John Blomster: Hello, and welcome to DISCOVERY. I'm your host John Blomster and today we're speaking with Professor Ferdinand Wollenschläger, professor and chair of public law, European law and public economic law at the University of Augsburg in Germany. He is a noted scholar in a number of fields including constitutional, administrative and EU law. And he is regularly brought in as a legal expert for the most influential lawmaking bodies in Europe, including the European Parliament and European Commission. Ferdinand is also a member of the Expert Commission on the Implementation of EU Public Procurement Law in Germany. And he's here today to talk about the concept of free movement and cross border migration in the EU, and rights to social services.
Professor Wollenschläger, thank you so much for joining us.
Ferdinand Wollenschläger: Thank you very much for inviting me.
Blomster: So we're going going to be speaking about specific policies pertaining to the European Union, and a really fascinating concept in relation to how the European Union treats its members. But for historical context, what was the original purpose of the formation of the EU?
Wollenschläger: I think the two main goals. The primary goal being the integration of the markets of the six original member states into a common market, but then by integrating the market, peace and prosperity within the European Union should be promoted.
Blomster: Union citizenship means that every national in an EU member country is also a member of the European Union. So what does that actually mean to be a citizen of that union?
Wollenschläger: It brings you certain rights, and the most important right is the right to free movement within the European Union.
Blomster: So yeah, that's really the focus of our conversation. The questions around free movement and today in 2019. So what is the principle of free movement? And what are its origins.
Wollenschläger: The origins of the right to free movement even go before union citizenship introduced in 1993. Already in the founding treaties, the Treaty on the European Economic Community, a right to free movement was enshrined. But against the economic background of original European integration, the free movement right was originally limited to workers.
Blomster: So what does free movement mean in terms of both in what you're legally allowed to do within Europe and then also, the rights and access to the kinds of different social services that you have as a national?
Wollenschläger: Free movement means that you may move freely within the European Union and take residence in every member state without the host member state being allowed to deny access. An access may be denied only for reasons or public order, public security and public health. But beyond this, at least for workers, you have the right to entry, and associated with the right to entry is the right to nondiscrimination related to employment, but also going beyond. And nowadays, you can say that a national of member state is entitled to a comprehensive right to nondiscrimination also in the other EU member states.
Blomster: How does this principle of free movement pertain to the social benefits such as, you know, equivalents of unemployment or health care or, you know, other other types of social services? If you move to a different country, what rights do you have in terms of claiming those services?
Wollenschläger: You have a general right to nondiscrimination linked to your right of residence, meaning that the host member state must treat you in the same way like it's own citizens. And for instance, for EU workers, the European Court of Justice has constantly ruled that it is not acceptable to introduce, for instance, a residence criterion for access to social benefits, meaning that social benefits for non-nationals only granted after a certain period of residents. This would be contrary to the right to nondiscrimination of workers.
Blomster: This is the part that is really interesting to me and what you've spoken about extensively. If you're a national of, say, a poorer country within the European Union, wouldn't you have incentive to move to a country with maybe better social services infrastructure? And does this create challenges for governments of different states, particularly, maybe wealthier countries in terms of managing how people move within and without the state?
Wollenschläger: There are two levels related to your question. And the first level is the empirical question. Of course, you can also ask yourself whether better social benefits or to what extent better social benefits are really an incentive to promote migration. But we want to focus primarily on the legal aspects. And of course, this issue of primarily economically motivated migration has to be addressed by every free movement regime. And that's why unless the case of you worker, which we have discussed before, the situation is different for economically inactive persons, who, on the one hand, enjoy, like EU workers, like every union citizen, a right to free movement. But this right to free movement is subject to two conditions. First, you have to possess sufficient means of existence, and then you have to enjoy a comprehensive health insurance. And these two criteria should prevent a person becoming an unreasonable burden, at least for the social system of the host member State
Blomster: Has public perception or how governments enact the principle of free movement or think about it, has that changed in the last, you know, 10, 20 years? Have we seen an evolution of how people approach this principle?
Wollenschläger: Yeah, of course, in the founding years of the European Economic Community, free movement between the EU Member State was not only limited to workers, but was also no mass phenomenon. Even today, migration between the EU member states may not be considered a mass phenomenon. But following in particular, the eastern enlargement of the European Union in 2004, and 2007, where member states were admitted to the European Union, the level of living of which was lower than the average of the former of the then current EU member states. Of course, the issue of migration into social system became more acute, and also in the debate related to Brexit, you saw that free movement person was one of the reasons why you had these reactions to the free movement and in particular, also to the jurisprudence of the European Court of Justice.
Blomster: Specifically with Brexit, I'd like to talk about that a little bit more. In relation to Brexit, what role did the concept and approaches to free movement play for both sides of the debate?
Wollenschläger: Okay, free movement means that the United Kingdom is not allowed to restrict the movement of persons from other EU member states to the United Kingdom. So immigration sovereignty is lost to a certain extent. And of course, this was one point which led to the Brexit debate. And associated to it was also the debate on the social benefits, which should or should not be granted to nationals from other member states, which was also a debate in the United Kingdom. And this led also to make the European Union make certain concessions in terms of free movement and access to social benefits, if the United Kingdom had accepted the deal. The European Union had offered to the UK before, or in the context of the referendum, but as you all know, this deal was not accepted following the outcome of the referendum.
Blomster: Right, absolutely. So that really is fascinating that this this concept that is so old, and really central to the very existence of the European is now central to this huge phenomenon we're seeing with the United Kingdom. What is the other side of that, if you have a side that is saying we need to clamp down on free movement to, you know, manage immigration more effectively? What's the other side of that? Are there negative effects for the United Kingdom, and or the European Union with Brexit and in terms of restricting free movement among the country's?
Wollenschläger: First, because free movement is also needed for the national labor market versus working in the UK, contribute to the labor market to economic prosperity in the United Kingdom, and, of course, mutually, also, citizens of the United Kingdom have the right to reside in the EU member states. So it's mutual obligations.
Blomster: So jumping back, you mentioned the European Court of Justice weighing in and when these ideas of residents conditions to claim social benefits were being established by different countries, the ECJ said that they can exist but they have to respect the original concept of free movement. Is there an example of a case that you would point to where you really saw this play out?
Wollenschläger: Yeah, the [inaudible] case where a student moved to another member state, and managed to fund himself for the first three years of his studies. And in the last year of his studies, he focused completely on his studies and did not work anymore next to his studies and thus, became dependent on assistance by the state. That's why he applied for this assistance, which was denied. And in this case, the European Court of Justice [inaudible] and the strict economic conditions of residents as enshrined in EU secondary law, because this situation, the person did not post an unreasonable burden on the social system of the host member state. And that's why he had a right to equal access to this benefit.
Blomster: In addition to Brexit, are you seeing other challenges within different countries within the European Union or maybe from outside of it to challenges to the concept of free movement as it relates to other social issues that we're facing now in 2019?
Wollenschläger: We have also next to Brexit, or also related to Brexit, the debate whether the very generous jurisprudence, in particular of the European Court of Justice related to workers were included from the very first moment of moving to another member state in the social system with a here and certain distinctions have to be introduced, for instance, when it comes to in work benefits, providing additional payment if your wage is not sufficient, compared to the national standard of subsistence. And here to conceal discussion, whether certain residents and requirements have to be introduced. A further current debate to be on child benefits. If you have moved to another member state and are working there, and your children and remain in the home member state, the current situation is that you're entitled to child benefits calculated to the standard of living in the host member state. And here, some member states want to introduce an indexation of child benefits, meaning that the amount is not calculated according to the standard of living in the host member state. But in the home member state where the children are actually living.
Blomster: Is the trend moving one way or the other? Well, I like the idea that you just spoke about, about having, you know, that social service to determine by where they moved from, not from, you know, say moved to a wealthier country or something like that. Are you seeing that side of the debate heat up more so than in the past? Or is this generally just an ongoing discussion that is happening?
Wollenschläger: It's an ongoing discussion, following eastern enlargement. And in particular, in the context of Brexit, of course, this debate has heated up. Although the jurisprudence of the European Court of Justice, if you take the [inaudible] judgment, for instance, might have become more cautious, more restrictive. That's true.
Blomster: And then finally, why is it important that we're talking about this right now? And is there something that, you know, our American listeners and young lawyers and people coming up now can take away from this discussion of free movement and these policies?
Wollenschläger: I think, of course, it's also like the European Union, the US is also a federation, and granting free movement rights to citizens of the various U.S. states. Of course, it's interesting from a comparative perspective to see the differences in different federal structures. The European Union, on the one hand. The U.S. on the other. That's good field of comparative studies. And of course, free movement is also at the core of the idea of European integrations, meaning that persons may move freely within the European Union to promote exchange, also between European Union and ultimately to contribute to the goal of peace, on which the European Union is also founded.
Blomster: Professor Ferdinand Wollenschläger is professor and chair of public law, European law and public economic law at the University of Augsburg in Germany. He is a regular in the halls of the biggest decision-making bodies in Europe, and he's a leading voice on issues of migration, constitutional and EU law, among many other fields. So please check out the show notes for links to find more of his work and unless you speak and read German fluently don't forget to hit the Google Translate button in your browser.
Professor Wollenschläger, thank you so much for joining us on DISCOVERY.
Wollenschläger: Thank you very much for inviting me.
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