EU Social and Freedom Rights Promoting Social via Spatial Mobility
Freedom of movement in Europe evolved from its initial purpose of encouraging cross-border mobility of workers to that of ensuring citizens’ mobility. A first phase, from 1950 to 1970, established intra-EU mobility of workers from member states (Regulation EEC/1612/68, Regulation EU/492/2011). This phase facilitated labour migration of southern Europeans to the industrial centres of the north (Dahlberg 1968, 311). Initially, EU freedom of movement aimed at satisfying economic purposes and focused on EU-wide availability of workers. Labour mobility is one of the four essential market freedoms next to those defined for capital, services and goods. Its purpose is to facilitate efficient resource allocation for production. In theory, the smooth functioning of the single market depends on free movement of labour (Haas 1958, 12). A second phase, starting in the 1990s, broadened the scope of freedom of movement. Free movement became borderless due to the Schengen agreement, and all EU citizens, not only workers, could freely decide where to reside in the EU. The establishment of EU citizenship by the Maastricht Treaty of 1992 and its further definition in the citizenship directive (Directive 2004/38/EC) as well as in the regulation on social security coordination (Regulation EU/883/2004) decoupled freedom of movement from its purely economic purpose (Favell and Recchi 2009, 10).
By including economically inactive EU citizens in freedom of movement, the earlier economic, market-making focus of EU freedom of movement (Favell and Hansen 2002, 568) was widened by a social citizen component. Politically, the idea of social citizenship is contested among actors at the EU and national level.
As EU citizens, movers have rights beyond mere participation in the single market (Wollenschlager 2011, 24; Eigmuller 2013, 365-366). Equal treatment provisions defined in the Treaty of the EU (TFEU Art. 18) are a key condition of social citizenship. Equality in rights and nondiscrimination are the core principles that regulate mobility of EU citizens. EU liberties for freedom of movement and establishment support the pursuit of life projects such as education, labour market position or wealth. Unfavourable social positions can be overcome by geographic mobility (Verwiebe and Eder 2006). Thus, the regulation of mobility impacts social mobility. According to Groh-Samberg and Mau (this volume), access to territory, the labour market or welfare systems determines a person’s life chances. Restricting mobility to certain groups of people can contribute to social inequality (Mau et al. 2012, 198). At the same time, EU legislation promotes the mobility of all EU citizens as a measure of confidence in its positive effects for the EU’s economic development and social cohesion (Prelim 17, Directive 2004/38/EC).
Non-discrimination between nationals and EU citizens provides EU migrants access to the welfare systems of member states. According to EU primary and secondary law, the scope of EU citizenship can be interpreted in terms of ‘social citizenship’ (SVR 2013, 70). Social rights are connected to movers’ rights as residents and as workers. This means that economic activity is not a requirement for access to the welfare system. Once an EU mover establishes residence in a member state within the category of worker, self-employed or other, the duration of residence is the criterion that determines access to many welfare benefits. Except for the first three months of stay, EU citizens who reside as students, jobseekers, retirees or family members have, based on the equal treatment principle, a rightful claim to non-contributory benefits, including social assistance, means-tested unemployment benefits or child benefits (Cornelissen 2013; Groenendijk 2013, 4).
The conditions for freedom of movement independent from employment are considered easily met (SVR 2013, 70). EU citizens who move to another member state for a period longer than three months must provide their means of subsistence and must have health insurance (Article 7, Directive 2004/38/EC). However, the threshold for means of subsistence is a rather flexible criterion. It is set at the level of social assistance in the respective member state but also takes into account the individual situation of EU citizens (Article 8, Directive 2004/38/EC). Because of equal treatment provisions, fulfilling subsistence requirements does not preclude obtaining non-contributory benefits (Cornelissen 2013, 110). EU citizens who have already lived in a member state for more than five years have the status of permanent resident and are fully eligible for welfare state access. The residence status of non-permanent EU movers can only be revoked if they become an ‘unreasonable burden’ to the social security systems of the host member state (Article 14, Directive 2004/38/ EC). However, simply claiming benefits does not automatically lead to revocation of residence status (Article 14 (3), Directive 2004/38/EC). The interpretation of what is considered ‘unreasonable’ or of which persons should receive benefits points to ambiguity in the scope of welfare state access that underpins this freedom right.