COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Free movement of EU citizens and their families: Five actions to make a difference
Date: 2013-11-25
Institutions: European Commission
Subjects: European citizenship, fraud against the EU, free movement of persons, local government, marriage of convenience, social assistance, social integration, social-security benefit, social-security harmonisation













EUR-Lex - 52013DC0837 - EN











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52013DC0837

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Free movement of EU citizens and their families: Five actions to make a difference /* COM/2013/0837 final */









COMMUNICATION FROM THE COMMISSION TO
THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL
COMMITTEE AND THE COMMITTEE OF THE REGIONS
Free movement of EU citizens and their
families: Five actions to make a difference
1.           Free movement within the
EU
1.1.        A fundamental right of EU citizens
The right of EU citizens to freely move to and
live in any EU country, along with their family members, is one of the four
fundamental freedoms enshrined in EU law and a cornerstone of EU integration.
EU workers have benefited from this freedom
since the 1960s[1].
Twenty years ago, with the Treaty of Maastricht, the right to free movement was
recognised for all EU citizens, whether they are economically active or not. Since then, being able to move freely for purposes other than
working, for instance to retire, study or accompany family, has become an
essential feature of EU citizenship[2].
In 2004, legislation
and case-law setting out the conditions for and
limitations on the right of residence were codified. In
2009, the Commission provided guidance to Member States on the correct
application of the rules and since then has pursued a rigorous enforcement
policy, as a result of which nearly 90 % of transposition issues have been
solved. The focus is now on application on the ground.
All EU citizens are entitled to free
movement. The conferral of the right of free movement on the citizens of a Member State is a direct consequence of its accession to the EU. Such decisions are taken
by unanimous agreement of the Member States.
As part of the single market, free movement
of workers has positive effects on economies and labour markets. The four
fundamental freedoms, which are inextricably linked, create the conditions for
more efficient allocation of resources within the EU. Free movement of EU
citizens stimulates economic growth by enabling people to travel, study and
work across borders and by allowing employers to recruit from a larger talent
pool. In view of the significant imbalances in Europe’s labour markets and its
declining working-age population, labour mobility contributes to addressing
skills and job mismatches.
For the EU-15, GDP is estimated to have
increased by almost 1 % in the long term as a result of post-enlargement
mobility (2004-2009)[3].
To EU citizens, free movement is the right
most closely associated with EU citizenship[4].
Altogether 56 % of European citizens see it as the most positive
achievement of the EU[5].
In addition, 67 % of EU citizens think that free movement brings economic
benefits for their country’s economy[6].
At the same time as free movement brings benefits
to Europeans and to the EU economy as a whole, it can create challenges for
local communities faced with new inflows. The economic crisis has accentuated a
debate in some Member States on the impact of free movement on national social
systems and on the pressures on local services.
At the same time, all Member States have reiterated
their support for free movement and acknowledge the mutual benefits it brings.
This was reaffirmed on several occasions, such as during a recent debate in the
Justice and Home Affairs Council on 8 October 2013.
This communication aims to clarify EU
citizens' rights and obligations as well as the conditions and limitations under
EU law, and aims to address the concerns raised by some Member States. It sets
out five actions to help Member States and their local authorities to apply EU laws
and tools to their full potential. This includes the full use of EU structural
and investment funds.
1.2.        Who are the mobile EU
citizens?
At the end of 2012, 14.1 million EU
citizens were residing in another Member State (2.8 % of the total
population). This is lower than the share of non-EU nationals (4.0 %). Starting
at around 1.6 % of the total population at the end of 2004, the share of
mobile EU citizens increased to 2.4 % four years later (end-2008) and then
more slowly (to 2.8 % at the end of 2012[7])
due to both the economic recession and the gradual reduction in the mobility
potential from central and eastern Member States[8].
The main motivation for EU citizens to make
use of free movement is work-related[9],
followed by family reasons[10].
Of all the EU citizens residing in another EU country (‘mobile EU citizens’) in
2012, more than three quarters (78 %) were of working age (15-64),
compared to around 66 % among nationals. On average the employment rate of
mobile EU citizens (67.7 %) was higher than among nationals (64.6 %).
Mobile EU citizens not in employment[11] represent only a limited share
of total mobile EU citizens[12];
moreover, 64 % of them had worked previously in their current country of
residence[13].
79 % are living in a household with at least one member in employment[14]. The overall rate of
inactivity among intra-EU mobile citizens declined between 2005 and 2012[15].
1.3.        The impact of mobile EU
citizens on the welfare systems of host Member States
On average, mobile EU citizens are more
likely to be in employment than nationals of the host country[16]. They help the host country’s
economy to function better because they help to tackle skills shortages and
labour market bottlenecks[17].
In most Member States, mobile EU citizens are net contributors to the host
country’s welfare system — they pay more in tax and social security
contributions than they receive in benefits. EU mobile citizens also tend to be
net contributors to the costs of public services they use in the host Member
State[18].They
are therefore unlikely to represent a burden on the welfare systems of host Member
States. This is confirmed by recent independent studies[19]. It is also corroborated by recent
data that Member States have submitted to the Commission, showing that EU
citizens do not use welfare benefits more intensively than the host country’s
nationals[20],
[21].
The EU Survey on Income and Living
Conditions also confirms that in most countries EU citizens are equally or less
likely than nationals to receive social benefits.
Due to their age and employment status, mobile
EU citizens, when receiving social benefits, are in general more likely to be
in receipt of unemployment, housing and family-related benefits than old-age,
sickness or invalidity benefits. Yet they represent only a small share of those
receiving such benefits, in line with their relatively low share in the total
population in most Member States.
Furthermore, data show that mobile EU
citizens account for a very small share of recipients of special
non-contributory benefits, which are benefits combining features of social
security and social assistance at the same time: less than 1 % of all
beneficiaries (who are EU citizens) in six countries (Austria, Bulgaria, Estonia,
Greece, Malta and Portugal); between 1 % and 5 % in five other
countries (Germany, Finland, France, the Netherlands and Sweden), and above 5 %
in Belgium and Ireland (although figures for Ireland are estimates based on
claims)[22].
Recent studies[23] conclude that there is no
statistical relationship between the generosity of the welfare systems and the
inflows of mobile EU citizens.
2.           Rights and obligations of
EU citizens under EU law
The right to free movement and entitlements
to social assistance and social security benefits are conditional under EU law,
although Member States can apply more favourable conditions. EU law is designed
to facilitate cross-border mobility to the mutual benefit of those who move and
those who stay.
Conditions for and limitations on the right
of EU citizens to move and reside freely within the EU are set out in Directive
2004/38/EC (‘the Directive’)[24].
Specific workers’ rights are set out in Regulation (EU) No 492/2011[25]. Social security rights of
mobile EU citizens at EU level are governed by Regulations (EU) Nos 883/2004
and 987/2009 (‘the Regulations’)[26],
[27].
2.1.        Who is entitled to free
movement?
For the first three months, every EU
citizen has the right to reside in the territory of another EU country without
any conditions or formalities other than holding a valid identity card or
passport[28].
After the first three months, EU citizens
need to fulfil certain conditions, depending on their status in the host
country, to have the right to reside. Students and other economically
non-active persons, such as retired persons, and their families have the right
to reside for longer than three months only if they have comprehensive health
insurance and sufficient financial resources for themselves and their family so
as not to become a burden on the host Member State’s social assistance system.
Jobseekers can reside for up to six months without conditions and possibly longer
if they show that they have a genuine chance of finding a job[29].
After five years, EU citizens and their
family members obtain the right to permanent residence[30].
2.2.        Who is entitled to social
assistance benefits?
Social assistance benefits are typically
benefits that a Member State grants to those who do not have sufficient resources
to meet their basic needs.
Mobile EU workers and their family members
are entitled to the same social assistance benefits as nationals from the
beginning of their stay[31].
Other EU citizens who reside legally in another EU Member State must also be
treated equally with nationals[32],
but safeguards are in place to protect host Member States from unreasonable
financial burdens.
During the first three months of residence
the host Member State is not obliged by EU law to grant social assistance to
economically non-active EU citizens. Neither is it obliged to grant social
assistance to first-time jobseekers[33].
For the ensuing period of residence up to
five years, EU citizens are unlikely in practice to be eligible for social
assistance benefits, since to acquire the right to reside they would have
needed to show the national authorities that they had sufficient resources,
which are indicatively equal to or higher than the income threshold under which
social assistance is granted[34].
If, however, non-active EU citizens applied
for a social assistance benefit, for example where their economic situation
changes over time, their request must be assessed in the light of their right
to equal treatment. In specific cases, claiming social assistance can give rise
to a reasonable doubt on the part of the national authorities that the person
may have become an unreasonable burden on the social assistance system[35].
In this context, a Member State may make the grant of a social assistance or special non-contributory benefit[36] to an EU citizen from another Member State conditional upon that citizen meeting the requirements for obtaining a legal
right of residence for a period exceeding three months[37]. However, Member States cannot
refuse the grant of these benefits automatically to non-active EU citizens nor
can they automatically consider those claiming these benefits as not possessing
sufficient resources and thus as not having a right of residence[38]. Authorities should assess the
individual situation taking into account a range of factors such as the amount,
duration, temporary nature of the difficulty or overall extent of the burden
which a grant would place on the national assistance system[39]. If, on this basis,
authorities conclude that the persons have become an unreasonable burden, they
may terminate their right of residence[40].
After five years of legal residence, EU
citizens are entitled to social assistance in the same way as nationals of the host
  Member State.
2.3.        Who is entitled to social
security benefits?
The Regulations ensure that mobile EU
citizens do not lose acquired rights when moving within the EU. Typical social
security benefits include old-age pensions, survivor’s pensions, disability
benefits, sickness benefits, birth grants, unemployment benefits, family
benefits or health care.
Workers — employed or self-employed — and
their family members are covered by the host country’s social security system
under the same conditions as own nationals, because they contribute, like all
other national workers, through their contributions and taxes to the public
funds from which the benefits are financed.
However, there is no EU harmonisation in
this area. The host country’s laws determine which benefits are provided for,
under which conditions they are granted and for how long and how much is paid.
Benefit entitlement therefore varies from one Member State to another.
Social security coverage must be ensured by
the country of employment and for economically non-active EU citizens by the
country of residence.
There can be only one place of residence
within the meaning of the coordination provisions, and this corresponds to the
centre of interest of the person concerned (Member State of ‘habitual residence’).
Economically non-active people can only obtain social security benefits once
they pass a strict habitual residence test, proving that they have a genuine
link with the Member State in question. This test includes an overall
assessment of the claimant’s individual situation in accordance with strict criteria
(duration of stay, motivation, family situation and intention)[41]. Persons who move temporarily
to another country and maintain their former residence in their country of
origin usually do not change their habitual residence.
3.           Conditions and limitations
under EU law
EU law contains a range of robust safeguards
to help Member States to fight abuse and fraud. It is the responsibility of
Member States to make full use of these safeguards. The Commission supports
their efforts.
3.1.        Fight against abuse and
fraud under the Directive
For the purposes of the Directive, abuse
and fraud may be defined[42]
as follows.
·                        
Fraud: deliberate
deception or contrivance made to obtain the right of free movement and
residence under EU law. Common cases are forgery of identity or residence
documents or false representation of a material fact concerning the conditions
attached to the right of residence, such as false pretences about having
sufficient resources or being self-employed.
·                        
Abuse: an
artificial conduct entered into solely with the purpose of obtaining the right to
free movement and residence under EU law which, albeit formally observing the
conditions laid down by EU rules, does not comply with the purpose of those
rules.
Typical examples of abuse are marriages of
convenience. Data submitted by Member States on identified marriages of
convenience[43]
show that this phenomenon exists but its extent varies significantly between
Member States. Despite low figures, the implication of organised crime is a
worrying factor. According to Europol[44],
some organised crime networks arrange marriages of convenience between
third-country nationals and mobile EU citizens to gain entry and legal stay in
the EU. In this field, Europol and Eurojust can offer assistance and support to
national authorities, particularly in cases linked to trafficking in human
beings.
3.2.        Restrictions to free
movement under the Directive on grounds of public order
EU rules on free movement allow Member
States to take effective measures to fight abuse and fraud by restricting rights
granted by the Directive, in particular by refusing or terminating these
rights.
Any measure that restricts free movement
may only be justified if it respects the principle of proportionality. This
principle[45],
based directly on the Treaty, is valid for all fundamental freedoms and is
accordingly reflected in the Directive[46].
Restrictions for general prevention purposes, such as expulsions and re-entry
bans for all persons in a given situation without having regard to
proportionality, individual circumstances and the gravity of the offence, must never
be imposed.
The form such restrictions may take depends
on each Member State but typically this includes:
·                        
Denying entry or expelling a person on grounds
of public order or public security.
The notions of ‘public order’ and ‘public
security’ are determined by Member States in accordance with national needs.
However, these concepts must be interpreted strictly[47] and presuppose a present, genuine
and sufficiently serious threat to one of the fundamental interests of society[48]. In exceptional circumstances,
persistent petty criminality may represent a threat to public order, despite
the fact that any single crime/offence, taken individually, would be
insufficient to represent a sufficiently serious threat. However, the single existence
of multiple convictions is not sufficient in itself to represent a serious
threat to public order. National authorities must show that the personal
conduct of the individual concern represents a threat to the requirements of
public policy[49].
Furthermore, conduct which a Member State accepts on the part of its own
nationals cannot lead to restrictive measures[50].
Restrictive measures cannot be taken on general prevention grounds[51] or to serve economic ends[52].
·                        
Re-entry bans[53]
can be imposed together with an expulsion order only in grave cases where it is
shown that the offender is likely to continue to be a serious threat to public order
in the future. They cannot automatically follow a criminal conviction[54].
Persons who are subject to a re-entry ban may
apply for it to be lifted after a reasonable period[55].
In cases where the right of free movement
is abused or obtained fraudulently, it will depend on the seriousness of the
offence whether the persons can be considered as a serious threat to public
order, which can justify expulsion and in some cases a re-entry ban.
3.3.        Combating fraud and error
in the field of social security coordination
For the purpose of social security coordination,
fraud and error are defined as follows.
·                        
Social security fraud: any act or omission to act, in order to obtain or receive social
security benefits or to avoid obligations to pay social security contributions,
contrary to the law of a Member State[56].
·                        
Error: an unintentional mistake or omission by
officials or citizens[57].
The Commission
supports Member States in their efforts to combat fraud and error in the field
of social security. A well-established system to improve cooperation between
Member States is operating in the framework of the Administrative Commission on
the coordination of social security systems. Within this framework Member
States have established a network of Contact Points to improve their
cooperation and provide annual reports on fraud and error.
Social security
fraud may also be subject to penalties — criminal or administrative — within
the Member States’ legal systems. Fraud against social security does not in
itself amount to abuse or fraud to free movement within the meaning of Article
35 of the Directive. However, when a legally resident mobile EU citizen
fraudulently obtains a benefit on false declarations, expulsion and imposition
of a re-entry ban is possible under the general rules of the Directive if the
EU citizen can be considered to be a serious threat to public order, in
conformity with the above-mentioned principle of proportionality.
4.           Social inclusion
Some Member States report challenging
situations in some of their cities. In particular, even if it concerns only a
minority of mobile EU citizens, low employment prospects and other difficult
situations can place a particular strain on already disadvantaged areas,
notably on local services such as schooling, health care and housing.
Homelessness is reported as a growing phenomenon which, despite being small in
absolute numbers, gives cause for concern and is a strong expression of social
exclusion[58].
Social inclusion policies focus on the obstacles
citizens face in accessing education, employment services, financial services,
and family and child benefits. The Commission continues to support Member
States in the implementation of integrated active inclusion strategies[59], which can play a positive
role in the inclusion of mobile EU citizens into the host society.
EU funding for social inclusion is designed
to assist in this context. The European Social Fund (ESF) can be used by the
Member States when elaborating their programmes to support local authorities
facing the challenge of marginalised citizens on their territory, be they
nationals or citizens entering from other EU Member States. EUR 12.9 billion of
the ESF budget is allocated to social inclusion over the period 2007-2013. Mobile
EU citizens can also benefit from other ESF actions such as lifelong learning,
help in access to employment and strengthening of the capacity of stakeholders.
A total of EUR 17.8 billion is available in 2007-2013
for social infrastructures from the European Regional Development Fund (ERDF),
supporting housing and investments in education, health, and childcare. Member
States are invited to use the possibilities offered by the ESF and the ERDF to continue
supporting social inclusion activities in the 2014-2020 programming period.
The Commission
has proposed setting up a Fund for European Aid to the Most Deprived (FEAD) for
the period 2014-2020. The Fund’s aim is to alleviate the worst forms of poverty
by providing non-financial assistance to the most deprived persons, addressing
food deprivation, the consequences of homelessness and the material deprivation
of children.
5.           Five actions
To help national and local authorities to
effectively apply EU free movement rules and use available funds on the ground,
the Commission presents five concrete actions that are being implemented together
with the Member States:
1. Helping
Member States fight marriages of convenience
The
Commission will help authorities implement EU rules which allow them to fight
potential abuses of the right to free movement by preparing a handbook on
addressing marriages of convenience.
This handbook, under preparation with
Member States, will provide national authorities with more clarity on the legal
framework in which they can operate when examining suspected cases and deciding
on whether to withdraw or deny free movement rights on grounds of marriage of
convenience. This should help them tackle any such cases of abuse while not
compromising the fundamental goal of safeguarding and facilitating the free
movement of EU citizens and their family members using EU law in a bona fide
way.
2.
Helping authorities apply EU social security coordination rules
The
Commission is working closely with the Member States to improve the application
of social security coordination rules. In this context, a practical guide to
clarify the ‘habitual residence test’ used in the EU social security rules is
being prepared.
Closer and more effective cooperation
between social security institutions is a key factor in allowing persons to
access their rights as quickly as possible under optimum conditions, but also
to prevent overpayments and unjustified claims. The authorities and
institutions represented in the Administrative Commission work together to
ensure uniformity, efficiency, exchange of information and the necessary
procedures for implementing these provisions. Important tools under discussion
are the establishment of a system based on electronic communication between
institutions, which should also include a secure electronic platform for
exchanging personal data to combat fraud and error.
The Commission is working closely with the
Member States in the Administrative Commission on a practical guide to assist
effective application of the Regulation. This will be published on the
Commission’s website by the end of 2013.
The practical guide will clarify the notion
of ‘habitual residence’ used for the purpose of the Regulations and provide Member
States with useful guidance and clarification[60].
3.
Helping authorities meet social inclusion challenges
The
Commission has proposed that in the 2014-2020 programming period at least 20 %
of the ESF should be spent on promoting social inclusion and combating poverty
in each Member State.
The
Commission will keep up its efforts to help build the capacity of local
authorities to use European structural and investment funds efficiently.
For the new 2014-2020 programming period,
at least 20 % of the whole ESF allocation in each Member State (compared to the current share of around 17 %) must be spent on promoting social
inclusion and combating poverty and any form of discrimination. In addition,
the ESF will also be able to fund capacity building for all stakeholders at
national, regional or local level. Policy guidance will be provided to Member
States, of both origin and destination of mobile EU citizens, for developing
social inclusion programmes with the support of the ESF. Special attention is
given to the social inclusion of disadvantaged people, including Roma. The
Commission is working closely with the Member States and urges them to be
ambitious when addressing specific challenges in this area in their partnership
agreements, and subsequently into their relevant Operational Programmes, and to
provide adequate funding. Furthermore, to surmount capacity issues, such as the
lack of know-how and administrative capacity of managing authorities, the
Commission calls on Member States to consider entrusting the management and
implementation of some parts of their programmes to intermediary bodies with
proven experience and knowledge of actors on the ground. Focusing on areas where
help is needed, the Commission, in a coalition with other international
organisations[61],
is exploring concrete actions to offer a comprehensive package of additional support
to municipalities that commit to improving the inclusion of marginalised
communities, in particular Roma, on their territories. The
Commission is also supporting cooperation among European cities on the
inclusion of Roma through the PROGRESS programme.
In addition, the Commission will publish
country-specific booklets presenting available European structural and investment
funds to help regional and local authorities find funding possibilities for
their projects promoting social inclusion and combating poverty.
4. Addressing
the needs of local authorities by promoting the exchange of best practices
The
Commission will help local authorities to share best practices developed across
 Europe in implementing free movement rules and addressing social inclusion
challenges.
The Commission
will produce, by the end of 2013, a study evaluating the impact of free
movement in six major cities[62]
across Europe that implement policies to promote and facilitate the free
movement and social inclusion of mobile EU citizens, such as providing one-stop
shop information services to newcomers. On this basis, the Commission will
organise, in cooperation with the Committee of the Regions, a first conference in
February 2014 with representatives of regional and local authorities, to
exchange best practices.
5. Helping
local authorities to apply EU free movement rules on the ground
The
Commission will set up an online training module to help staff in local
authorities fully understand and apply the free movement rights of EU citizens.
The
Commission has proposed that legal support and information bodies for mobile EU
workers be set up in all the Member States and is working on reinforcing the
EURES network as regards the assistance given to jobseekers and employers in matching
jobseekers with vacancies.
As indicated in the EU Citizenship Report
2013[63],
local administrations play a key role in enforcing citizens’ free movement
rights as they are often the first interface for citizens settling in a new
city. Complaints to the Commission show that in certain cases front-desk
officials are not sufficiently familiar with free movement rights. The
Commission will develop, by the end of 2014, in cooperation with Member States,
an online training tool (action 10) designed to improve local authorities’
knowledge of EU citizens’ free movement rights and assist them when faced with
uncertainties or complex cases.
In April 2013 the Commission put forward a
proposal for a Directive on measures to facilitate the exercise of rights
conferred on mobile EU workers. It calls on the European Parliament and the
Council to adopt it as soon as possible[64].
The Directive would ensure that national bodies provide mobile workers and
their family members with advice and assistance in enforcing their rights.
The Commission will also present — in line
with the Commission’s 2013 Work Programme and action 2 of the 2013 EU
Citizenship Report[65]
— a proposal for modernising EURES, the European network of employment
services, to enhance the role and impact of employment services at national
level, improve the coordination of labour mobility in the EU and develop EURES
into a fully-fledged European placement and recruitment tool.
6.           Conclusion
Free movement is the EU Treaty right which
citizens value the most and see as the most important achievement of EU
integration. It goes to the heart of Union citizenship.
Member States and the EU share the responsibility to make the free movement
rules work to the benefit of citizens, growth and employment.
EU rules on free movement and access to
social assistance and social security facilitate the effective exercise of the
right to free movement and protect those who genuinely make use of it. At the
same time they contain robust safeguards to ensure that the rights afforded to EU
citizens are not abused, that the obligations under EU law are respected and that
unreasonable burdens are not placed on the social assistance schemes of the host
Member States. It is the joint responsibility of Member States and the EU
institutions to uphold the right to free movement, including by countering
public perceptions that are not based on facts or economic realities. In
exercising this responsibility, national authorities can count on the Commission’s
support on the basis of the approach and through the five actions set out in
this Communication.
STATISTICAL ANNEX
Chart 1: Activity rate among mobile EU
citizens and nationals (aged 15-64), 2012
The chart is sorted according to the number
of working-age (15-64) mobile EU citizens residing in the country.
Source: Eurostat, EU Labour Force Survey (table lfsa_argan). Note: only the main destination countries of mobile EU
citizens are shown in the chart. These 17 Member States account for 99 %
of the mobile EU
citizens in 2012.

Chart 2: Take-up of social benefits by mobile EU citizens in certain Member States
 Outer ring: percentage of mobile EU citizens in comparison with national population; inner ring: percentage of recipients of welfare who are nationals and mobile EU citizens. Own nationals are presented in light blue, mobile EU citizens in black and non-EU nationals (where available) in violet. Data on population share: 2012 Eurostat migration statistics, supplemented by Eurostat Labour Force Survey, national data sources and own estimates. Data on take-up of social benefits: data were provided by Member States, collected by the Commission through the FREEMO expert group. They are not comparable, also in the absence of harmonisation of benefits at EU level. || Cyprus — welfare benefits in July 2013 || 
 || 
 Czech Republic — welfare non-insurance benefits (not dated) || Denmark – recipients of social benefits or income from employment in 2012 || Estonia — welfare benefits in 2012 || Finland — unemployment benefits in 2012 || 
 || || || || 
 Germany — social benefits for jobseekers in 2012 || Greece — pensions in June 2013 || Ireland — jobseekers', housing and child benefits (families and children) in 2013 || Netherlands — welfare benefits in 2012 || 
 || || || || 
 Portugal — social integration benefits, family benefits and support for elderly || Romania — welfare benefits in June 2013 (aggregated mobile EU and non-EU nationals) || Slovakia — welfare benefits in May 2013 || Slovenia — social assistance in August 2013 || 
 || || || 
[1]               Articles 45 and 48 of the Treaty on the Functioning
of the European Union (TFEU).
[2]               Article 21 TFEU.
[3]               Employment and Social Developments in Europe 2011,
intra-EU labour mobility and the impact of enlargement, p. 274.
[4]               Flash Eurobarometer (EB) 365, February 2013, http://ec.europa.eu/public_opinion/flash/fl_365_en.pdf.
[5]               Standard EB 79, May 2013, http://ec.europa.eu/public_opinion/archives/eb/eb79/eb79_en.htm.
[6]               Flash EB 365, cited above.
[7]               European Commission, DG Employment estimates based on
Eurostat migration statistics and the EU-Labour Force Survey (LFS).
[8]               European Commission, EU Employment and Social
Situation Quarterly Review, June 2013, pp. 42-43, based on Eurostat,
EU-LFS.
[9]               ICF GHK Milieu: A fact finding analysis on the
impact on the Member States’ social security systems of the entitlements of
non-active intra-EU migrants to special non-contributory cash benefits and
healthcare granted on the basis of residence, Chapter 4 and p. 61,
http://ec.europa.eu/social/BlobServlet?docId=10972&langId=en.
[10]             Eurostat, EU-LFS, 2008 module on Labour market
situation of migrants, online table: lfso_08cobr.
[11]             These are typically students, retired persons, jobseekers
and inactive family members.
[12]             ICF GHK Milieu report cited above, Chapter 3, p. 16,
based on Eurostat, EU-LFS.
[13]             ICF GHK Milieu report cited above, Chapter 3, p. 25,
based on Eurostat, EU-LFS.
[14]             ICF GHK Milieu report cited above, p. 24, based on
Eurostat, EU-LFS.
[15]             Eurostat, EU-LFS. The share of mobile EU
citizens (aged 15 and over) who are economically inactive decreased from 34.1 %
in 2005 to 30.7 % in 2012 (Eurostat, EU-LFS).
[16]             Eurostat, EU-LFS.
[17]             Employment and Social Developments in Europe 2011,
intra-EU labour mobility and the impact of enlargement, pp. 268-276.
[18]             Dustmann et al., Assessing the Fiscal Costs and
Benefits of A8 Migration to the UK, http://ideas.repec.org/p/crm/wpaper/0918.html;
OECD, Fiscal Impact of Migration, in OECD International Migration
Outlook 2013, http://www.oecd.org/els/mig/imo2013.htm.
[19]             OECD, Fiscal Impact of Migration, in OECD International
Migration Outlook 2013, http://www.oecd.org/els/mig/imo2013.htm;
ICF GHK Milieu report cited above; Dustmann et al., Assessing the Fiscal
Costs and Benefits of A8 Migration to the UK, http://ideas.repec.org/p/crm/wpaper/0918.html;
CEPS, Social Benefits and Migration, A contested relationship and
policy challenge in the EU (Chapters 1 and 7); EU Labor Markets After
Post-Enlargement Migration, Martin Kahanec, Klaus F. Zimmermann (eds.),
Springer-Verlag Berlin Heidelberg, 2010; Ian Preston, The Effect of
Immigration on Public Finances, Centre for Research and Analysis of
Migration, 2013, http://www.cream-migration.org/publ_uploads/CDP_23_13.pdf.
[20]             Evidence collected by the Administrative Commission for
the coordination of social security systems points to factual and legal
difficulties in the application of the coordination provisions and the granting
of residence–based tax-financed benefits to non-active persons. However, no
evidence is available on extensive fraudulent behaviour.
[21]             See Statistical Annex, Chart 2. Following a request by
the Council, the Commission asked Member States in June 2013 to provide, inter
alia, information on mobile EU citizens who asked for or received social
benefits. Of the 21 Member States that replied, Austria, Belgium, Croatia, Hungary, Poland, Sweden and the United Kingdom were unable to provide this data. Lithuania provided data on exported social security benefits. Data from the remaining 13 Member
States concern different benefits and are not comparable; they are therefore
graphically presented in country-specific doughnut charts.
[22]             ICF GHK Milieu report cited above, Chapter 5,
p. 84.
[23]             See for instance the literature review in the ICF-GHK
Milieu report and in CEPS, Social benefits and migration, A contested relationship and policy
challenge in the EU.
[24]             Directive 2004/38/EC 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, OJ L 158, 30.4.2004, p. 77.
[25]             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, OJ L 141, 27.5.2011, p. 1.
[26]             Regulation (EC) No 883/2004 of the European Parliament
and of the Council of 29 April 2004 on the coordination of social security
systems, OJ L 166, 30.4.2004, p. 1; Regulation (EC) No 987/2009 of the European
Parliament and of the Council of 16 September 2009 laying down the procedure
for implementing Regulation (EC) No 883/2004 on the coordination of social
security systems, OJ L 284, 30.10.2009, p. 1.
[27]             Specific provisions on patients' rights in cross-border
health care are covered by Directive 2011/24/EU of the European Parliament and
of the Council of 9 March 2011 on the application of patients' rights in
cross-border healthcare, OJ L 88, 04.04.2011, p. 1.
[28]             Article 6 of the Directive.
[29]             Recital 9 and Articles 7 and 14(4)(b) of the Directive.
[30]             Article 16 of the Directive.
[31]             Article 7(2) of Regulation (EU) No 492/2011, cited
above.
[32]             Article 24 of the Directive.
[33]             Benefits of a financial nature which, independently of
their status under national law, are intended to facilitate access to
employment in the labour market of the host Member State cannot be regarded as
constituting ‘social assistance’ within the meaning of Article 24(2) of the
Directive: Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze,
paragraph 45.
[34]             Article 8(4) of the Directive.
[35]             Article 14(2) of the Directive.
[36]             Covered by Regulation 883/2004, see Chapter 1.3 above;
case C-140/12 Brey.
[37]             Case C-140/12 Brey, paragraph 38 and 42.
[38]             Article 14(3) of the Directive.
[39]             Article 15 of the Directive and Case C-140/12 Brey,
paragraph 72.
[40]             Article 14(1) of the Directive.
[41]             See Cases C-76/76 Di Paolo, C-102/91 Knoch
and C-90/97 Swaddling.
[42]             COM(2009) 313, section 4.1.
[43]             Following a request by the Council, the Commission
asked Member States to provide information on abuse of free movement by
marriages of convenience. 12 Member States provided statistics on identified
cases. In the period 2010-2012, Cyprus recorded 174 such marriages and
Portugal 144; in the same period, Poland refused 2 (out of a total of 391)
applications for residence cards on these grounds; the Czech Republic recorded
51 such marriages in 2012 and 22 between January and July 2013; in 2012,
Denmark identified 8 marriages of convenience and Finland refused 10 (out of a
total of 650) visa applications on these grounds; in 2012-2013 Sweden refused
the right of residence in 30 cases on grounds related to marriages of
convenience and document fraud (out of 26 546 residence applications); the
Netherlands had identified 368 marriages of convenience (out of 550 marriages
investigated in three pilot projects) since 2007; Ireland recorded 9 marriages
of convenience in 2010; between May and October 2011, the UK rejected, based on
concerns about the authenticity of marriages, 176 applications for EEA family
permits (out of 256 cases where abuse was suspected and which represent
approximately 2 % of the applications received in this period); finally,
Estonia and Romania indicated that they had not identified any marriages of
convenience in the period January 2011–July 2013 and since January 2007
respectively. In two cases, data were submitted on suspected marriages
of convenience: UK: reports by civil registrars of 934 (2010), 1 741 (2011)
and 1 891 (2012) suspected cases. Germany: reports of 250 currently
suspected cases in all Länder; 167 (State of Hesse), 43 (Berlin) and 71 (Munich) suspected cases in 2012.
[44]             EU Serious and Organised Crime Threat Assessment
2013, Section 1.9, https://www.europol.europa.eu/sites/default/files/publications/socta2013.pdf;
2011 EU Serious and Organised Crime Threat Assessment, Chapter on Facilitated
Illegal Immigration, https://www.europol.europa.eu/sites/default/files/publications/octa2011.pdf.
[45]             Cases C-55/94 Gebhard, paragraph 37, and
C-100/01 Olazabal, paragraph 43.
[46]             Recital 16 and Articles 15(1), 15(3) and 27(2).
[47]             Cases 41/74 Van Duyn, paragraph 18, C-348/09 P.
I., paragraph 23, and C-434/10 Aladzhov, paragraph 34.
[48]             Article 27(1) of the Directive and Cases 30/77 Bouchereau,
paragraph 35, and C-348/09 P. I., paragraph 34.
[49]             Case C-349/06 Polat, paragraph 39; Communication
on guidance for better transposition and application of Directive 2004/38/EC, COM(2009) 313,
end of section 3.2.
[50]             Joined Cases 115/81 and 116/81 Adoui and Cornouaille,
paragraph 8, and Case C-268/99 Jany, paragraph 61.
[51]             Reflected in Article 28(1) of the Directive and Case
67/74 Bonsignore, paragraph 6.
[52]             Cases C-434/10 Aladzhov, paragraphs 29 and 30,
and C-249/11 Byankov, paragraphs 35 and 36.
[53]             In this communication the term ‘re-entry ban’ refers to
‘exclusion orders’ under Article 32 of the Directive.
[54]             Case C-348/96 Calfa, paragraphs 27 and 28.
[55]             Article 32(1) of the Directive and Joined Cases 115/81and
116/81 Adoui and Cornuaille, paragraph 12.
[56]             Part A, Section 2(a) of the Council Resolution of 22
April 1999, OJ C 125, 6.5.1999, p. 1.
[57]             Decision No H5 of the Administrative Commission for the
coordination of social security systems of 18 March 2010 concerning cooperation
on combating fraud and error within the framework of Council Regulation (EC) No
883/2004 and Regulation (EC) No 987/2009 of the European Parliament and of the
Council on the coordination of social security systems, OJ L 149, 8.6.2010, p.
5.
[58]             See Commission Staff Working Document Confronting
homelessness in the European Union, SWD (2013)42 final, accompanying
the Commission Communication of 20 February 2013 Towards
Social Investment for Growth and Cohesion — including implementing the European
Social Fund 2014-2020, COM(2013) 83 final.
[59]             Commission Communication of 3 October 2008 on a
Recommendation on the active inclusion of people excluded from the labour
market, COM(2008) 639 final; Commission Communication of 20 February 2013 Towards
Social Investment for Growth and Cohesion — including implementing the European
Social Fund 2014-2020, cited above; Commission Communication of 5 April
2011 An EU Framework for National Roma Integration Strategies up to 2020,
COM(2011) 173 final.
[60]             The practical guide will be limited to the application
of the Regulations and will not cover the application of the Directive.
[61]             Such as the EEA Norway Fund, the Council of Europe, the UNDP, the Open Society Foundation and the EU Agency for Fundamental Rights.
[62]             Barcelona, Dublin, Hamburg, Lille, Prague and Turin.
[63]             Commission Report EU citizenship Report 2013 — EU
citizens: your rights, your future, COM(2013) 269 final, 8.5.2013.
[64]             COM(2013) 236, 26.4.2013.
[65]             COM(2013) 269 final, 8.5.2013.