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ECAS Highlight of the Week – Guaranteeing the ‘free’ in EU freedom of movement

22 October 2020
Though a worn-out phrase, it bears repeating – we tend to take for granted the very things that are most dear to us. Not knowing what we have until it is gone is usually in reference to personal relationships, but it also holds true for possessions, circumstances, and…freedoms.

It should not come as a surprise that the leap to be made here is in relation to COVID-19. The pandemic has reminded us how important freedom of movement is to EU citizens’ way of life, and how fragile it can become when not upheld. Recent border closures, restrictions and lockdowns throughout Europe have impacted everything from the way we travel, to residency rights and access to health care, especially for mobile EU citizens. The reality might more correctly be expressed as that we knew what we had, we just never thought we would lose it.

But even before the pandemic swept through the continent and rewrote the rules of nearly everything, challenges to freedom of movement have been on the rise. Through Your Europe Advice (YEA) – a free online EU advice service provided by ECAS legal experts, operating under contract with the European Commission – ECAS has been constituting ongoing infringements on citizens’ right when moving from one Member State to another.

In 2019, the service saw a 46% increase from the previous year in citizen enquiries, related to freedom of movement obstacles they are faced with (for a total of 28,034 handled enquiries that year). From social security uncertainties to not being able to claim their pension, many of the obstacles can be attributed to the incorrect interpretation and implementation of the relevant legislation on a national level.

With this overwhelming evidence at hand, ECAS has been calling on the European Commission (EC) to eliminate any ambiguity in the interpretation of the freedom of movement-related legislation (Citizens’ Rights Directive (2004/38/EC)) by issuing structured guidelines (new Communication) to the Member States. The first efforts date back to 2017, with the request made to the EC Regulatory Fitness and Performance (REFIT) platform, which aims to ensure that “EU laws deliver on their objectives at a minimum cost for the benefit of citizens and businesses”. As a member of their Stakeholder Group, ECAS Executive Director Assya Kavrakova submitted ten identified grey areas in the Citizens’ Rights Directive in need of further clarification in order to allow EU mobile citizens to fully enjoy their freedom of movement rights. As a result, the REFIT Platform adopted an opinion recommending the Commission issue a new Communication on the Directive. In particular, they focused in on the discrepancies concerning the satisfaction of the “comprehensive sickness insurance” condition, the concept of “sufficient resource”, residence rights of EU citizens and their third-country family members, the application of the Surinder Singh rules, as well as the treatment of dual nationals and dependent non-EU children.

In theory, the Directive grants a right of residence for more than three months in a different Member State to all EU citizens who “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 “comprehensive sickness insurance cover”.

But in practice, it is still regularly observed that the interpretation of “sufficient resources” dramatically differs from one Member State to another. For example, past YEA enquiries have reported the establishment of arbitrary income thresholds in Italy, where retired EU nationals and students are asked to attest to the possession of around €5,800 in order to be able to register as a resident, while Belgium had set a fixed minimum resources of €892,70 per month to be considered self-sufficient.

On the same note, while Directive 2004/38/EC grants EU citizens a right to a comprehensive sickness insurance cover, we see that divergent national healthcare traditions (e.g. voluntary contribution-based system vs residence-based national health system or hybrid systems) often lead to discretionary national interpretations where disadvantaged groups, such as students or unemployed individuals, are often left behind.

Illustrating a real case scenario, the video below tells the story of Sorena from Romania, who moves to another EU member state and fails to gain residency status because of her new country not recognising her national health insurance. Irregularities such as these in breach of EU fundamental rights can leave citizens stuck in a vicious circle and can have severe consequences in their lives.


From challenging situation, new opportunities arise

During the recent ECAS #EURegionsWeek @HOME: Hosts Open to Mobile Europeans workshopthe challenges that motivated the above demand were discussed in-depth, updating them to include those resulting from the COVID-19 pandemic.

ECAS Citizens’ Rights Training Coordinator Petar Markovic shared some preliminary findings from the ongoing ECAS empirical research into the impact of the pandemic-related measures, which support the notion that mobile EU citizens have been hit disproportionately hard by COVID-19. Due to border closures, they have experienced a ‘double lockdown’ from their host and home communities. Many have also faced a sudden halt in their access to residency rights in their host countries and a frightening majority are experiencing consistent mental health issues as a result of lockdown measures. Patrycja Pogodzinska from the European Union Agency for Fundamental Rights (FRA) asserted that lockdown measures had raised legal concerns for fundamental EU citizens’ rights and that worrying gaps had been revealed for the level of support available for socially excluded groups such as Roma and travelers.

Maja Simunic, policy officer at DG Justice and Consumers (European Commission), shared that using the momentum and urgency COVID-19 has created, the Commission is working to strengthen EU citizenship rights. During the workshop, participants repeatedly noted that for these efforts to be of tangible value to citizens on the ground, the Commission must move forward with the issuing of new Communication on the Citizens’ Rights Directive.

Additional input

In an article published by  Friends of Europe, ECAS Executive Director Assya Kavrakova also reflected on the impact COVID-19 has had on freedom of movement in the EU – the fundamental freedom most affected by the ongoing crisis.

While acknowledging that the measures taken by Member States in response have presented challenges for all citizens, the article concentrates on the disproportionate effect it has had on mobile EU citizens.

“The COVID-19 outbreak has also revealed the gravity of the deficiencies in the social security coordination between member states. This, again, has had a devastating impact on the rights of mobile EU citizens who are quarantined, sick, suspended from their jobs, or required to telework abroad. Many cross-border workers or citizens who have just started a job in another EU country became trapped in a foreign state without access to healthcare or sickness benefits in case of illness”.

The above example is one of many that has exposed the “cracks in European unity”, as Member States quickly reverted to unilateral decisions at the start of the covid-19 epidemic. However, in order to safeguard the EU’s fundamental rights and freedoms in the post-crisis period, there is a vital need for a coordinated response by all stakeholders:

“The European institutions will need the active support and commitment of its member states in order to succeed. The latter can only be ensured if there is a broad multi-stakeholder consensus behind it: citizens, civil society, academia and business must all advocate for European unity based on fundamental rights and freedoms”.

The original article can be viewed here.