residence: activity as an employee, a self-employed person (or with sufficient resources to avoid becoming a burden on the social assistance system of the host Member State), studies (Art. 7) . The host Member State may require Union citizens to register with the relevant authorities, which issue a registration certificate (Art. 8) . A residence card may be issued to family members of a Union citizen who are not nationals of a Member State (Art. 10) . According to the Court of Justice , the grant of a residence permit is not a measure giving rise to rights but a measure serving to prove the individual position of a national. 

Case 48/75 Royer [1976] ECR 497, LawLex200900001985JBJ.

The right of residence may thus be conditional on the prior registration with a social security scheme established by the legislation of the host State: Case C-363/89 Roux v Belgian State [1991] ECR I-273, LawLex200900000520JBJ, or be restricted by reason of the dual nationality of the European citizen: Case C-369/90 Micheletti and others v Delegación del Gobierno en Cantabria [1992] ECR I-4239, LawLex200900000555JBJ.

Case 41/74 Van Duyn v Home Office [1974] ECR 1337, LawLex200900001963JBJ; Case C-171/96 Pereira Roque [1998] ECR I-4607, LawLex200900000716JBJ.

Case C-63/99 Gloszczuk [2001] ECR I-6369, LawLex200900001089JBJ.

Unemployed persons also retain a right of residence under certain conditions: in case of voluntary unemployment, evidence of having been employed for more than one year and of having registered as a job-seeker with the relevant employment office, or in case of involuntary unemployment after a period of activity of less than a year, registration as a job-seeker with the relevant employment office.

Case 118/75 Watson and Belmann [1976] ECR 1185, LawLex200900001495JBJ, which had already indicated that the obligation for nationals of other Member States to report their presence to the national authorities complies with the free movement of persons where the period within which the arrival of foreign nationals must be reported and the penalty for non-compliance with the reporting formalities, remain reasonable.

Before, the Court of Justice had first ruled that in cases which have no factor linking them to any of the situations governed by EU law, a Member State may refuse a foreign national to enter or reside within its territory where such foreign national is a relative of a worker employed within its territory, who has the nationality of that State but who has never exercised the right to freedom of movement within the Union: Case 35/82 Morson and Jhanjan v Netherlands State [1982] ECR 3723, LawLex200900002175JBJ, and then decided that the Member State is required to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone with that spouse to another Member State in order to work there as an employed person as envisaged by Article 45 TFEU and returns to establish himself or herself as envisaged by Article 45 TFEU in the territory of the State of which he or she is a national: Case C-370/90 The Queen v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department [1992] ECR I-4265, LawLex200900000566JBJ.

European Business Law

93. Entry and residence

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

93. Entry and residence

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise