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Transposition, Application and Enforcement in Belgium, Italy and the UK Compared Dipartimento di Giurisprudenza Scuola di Dottorato in Diritto Sovranazionale e Diritto Interno Dottorato in Diritto Comparato Settore Scientifico Disciplinare – IUS/02 A COMPARATIVE STUDY ON THE IMPLEMENTATION OF THE FREE MOVEMENT DIRECTIVE: Transposition, Application and Enforcement in Belgium, Italy and the UK Compared IL DOTTORE IL COORDINATORE ANTHONY VALCKE GUIDO SMORTO IL TUTOR GUIDO SMORTO CICLO XXVI - A.A. 2015/2016 To Tiziana To my parents To my sisters Jenny, Vanessa and brother Terence À Baba To my fellow free movers i Preface It is hoped that the results of this study will provide novel insights into the implementation of Directive 2004/38 and contribute more generally to the growing body of scholarship on what has become known as compliance studies. It is also hoped that this study will inspire others to apply a similar approach in studying the implementation of other directives that grant rights to individuals. I wish to thank Ernesto Razzano, Christine Korcz, Anoushka Janssens, Alexander Campenhausen, Marie-Hélène Boulanger, Michal Meduna and Chiara Adamo for their kind assistance in answering my questions and helping me obtain information that has found its way into this study. My heartfelt thanks go out to my supervisor Guido Smorto for giving me the opportunity to pursue my research interests and for providing me with invaluable guidance throughout the elaboration of this study. Anthony Valcke Palermo, January 2016 ii Contents CHAPTER 1. INTRODUCTION 1.1 Introductory Remarks………………………………………………………………………………………………1 1.2 The Proposed Research ……………………………………………………………………………………………6 1.3 Terminology…………………………………….…………………………………………………………………….16 1.4 Research Questions…………………………………………………………………………………………………19 1.5 Research Methods………………………………………………………………………………………………….20 CHAPTER 2. THE SIGNIFICANCE OF DIRECTIVE 2004/38 AND THE CHOICE OF MEMBER STATES 2.1 Free Movement of Persons as a Driver of European Integration…………………………………..28 2.2 Free Movement of Persons under Challenge……………………………..………………………………44 2.3 The Choice of Member States…………………………………………………………………………………..50 CHAPTER 3. THE IMPLEMENTATION OF EU DIRECTIVES: TRANSPOSITION, APPLICATION AND ENFORCEMENT 3.1 General Obligations to Implement Directives……………………………………………………………56 3.2 Obligations Relating to the Form of Transposition……………………………………………………65 3.3 Obligations Relating to the Methods of Transposition…………………………………………………77 3.4 Implications for the Drafting of National Implementing Measures………………………………90 3.5 Obligations Relating to the Application of Directives…………………………………………………101 3.6 Obligations Relating to the Enforcement of Directives………………………………………………108 CHAPTER 4. IMPLEMENTATION OUTCOMES 4.1 Compliance and Implementation Outcomes……………………………..…………………………….122 4.2 Transposition Outcomes……………………………..………………………………………………………..124 4.3 Application Outcomes…….………………………..…………………………………………………………..129 4.4 Enforcement Outcomes…………….…………..…..…………………………………………………………136 4.5 Motivations of the Member States Towards Non-Compliance…………………………………..145 4.6 Factors Affecting Non-Compliance……………………………..…………………………………………155 CHAPTER 5. THE CONSEQUENCES OF NON-COMPLIANCE 5.1 Supervision of Implementation……………………………………………………………………………….177 5.2 Consequences of Non-Compliant Implementation at EU Level…………………………………190 5.3 Consequences of Non-Compliant Implementation at National Level………………………….204 CHAPTER 6. THE OBLIGATIONS CONTAINED IN DIRECTIVE 2004/38 6.1 Overview……………………………….……………………………………………………………………………..217 6.2 Legislative history……………………………….……………………………………………………………….218 6.3 Territorial Scope…………………………………………………………………………………………………..219 6.4 Beneficiaries of the Directive……………………………….………………………………………………..220 6.5 Entry and Exit……………………………….…………………………………………………………………….228 6.6 The Right of Residence……………………………….………………………………………………………..230 6.7 The Right of Permanent Residence……………………………….………………………………………..236 6.8 Equality of Treatment……………………………….………………………………………………………….239 6.9 Restrictions on Entry and Residence……………………………….……………………………………..242 6.10 Procedural Safeguards and Rights of Appeal……………………………….…………………………245 6.11 Ancillary Provisions……………………………….……………………………………………………………248 iii CHAPTER 7. THE IMPLEMENTATION OF THE DIRECTIVE IN BELGIUM 7.1 Transposition in Belgium……………………………….……………………………………………………250 7.2 Application in Belgium……………………………….…………………………………………………………276 7.3 Enforcement in Belgium……………………………….………………………………………………………282 7.4 Conclusions on Implementation in Belgium……………………………….…………………………..289 CHAPTER 8. THE IMPLEMENTATION OF THE DIRECTIVE IN ITALY 8.1 Transposition in Italy……………………………….…………………………………………………………..290 8.2 Application in Italy……………………………….………………………………………………………………311 8.3 Enforcement in Italy……………………………….…………………………………………………………….315 8.4 Conclusions on Implementation in Italy……………………………….…………………………………318 CHAPTER 9 THE IMPLEMENTATION OF THE DIRECTIVE IN THE UK 9.1 Transposition in the UK……………………………….……………………………………………………….320 9.2 Application in the UK……………………………….………………………………………………………….360 9.3 Enforcement in the UK……………………………….…………………………………………………………367 9.4 Conclusions on Implementation in the UK……………………………….…………………………….375 CHAPTER 10. THE IMPLEMENTATION OF DIRECTIVE 2004/38 COMPARED 10.1 Transposition Compared……………………………….…………………………………………………….376 10.2 Application Compared……………………………….……………………………………………………….380 10.3 Conclusions……………………………….………………………………………………………………………400 CHAPTER 11. CONCLUSIONS AND RECOMMENDATIONS 11.1 Improving Implementation……………………………….…………………………………………………403 11.2 Recasting Directive 2004/38 as a Regulation……………………………….……………………….404 11.3 Enhancing the Commission’s Powers of Supervision……………………………….…………….409 11.4 Collating Statistics on the Free Movement of Persons……………………………….……………411 11.5 Encouraging Decentralised Enforcement……………………………….………………………………415 11.6 Closing Remarks……………………………….……………………………………………………………......419 Bibliography….……………..……………….…………………………………………………….……………………420 iv CHAPTER 1. INTRODUCTION ‘Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly … it often makes all other rights meaningful – knowing, studying, arguing, exploring, conversing, observing and even thinking.’ Aptheker v Secretary of State1 Contents: 1.1 Introductory Remarks – 1 1.2 The Proposed Research – 6 1.3 Terminology – 16 1.4 Research Questions – 19 1.5 Research Methods – 20 1.1 Introductory Remarks The year 2016 will see us celebrate the ten-year anniversary of the entry into force of Directive 2004/382 that was intended to simplify and strengthen the free movement rights of EU citizens. Yet a decade later, those fine ideals still appear like an unfulfilled promise for a significant proportion of the 14 million citizens who reside in a European country other than their own3 and the 300 million citizens who make use of their right to travel within the European Union 1 Aptheker v Secretary of State, 378 US 500, 519-520 (1964) (Douglas J concurring). 2 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L 158/77 (hereafter the Free Movement Directive, Directive 2004/38 and the Directive). The Directive was incorporated at point 3 of Annex VIII to the Agreement on the European Economic Area between the European Communities, their Member States and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Principality of Liechtenstein, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation [1994] OJ L 1/3 by EEA Joint Committee Decision No 158/2007 of 7 December 2007 [2008] L124/20. 3 Eurostat, Migration and migrant population statistics (migr_pop1ctz) <http://ec.europa.eu/eurostat/statistics- explained/index.php/Migration_and_migrant_population_statistics> accessed on 9 May 2015. As at 1 January 2014, there were 14.3m EU citizens living in a country other than their country of nationality. See also Eurostat, ‘Foreign citizens living in the EU Member States’. News Release 230/2015 (18 December 2015). [1] every year.4 If the results of the 2012 EU Citizenship consultation are any indication of the scale of the problem, almost one in five EU citizens have encountered difficulties when making use of their right of free movement in the EU.5 The Free Movement Directive is the key EU legal instrument that regulates the free movement of persons within the thirty-one countries that make up the European Economic Area. Adopted in 2004, it aimed to consolidate the existing different EU legal instruments on residence rights, reflect developments in the case law on EU citizenship, simplify visa and residence formalities and improve the rights of family members. However, the implementation of Directive 2004/38 by the Member States has been far from satisfactory and the Commission has deplored the fact that not a single Member State had been able to implement the Directive correctly.6 Despite the Commission’s acknowledgement that the free movement of persons is ‘one of the pillars of EU integration’ which warrants a ‘rigorous enforcement policy’, 7 the progress made in improving the situation in certain Member States has been disappointing. Although the closure of infringement 4 Eulalia Claros, Alessandra Di Tella, ‘Briefing: Tourism in the EU Economy’, (European Parliament
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