Freedom of Movement Act: Definition, Regulations, and Significance
The Freedom of Movement Act (FZügG) is a central component of German residence law. It governs the right of entry and residence for nationals of the Member States of the European Union (EU) and their family members in Germany. The Freedom of Movement Act transposes European requirements for freedom of movement into national law and is essential for the practical application of worker mobility and the right of establishment in Germany.
Legal Foundation of the Freedom of Movement Act
The Freedom of Movement Act/EU was enacted on July 30, 2004, as part of the implementation of EU Directive 2004/38/EC (Union Citizens Directive) and entered into force on January 1, 2005. It is the central federal law governing the right of residence for EU citizens and their family members.
Relation to the Residence Act
The Residence Act (AufenthG) is the general law regulating the residence of third-country nationals in Germany. However, for Union citizens and equivalent persons, the Freedom of Movement Act takes precedence, provided it is applicable. Only in cases where the FZügG does not provide an exhaustive regulation does the Residence Act apply as a supplement.
Purpose
The Act implements Article 21 of the Treaty on the Functioning of the European Union (TFEU), guaranteeing the right of establishment and freedom of movement for Union citizens and their family members. It thus serves to facilitate the internal market as well as the pan-European movement of labor and goods.
Scope of the Freedom of Movement Act
The Freedom of Movement Act covers:
- Nationals of EU Member States (Union citizens)
- Nationals of EEA States (Iceland, Liechtenstein, Norway)
- Swiss nationals, provided the freedom of movement agreement so stipulates
- Family members of these persons, regardless of their nationality
Acquisition of Freedom of Movement Entitlement
Entitlement to freedom of movement under the Freedom of Movement Act generally arises by operation of law if the relevant requirements are met, especially for:
- Employees
- Self-employed persons
- Providers and recipients of services
- Students
- Non-employed persons with sufficient means and health insurance coverage
- Union citizens with permanent residence rights
Key Provisions of the Freedom of Movement Act
Entry and Residence
The Freedom of Movement Act stipulates that Union citizens and their family members may enter and reside without a visa, provided they are entitled to freedom of movement. The formal issuance of a residence permit is no longer necessary; however, a so-called residence card may be applied for as proof.
Residence Card and Permanent Right of Residence
Family members of Union citizens who themselves are not nationals of an EU/EEA state can obtain a residence card upon application. After five years of lawful residence, the right of permanent residence can be acquired, granting extensive equal treatment with German nationals in residence law.
Loss of Entitlement to Freedom of Movement
Entitlement to freedom of movement may, according to § 6 FZügG, be revoked for compelling reasons of public order, security, or health. Such a determination leads to the loss of the right of free movement and – combined with a deportation order – the loss of the right of residence in Germany.
Deportation under FZügG
A deportation under the FZügG is designed to be restrictive and is subject to strict requirements in order to uphold the fundamental principle of freedom of movement. The grounds must be compelling and particularly substantiated.
Family Reunification
The Freedom of Movement Act grants Union citizens the right to bring in family members, regardless of their nationality. Family members include, among others, spouses/life partners as well as children under 21 and, under certain conditions, other dependents.
Legal Consequences and Practical Implementation
Registration Law and Notification
Union citizens are subject to the general registration requirement under the Federal Registration Act when entering and residing in Germany. A special residence permit is not required; proof of entitlement to freedom of movement is sufficient (e.g., employment contract, proof of studies, etc.).
Access to the Labor Market
Under worker mobility, Union citizens may take up any gainful employment in Germany and work under the same conditions as German workers. Discrimination on the grounds of nationality is prohibited.
Equal Treatment in Social Security and Tax Law
Freedom of movement also extends to the entitlement to benefits from the social security systems as well as to equal treatment in taxation, provided the relevant requirements under Union law are met.
Legal Protection and Administrative Procedures
Determination of Freedom of Movement Entitlement
Administratively, in individual cases it may be determined whether the conditions for freedom of movement no longer exist. Ordinary legal remedies, such as objection and action before the administrative courts, are available to affected parties.
Legal Remedies
Comprehensive administrative court protection is available against burdensome measures, in particular deportation or residence termination orders. Within the framework of the referral obligation of the Federal Administrative Court or the Court of Justice of the European Union, compliance with EU law is ensured throughout.
International Dimensions
Reference to Union Law
The Freedom of Movement Act thus serves to implement and enforce Union law. Its interpretation and application are strictly guided by the requirements of EU regulations, directives, and the case law of the Court of Justice of the European Union.
Agreements with Third Countries
Swiss nationals enjoy comparable rights due to bilateral agreements. For nationals of third countries, the provisions of the Residence Act apply, unless they are family members of EU/EEA citizens entitled to freedom of movement.
Current Developments and Reform Efforts
Ongoing Adjustments
Due to developments in EU law and various rulings of the Court of Justice of the European Union, the Freedom of Movement Act is regularly subject to adjustments. The dynamic jurisprudence influences in particular the interpretation of the term ‘freedom of movement’ as well as the requirements for the residence of economically inactive Union citizens.
Literature and Web Links
- Legal text: Freedom of Movement Act/EU
- Directive 2004/38/EC of the European Parliament and of the Council
- Annotated commentaries on residence law
See also
- Worker mobility
- Freedom of establishment
- Residence Act
- Union citizens’ law
Frequently Asked Questions
Who falls within the scope of the Freedom of Movement Act?
The Freedom of Movement Act/EU (FreizügG/EU) particularly regulates the residence and rights of EU citizens and their family members in Germany. It applies to persons who can invoke the right of free movement under Union law. This includes Union citizens who work in Germany (worker mobility), are self-employed, are studying, or are not employed but are financially secure and have sufficient health insurance. In addition, family members – regardless of their nationality – benefit from the provisions of the Act. The regulations do not apply to third-country nationals without familial relation to EU citizens and must be distinguished from asylum and residence regulations for non-EU nationals. For citizens of the European Economic Area (EEA) as well as Switzerland, comparable but separate regulations apply.
What residence rights are granted by the Freedom of Movement Act?
The Freedom of Movement Act/EU grants Union citizens and their family members the right to enter and reside in Germany if they meet the conditions of freedom of movement. This includes, in particular, the right for employees, self-employed persons, service providers, students, and financially secure non-employed persons. The right of residence is initially linked to exercise of the relevant activity, can be consolidated through long-term residence, and leads after five years of lawful residence to an entitlement to permanent residence. The statutory regulations specify the standards enshrined in the EU’s primary law and are directly connected to Community law. Family members in principle obtain the same right of residence as the Union citizen whom they accompany or join.
Under what conditions can the right to freedom of movement be withdrawn?
The right to freedom of movement can be revoked in individual cases if there are serious reasons of public order, security, or health. The threshold for withdrawal is significantly higher for Union citizens and their family members than for third-country nationals; particularly strict standards apply after many years of lawful residence. Criminal offenses alone are usually insufficient for withdrawal, unless the person continues to pose a risk. Withdrawals on grounds of public health are to be interpreted narrowly and generally may only occur in the case of diseases of epidemic significance. A formal procedure with the right to be heard and access to legal remedies is mandatory. Furthermore, withdrawal of the right of free movement must always be carried out individually, taking into account the person’s circumstances.
What documentary requirements exist for EU citizens entitled to freedom of movement?
Since the abolition of the certificate of freedom of movement on January 29, 2013, EU citizens are, in principle, no longer required to obtain or present official proof of their residence. However, authorities may require proof on a case-by-case basis that the conditions for residence rights are actually met (e.g. by employment contracts, student enrollment certificates, or insurance proof). If Union citizens do not comply with such a request from the immigration authorities or no longer fulfill the legal requirements, residence-terminating measures may be initiated. This always takes place in accordance with Union law requirements and the principle of proportionality.
What is the legal status of family members of Union citizens?
Family members – regardless of their nationality – are entitled to derivative residence rights if they accompany or join the Union citizen. The law particularly includes spouses, registered partners, as well as, under certain conditions, children up to 21 years old or older children and relatives in the direct ascending and descending line, provided they are supported. They are granted an essentially independent right of residence, which is, however, conditional on the continued residence rights of the Union citizen. In the case of separation or death of the Union citizen, continued residence rights may exist under certain conditions; these entitlements are regulated in detail by law.
Are there special features regarding the permanent right of residence under the Freedom of Movement Act?
After five years of lawful and uninterrupted residence in Germany, Union citizens and their family members acquire the right of permanent residence. This legal status is largely independent of the original purpose of residence and can only be revoked for serious reasons of public security and order. Certain periods of absence are not counted when calculating residence duration. The right is established ex officio, but can also be documented by certificate upon request. The permanent right of residence is associated with further-reaching social protection and increased protection against expulsion.
