HERE YOU LEARN ...
... 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 are for European freedom of movement
... how to acquire permanent EU residence status and what requirements apply
... under what conditions the freedom of movement rights can be withdrawn
Written by:
Attorney
Publication date:
13.12.2023
Reading time
10 mins
Table of Content
1. What is European freedom of movement?
2. Who is entitled to European freedom of movement?
3. What are EU citizens entitled to freedom of movement allowed to do in Germany?
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 residence in the EU
5. Loss of the right to freedom of movement
6. FAQ (Freedom of Movement Rights/Freedom of Movement Act/EU)
1. What is European freedom of movement?
European freedom of movement is one of the most fundamental principles of the European Union (EU). The freedom of movement rights are intended to connect European countries by removing barriers between member states and allowing European citizens to travel freely between all European countries ( abolition of internal borders ).
The following freedom of movement rights exist:
Freedom of movement: freedom of movement for all European citizens within the EU (Article 45 et seq. TFEU/ex-Article 39 et seq. EC Treaty),
Freedom of movement for workers: the right of all workers to work within the EU and to travel to another country to work and to live there (Articles 45 - 48 TFEU, ex-Articles 39 - 42 EC),
Freedom of establishment: right to settle in other states and to set up a business there (Article 49 et seq. TFEU/ex-Article 43 et seq. EC Treaty),
Freedom to provide services: Right to provide services (active freedom to provide services) or to receive services (passive freedom to provide services) in other EU countries (Articles 56 - 62 TFEU, ex-Articles 49 - 55 EC Treaty),
free movement of capital and payments (Articles 63 - 66 TFEU; ex-Articles 56 - 59 EC).
In summary, European freedom of movement means above all that European citizens can travel, work and settle freely within the EU. Decisions by the administrative authorities of the Member States that contradict this right are unlawful and can be overturned by the European Court of Justice or the national courts.
2. Who is entitled to European freedom of movement?
European freedom of movement rights apply in principle to all EU citizens (i.e. people who have the nationality of another Member State ) and to their family members (family reunification with EU citizens).
However, the freedom of movement of EU citizens in Germany is subject to the following conditions according to Section 2 FreizügG/EU:
European workers must have a job in Germany (Section 2 Paragraph 2 No. 1 FreizügG/EU),
Self-employed persons and freelancers must pursue a corresponding self-employed activity and (if necessary) have the appropriate permits (Section 2 Paragraph 2 No. 2 FreizügG/EU)
Job seekers must actually look for a job and may initially only stay in Germany for 6 months (Section 2 Paragraph 2 No. 1a FreizügG/EU),
Unemployed people and students must have adequate health insurance coverage and sufficient financial means to secure their livelihood (§ 4 FreizügG/EU),
Family members under the conditions of 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 when a relevant occasion arises. In this respect, for example, EU citizens do not have to prove their status to the immigration authorities, but only to the relevant authorities when applying for certain benefits or permits. EU citizens are also not issued with a corresponding certificate confirming that they have the right to freedom of movement; the right to freedom of movement simply exists without the immigration authorities issuing a residence permit, for example (except in the case of family reunification with EU citizens).
However, whether the relevant requirements for EU citizens are met is not checked at the border, but only within Germany when a relevant occasion arises. In this respect, for example, EU citizens do not have to prove their status to the immigration authorities, but only to the relevant authorities when applying for certain benefits or permits. EU citizens are also not issued with a corresponding certificate confirming that they have the right to freedom of movement; the right to freedom of movement simply exists without the immigration authorities issuing a residence permit, for example (except in the case of family reunification with EU citizens).
Do the freedom of movement rights of EU citizens also apply to British nationals (Brexit migration law)?
After Brexit, the freedom of movement rights no longer apply to citizens of the United Kingdom. However, the Brexit agreements contain special provisions that declare parts of the Freedom of Movement Act to continue to apply to British citizens (see Section 16 of the Freedom of Movement Act/EU). In this respect, British citizens were able to make use of the freedom of movement rights in Germany until the end of the transition period on December 31, 2020 without submitting a corresponding application. British citizens were issued a corresponding document for this purpose (“ GB residence document ”). This document was used to declaratively certify the right of residence for British citizens.
From 2021, however, the right of freedom of movement will no longer apply to British nationals or their family members. Corresponding residence cards and permanent residence cards must be confiscated and the residence of nationals is now governed by the Residence Act as usual. However, British nationals are still particularly privileged , as they are allowed to enter without a visa (Visa Regulation), can apply for a residence permit in Germany directly without a visa (Section 41 of the Residence Regulation) and can settle here under simplified conditions (Section 26 of the Employment Regulation). In addition, according to the Brexit agreement, Britons can carry out various business activities in Germany without the need for a work permit (as is otherwise necessary) (see Articles 140 ff. of the Trade and Cooperation Agreement between the EU and the United Kingdom).
From 2021, however, the right of freedom of movement will no longer apply to British nationals or their family members. Corresponding residence cards and permanent residence cards must be confiscated and the residence of nationals is now governed by the Residence Act as usual. However, British nationals are still particularly privileged , as they are allowed to enter without a visa (Visa Regulation), can apply for a residence permit in Germany directly without a visa (Section 41 of the Residence Regulation) and can settle here under simplified conditions (Section 26 of the Employment Regulation). In addition, according to the Brexit agreement, Britons can carry out various business activities in Germany without the need for a work permit (as is otherwise necessary) (see Articles 140 ff. of the Trade and Cooperation Agreement between the EU and the United Kingdom).
3. What are people entitled to freedom of movement allowed to do in Germany?
3.1 Entry and residence of EU citizens in Germany
EU citizens who are 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, Paragraph 1 of the Freedom of Movement Act/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 privileged in Germany under labor law, as they do not need 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 is an employee who actually carries out dependent employment aimed at earning an income, provided that this activity is not completely subordinate. According to case law, in any case, work of 10-12 hours per week (see ECJ ruling of June 3, 1986 in Kempf, case no. 139/85) or a mini-job with a minimum salary of 280 euros per month is carried out (LSG NRW, L 20 B 184/07 AS ER). In any case, 10 hours per 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, April 24, 2023) are not sufficient to be considered an employee. If you carry out employment to the extent mentioned, you are considered an employee and can stay in Germany to work without any problems.
3.3 Residence for job-seeking purposes for EU citizens
The freedom of movement for workers also applies to applying for jobs. EU citizens can stay in Germany for a period of up to 6 months to look for work (ECJ, judgment of 26.02.1991 - C-292/89 (Antonissen)). Under certain circumstances, this period can be extended (e.g. in the case of pregnancy, childcare, illness or if a specific job offer already exists). This applies in any case as long as it can be proven that a job is actually being sought (Article 14 paragraph 4 no. b of the Union Directive).
3.4 Social benefits for EU citizens in Germany
In principle, foreigners in Germany are not allowed to receive social benefits from the government (or only under certain conditions). However, this does not apply to European citizens. Europeans can also receive social benefits in Germany as normal (Section 7 of the Social Code II). However, EU citizens must be employed or self-employed for the first three months of their stay.
When can EU citizens receive social benefits?
EU citizens can receive social benefits if they are temporarily unable to work (e.g. due to illness or an accident) or if they have lost their job involuntarily (e.g. due to dismissal). If you have been working for more than a year, you can receive social benefits indefinitely. 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.
3.4 Social benefits for EU citizens in Germany
In principle, foreigners in Germany are not allowed to receive social benefits from the government (or only under certain conditions). However, this does not apply to European citizens. Europeans can also receive social benefits in Germany as normal (Section 7 of the Social Code II). However, EU citizens must be employed or self-employed for the first three months of their stay.
When can EU citizens receive social benefits?
EU citizens can receive social benefits if they are temporarily unable to work (e.g. due to illness or an accident) or if they have lost their job involuntarily (e.g. due to dismissal). If you have been working for more than a year, you can receive social benefits indefinitely. 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 residence rights for EU citizens
EU citizens and their family members can acquire a permanent right of residence in order to stay permanently in Germany. The EU permanent right of residence (Section 4a of the EU Freedom of Movement Act) should not be confused with the EU permanent residence permit (Section 9a of the Residence Act) . 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 permanent right of residence under the Freedom of Movement Act is a right of residence for EU citizens.
The right of permanent residence for EU citizens has the advantage that EU citizens can stay in Germany without having to meet the freedom of movement requirements. This is relevant, for example, for unemployed EU citizens, as they can normally only stay in Germany for up to 6 months (Section 2 Paragraph 2 No. 5 FreizügG/EU). As a permanent resident, this limit does not apply. The right of permanent residence can also be important for third-country national family members of the EU citizen. In this respect, they can also stay 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 permanent residence permit is acquired when the EU citizen or family member has been residing legally in Germany for five years (Section 4a of the EU Freedom of Movement Act). Under certain circumstances, the period can be reduced to three years (Section 4a, Paragraph 2 of the EU Freedom of Movement Act). Once the required period of residence has been reached, an application can be submitted to the immigration authorities. The immigration authorities will then certify that the EU citizen or his family members have acquired the EU permanent residence permit (Section 5, Paragraph 5 of the EU Freedom of Movement Act).
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 be withdrawn. In this respect, the immigration authorities can withdraw the certificate of permanent residence or the residence card or permanent residence card in accordance with Section 6 Paragraph 1 of the Freedom of Movement Act/EU if the requirements for the right to freedom of movement no longer apply (Section 5 Paragraph 4 of the Freedom of Movement Act/EU) or if there is a threat to public safety (Section 6 Paragraph 1 of the Freedom of Movement Act/EU). However, whether this is the case can only be checked on “special grounds” (Section 5 Paragraph 3 of the Freedom of Movement Act/EU).
If you are at risk of losing your right to freedom of movement, it is advisable to hire a lawyer specializing in migration law.
6. FAQ (EU freedom of movement law)
What does European freedom of movement mean?
Freedom of movement is a fundamental European right that applies to all Europeans. The freedoms resulting from the European treaties allow EU citizens visa-free entry and a permit-free stay, which is in principle unlimited in time (Art. 21 TFEU). The only prerequisite for this (from a stay of three months) is the existence of health insurance and a means of subsistence (Art. 7 I EU Directive).
When are EU citizens entitled to freedom of movement?
EU citizens are not always entitled to freedom of movement, but only under the following conditions:
- EU citizen is an employee or is undergoing training,
- EU citizen is looking for a job,
- EU citizens are self-employed or provide services,
- EU citizens are recipients of services,
- family members of EU citizens under certain conditions.
EU citizens who are unemployed can only stay in Germany if they can finance themselves or are at least looking for work.
What special rights exist for persons entitled to freedom of movement?
EU citizenship is a very good status under migration law, as the Freedom of Movement Act (FreizügG/EU) and the European treaties grant a wide range of privileges. The following advantages apply to EU citizens in this respect:
- No need to apply for a residence permit,
- visa-free entry is possible,
- Facilitated family reunification,
- facilitated permanent residence possible,
- preferential processing in administrative procedures (e.g. preferential appointments)
Do EU citizens need a visa to enter and travel within the EU?
No, EU citizens do not need a visa to enter or a residence permit to stay (§ 2a FreizügG/EU).
Are EU citizens allowed to work in Germany?
Yes, every EU citizen may work in Germany without requiring a permit.
Are Europeans allowed to be self-employed in Germany?
Yes, EU citizens can also be self-employed in Germany without a permit (freedom of establishment). Freedom of establishment applies if an economic activity is actually carried out for an indefinite period of time by means of a fixed establishment. However, the activity must actually be carried out; a purely formal business registration and tax registration is not sufficient.
As a European, can I offer services in Germany?
Yes, offering services in Germany is also covered by the European freedom to provide services.
As a European, can I employ third-country nationals to provide services in Germany?
Yes, the posting of third-country nationals to Germany is also covered by the freedom to provide services (Section 2 (2) no. 3 FreizügG/EU; so-called “Vander-Elst visa”).
Are there residence cards for EU citizens?
No, there is no longer a residence card for EU citizens. Until 2013, there was still a certificate of freedom of movement for EU citizens, but this was abolished. As a rule, such a certificate is not necessary, as the freedom of movement card is declaratory and not constitutive.
Is there a European citizenship?
No, there is no EU citizenship in the strict sense. People who are nationals of an EU member state are generally referred to as EU citizens.
How do I obtain EU freedom of movement?
You obtain the right to freedom of movement within the EU either by becoming an EU citizen (i.e. taking on the citizenship of an EU country) or by marrying an EU citizen and moving in with them (§ 3 FreizügG/EU).
Which EU citizenship is the easiest to obtain?
Portuguese citizenship is probably the easiest to obtain. In this respect, Portugal allows naturalization with a “Golden Visa” or an investment visa.
Where is the quickest way to get married within the EU?
It is usually quickest and easiest to get married in Denmark. Under certain conditions, it is even possible to get married online.
Can I travel within the EU with an identity card or do I need a passport?
For a stay of up to 3 months, you can travel within the EU with an identity card (§ 2a para. 1 FreizügG/EU).
As an EU citizen, do I have to leave Germany if my passport becomes invalid?
No. While third-country nationals must always have a valid passport (Sec. 3 Residence Act), this does not apply to EU citizens (Sec. 6 (7) Freedom of Movement Act/EU).
Does the Freedom of Movement Act also apply to family reunification with Germans?
Although Germans are also EU citizens, the Freedom of Movement Act does not apply to them. In this respect, the Residence Act applies to family reunification with Germans (so-called discrimination against nationals). The only exceptions are the so-called “return cases” (§ 12a FreizügG/EU), for cross-border workers and for dual nationals. It is also possible to make use of the right to freedom of movement “indirectly”, e.g. by registering in another country in order to obtain an EU residence permit there.
In which legal sources is the right of free movement regulated?
The EU right of free movement is regulated in the following legal sources:
- Treaty on the Functioning of the European Union (TFEU; ex EC Treaty),
- Directive on the free movement of persons (Directive 2004/38/EC),
- Freedom of Movement Act/EU (FreizügG/EU),
- General administrative regulations on the Freedom of Movement Act/EU
- Decrees and directives on the FreizügG/EU and technical directives of the BA on § 7 SGB III,
- Residence Act, insofar as it is more favorable than the EU Freedom of Movement Act (most-favored-nation principle, Sec. 11 (14) FreizügG/EU).
What is the most-favored-nation principle (FreizügG/EU)?
According to the most-favored nation principle, EU citizens are always subject to the law that is more favorable to their residence (Sec. 11 (14) FreizügG/EU). As a rule, this is the Freedom of Movement Act, but exceptions may apply, for example, to European skilled workers who can obtain a settlement permit more quickly under the Residence Act than under the Freedom of Movement Act.
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EU Migra Specialist and Service Centre EU Migration Saxony-Anhalt
Literature: NK-AuslR/Oberhäuser, 3rd edition 2023, FreizügG/EU § 1
Literature: BeckOK MigR/Gerstner-Heck, 19th Ed. 1.7.2024, FreizügG/EU § 1 Rn. 1 - 53
