1.9 In 1990 the EC adopted three Directives which conferred a general right of movement and residence on the retired, students and those with independent means, provided that they had sufficient resources and medical insurance.5 This reflected the gradual change which had been taking place in relation to the link between economic activity and free movement – moving towards the idea of migrants as individuals with rights in their host Member State.
1.10 The Maastricht Treaty (The Treaty on European Union) explicitly introduced the concept of Union citizenship into the EC Treaty in 1992, together with a number of associated rights. This included the right to move and reside freely in Member States subject to limitations and conditions laid down in the Treaties and in EU secondary legislation. It created the European Union and formalised the recognition of the status of ‘citizen of the Union’, with the associated rights and duties, for every national of a Member State. The case of Baumbast effectively confirmed the severance of the absolute link between migration and the need to be economically active.
1.15 The emergence of the concept of an EU citizen in the Maastricht Treaty created a new treaty basis for EU competence on social security. The articles currently covering social security, Article 48 and related articles on the Free Movement of Citizens, remain the subject of some debate. While Article 48 clearly states that workers and the self-employed are in scope, the secondary legislation broadened the scope of the rules, bringing in those ‘who are subject to the legislation of one or more Member States’ as well as their dependents and survivors.11 The scope of Article 48 has also been more recently extended further to be a sufficient legal base for certain agreements covering social security coordination for third country (non EEA) citizens.12
1.17 Free movement rights can be exercised by citizens of the 28 EU Member States, their dependants and (in certain circumstances) other family members. They have also, in large part, been extended to nationals of the EEA who are not members of the EU (Iceland, Norway and Liechtenstein) and to Switzerland by virtue of two separate agreements. Union citizens also have the right to exercise free movement rights in these States.
1.18 The free movement of persons is an area of ‘shared competence’. However, this means that where the EU has enacted legislation, the UK does not have competence to act other than in accordance with that legislation. Where EU citizens and family members are clearly exercising Treaty free movement rights, the obligations imposed on the Member States in which they reside are largely set out in the EU’s primary law (the Treaties) and in secondary legislation.