PARTIAL MIGRATION IN THE EU AFTER THE BAUMBAST CASE: BRINGING SOCIAL AND LEGAL PERSPECTIVES TOGETHER

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Abstract:

The phenomenon of partial migration corresponds to economically active persons resident in one state whilst working in another. Traditionally, it embraced frontier and posted workers. However, globalisation brings about new forms of partial migration. The revolution of information and communication technologies allows ‘global migrants’ to maintain dynamic movement between jobs without concomitant residential mobility. In particular, partial migration may result from socio-economic integration into the society of a host Member State where a Union citizen no longer pursues economic activity but which he and his family regard as a centre of their interests. Does the current concept of the fundamental right to free movement and residence accommodate such a type of intra-Community movement in a satisfactory way? Is Union citizenship meaningful for socio-economic rights of global migrants? The major problem here is that partial migrants who would like to remain resident in the host Member State of their choice while pursuing economic activity elsewhere in the Community do not fit into the present classification of economically active and inactive persons under Community law. Baumbast is the first case in which the Court of Justice addressed this issue. This article analyses the meaning of this seminal case for partial migration in the European Union. It comes to the conclusion that the Baumbast judgment will facilitate partial migration by acknowledging that global migrants derive the right to residence directly from Art.18 EC, and that a Union citizen resident in another Member State automatically satisfies the requirement of economic self-sufficiency under Directive 90/364 as long as he is economically active elsewhere in the Community. At the same time, classification of a partial migrant as an economically inactive person is not an ideal way of bringing social and legal perspectives together. Among the problems identified in this article is the fact that the Baumbast ruling does not cover the whole life cycle of the right to free movement and residence. It also highlights limitations of protection available to partial migrants under the non-discrimination principle enshrined in Art.12 EC. Finally, the article claims that protection of the rights of global migrants is and will be determined by the balance between the concepts of Union citizenship and bona fide residence in the host Member State as well as by the development of the Community concept of financial solidarity between nationals of the Member States.

Keywords: Baumbast; Discrimination; EU Law/EC Law; EU citizenship; Free movement of persons; Free movement of workers; Residence

Document Type: Research Article

Publication date: January 1, 2004

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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