ENFORCEMENT OF EUROPEAN CITIZENS FREE MOVEMENT RIGHTS

BACKGROUND DOCUMENT

FOR THE HOTLINE

1. Raising the issue and sources of information

“Europe without barriers” is the slogan of the current Czech Presidency of the Council of
Ministers. To achieve this objective in the area of free movement of people is a question
of enforcement. The aim of this background paper is to stimulate debate with a wider
audience of citizens who have problems enforcing their European rights or information,
advice services or lawyers acting on their behalf. What has been their experience in
seeking advice and redress? After sending complaints to national authorities or the
European Commission, have they been satisfied with the outcome? Has petitioning the
European Parliament or sending a complaint to the European Ombudsman helped their
cause? How easy is it to take a case to a national court and obtain a result or a reference
to the European Court of first instance on the alleged violation of European law?

Our aim is to collect ideas and recommendations on how the national authorities and the
European Union could improve their service to citizens in resolving their problems. In
his report on the citizen and the application of community law, Alain Lamassure, MEP
makes a strong case for starting with the citizen and building policies for better
application of EU law from the bottom up, rather than the top-down1. The EU
Institutions have not so far carried out any survey across all their various informal and
formal mechanisms of citizens’ own expectations and experience. The election of a new
European Parliament in June 2009 and the appointment of a new European Commission
at the end of the year provide an opportunity to review what citizens expect of the
different channels of information complaint and redress with the EU and how they could
be improved. It is important that the issue of enforcement is raised during the European
election campaign2.

The European Commission and the European Parliament are considering this issue and
three sources of information are available:

1
Le citoyen et l’application du droit communautaire, rapport au Président de la République, 8 juin 2008
2
For further information about ECAS and its demands for the June 2009 European elections
http://www.ecas-citizens.eu/content/view/162/36/
General policy on the application of community law
In a “Europe of results, applying community law”3, the European Commission points out
that 70% of complaints can be solved informally, but that if they go further, “the process
can be lengthy…” The Commission’s proposed solutions go in the direction of
increasing preventive measures, cooperation with member states and guidelines to avoid
lengthy infringement procedures, and prioritising complaints.

Annual reports
The Commission’s annual reports on the application of community law and the staff
papers showing the mechanisms in place in different directorate generals are a useful
source of information4. A constant theme in this report is that of the amount of time it
takes to deal with infringement procedures – 23 months – and to close a complaint –
around 35 months. The annual reports of the Petitions Committee give an account of
their own work and their recommendations to the Commission. The Legal Affairs
Committee has been critical of the Commission’s policy to set priorities. Another issue,
for the European Ombudsman, is that two thirds of requests received are outside his
remit, which is limited to maladministration by the EU Institutions, rather than by
member states when they apply European law5.

A test case
This is the application of directive 2004/38/EC on the right of citizens of the Union and
their family members to move and reside freely within the territory of the member states.
In its communication on applying community law, the Commission singled out this so-
called citizenship directive for special treatment. In a report6 the Commission concludes
“that the overall transposition is rather disappointing. Not one member state has
transposed the Directive effectively and correctly in its entirety. Not one article of the
directive has been transposed effectively by all member states.” Serious problems persist
around residence requirements, the equal treatment of third country national family
members of EU citizens, the recognition of partnerships, guarantees against
expulsion…The European Parliament has commissioned its own study from ECAS.

2. Mind the gaps: why it is important for the EU to improve enforcement

From its work as a European advice service and running the citizens’ signpost service for
the European Commission, ECAS sees evidence every day that citizens inevitably judge
the performance of the EU on whether as a European citizen, someone is available to deal
with their problem, how well moving around Europe works in practice and whether any
barriers can be removed easily. In an area where there is a direct link between EU
legislation, the way it is applied in member states and people’s every day lives, the EU

3
COM (2007)502 final of 5.9.2007
4
215th annual report from the Commission on monitoring the application of community law (COM 2008
777/4)
5
Report of the Petitions Committee on the annual report on the European Ombudsman’s activities in 2007
(PE407.934v03-00)
6
COM (2008)840/3 of 10 December 2008

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needs to be aware of the gaps between legal theory and practice on the ground, between
expectations and results.

On the one hand, Treaty rules and legislation are comprehensive, whilst the recent case
law of the European Court of Justice is making free movement a fundamental right of
citizenship which the individual does not have to justify; rather it is for member states to
justify any restrictions as proportionate7. People’s rights under EU law are more
developed than they imagine. Furthermore, on the basis of the case law of the Court and
building on previous scattered laws, the EU has recently consolidated legislation: The
three main areas covered by the legislation are:

- Entry and residence. Directive 2004/138 on the right of EU citizens and members
of their families to move and reside freely within the territory of the member
states is based on the case law of the European Court of Justice related to articles
18 and 12 of the Treaty. It brings together 10 previous regulations or directives
for different categories of the population and situations (deadline for
transposition: 30 April 2006)

- Social entitlements. Regulation 1408/71 on the coordination of social security

and the implementing rules has recently been modernised and updated as
regulation 883/2004 but has yet to come into force pending agreement between
the Council and the European Parliament on the implementing rules.

- Recognition of qualifications. Directive 2005/36 on the recognition of

professional qualifications brings together 15 laws of an earlier generation
harmonising qualifications profession by profession and more recent legislation
on mutual recognition (deadline for transposition 1 January 2007).

On the other hand, a report from the citizens signpost service (CSS) on the questions and
complaints received in relation to these three legislative initiatives shows that there are
numerous problems8. The way the first directive has been applied by member states has
undermined the aim of simplification and facilitation of free movement.

The gap between legal theory and practice is becoming more and more evident to
citizens, at least the minority 22% aware of their European rights. The spread of on-line
services on the “Europa” website and national government websites is giving citizens
more direct access to the texts of directives and court judgments in defence of their
interests. It is a positive factor that the questions and complaints from citizens on the
move are becoming more complex and more challenging. With greater awareness,
expectations also increase that problems will be solved quickly and easily. It is relatively
easy and cost-effective to improve access to information to find out more about one’s
rights and how they should be applied. It is much more difficult to reform the slow,
cumbersome and rather archaic systems to come up with the answers and the solutions.

7
For a review of the recent case law of the European Court of Justice, the ECAS website (http://www.ecas-
citizens.eu/content/view/166/180/)
8
European citizenship tied up in red tape (http://www.ecas-citizens.eu/content/view/181/36/)

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3. How could enforcement be improved?

In this section we discuss some of the current issues beginning with how to prevent
problems arising in the first place by better application of the directives, and moving on
to information advice and non-judicial or judicial remedies including access to the
European Court of Justice.

(i) Prevention

The difficulties with enforcement of EU law are to some extent attributable to the form
most legislation takes which has an impact on citizens’ rights. Directives are blueprints
which are binding as to the results to be achieved but which leave the choice of form and
methods to the national authorities. The implementation of the “citizenship” directive is
such that citizens face a wide spectrum of different rules and administrative practices
across the EU 27, contrary to the principle of the uniform application of EU law. Hence,
the preference of the European Commission to use regulations which are directly
applicable, but this is not as an appropriate instrument for free movement of persons as it
is for free movement of goods. Nevertheless, could regulations be used more frequently
to eliminate barriers to free movement of people?

The responsibility for applying community law lies with Member States in the first
instance whereas it is the role of the Commission as guardian of the Treaty, to ensure that
they do so. Does the Commission intervene early enough to ensure that at least a
majority of the problems with the implementation of directives do not occur in the first
place? For example, the Commission communication of 10 December 2008 on the
application of the citizenship directive proposes measures which might have been taken
before the deadline for transposition: meetings with member states, and the issuing of
guidelines. Such preparatory work has for example been intense in the case of the
implementation of the services directive, which should be applied by 1 January 2009.

Similarly, could obligations be placed on member states to notify proposed implementing

laws in advance to the Commission and ask for an opinion on the question of conformity?
Should there be obligations on member states to consult more widely before adapting
their implementing laws? The European Parliament has asked that member states should
draw up “conformity tables,” for example.

(ii) Information, advice and active help

The Commission has made considerable progress in developing what is described as a

“cascade” system. Citizens are first directed through the Europa website or a free phone
number to Europe Direct, which supplies information about European rights to an
average of 100,000 citizens each year and sends enquirers to sources of information and
legislation available on-line. More difficult questions are sent to the citizens signpost
service (CSS) a more specialised network of legal experts run by ECAS which provides

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legal advice to about 9000 citizens each year, but does not have a mandate to intervene
actively, so much as “signpost” citizens to the nearest available source of help. Within
the cascade system, Solvit has the highest profile because it involves not only the
Commission, but also cooperation among member states, which undertake, if they take
on a case, to find a solution within 10 weeks. There is no doubt that peer pressure by
member states in bilateral contacts which cut through “red tape” can be effective to bring
reluctant administrations in line. But, it has its limits with some national centres better
resourced and more willing to act than others. There are also more specialised networks:
for researchers, users of financial services, consumers in general, social security, and
EURES - a data base of over 1 million vacancies for job-seekers. The degree of success
of the cascade system has not been evaluated. However, there is no doubt that most
problems can be solved by information and advice alone, because they result from a
misunderstanding or failure to respect procedures at the right time and in the right way
either by the citizen or the administration.

There has been real progress in facilitating access to the EU Institutions, with the
Commission working towards at least a virtual single access point or one-stop shop
through Europe Direct. This makes sense because questions from citizens often cut
across different areas of legislation and competence: residence, tax or social security. For
information and advice, the virtual one-stop shop can work well. What remains less
convincing is the extent to which complaints can be effectually followed up and solved
by the Commission, when competences are so fragmented. Whilst one department deals
with borders and residence, another deals with social security, another with recognition of
qualifications and a fourth with the youth, educational and training programmes which
underpin free movement. The “one-stop shop” does not necessarily mean putting all
services together which could discourage specialisation. But, should there be a
Commissioner in charge, a more personal focal point for citizens, who can also
coordinate and advocate the cause of the services at a political level?

In its communication on applying community law, the Commission recognises however,

that some inquiries and complaints cannot be resolved through these mechanisms. When
this occurs, the relevant Commission service (if it receives the complaint and decides to
follow it up) often provides the necessary explanation of the scope and limits of EU law,
and asks member states for explanations. This “soft” application of the Commission’s
role as guardian of the Treaty is often very effective, but much depends on the particular
service, and the goodwill of individual officials. The Communication states that there is
“insufficient focus on the need for quick, constructive solutions,” but does not spell out
how this need might be met. It is particularly important to find ways how this more
informal role of the Commission as problem-solver might be enhanced. Could standards
and time limits be set? Is this a role which could be delegated for example to an agency
working on behalf of all Commission departments?

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(iii) The issue of prioritising complaints

According to the latest figures, the Commission is currently handling over 3,200 files,
including complaints – which from the perspective of the administration is a heavy
workload, but in a Union of nearly 500 million people appears to be a fraction of the
probable real number of complaints9. In its communication on the application of
community law, the Commission proposes to prioritise and deal with some cases more
immediately and instantly, especially “those infringements which present the greatest
risks, widespread impact for citizens and businesses and the most persistent infringement
confirmed by the Court.” The problem with applying this approach to citizens, who are
not trained in EU law and normally do not seek legal advice, is that it is difficult at the
outset to assess how serious the complaint is. This is why the European Parliament has
questioned priority criteria and asked “whether such an exercise is really needed and does
not risk reducing excessively the scope of infringement procedures, for which the Treaty
does not provide any hierarchy; calls on the Commission to evaluate whether a simple
increase in the available resources in the most exposed Directorate General would not be
a preferable solution to improve the capacity to follow-up complaints.10”

Whatever the outcome of this debate, the Commission is bound to set some priorities and
in the area of the free movement of persons, the criteria are likely to be that the possible
infringement was not just an isolated instance of maladministration but a standard
malpractice affecting a class of citizens.

(iv) Accountability towards the complainant

The Commission also has a wide discretionary power, supported by the European Court
of Justice, as to whether to act on a complaint. The quid pro quo of the Commission’s
freedom of action should be for the Institution to become more accountable to the
complainant. There could be a requirement to respond within a certain deadline as to
why a complaint has or has not been acted upon, whilst providing greater access to the
file, so that the citizen is better able to decide on the next step. It is a symptom of the
problem of lack of transparency in the complaints procedure that lawyers are attempting
to find a way around the problem by requesting the file through the regulation on access
to documents, which is refused. The communication referred to already does contain a
section on increased transparency, but which refers largely to general measures and
preserves a certain ambiguity on accountability towards individual complaints by
mentioning the provision of summary information at all stages, whilst continuing “to
maintain confidentiality on the content and timing of contacts with member states.” This
issue, frequently raised by the European ombudsman, remains largely unresolved.

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No one knows the number. From informal inquiries to national advice services, a reasonable but very
rough estimate would be that if one in ten of the population complains, one in ten of those questions or
complaints has a cross-border or European law dimension. This suggests that the total number of questions
and complaints relevant to the EU could be 4-5 million per year.
10
Frassoni report A6-0089/2006 from 24/03/2006

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(v) Should Commission powers of enforcement be increased?

In a speech to the conference in November 2006 on the future of the internal market,
Mario Monti compared his experience as Commissioner for competition with that as
Commissioner for internal market. It so happens that his comparison is relevant to
ECAS, which he chaired from February 2005 until October 2007. In the competition
area, the Commission can issue decisions and order anti-competitive practices to cease or
change, subject to appeal to the Court. In the internal market, the Commission has to
follow “baroque” procedures. These procedures, except perhaps in the case of large
companies, which can afford to wait, are far too slow. It is also unlikely that the
Commission will take action on an isolated individual complaint which may well be an
accident or the result of a misunderstanding rather than a deliberate infringement.
Currently it might happen but in the future with the prioritarisation of complaints, it will
be less likely. Could the Commission encourage group action, as it has for consumers?
How could its powers of enforcement be strengthened? Should the Commission be given
a power to order Member States not to continue the application of an act considered to be
contrary to Community legislation in order to ensure that while the case is pending before
the Commission, Member States do not take advantage of the relatively long time of the
procedure to restrict free movement for European citizens?

(vi) Petitions to the European Parliament and complaints to the European ombudsman

The annual reports of the Petitions Committee in the European Parliament and of the
European ombudsman show that within their respective spheres of competence, both
bodies can achieve results for citizens. There are about 1,000 petitions each year,
including mass petitions. The ombudsman receives 3,300 complaints but two thirds are
sent on to the Commission, member states or national ombudsmen because they do not
relate to his mandate which is restricted to maladministration by the EU Institutions.
This raises a general issue of how to describe the cascade system under (i) better so that
complaints go to the right address in the first place. There is no doubt that a petition,
often used as a way to back up a complaint to the Commission, can be effective. Selected
petitioners are heard by the Committee, which can be their advocate with the
Commission and national administrations. However, the procedure is slow and formal,
lasting over a year. The European ombudsman also takes one year to investigate and
correspond with the parties and reach a conclusion on a complaint. For citizens, there is a
trade off between using formal procedures which carry weight but are slow or more
informal ones which are quicker but highly dependent on the good will of the official or
member of the European Parliament dealing with them. The well argued letter on behalf
of the citizen from an individual member of the European Parliament could be just as
effective as a more formal complaint or petition. MEPs also provide a link to national
members of Parliament. Elected representatives need though more support if this role is
to be enhanced.

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(vii) Should citizens have greater access to the European Court of Justice?

The issue of access – or rather the lack of it – to the European Court of Justice was taken
up as a result of cases heard in the Court of first instance – by the working party on the
charter of fundamental rights during the Convention on the future of Europe. As a result,
the Lisbon Treaty amends article 230 of the present EC Treaty by widening the scope of
the action for annulment. A citizen will be able to initiate a proceeding “against an act
addressed to that person or which is of direct and individual concern to him or her, and
against a regulatory act which is of direct concern to him or her and does not entail
implementing measures.” In reality this provision does not go very far to improve
remedies for citizens since in the field of citizens’ rights legal acts are usually directives
and not regulations (cf. (i)). It is however a step in the right direction.

The Lisbon Treaty also throws new light on the status of the Charter since finally it
becomes a legally binding document which means that citizens may invoke it before
national courts. The rights to good administration, effective remedy and fair trial can help
encourage speedier and more efficient extrajudicial and judicial remedies for breaches of
EU laws. However, it is a shortcoming of the issue around the Charter that the UK and
Poland opted out from applying the document as legally binding. Such a clause calls into
question the efficiency of the Charter since it may entail a situation where a UK citizen
residing in France can invoke the text before a French court whilst a Polish citizen
residing in the UK cannot do so before the UK courts.

Citizens find it hard to understand why it is necessary, to defend their European rights, to
have to go first to a national court, rather than directly to the European Court of Justice.
There is also confusion between the Luxembourg and Strasbourg courts. It is difficult to
explain why a Court which is so much in advance of the legislative process in developing
the rights of European citizens interprets the Treaty so restrictively on access.

If wider access to the European Court could be established, how to make sure that this
does not become counterproductive by opening the floodgates? There would have to be
conditions on access to the European Court of first instance as a measure of last resort, to
avoid situations of impasse and denial of justice. Where remedies have been exhausted at
an administrative level and through a formal complaint to the European Commission, a
citizen or group of citizens should have a right to appeal to the European court.

4. Conclusion

From the Commission’s own annual reports and the reactions in the European Parliament
it appears that the political will which is invested in ensuring legislation is adopted in the
first place is lacking, when it comes to enforcement. Does the Commission pursue its
“Europe of results” more rigorously when it comes to persuading mobile phone
companies to reduce roaming charges than when it comes to persuading member states to
enforce European citizen rights correctly? The Commission in its role of guardian of the
Treaty has discretionary power as to whether it takes up a complaint in the area of free

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movement of persons,11 whilst infringement procedures are publicised, less formal
interventions with member states remain confidential. This is a source of frustration for
the European Parliament or complainants in attempting to assess the effectiveness of the
Commission’s action.

This paper has given an overview of the informal and more formal channels which exist
for the European citizen seeking quick, effective and inexpensive solutions to problems
when moving around Europe. Although there is insufficient data on the volume of
questions and complaints from citizens, evidence suggests that a marked improvement in
the supply of information by the EU will encourage increased expectations that “someone
will take care of my problem” At a time when the Union is legislating less, enforcement
should in any case be a main priority. A number of questions arise for consideration:

- Can the Commission take on a more pro-active role in the process of

implementation of directives by member states to prevent problems arising in the
first place?

- How to develop the idea of the “cascade system”, starting with information and
moving on to advice and problem-solving? How can the EU clarify its message
to citizens so that complaints and requests are better targeted to the right
geographical level and institution? Should there be a Commissioner responsible?

- Can the Solvit system be generalised so that the deadline of 10 weeks to find a
solution applies not only between member states, but also within member states
and EU institutions? Could common quality time limits and standards be set?

- Should the Institutions prioritise complaints or be given the necessary resources to

deal with all of them?

- Should there be a possibility for the Commission to be able to order a legislative

or administrative measure restricting free movement of people to be stopped? To
what extent should the powers available to the Commission in the competition
area also apply to the internal market?

- Should the Commission be made more accountable to complainants?

- Should the respective roles of the Petitions Committee, the European ombudsman
and individual members of the European Parliament be strengthened to defend
European citizens’ rights?

- Under certain circumstances should the individual or a group of individuals have

the possibility to take a case not only to a national court but to the European court
of Justice?

11
Regulation EC 297/98 “The rapid intervention system” makes the Commission more accountable to
complainants and giving it more power when it comes to free movement of goods as opposed to free
movement of persons

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This is the right time to consider these questions. The credit crisis and recession will
produce asymmetric shocks and unexpected impacts on free movement of people. It will
be necessary to step up enforcement to keep Europe open and prevent protectionist, even
zenophobic pressures. The Lisbon Treaty is currently being ratified and the Charter of
fundamental rights should become legally binding, with its rights to good administration
and access to justice. Furthermore, the European elections in June 2009 and the
appointment of a new European Commission will undoubtedly lead to proposals for
institutional and administrative reforms which should include how to achieve better
application of EU law for citizens. Therefore all those concerned should raise their voice
during the European election campaigns to keep Europe open and make it work better.

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