Karin Fløistad: PhD Candidate, European University Institute; practicing lawyer at Norwegian law firm Simonsen Vogt Wiig
The UK’s post-Brexit relationship with the EU often involves discussions about the free movement of people, with the EEA Agreement frequently cited as a potential model. This piece will analyze two key distinctions between the EEA Agreement’s approach to the free movement of people and that of full EU membership.
The EEA Agreement integrates the EU’s single market with three members of the European Free Trade Association (EFTA): Norway, Iceland, and Liechtenstein. However, this doesn’t equate to EU membership for these countries. This integration theoretically provides comparable rights and responsibilities in areas like free movement (including people) and competition law. Certain areas like agricultural and fish products (Article 8(3) EEA) and tax harmonization are excluded from the Agreement.
Being bound by free movement rules as an EU member state versus as an EEA Agreement signatory presents two primary distinctions. The first is the absence of EU citizenship for EEA nationals. Secondly, the Agreement doesn’t cover immigration from non-EU nations. Therefore, while EFTA states have independently adopted some EU immigration policies like the Schengen open borders and the Dublin asylum regulations, free movement under the EEA differs significantly from the EU. Notably, legal interpretations, particularly EFTA Court rulings on citizen movement, have blurred the lines regarding these discrepancies.
Legally, these differences are evident in the absence of corresponding provisions in the EEA Agreement that mirror relevant EU primary law. Articles 20-25 of the Treaty on the Functioning of the European Union (TFEU), establishing EU citizenship, and Article 79 TFEU, outlining non-EU citizen rights, have no EEA equivalents. This disparity extends to secondary legislation. EU laws regarding non-EU nationals, such as Directive 2003/86/EC on family reunification and Directive 2003/109/EC on long-term resident rights, are not incorporated into EEA Annexes. These distinctions were recently highlighted in a Joint Declaration by the Contracting Parties when the EU’s citizens’ Directive (key legislation on free movement of citizens) was integrated into EEA law (Decision by the EEA Joint Committee No 158/2007).
The Decision, amending Annexes V and VIII, incorporated the citizens’ Directive into EEA law, making typical adjustments like replacing “Union citizen(s)” with “national(s) of EC Member States and EFTA states.” Enacted in the EEA on March 1, 2009, the citizens’ Directive has been central to four EFTA Court cases: E-4/11 Clauder (Liechtenstein), E-15/12 Wahl (Iceland), E-26/13 Gunnarsson (Iceland), and recently, E-28/15 Jabbi (Norway).
Since the late 1990s, the Court of Justice of the European Union (CJEU) has leveraged the concept of Union citizenship to establish rights like cross-border social security benefits, ensuring citizens’ access to healthcare abroad funded by their home welfare systems, facilitating student financing portability, and securing rights for non-EU family members of EU citizens. This body of case law is rooted in the fundamental principle of Union citizenship. Consequently, the development of Union citizenship has influenced EU law, impacting national welfare and immigration frameworks through EU institutional practices. Essentially, Union citizenship strengthens and deepens EU integration. Free movement rights, decoupled from purely economic considerations, contribute to a sense of European unity. The ideal is for citizens to move freely, obligating states to dismantle barriers to movement.
This objective is absent in the economically driven EEA Agreement. Yet, the Agreement’s intricate legal structure emphasizes aligning with and dynamically evolving alongside EU law, as evidenced in institutional practices. (See paragraph 60 of the Jabbi case for a recent example.) Consequently, EU/EFTA bodies interpreting EEA law have largely mirrored EU legal developments, incorporating similar individual rights and corresponding state obligations within the EEA legal framework, despite the absence of parallel provisions on EU citizenship. This includes social security rights for non-economically active individuals (see Cases E-5/06 ESA v Liechtenstein, E-4/07 Porkelsson, E-3/12 Jonsson, E-6/12 on the export of childcare benefits, E-26/13 Gunnarsson, and C-431/11 UK v Council), rights for patients seeking treatment abroad (see Joined Cases E-11/07 and 1/08 Slinning and Rindal), the export of student financial aid (see EFTA Surveillance Authority Cases No 69199 and No 71579), and rights for non-EU family members of EEA citizens (see Case E-4/11 Clauder and pending EFTA Surveillance Authority Case No 73930).
The EU/EFTA institutional approach to free movement within the EEA Agreement arguably reached a turning point with E-28/15, the Jabbi case. This case grappled with a central issue in evolving EEA law: the potential right of a non-economically active EFTA state national, who had exercised free movement rights and received welfare benefits, to reunite with a non-EU family member. While acknowledging the differences in the legal frameworks governing free movement in the EEA and the EU (especially concerning EU citizenship - see paragraph 66), the EFTA Court’s advisory opinion leaned toward granting such rights. The Court pointed to a discrepancy stemming from the EU’s revised primary law in the Maastricht, Amsterdam, Nice, and Lisbon Treaties, which were not mirrored in the main body of the EEA Agreement. It further underscored these differences by explicitly stating its reliance on legal sources within EEA law, unlike the CJEU in a comparable 2014 case (discussed here). This limitation prevented the EFTA Court from invoking Union citizenship as a legal basis (see paragraphs 68 and 71).
The central question before the EFTA Court (to which it responded affirmatively) was whether a non-economically active EEA citizen seeking family reunification with a third-country national (TCN) held rights under EEA law upon returning to their home country. In essence, the question was whether national law solely governed this scenario or if EEA law also provided certain rights.
The citizens’ Directive’s limited scope made this question of scope complex within the EEA context. It typically applies to EEA citizens residing in a host state, except for specific situations outlined in Chapter 2 (e.g., exit visas), which were not relevant to this case. Instead, Jabbi focused on an individual’s rights vis-à-vis their home state after residing in another EEA state and subsequently returning. In the EU, rights against the home state for a non-economically active citizen are covered by the concept of Union citizenship, enshrined in EU primary law articles that lack EEA counterparts. Through its advisory opinion in Jabbi, the EFTA Court took further steps to align free movement rights in the EEA with those in the EU, transposing relevant CJEU case law (discussed here) into the EEA legal framework, despite the discrepancies.
However, the CJEU’s body of case law on Union citizenship encompasses situations where no similar authority exists in the EEA. For example, the Ruiz Zambrano case law (Case C-34/09) grants rights to EU citizens solely based on their EU citizenship, independent of movement between EEA states. Moreover, the Union citizenship case law incorporates elements of financial solidarity, legitimizing the impact of EU law on national welfare systems, as seen in cases concerning student rights against their home states, such as C-359/13 Martens, C-220/12 Thiele, and C-585/11 Prinz and Seeberger (discussed here). This aspect of mutual solidarity was also key in early case law establishing Union citizenship as a fundamental status, such as C-184/99 Grzelczyk and C-209/03 Bidar regarding students’ access to welfare benefits in their host states. Decisional practices of the EFTA Surveillance Authority suggest similar rights for students in the EEA. A similar interpretation might be inferred from the EFTA Court’s opinion in Jabbi, specifically paragraph 51. However, Jabbi notably reflects a renewed effort by the EFTA Court to temper its decision’s influence on national welfare systems and to explicitly acknowledge the distinctions between the two legal frameworks.
In paragraphs 78 and 82 of the Advisory Opinion, the EFTA Court suggests applying Article 7(1)(b) of the citizens’ Directive by analogy to the situation of a returning citizen. It argues that a derived right hinges on fulfilling the conditions outlined in this Article (in addition to other criteria established in CJEU case law on Union citizenship, such as “genuine stay” and length of stay, for the Union citizen to be considered in a cross-border situation). One possible interpretation of these statements is the potential for maintaining national family reunification requirements, specifically regarding the sponsor’s financial resources. This interpretation stems from the Court’s repeated emphasis on conditioning family reunification in the home state upon meeting the criteria of Article 7(1)(b), even after returning from another EEA state (see paragraphs 80 and 82).
Given this interpretation, it is debatable whether Mr. Jabbi’s rights under EEA law offer any concrete benefit. His right to family reunification ultimately depends on the sponsor satisfying the conditions of sufficient resources and health insurance stipulated in Article 7(1)(b) of the Citizens’ Directive. These conditions aim to prevent undue burdens on national welfare systems. Here, the EFTA Court seems to defer to national conditions in Norwegian immigration law, which links family reunification to specific financial resource requirements. Another potential consequence of this interpretation is that both static citizens and returning non-economically active citizens might be treated similarly under domestic legislation.
The CJEU’s case law on Union citizenship has consistently aimed to secure effective rights for Union citizens and eliminate discrepancies between economically active and inactive individuals. However, recent restrictive CJEU case law concerning host state obligations based on Union citizenship, such as C-333/13 Dano, C-67/14 Alimanovic, and the recent case restricting the export of child care benefits from the UK, C-308/14 (discussed here), should be acknowledged. The EFTA Court’s opinion in Jabbi may align with this recent case law by exhibiting deference in its decisions that impact domestic welfare systems. However, the Jabbi case does not reflect the essence of Union citizenship case law, particularly the home state obligations established in recent CJEU rulings on student rights. On the contrary, while striving for uniformity, the EFTA Court appears more hesitant, even highlighting potential disparities between the two legal orders due to inherent differences in their legal frameworks.
EU/EFTA institutions appear consistently committed to harmonizing free movement rights within the EEA with those of the EU. The fundamental difference, however, lies in the nature of the provisions on free movement of people in the EEA Agreement compared to their EU counterparts. This was highlighted in the Wahl case (paragraph 75), but the Jabbi case represents the first time the EFTA Court elaborates on these distinctions (particularly in paragraph 62). Free movement within the EEA primarily centers around the economic objective of the single market, granting rights to economically active individuals. Beyond this group, rights are restricted. There is neither Union citizenship nor the overarching aim of an “ever closer Union.” Furthermore, rights of non-EU citizens are generally outside the Agreement’s purview. Additionally, institutional practice within the EEA is contingent on decisions made by the Contracting Parties within the EEA Joint Committee. Therefore, free movement of people under the EEA diverges from the EU framework. Whether these distinctions are significant enough to impact future association agreements between the UK and the EU remains to be seen.
Barnard & Peers: chapter 13, chapter 25
JHA4: chapter I:6
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