The Free Movement on Suspension?

The Free Movement of Persons, being one of the core principles in EU-law, has come under strain from economic and political difficulties within the EU. This became apparent first when France in March unilaterally decided to suspend Schengen-rules and reintroduced border checks in order to prevent refugees fleeing from the conflicts in North Africa. This was accepted by the European Commission despite criticism. A few weeks later, Denmark, under pressure from their far right-wing Danish Peoples Party, (Dansk Folkeparti) reintroduced their border checks towards Germany and Sweden. This move caused Hessian Minister for Justice, Integration and European Affairs, Joerg-Uwe Hahn's, to call for Germans to spend their holiday in other places but Denmark.

Most recently, Spain got the go-ahead from the Commission to impose restrictions on workers travelling from Romania. The decision, which temporarily suspends Articles 1-6 of Regulation 492/2011 on freedom of movement for workers within the Union, is quite odd from a legal point of view:

In the preamble of the decision, the Commission states that the reason for suspending the relevant rules in Reg. 492/2011 is the current problems on the Spanish labour market and the fact that more than 30 % of Romanian nationals in Spain are unemployed (see Preambles 9-11). In order to restore a functioning the Commission allows for suspension of access to this market, but only for Romanian nationals.

In the meantime, the Commission recognises that:

"Restrictions on access to the labour market constitute a derogation from a fundamental principle of the Treaty on the Functioning of the European Union, namely the free movement of workers. In accordance with the well-established case-law of the Court of Justice, such measures should be restrictively interpreted and applied (para. 14)."

In the following preambles, the Commission continues to discuss the necessity of monitoring the labour markets to determine whether the restrictions will continously be necessary and under which circumstances they should be lifted.

However, the Commission fails to adequatly determine:

1) How a restrictive interpretation of the Free Movement can lead to such a decision.
2) How such a decision is coherent with the principle of non-discrimination (enshrined in Article 18 TFEU), and;
3) How such measures can be deemed necessary and proportional;

The EU is wandering down a slippery slope when EU-member states are pushing for reversing the Free Movement, which earlier seemed to be protected more fiercly by the Commission.

It cannot be denied that these are turbulent times with severe economic and political instability in the European and neighbouring regions. Nonetheless, we must hope that the Commission rethinks its most recent policy decisions and seek to genuinenly protect a European Union which is not hampered by border controls and discriminatory conduct towards fellow EU citizens. It will be interesting to see if this conduct will result in litigation with the Court of Justice of the European Union. Such procedures would shed much light whether the construction of a geuine and non-discriminatory Union is just a paper product or that the advancements made are ultimately protected by the CJEU.