Directive 2004/38/EC On The Right To Move and Reside Freely - Applicability

Applicability

The directive applies to any EEA citizen that is moving to and living in an EEA state other than his own. (The exclusion is based on the principle of non-interference with purely national issues). However, it also applies when a European citizen is moving back to his home country after staying abroad, as defined in the case of Surinder Singh. For dual citizens with two EEA nationalities the directive can apply in any EEA state. Temporary limitations are in place for the new member states of the EU.

To be fully covered by the European right of free movement, the EEA citizen needs to exercise one of the four treaty rights:

• working as an employee (this includes looking for work for a reasonable amount of time),
• working as a self-employed person,
• studying,
• being self-sufficient or retired.

These rights are named after the Treaty of Rome, which defines the freedom of movement for workers. They have been extended over time, and are mainly of historical significance by now, since being self-sufficient has been added to the list. As long as a citizen has sufficient money or income not to rely on public funds and holds comprehensive health insurance, he/she exercises one or more treaty rights. If no treaty right is exercised, the right of free movement is limited to three months.

Family members are also covered by the right of free movement, but only as a dependent of the EEA citizen. The right is limited to the EEA state in which the EEA citizen is exercising treaty rights. In certain cases (e.g. divorce after at least 3 years of marriage where 1 year must have been spent in the host member state), the family member can retain the right of residence. A family member is defined as:

• the spouse (unless in a marriage of convenience),
• the registered same-sex partner (but only in a state where same-sex relationships are recognised),
• a child under the age of 21, or
• a dependent child or parent (of the EEA citizen or partner).

There is a second category of extended family members, which can be included at the discretion of national legislation. It covers dependent relatives (especially siblings), dependent household members and unmarried/unregistered partners in a "durable relationship".