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European freedom of movement
All information on the EU Freedom of Movement Act (FreizügG/EU) and the migration of EU citizens within Europe
... what European freedom of movement is and what freedom of movement rights EU citizens have in Germany
... whether EU citizens are allowed to work in Germany and what the conditions for European freedom of movement are
... how the EU right of permanent residence can be acquired and what the requirements are
... the conditions under which the right to freedom of movement can be withdrawn
HERE YOU LEARN ...
Written by: Attorney at Law (Berlin)
Publication date: 24.05.2024
Estimated reading time: 9 min.
1 What is European freedom of movement?
2 To whom does European freedom of movement apply?
3.1 Entry and residence of EU citizens in Germany
3.2 Work and self-employment of EU citizens in Germany
3.3 Residence for job-seeking purposes for EU citizens
3.4 Social benefits for EU citizens in Germany
4 Permanent EU residence
5 Loss of the right to freedom of movement
Table of Content
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1 What is European freedom of movement?
European freedom of movement is one of the most fundamental principles of the European Union (EU). Free movement rights are intended to connect European countries by removing barriers between member states and enabling European citizens to travel freely between all European countries (abolition of internal borders).
The following freedom of movement rights exist:
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Freedom of movement: freedom of movement of all European citizens within the EU (Art. 45 ff. TFEU/ex-Article 39 ff. EC Treaty),,
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Freedom of movement for workers: right of all workers to work within the EU and to travel to and live in another country to work (Art. 45 - 48 TFEU, ex Art. 39 - 42 TEC),
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Freedom of establishment: Right to establish oneself in other countries and to set up a company there (Art. 49 ff. TFEU/ex-Article 43 ff. TEC),
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Freedom to provide services: Right to provide services in other EU states (active freedom to provide services) or to receive services (passive freedom to provide services) (Art. 56 - 62 TFEU, ex Art. 49 - 55 TEC),
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free movement of capital and payments (Art. 63 - 66 TFEU; ex Art. 56 - 59 TEC).
As a result, European freedom of movement primarily means that European citizens are free to travel, work and settle within the EU. Decisions by the administrative authorities of the member states that conflict with this right are unlawful and can be overturned by the European Court of Justice or the national courts.
2 To whom does European freedom of movement apply?
European freedom of movement rights apply in principle to all EU citizens (i.e. people who are nationals of another member state) and their family members (family reunification with EU citizens). However, the freedom of movement of EU citizens in Germany is subject to the following conditions in accordance with Section 2 FreizügG/EU:
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European employees must have a job in Germany (§ 2 Para. 2 No. 1 FreizügG/EU),
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Self-employed persons and freelancers must be self-employed and (if necessary) have the relevant permits (Section 2 (2) no. 2 FreizügG/EU)
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Job-seekers must actually be looking for a job and may initially only stay in Germany for 6 months (Sec. 2 (2) No. 1a FreizügG/EU),
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Unemployed persons and students must have adequate health insurance cover and sufficient financial means to cover their living expenses (Section 4 FreizügG/EU),
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family members under the conditions for family reunification with EU citizens (§§ 3, 3a FreizügG/EU).
However, whether the relevant requirements for EU citizens are met is not checked at the border, but only within Germany if there is a corresponding reason. In this respect, EU citizens, for example, do not have to prove their status to the immigration authority, but only to the respective authority when applying for certain benefits or permits. EU citizens are also not issued a corresponding certificate of the existence of the right to freedom of movement, but the right to freedom of movement simply exists without the foreigners authority issuing a residence permit, for example (except in the case of family reunification with EU citizens).
Do the free movement rights of EU citizens also apply to UK nationals?
After Brexit, free movement rights will no longer apply to UK nationals. However, the Brexit agreements contain special provisions that declare parts of the Freedom of Movement Act to continue to apply to British nationals (see Section 16 FreizügG/EU). In this respect, British nationals were able to make use of their freedom of movement rights in Germany until the end of the transition period on 31 December 2020 without submitting a corresponding application. British citizens were issued a corresponding document for this purpose (‘GB residence document’). This document declaratively certifies the right of residence for British nationals.
From 2021, however, the right to freedom of movement will no longer apply to British nationals or their family members. Corresponding residence cards and permanent residence cards must be withdrawn and the residence of nationals is now governed as usual by the Residence Act. However, British nationals are still particularly privileged, as they are allowed to enter Germany without a visa (Visa Regulation), can apply for a residence permit in Germany directly without a visa (Section 41 Residence Ordinance) and can settle here under simplified conditions (Section 26 Employment Ordinance). In addition, under the Brexit agreement, Britons can carry out various business activities in Germany without the need for a work permit (as would otherwise be necessary) (see Art. 140 et seq. of the Trade and Cooperation Agreement between the EU and the UK).
3 What are persons entitled to freedom of movement allowed to do in Germany?
3.1 Entry and residence of EU citizens in Germany
EU citizens entitled to freedom of movement have special rights in Germany. In particular, they can enter Germany without a visa and do not require a residence permit to stay in Germany (Section 2a (1) FreizügG/EU). In contrast to other third-country nationals, EU citizens can also receive certain social benefits in Germany (see below).
3.2 Work and self-employment of EU citizens in Germany
In contrast to third-country nationals, EU citizens are also privileged under labour law in Germany, as they do not require a work permit. However, this only applies if there is a corresponding employment relationship, which is to be defined as work. According to the TFEU, every EU citizen who actually carries out dependent employment aimed at generating income is an employee if this activity is not completely subordinate. According to case law, work of 10-12 hours per week (see ECJ judgement of 3 June 1986 in the case of Kempf, ref. 139/85) or a mini-job with a minimum salary of 280 euros per month (LSG NRW, L 20 B 184/07 AS ER). In any case, 10 hours/month spread over two days (BSG B 4 AS 2/21 R) or a salary of only 120 euros (LSG BBG L 5 AS 880/13 ER, 24.04.2023) are not sufficient to be considered an employee. So if you are employed to the extent mentioned, you are considered an employee and can stay in Germany to work without further ado.
3.3 Residence for the purpose of seeking employment for EU citizens
The free movement of labour also applies to job applications. EU citizens can stay in Germany for a period of up to 6 months in order to look for work (ECJ, judgement of 26 February 1991 - C-292/89 (Antonissen)). Under certain circumstances, this period may be extended (e.g. in the case of pregnancy, childcare, illness or if a concrete job offer already exists). In any case, this applies for as long as it can be proven that a job is actually being sought (Art. 14 para. 4 no. b EU Directive).
3.4 Social benefits for EU citizens in Germany
In principle, foreign nationals in Germany are not allowed to receive social benefits from the government (or only under certain conditions). However, this does not apply to European nationals. In this respect, Europeans can also receive social benefits in Germany as normal (§ 7 SGB II). However, EU citizens must be employed or self-employed for the first 3 months of their stay.
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When can EU citizens receive social benefits?
EU citizens can receive social benefits if they are temporarily unable to work (e.g. as a result of illness or an accident) or if they have involuntarily lost their job (e.g. as a result of redundancy). If you have been employed for more than one year, you can receive social assistance for an unlimited period. If you have been working for less than a year, you can only receive benefits for 6 months. To receive benefits, EU citizens must have their unemployment confirmed by the relevant Federal Employment Agency.
4. permanent right of residence for EU citizens
EU citizens and their family members can acquire a permanent right of residence in order to reside permanently in Germany. The EU permanent residence permit (Section 4a FreizügG/EU) should not be confused with the EU permanent residence permit (Section 9a AufenthG). While the EU permanent residence permit is merely a national residence permit for third-country nationals based on European law (Permanent Residence Directive/Directive 2003/109/EC), the right of permanent residence under the Freedom of Movement Act is a right of residence for EU citizens.
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The permanent right of residence for EU citizens has the advantage that EU citizens can reside in Germany without fulfilling the requirements for freedom of movement. This is relevant for unemployed EU citizens, for example, as they can normally only stay in Germany for up to 6 months (Section 2 (2) no. 5 FreizügG/EU). This limit does not apply to permanent residents. The right of permanent residence can also be important for family members of EU citizens who are third-country nationals. In this respect, they can also reside in Germany with the right of permanent residence, for example, if the marriage is divorced, whereas a residence permit would normally be required for this.
The EU right of permanent residence is acquired if the EU citizen or family member has resided legally in Germany for 5 years (§ 4a FreizügG/EU). Under certain conditions, this period can be reduced to three years (Section 4a (2) FreizügG/EU). Once the relevant period of residence has been reached, a corresponding application can be submitted to the immigration authority. The immigration authority will then certify that the EU citizen or their family members have acquired the right of permanent residence in the EU (Sec. 5 (5) FreizügG/EU).
5. Loss of the right to freedom of movement
Once EU citizens and their family members have acquired the right to freedom of movement, this right can also be revoked. In this respect, the immigration authority can withdraw the certificate on the right of permanent residence or the residence card or permanent residence card in accordance with § 6 Para. 1 FreizügG/EU if the conditions for the right of free movement no longer apply (§ 5 Para. 4 FreizüG/EU) or if there is a threat to public safety (§ 6 Para. 1 FreizügG/EU). However, whether this is the case can only be reviewed for ‘special reasons’ (Section 5 (3) FreizügG/EU).
Lawful employment contract with a German company
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