Free movement within the EU - a fundamental right

Free movement of people is a basic component of the single area which the European Union (EU) has been building since its inception. It is acknowledged as a fundamental right for EU citizens. Although the principle of free movement was enshrined in the founding treaties, in the first place it did not extend to lifting physical borders but was mainly targeted at the working population.

A break-through came when cooperation between individual governments led to signature of the Schengen Agreement in 1985 and of the subsequent Schengen Convention in 1990 which envisaged lifting borders between the participating countries. With the entry into force of the Amsterdam Treaty in 1999, the Schengen cooperation was integrated into the EU legal and institutional framework.

Today, over 400 million people live in the Schengen area. It covers 22 EU Member States plus Iceland, Norway and Switzerland . Bulgaria, Cyprus and Romania do not yet apply the Schengen acquis fully, which is why checks on persons are still carried out at the internal borders with those three countries. The United Kingdom and Ireland have decided not to take part in the abolition of internal border control and therefore apply only the provisions relating to police and judicial cooperation in criminal matters.

“This introductory page of the Section ‘Freedom to travel’ gives a general presentation in two parts: Part I covers the latest developments which occurred within the recent years. Part II gives a general view of the accomplishments and the acquis at European level of the matter concerned.”

I) Latest developments

The Hague Programme [273 KB] established an ambitious agenda in the area of freedom, security and justice covering the period up to 2009. As a result, borders and visas policy is constantly evolving and has triggered lively debates in the European Parliament and the Council. Other sections of this website will keep you updated on the most important developments in this area. For the latest information, it is advisable regularly to check the EU press releases database and the webpages of the relevant EU institutions (see recommended links on the right-hand menu on this website).

II) General context

Free movement of persons between the Member States of the EU is one of the basic aims of the Union. What has become true for capital, goods and services has to be a reality for people too. Originally, a right of free movement across the EU was envisaged only for the working population, as a single market could not be achieved while limitations to workforce mobility persisted. Since then, however, as the social and human dimension of the European area has increased, notably in the form of introduction of citizenship of the Union, the right to free movement has been extended to all categories of citizens, be they economically active or not, and to their family. Since the Schengen acquis was integrated into Community law, the concept of “free movement” is used in two senses. First, in the traditional sense of free movement for EU citizens, i.e. the right to enter, stay and remain in another Member State; second, in the sense of anyone being able to cross the internal borders without undergoing checks.

1. Free movement for EU citizens in all Member States

The right to free movement means that every EU citizen is entitled to travel freely around the Member States of the European Union and to settle anywhere within the EU. This right is in force in every EU Member State and is enshrined in the founding treaties. It should not be confused with the Schengen cooperation, which has gone further and abolished border control between the participating countries (note that not all EU Member States participate fully in the Schengen arrangements).

The “traditional” right to free movement means that no special formalities are required in order to enter any EU Member State other than to hold a valid travel document. This fundamental right extends to members of an EU citizen’s family irrespective of their nationality (however, they might still be subject to a visa requirement; see the Your Europe portal for details). EU citizens and their family members can also travel freely to Norway, Iceland and Liechtenstein on the basis of the EEA Agreement and to Switzerland under the relevant bilateral agreement. Detailed provisions regarding the rights conferred by this “traditional” free movement can be found in 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.

2. Free movement following the abolition of internal border controls (Schengen cooperation)

The right to free movement was given a boost in 1985 when Germany, France and the Benelux countries ( Belgium, the Netherlands and Luxembourg) signed an intergovernmental agreement on gradually abolishing internal border checks, in the small Luxembourg border town of Schengen. The Schengen Agreement was followed in 1990 by the Schengen Convention, which finally came into force in 1995.

The Schengen Convention abolished controls at the internal borders between the signatories, harmonised controls at the external frontiers of the “Schengen area” and introduced a common policy on short-stay visas for third-country nationals and other accompanying measures like police and judicial cooperation. The Schengen signatories agreed that each country could reintroduce controls at their shared borders only temporarily and in specific, clearly defined circumstances.

The Schengen provisions were not intended to regulate the right to long-term residence and work, neither for EU citizens nor for third-country nationals.

A protocol attached to the Treaty of Amsterdam incorporated the developments made in the intergovernmental framework (“Schengen acquis” [6.8 MB]) into the legal and institutional framework of the EU. The Schengen acquis now forms part of the EU legislation and is divided between the first and third pillar instruments, with border and visa policy falling under the “first pillar” and, hence, under the scrutiny of the European Commission and (with some specific conditions) of the Court of Justice of the European Communities and also involving the European Parliament.

The harmonised entry conditions for third-country nationals and rules and operational instructions for carrying out checks at the EU’s external borders are defined in the Schengen Borders Code that replaced earlier provisions of the Schengen Convention and the common manual on external borders. The key documents regulating the issuing of Schengen visas are the Common Consular Instructions.

The Schengen cooperation has made travel easier not only for EU citizens, but also for non-EU nationals. Since the Schengen area was established, all travellers who enter the area lawfully can travel freely within it without being submitted to border checks (for up to three months within a six-month period). Non-EU travellers who would normally need 22 visas to visit all the Schengen Member States can now do this with a single visa . A residence permit issued by a Schengen State replaces the short-term visa normally required for nationals of countries subject to a visa requirement (see the section on borders for details).

3. Which countries are now in the Schengen area?

Since December 2007, 22 EU Member States are in the Schengen area without internal border control. These are Belgium, the Czech Republic, Denmark, Estonia, Germany, Greece, Spain, France, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Austria, Poland, Portugal, Finland, Slovakia, Slovenia and Sweden. In addition, three associated countries currently form part of the Schengen area: Norway, Iceland and Switzerland (the latter since December 2008).

As mentioned earlier, Denmark is in the Schengen area without internal border control. For certain provisions, however, it can choose whether or not to apply a new decision taken to build upon the Schengen acquis (see Protocol on the position of Denmark attached to the Treaty of Amsterdam for details). Ireland and the United Kingdom carry out checks and surveillance at their borders with other EU Member States, but both these Member States have requested to participate in parts of the Schengen acquis, mainly relating to security (cooperation between police forces and the judiciary). An exhaustive list for the United Kingdom can be found in Council Decision 2000/365/EC of 29 May 2000 (with the dates of entry into force specified in Council Decision 2004/926/EC of 22 December 2004); a similar list for Ireland is available in Council Decision 2002/192/EC of 28 February 2002.

Three non-EU Member States, Norway, Iceland and Switzerland, fully apply the Schengen provisions on the basis of specific agreements (agreement with specific agreementNorway and Iceland. agreement with Switzerland). Bulgaria, Cyprus and Romania only partially apply the Schengen acquis at the moment and checks are therefore still carried out at the borders with these three Member States. The Schengen acquis applicable to these three countries is listed in their EU accession treaties.

An agreement on Liechtenstein’s participation in the Schengen area was signed on 28 February 2008.

The precondition for association with the Schengen acquis by non-EU countries is an agreement on free movement of persons between those States and the EU (this is provided for by the Agreement on the European Economic Area in the cases of Iceland, Norway and Liechtenstein and by the Agreement on the free movement of persons in the case of Switzerland).

Member States that are not in the Schengen area ( Ireland, the UK, Bulgaria, Romania and Cyprus) maintain border checks and may require non-EU nationals to have a separate entry visa issued by the non-Schengen country to which they are travelling. Under Directive 2004/38/EC, third-country members of the family of an EU citizen are exempted from the visa requirement when they accompany or join the EU citizen in a Member State other than that of the EU citizen’s nationality, on condition that they have a residence card of a family member of a Union citizen (e.g. a Russian spouse of a German national residing in Belgium and holding a Belgian residence card does not need a visa to enter Bulgaria when they travel there together on holiday).

4. How does the EU maintain its internal security?

The Schengen acquis includes a series of detailed measures designed to compensate for the abolition of internal border controls by tightening security at the Union’s external frontiers. One key requirement is that Member States with an external EU frontier must ensure that proper checks and effective surveillance are carried out at the EU’s external frontiers. Once a person is inside the Schengen area, he or she is free to move around wherever he or she wants for a short period. It is therefore vital that controls at the EU’s external frontiers are efficient enough to stop illegal immigration, drug smuggling and other unlawful activities.

The Schengen provisions also cover closer cooperation and coordination between Member States authorities, including border guards, customs officers, visa authorities and judicial and law-enforcement authorities. One key instrument to secure this cooperation is the Schengen Information System (SIS), a complex database that enables these authorities to exchange data throughout the Schengen area on certain categories of persons and on lost or stolen goods. For example, a police officer in any Schengen State can check whether a person is wanted by law enforcement authorities of another Schengen country or whether a vehicle stopped on the roads has been stolen in any of the Schengen States. The Schengen Information System is an intergovernmental project. Further information on this is available on the SIRENE web pages.

A new Schengen Information System (SIS II) [10KB] based on more recent technologies and providing enhanced functionalities is currently undergoing extensive testing. This project is managed by the European Commission in close cooperation with the Member States. Documents concerning SIS II.

Another powerful tool to counter illegal activities is better document security.

5. Who does what?

The European Commission has the exclusive right of initiative on external border control and short-stay visa policy and on free movement within the Schengen area. This means that the Commission is responsible for proposing policies and action and that the Council votes them into law together with the European Parliament (or, in some cases, after consulting the European Parliament). The Member States are responsible for implementing them.

For full details of the division of powers, see Title IV of the Treaty establishing the European Community, Council Decision 1999/436/EC determining the legal basis for each of the provisions or decisions which constitute the Schengen acquis and Council Decision 2004/927/ECproviding for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty.

The role of the Court of Justice of the European Communities in the area of borders and visas generally does not differ from its standard first pillar powers, with two exceptions: (1) a preliminary ruling may be requested only by the highest competent court or tribunal in a Member State (i.e. a court or tribunal against whose decisions there is no judicial remedy under national law); and (2) the Court of Justice has no jurisdiction over rules or decisions relating to maintaining law and order and to safeguarding internal security.