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VÁCLAV ŠMEJKAL CYIL 7 ȍ2016Ȏ
which is currently the most prominent critic of the freedom of movement derived
from the status of EU citizenship.5 Nevertheless, free migration has become, due
to the pressure of public opinion, a hot political issue that pushes some Member
States to propose measures aimed against one of the fundamental freedoms of the
EU. At the February EU summit, the European Commission promised to initiate
changes to the basic secondary legislation governing the exercise of the rights of EU
citizens while staying in other member countries, i.e. to Regulations 883/20046 and
492/20117 and the key Directive 2004/38.8 Moreover, the gradual expansion of the
rights of EU-migrants derived from the status of EU citizens seems to be a thing
of the past also for the Court of Justice of the EU (CJEU). Comments pointing to
“vanishing strands of EU citizenship”9 or “rolling back EU free movement law”10
have become frequent in posts dedicated to the current development.
The following analysis is not focused on those changes that are “just” proposed
but on the ones that already form a part of the applicable EU law. These are changes
that have recently arisen from judgments of the CJEU and quickly become precedents
for judges at an EU and national level. The ambition is not only to explain what novelty
was brought in 2014–2016 by the CJEU in its decisions on EU-migration issues but
also to estimate what is the extent and significance of these changes. In conclusion,
this analysis seeks to answer the question whether the restrictive definition of certain
rights of migrating EU citizens is just a symbolic reaction of the CJEU to a widespread
discontent with the alleged overloading of national social systems, or whether there
could be some real impact and importance for the further development of the EU.
The CJEU as part of the problem
Descriptions of where the current problems come from are generally very similar.
The right to free movement, originally defined as a freedom for the economically
active (workers and self-employed) became under the Maastricht Treaty (1992) the
5 ALAN TRAVIS, ‘Mass EU Migration into Britain is actually goods news for UK economy.’ [2016] The
Guardian 18 February 2016, 2.
6 Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the
coordination of social security systems [2004] OJ L 200, 1-49.
7 Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on
freedom of movement for workers within the Union [2011] OJ L 141, 1-12.
8 Directive (EC) 2004/38 of the European Parliament and of the Council 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 [2004] OJ L 158, 77-123.
9 CHARLOTTE O’BRIAN, ‘An insubstantial pageant fading: a vision of EU citizenship under the
AG’s Opinion in C-308/14 Commission v UK’ (2015)
an-insubstantial-pageant-fading-vision.html> accessed 20 April 2016.
10 STEVE PEERS, ‘The final UK renegotiation deal: immigration issues.’ (2016) <http://eulawanalysis.
>accessed 20 April 2016.