The EU Commission Requests the UK State to comply with EU Free Movement Law

Each Member State is responsible for the implementation of EU law. Usually this requires the adoption of an implementing measure before a specified deadline, or the correct application of measures already adopted within that Member States own legal system. 

Under the Treaty on the Functioning of the European Union (Article 258) the Commission of the European Communities is responsible for ensuring that EU law is correctly applied.  When a Member State fails to comply with EU law, the Commission has powers (called action for non-compliance) to bring the infringement to an end and, where necessary, may refer a case to the European Court of Justice. The non compliance may consist either of action or omission, and it may be any authority of the State which is responsible for the infringement, including central, regional or local.

A letter of formal notice is the first stage of the Commission’s non compliance procedure, in which the Commission requests a Member State to submit its observations on an identified problem regarding the application of EU law within a given time limit. The Commission may then serve a reasoned opinion on the Member State to set out the Commission’s position on the infringement and to request the Member State to comply within a given time limit. Referral by the Commission to the Court of Justice would be the final step in holding a Member State accountable for on going breaches of EU Law.

On the 6^th  April 2012, the European Commission has served on the United Kingdom a reasoned opinion, which outlines the current breaches of EU Free Movement Law actively being pursued by the UK State. The opinion includes a formal notice that the UK has two months to mend it’s hand and comply with European Union rules on the free movement of EU citizens and their families across the EU. The breaches of EU Free Movement Law that are addressed in the Notice are summarized by the Commission as follows (See Commission's press release here );

“The Free Movement Directive guarantees that non-EU family members of EU citizens who hold a valid residence card issued by one EU country can travel together with EU citizens within the European Union without an entry visa. The UK laws do not grant this important right which lies at the heart of free movement.

The United Kingdom does not allow extended family members of EU citizens to apply to have their residence in the UK considered under EU law when they were lawfully residing in the UK before the arrival to the UK of the EU citizen on whom they are dependent.

Under the Free Movement Directive, EU citizens who settle in another EU country but do not work there may be required to have sufficient resources and sickness insurance. The United Kingdom, however, does not consider entitlement to treatment by the UK public healthcare scheme (NHS) as sufficient. This breaches EU law.

Finally, the United Kingdom does not issue workers from Romania and Bulgaria during the first 12 months with the same residence documents as workers from other EU Member States. While EU law allows the United Kingdom to temporarily keep in place a work-permit scheme for workers from Bulgaria and Romania, those who have a work permit have the same right to reside as other EU workers and must be issued the corresponding residence documents.”

In comparing the position in Ireland, we would submit that this State is actively infringing the EU law rights indicated in the first, second paragraphs above. We suggests that where an individual in this State has their EU Free Movement rights breached, they should submit a written complaint to the EU Commission (contact details for the Dublin Office here) and thus similar action may be followed against this State. 

Brophy Solicitors

1.5.12