The Ambivalent Nature of Free Movement of Economically Active Persons in the EU: Between Economic and Citizenship Rationale

Free movement of persons is one of the most revolutionary aspects of European integration but it is also increasingly challenged as political debate on transnational solidarity and mobility grows. Originally, the right to free movement was only granted to economically active people. The establishment of Union citizenship rose hopes that the divide between economically active and inactive citizens could come to an end. It also seemed that EU citizenship could establish transnational social citizenship by granting mobile people access to welfare benefits – subject to certain proportionate conditions. More recently, it seems that economically inactive citizens’ rights are shrinking, hence, the link with economic activity appears again to be a dealbreaker in access to social citizenship for mobile persons. Union citizenship notwithstanding, market citizens – ie, those who have a meaningful link to market participation – are still privileged in the breadth of their free movement and equal treatment rights. This dissertation addresses the distinction between market citizens and other citizens, to understand what the rationale for this division is. The research starts by analysing the over-expansion of market citizenship, to cover situations that have a thin connection to market participation. In this sense, market citizenship has been the tool used by the Court to humanise free movement law and make it more inclusive. However, that link with economic movement features a certain degree of randomness. Thus, despite market citizenship’s expansion, the dividing line is oftentimes unpredictable and creates discrimination as migration and working pattern evolve. As a result of the all-or-nothing approach to solidarity, that derives from the distinction between market citizens and economically inactive persons, citizens may face uncertainties and cliff-edges when they move. 2 The scholarship authoritatively criticized market citizenship for the cleavages it produces and its inability to emancipate individuals from dependence on the market. Yet, the reasons why market citizens are still privileged are under-analysed. It remains unclear what is economic free movement for nowadays and what are the elements which, despite market citizenship’s blurred contours and contested personal and material scope, justify the stark economic/non-economic dividing line. The explanation offered in legal scholarship often relies on the economic benefits that stem from economically active citizens’ movement, underlining the economic objectives of market citizenship in contrast to general free movement. This dissertation challenges this assumption, by unpacking and reconstructing the multifaceted economic dimension of free movement of economically active persons. This thesis’ originality and relevance lie in the analysis of what it means that free movement of economically active citizens has an economic rationale, as workers were never treated as factors of production and their access to social citizenship requires only limited or potential participation to economic life of the host country. The research thus examines whether legal arguments and economic data support the economic rationalisation of market citizenship. It will be argued that the evolution of the legal framework on free movement, and the principles that underpin it stand against such reconstruction. Moreover, the asymmetric and ambivalent benefits of economic movement do not lend strong support for the economic rationale hypothesis. Normative arguments pivoting around the fundamental right nature of free movement also run counter the economic rationalisation for the privileges of market citizenship. The dissertation will conclude with proposals for further research to identify a new criterion to ensure social citizenship, equality, and the viability of national welfare systems, starting by superseding the division between economically active and inactive citizens.