CJEU and the Economic Freedoms and Social Rights in the Free Movement of Persons Case Law

SUBSTANTIVE LAW OF THE EU
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Substantive Law of the EU
The CJEU in the free movements of persons case law obliges all member states of the EU to allow the free movement of economically active persons including job seekers and employed individuals. In 1993, the Maastricht Treaty gave citizenship to all residents in Members States and their family members, including the right to move and reside freely within the territory of the EU (Class Text, 2023a). However, the type of worker mobility underpinning EU citizenship has resulted in several social issues including the abuse of free movement rights by economically inactive individuals and welfare tourism. These issues highlight the importance of balancing the social and economic objectives of the EU. This essay will describe how the CJEU (Court of Justice of the EU) strikes a balance between economic freedoms and social rights in the free movement of persons case law.
The right to move freely from one Member State to another has been a distinguishing feature of the EU internal market. This right, which was introduced in the Treaty of Rome allowed individuals or companies of a Member State and engaged in economic activity to enjoy freedom of movement subject to derogations on the bases of public health, public security, and public policy (Seubert, 2019; Wiesbrock, 2013). Any individual engaged in economic activity as a worker, self-employed person, or provider of services can take advantage of economic opportunities within the EU: the original purpose of this market integration approach was to ensure that factors of production are optimized and address problems of scarcity (Class Text, 2023b). Free movement of persons is not only important to addressing skill shortages but also solving unemployment in Member States and equalizing labor costs across the EU (Mussche and Lens, 2018). The specific rights concerning the free movement of economically productive individuals discourage discrimination on grounds of nationality including access to housing, access to employment, membership to trade unions, working conditions, access to training, social and tax advantages, and access to education for their children.
However, the enlargement of the EU from the six member states at the time of instituting the Treaty of Rome combined with economic crisis has increased Member State concerns about the implications of free movement on welfare and security. The progressive shift towards a citizenship model has raised issues about the growing divergence between the rights of natural persons and the rights of legal persons. Furthermore, the greater rights for EU nationals has created complications about the status and rights of third country nationals also resident in the EU (Class Text, 2023c). The CJEU strikes a balance between economic freedoms and social rights in the free movement of persons case law by interpreting Treaty provisions in a manner that gives the most effect for the realization of both social and economic objectives (White, 2011; Yong, 2022). One example of how the CJEU balances economic freedoms and social rights in the free movement of persons case law relates to the dimensions used to classify an economically active person.
To benefit from the free movement rules, the claimant must first fall within the personal, territorial, and material scope of the Treaty provision. Moreover, the individual claiming this right to free movement must be able to rely on the Treaty provision against the particular defendant (such as the Member State denying them their right to free movement) and the claim must be actionable (Adalet et al., 2018; European University Institute, 2023). The CJEU requires all four conditions to be satisfied for jurisdiction. If the claimant does not meet all conditions, then the Union law does not apply and they cannot rely on Treaty rights. Furthermore, the CJEU interprets economically active individuals or entities as persons or companies that are engaged in economic activity: the free movement rules are based on the condition that the claimant engage in some form of economic activity in the host country (Schmidt, Blauberger and Martinsen, 2018). This economic activity cannot be provided free of charge but does not have to be for profit: voluntary or semi-voluntary activities are discouraged and the claimant has to show remuneration for the activity performed (Class Text, 2023c). Claimants exercising their right under ART.21(1) TFEU do not need to be economically active but must first, be an EU citizen and second, meet familial requirements under the CRD 2004/38.
The conditions for classifying as an economically active individual or entity in the free movement of persons case law are meant to balance the CJEU’s commitment to social rights and its desire to respect the economic freedoms of Member States. All citizens of Member States are allowed to move and reside freely within the EU territory but only if they demonstrate that they are first EU citizens and that they are economically active (Thym, 2015; Douglas-Scott, 2011). Restricting the free movement of economically unproductive individuals is justified by the pursuit of legitimate national interests and balances the economic freedoms of EU citizens and the social rights of host countries. Another example of how the CJEU ensures commitment to economic freedoms and social rights in the free movement of persons case law relates to the equal treatment of workers regardless of their nationality (Lanceiro, 2017). Article 45 TFEU protects workers from unlawful discrimination by Member States in matters pertaining to employment, remuneration, and other conditions of work and employment (Tobler, 2020; Bator-Bryła, 2021). Workers have the right to accept offers of employment actually made, to move freely within the EU territory for this purpose, reside in a Member State for the purpose of employment in accordance with national laws governing employment of the state, ...