Questions and answers concerning freedom of movement

type: Frequently asked

What does “freedom of movement for EU citizens” mean?

First of all, it means that, in principle, every EU citizen has the right to move freely within the European Union and to enter and reside in any EU Member State. This right is guaranteed by Article 21 of the Treaty on the Functioning of the EU (TFEU).

Freedom of movement also means having the right to engage in economic activity in every other Member State, i.e. to be employed or self-employed permanently or temporarily.

How has the law on freedom of movement changed?

This freedom of movement was originally conceived of as an economic, market-related freedom; that is, it was primarily intended to allow EU citizens to engage in economic activity in all Member States. The right of residence was a necessary consequence of this freedom and therefore had only a subordinate role.

Due to increasing integration and, above all, to the introduction of EU citizenship in the Maastricht Treaty, effective 1 November 1993 (Article 20 of the TFEU), this understanding has taken on a broader significance. The right to reside in another Member State is no longer dependent on economic activity. The right of entry and residence exists independently of the economic context. This was demonstrated by the 1990/1993 directives on persons not in the labour force, which allow students, pensioners and other persons not in the labour force the right of residence under certain conditions.

Now, with Article 21 of the TFEU, the right of every EU citizen to “move and reside freely within the territory of the Member States” is explicitly set down in primary law. However, this freedom of movement is not unconditional, but is subject to the limitations and conditions laid down in the relevant measures adopted to implement it.

Further, analogous to national citizenship, citizenship of the Union is to be understood as a special bond between citizens and the European Union.

What is the legal basis for EU citizens’ freedom of movement?

The conditions and scope of EU citizens’ freedom of movement is oriented on European law: Article 21 of the TFEU states that every EU citizen has the right to “move and reside freely within the territory of the Member States”.

This right is subject to the limitations and conditions laid down in the implementing provisions, above all Directive 2004/38/EC 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. This Directive compiles the rights and duties of EU citizens and their family members to enter and reside in other Member States.

In Germany, the Freedom of Movement Act/EU implements Directive 2004/38/EC in national law. The General Administrative Regulations on the Act contain binding rules for the government in applying the Act.

European law also guarantees freedom of movement for workers (Article 45 TFEU), the right of establishment in the European Union (Article 49 TFEU) and the freedom to provide services (Article 56 TFEU). Freedom of movement for workers is further specified in Regulation (EEC) No 1612/68.

Who is entitled to freedom of movement?

In line with Directive 2004/38/EC, EU citizens and their family members need only a valid identity card or passport to enter and reside for up to three months in another EU Member State.

For residence of more than three months, additional conditions must be met. According to Section 2 (2) of the Freedom of Movement Act/EU, the following EU citizens are entitled to freedom of movement under Community law:

  • workers and persons seeking work (for a certain length of time) or in occupational training;
  • self-employed persons and providers of services;
  • persons not in the labour market, as long as they have sufficient resources and health insurance cover;
  • persons who have acquired the right of permanent residency following five years of legal residence;
  • and family members accompanying or following such EU citizens.

What are the rules for family members?

In general, family members accompanying or following an EU citizen entitled to freedom of movement are also entitled to freedom of movement regardless of their citizenship, i.e. they do not have to be EU citizens themselves.

According to Section 3 of the Freedom of Movement Act/EU, the following family members of EU citizens are entitled to freedom of movement:

  • spouses and direct descendants (children and grandchildren) under age 21 of EU citizens entitled to freedom of movement or their spouses;
  • dependent direct relatives in the ascending or descending line of EU citizens entitled to freedom of movement or their spouses.

If the EU citizen is resident in Germany as a student, this right extends only to the dependent spouse and children.

What formalities must EU citizens observe?

The right of EU citizens to enter and reside in a Member State greatly differs from that of third-country nationals. Unlike third-country nationals, who do not have the right of residence until they are issued valid proof of this right or an EU residence permit, EU citizens and their dependents have the right of residence as soon as they fulfil the necessary Community conditions.

EU citizens do not need a visa to enter another Member State, but only a valid passport or official identity card.

Like everyone who lives in Germany, EU citizens must register their address with the local registration office, which as a rule provides the necessary data to the responsible foreigners authority. Under current law (May 2011), the foreigners authority then issues EU citizens with a certificate confirming their entitlement to freedom of movement.

In line with Directive 2004/38/EC, the foreigners authorities may require EU citizens to furnish proof that they meet the conditions for entitlement to freedom of movement. EU citizens and their family members may provide this information when registering their address at the local registration office, thus usually saving a trip to the foreigners authority. There is no separate registration requirement under foreigners law. The relevant authorities of the German states (Länder) are responsible for determining the specific procedures.

Which documents do EU citizens need?

In Germany, EU citizens who can verify their identity with a valid identity document are assumed to meet the conditions for entitlement to freedom of movement and thus for entry and residence in Germany. EU citizens must declare that they meet the required conditions, i.e. that they either have a job or sufficient resources and health insurance cover.

Should it be necessary to check, under European law on freedom of movement the responsible authority may require EU citizens to present the following documents in addition to a valid identity document:

  • confirmation of appointment or employment from the employer;
  • proof of self-employment;
  • proof of sufficient resources and health insurance cover;
  • confirmation of attendance at an institution of higher education or similar educational institution and a statement of sufficient resources and health insurance cover;
  • for persons seeking employment: evidence of serious job search with a reasonable chance of success.

In addition to a valid identity document, foreigners authorities may require family members of EU citizens entitled to freedom of movement to present proof of family relationship.

The relevant authorities of the German states are responsible for determining the specific procedures. In case of doubt, it is advisable to ask one’s local foreigners authority.

What formalities must family members of EU citizens observe?

Like everyone who lives in Germany, EU citizens and their family members who are not EU citizens themselves must register their address with the local registration office, which as a rule provides the necessary data to the responsible foreigners authority. The foreigners authority issues family members who are not EU citizens a residence card as proof of their entitlement to freedom of movement.

In line with Directive 2004/38/EC, the foreigners authorities may require proof that the conditions for entitlement to freedom of movement are met. EU citizens and their family members may provide this information when registering their address at the local registration office.

The relevant authorities of the German states are responsible for determining the specific procedures.

Which documents do family members need?

In line with Directive 2004/38/EC, the foreigners authorities may require proof that the conditions for entitlement to freedom of movement are met.

In addition to a valid identity document, before issuing residence cards foreigners authorities may require family members to present proof of their family relationship to the EU citizen entitled to freedom of movement whom they are accompanying or following. Under current law (May 2011), foreigners authorities may also require EU citizens to present their certificate confirming their entitlement to freedom of movement.

The relevant authorities of the German states are responsible for determining the specific procedures. In case of doubt, it is advisable to ask one’s local foreigners authority.

What transitional rules apply to EU citizens from Romania and Bulgaria?

The right to move and reside freely in every Member State also applies to Romanian and Bulgarian nationals in accordance with European law.

For Bulgaria and Romania, which joined the European Union on 1 January 2007, the conditions of accession provide for transitional rules with regard to freedom of movement for workers and, in Germany, for transferring workers in certain service sectors (construction and related branches, industrial cleaning and interior decorating).

A flexible “2+3+2” model applies, in which the older Member States may apply measures regulating the labour market access for citizens of the new Member States for an initial transition period of two years, in derogation of the directive on the freedom of movement of workers within the Community (phase 1). The Member States may extend these measures by an additional three years (phase 2); thereafter, in case of actual or expected severe disturbances in the labour market, these measures may be extended by a further two years (phase 3).

Germany is currently applying this model, like a number of other Member States. For Bulgarian and Romanian nationals, phase 2 ends on 31 December 2011. Prior to that, the Federal Government will decide whether the conditions given in the accession treaty for a final two-year extension are met and whether the measures will be extended for a final two years.

Similar restrictions applied until 1 May 2011 to the citizens of the eight countries which joined the EU in 2004: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.

Similar transitional provisions were applied when Greece, Portugal and Spain joined the EU.

How do these transitional rules work?

After Bulgaria and Romania joined the EU, the Federal Government retained national and bilateral provisions on labour market access for a transitional period. This means that workers from these Member States still need a work permit.

Using such transitional provisions does not close the German labour market off to workers from Bulgaria and Romania, but rather represents management of labour market access as allowed by German law.

During this transitional period (phase 2 of the transitional rules runs until 31 December 2011), Bulgarian and Romanian workers still need to apply to the Central Placement Office of the Federal Employment Agency (ZAV) for an EU work permit. The Central Place Office has set up the following telephone helpline for questions regarding the permit application procedure: +49 228 / 713 2000.

Does Germany’s Residence Act apply to EU citizens?

No. In general, the Residence Act does not apply to EU citizens and their family members. The Freedom of Movement Act/EU applies instead. But the Freedom of Movement Act/EU refers to the Residence Act in the following cases:

  • if the Residence Act results in a more advantageous legal status than the Freedom of Movement Act/EU;
  • if it is found that the citizen is no longer entitled to freedom of movement; and
  • if provisions of the Residence Act are explicitly stated as being applicable.

Under what conditions may EU citizens be granted the right of permanent residence in Germany?

EU citizens who have lawfully resided in Germany without interruption for five years gain the right of permanent residence. This means their right of residence does not depend on whether they fulfil the necessary conditions for the right to freedom of movement. The same applies to the family members and spouses of EU citizens entitled to freedom of movement, when they have also resided lawfully in Germany for five years.

Can EU citizens lose their right to freedom of movement in Germany?

EU citizens may lose their right to residence if they are found to be a threat to the public order, security or health. Deciding that such a threat to public order or security exists must meet very strict conditions: There must be a real and sufficiently serious threat to the public order or security, affecting the basic interests of society. This threat must arise from the personal behaviour of the EU citizen in question.

In addition, under Section 5 (5) of the Freedom of Movement Act/EU, foreigners authorities may revoke the freedom of movement if the conditions for exercising this right are no longer met. Foreigners authorities may examine whether these conditions are met only for a specific reason, for example if EU citizens provide false information about their employment status and instead claim a significant amount of social assistance benefits.

EU citizens whose freedom of movement has been revoked must leave the country.

Can EU citizens entitled to the freedom of movement be expelled or deported?

In this context, the Freedom of Movement Act/EU does not refer to expulsion, but to forfeiting the right to freedom of movement resulting in the obligation to leave the country. If the EU citizen in question does not comply voluntarily, he or she may be deported.

EU citizens whose freedom of movement has been revoked because they have been found to be a threat to public order or security may not re-enter German territory.