Freedom of movement

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The legal concept of freedom of movement includes the right of a natural or legal person to free choice of living - and residence or place of business , d. H. the possibility of a change of residence or place of business and, in some cases, of moving to other countries with their visa and residence permit .

Free movement as a human right

Article 13 of the Universal Declaration of Human Rights gives everyone the right to move freely within a state and to freely choose their place of residence, as well as to leave any country, including their own, and to return to their own country . The Universal Declaration of Human Rights therefore recognizes a right to emigrate , but not an immigration right . This is a controversial issue in political philosophy.

Free movement in the European Union and the EEA

Free movement is guaranteed in the Treaty on the Functioning of the European Union and the secondary law issued on the basis of this treaty .

General

The free movement of persons is divided into the general free movement for all Union citizens and the economic free movement of workers and the freedom of establishment as part of the four fundamental freedoms . General freedom of movement is regulated in accordance with Article 21 (1) TFEU and allows EU citizens to move and reside freely in other Member States. In addition, Art. 45 Para. 1 AUEV regulates the free movement of workers as a sub- case of the free movement of persons ( free movement of workers). It only affects dependent workers in terms of employment , wages and other working conditions . According to Art. 49 AUEV, restrictions on the freedom of establishment of nationals of one EU member state are prohibited in another member state, in particular they are allowed to set up and run agencies , branches , subsidiaries or branches .

Legal issues

The right of free movement largely has the characteristics of a fundamental right and differs from the fundamental freedoms in terms of function, regulatory content and personal scope . The international freedom of movement entitles the holder to cross-border freedom of movement and to permanent residence in the state of one's own choice. The primary purpose of freedom of movement is to protect against violations of liberty. In addition to the right to move and reside freely, it implicitly includes the right to leave the country of origin and enter another member state.

The Freedom of Movement Act / EU has regulated the entry and residence of nationals of other Member States of the European Union (Union citizens) and their family members since January 2005 ( Section 1 FreizügG / EU). Only an identity card or passport is required for entry and a stay of up to three months (§ § 2 FreizügG / EU, § 3 FreizügG / EU).

According to Art. 21 TFEU ​​and Art. 45 EU Charter of Fundamental Rights, the general freedom of movement for Union citizens is the right to move and reside freely in the member states of the EU and the EEA (EU plus Iceland , Liechtenstein and Norway ) and Switzerland without need a residence permit (visa). There is also a special form of freedom of movement for workers ( Art. 45 TFEU). This includes the right to work in any member state. The freedom of establishment ( Art. 49 TFEU) and the freedom to provide services ( Art. 56 TFEU) apply to companies (and the self-employed as entrepreneurs ). These are occasionally also subsumed under freedom of movement, but are not included in the concept. The same applies to the free movement of goods ( Art. 30 , Art. 34 , Art. 35 TFEU), capital and payments ( Art. 64 TFEU).

However, the right of residence is not absolute. In order to be allowed to stay in another EU / EEA member state, the resident citizens must either be at work or looking for a job, study or otherwise have sufficient financial means and provide evidence of health insurance in order not to burden the social security systems of the host country become. The states may require citizens of other EU / EEA countries to report their stay to the registration authorities after a certain period of time. EU / EEA countries must lead back citizens of other countries and exclusion orders ( English exclusion orders ) issued against them on public area, public safety and health care. Union citizens who, for example, commit serious crimes or who come to the host country to become dependent on social security, may be returned. However, they must have the opportunity to appeal against the exclusion orders within a maximum period of three years . Under no circumstances may an EU / EEA state exclude a citizen of another member state for life.

Every EU / EEA citizen who has completed a period of five years of uninterrupted residence has the right to permanent residence that is no longer conditional on their presence. You are thus also entitled to receive social security benefits. Permanent residence can only be canceled after a two-year absence.

In March 2020, many borders between member states were closed because of the COVID-19 pandemic .

Germany

history

Within Germany

During the period of absolutism and mercantilism , freedom of movement within Germany and Europe was severely restricted by a strict visa policy (see visa ). With the establishment of the German Empire, Art. 3 of the Imperial Constitution introduced a joint indigenous group with the effect that nationals of every federal state were treated as residents in every other federal state and, accordingly, for permanent residence, commercial operations, public offices, and acquisitions of land, in order to obtain citizenship and to enjoy all other civil rights under the same conditions as local residents, and are to be treated equally in terms of legal prosecution and legal protection (Article 3, Paragraph 1 of the Imperial Constitution). No German was allowed to be restricted in exercising this power by the authorities of his home country or by the authorities of another federal state (Article 3, Paragraph 2 of the Imperial Constitution). According to Art. 3 Para. 3, only access to social benefits was subject to a legal reservation. This guaranteed the free movement of people within the German Reich. Article 111 of the Weimar Imperial Constitution also granted freedom of movement within the territory of the Reich, albeit with a legal reservation.

Outside of Germany

With the passport law of the North German Confederation of October 12, 1867, freedom of movement was also greatly liberalized to the outside world. German nationals did not need a passport to enter Germany or to leave the country (Section 1 (1) of the Passport Act). Foreigners should not be asked for a travel document either when entering or leaving across the border of the federal territory, or during their stay or their travels within the same (Section 2 of the Passport Act). The visa requirement was abolished (Section 5 of the Passport Act). Freedom of travel was made possible throughout Europe, except for Russia and Turkey. A national regulation of the labor markets was hardly developed. The turning point came with the First World War. In 1914, Germany introduced compulsory passports for residents and foreigners. In 1916 the visa requirement was introduced, both for foreigners who wanted to enter Germany (entry visa) and for Germans who wanted to cross the German Reich border (exit visa). Both ordinances remained in force until 1925. On July 31, 1918, the law against tax evasion (RGBl. 1918, 951) made it extremely difficult to relocate or habitually reside with exit taxation . Unrestricted tax liability was maintained even if the taxpayer no longer had a domicile or habitual abode in Germany (Section 1 of the Law against Tax Avoidance). As an “unpatriotic desertion”, German citizenship could even be withdrawn if the fee was not paid. The law against capital flight of December 24, 1920 (RGBl. 1921, 33) further restricted freedom of movement. The transfer of assets abroad (cash and securities) was restricted. After a temporary liberalization from 1925 (abolition of the exit visa requirement for Germans, visa agreements with several countries, expiry of the law against tax evasion), further massive restrictions on the free movement of persons came into force from 1931 as a result of the global economic crisis, which would last until well after the Second World War . In 1931 a passport levy of 100 Reichsmarks was introduced for trips abroad. The Reichsfluchtsteuer (Reich Flight Tax) taxed the assets of those who moved their domicile or habitual abode abroad, and the Ordinance on Foreign Exchange Management (RGBl. 1931, 421), the transfer of assets abroad, regardless of whether they were traveling or emigrating, except for small ones Exemption limits subject to approval. With the introduction of general conscription for men in 1935 (Defense Act of May 21, 1935), military surveillance also came into force. With the beginning of the Second World War, the obligation to issue an exit visa for Germans was reintroduced.

Federal Republic of Germany

Article 11 of the Basic Law - a work by Dani Karavan on the glass panes on the Spree side at the Jakob-Kaiser-Haus of the Bundestag in Berlin

The freedom of movement is guaranteed as a fundamental right in Art. 11 GG and reads as follows:

(1) All Germans enjoy freedom of movement throughout Germany.

(2) This right may only be restricted by statute or on the basis of a statute and only for those cases in which there is no sufficient livelihood and special burdens for the general public or in which it is necessary to avert an impending danger to the existence or the free democratic basic order of the federal government or a state, to combat the risk of epidemics, natural disasters or particularly serious accidents, to protect young people from neglect or to prevent criminal acts.

Emergence

The federal act of the German Confederation of 1815 knew in itself the right that a German could move to another German state. The practice, however, depended on the conditions of the receiving state. The basic rights of the German people in the Paulskirche constitution of 1849 provided for the basic right of every German to take up residence and residence anywhere in the Reich; Laws should deal with certain conditions. Because of the resistance of the larger German states, the basic rights did not take effect.

The constitution of the German Empire of 1871 provided for a uniform indigenous community for all of Germany . It guaranteed extensive national equality with subjects or citizens of other states. Accordingly, every citizen of a German federal state was to be admitted to residency in another federal state under the same conditions as a national of this federal state. No German was allowed to exercise this power by the authorities of his home state or by the authorities of another federal state, unless restricted by regulations on welfare for the poor and to ensure military service. The indigenous was just a formal right of equal treatment. Reich law did not stipulate the conditions under which freedom of movement for all Germans in a certain federal state was granted by its state law.

In the Weimar Constitution of 1919, freedom of movement was granted to Germans in Article 111 WRV. For the first time, freedom of movement was stipulated across the empire. The freedom to reside and settle at any location could, however, be restricted for any constitutional purpose by imperial law.

In the Federal Republic of Germany , freedom of movement is guaranteed by Article 11 of the Basic Law of 1949.

Protection area

Personally

All German citizens within the meaning of Art. 116 GG are bearers of the fundamental right . Therefore, only Germans can invoke the basic right. The free movement of those who do not have German citizenship is protected by the basic right of general freedom of action from Art. 2 I GG. Domestic legal persons are also recognized as sponsors. Since they can, for example, relocate their place of business and establish new branches, the fundamental right, as required by Art. 19 III GG, is essentially applicable to them.

Factual

From a factual point of view, the basic right protects the right to reside and reside in any place in the Federal Republic without hindrance and to enter the Federal Republic at any time.

Taking up residence is to be understood as the establishment of a permanent place of business based on Section 7 of the German Civil Code (BGB). In return, taking up residence describes staying in a certain place for a certain period of time or with a regularity.

The right to leave or emigrate is not covered by the protection of the fundamental right , as the guarantee of freedom of movement is limited to the entire federal territory. The right to leave and emigrate, like the free movement of foreigners in general, is only protected as a result of the general freedom of action.

The negative freedom of movement includes the right not to take up a certain place of residence or not to go to a certain place.

restrictions

Article 11 (2) of the Basic Law provides for the possibility of restricting the fundamental right of freedom of movement. This restriction may only be made for specific purposes defined in the paragraph. Paragraph 2 thus standardizes a qualified legal reservation. Another possibility of restriction results from Art. 17a II GG.

There have been few such restrictions in Europe since 1945. The first, which was prescribed in many countries in March 2020 , concerned the COVID-19 pandemic caused by the coronavirus.

Limits to qualified legal reservation

One of the purposes of restricting the fundamental right mentioned in paragraph 2 is protection against epidemics and accidents. According to this, restrictions by or on the basis of a law to combat the risk of epidemics , natural disasters or particularly serious accidents, for example in the case of evacuation measures , are permitted.

The paragraph also cites the protection of young people from neglect as a goal. Art. 11 GG allows further restrictions on freedom of movement to protect young people from neglect , for example through the parents' right to determine the residence, the prohibition of dangerous places or in the case of residential care.

In addition, the free movement of persons for the prevention of criminal acts by acts as a sending-off , travel restrictions, the arrangement of police custody or preventive detention be restricted.

Restrictions on freedom of movement can also be considered "to avert an imminent danger to the existence of the federal government or a state". Examples of such interventions are entry bans for unrest areas. This qualification - as well as the qualification "to avert an impending danger to [...] the free democratic basic order of the federal government or a state" - was introduced in 1968 as part of the emergency laws. Both qualifications require an emergency situation according to Art. 91 GG.

The state can - with the following restrictions - restrict the freedom of movement of those Germans who are dependent on state benefits such as social assistance or unemployment benefit II . Restrictions on the freedom of movement of citizens of German nationality , for example with regard to relocation, movement and residence throughout the federal territory, as they are partially made as such in the integration agreements of the job centers for unemployment benefit II recipients , are in accordance with Art. 2 and the specific wording in Art 11 , para. 2 in the case contrary to the constitution, if the general public does not incur any “special burdens”: “This right may only be restricted by law or on the basis of a law and only in cases in which a sufficient livelihood is not available and the general public would incur special burdens from this (...) ”. In addition, they are contrary to the constitution if the specific restriction of the fundamental right in accordance with the quotation requirement ( Art. 19.1 sentence 2 GG) is not listed in writing or - according to the judgment of the Federal Social Court (Az .: B 4 AS 60/09 R) - if the principle of equality of Art. 3 is violated.

The Federal Social Court ruled that unemployment benefit II recipients are allowed to move, even if the living space in the influx area is more expensive (the plaintiff moved from Erlangen to Berlin). Otherwise the principle of equality (Art. 3 GG) and the freedom of movement anchored in the Basic Law (Art. 11 GG) are violated. A restriction of the free choice of place of residence according to the Basic Law therefore only applies within a municipality. However, the state is not obliged to provide additional payments, e.g. B. to financially enable moving costs to actually exercise freedom of movement. Regardless of this, those cases are to be considered in which there are special reasons for the move (apartment that is too small, illness or similar).

For citizens of other nationalities in particular , there were restrictions on freedom of movement, especially in the post-war period, with the grounds for promoting financial burden sharing by the federal states . Recently there have been restrictions again for ethnic German repatriates from Eastern Europe (until December 31, 2009). These people lost their entitlement to social assistance when they left their assigned place of residence and moved. This was also done in view of the controversial practice of accommodating asylum seekers or repatriates in independent accommodations and in order to keep the financial burdens of severely affected communities within limits, although fear of a lack of state control and purposes of deterrence due to unfavorable living conditions can play a role. With regard to ethnic repatriates, the Federal Constitutional Court declared the restriction to be constitutional in a judgment of March 17, 2004.

Further barriers

According to Art. 17a GG, freedom of movement can also be restricted in the event of a defense . A restriction due to conflicting constitutional law can also be considered. For example, departure can be refused on the basis of the Passport Act if, for example, considerable interests of the Federal Republic of Germany are endangered or the person wishing to leave wants to evade his or her obligation to provide for relatives or tax obligations. A deduction can also be requested for departure. According to the Foreign Tax Act , if an entrepreneur relocates abroad outside the European Union, B. raise and tax his hidden reserves .

A restriction by law or on the basis of a law for other purposes is not permitted. However, the free movement of foreigners can be restricted by statute or on the basis of a statute for any constitutional purpose. The stay of asylum seekers , foreigners legally obliged to leave and tolerated foreigners is limited by law to the federal state or to the district of the immigration authority. Leaving the assigned lounge area is only permitted in exceptional cases in general or with special permission; any violation is sanctioned. Such a residency requirement does not exist in any other country than Germany within the European Union.

Despite Article 11 of the Basic Law, it is possible that Germans have to leave their previous regular place of residence and abode in Germany. The right not to have to move out of a house or apartment presupposes that residents of this house or apartment are its owners, tenants or tenants who cannot be terminated. If, however, an operating company has acquired ownership of all the houses in a village that is to give way to an open- cast lignite mine (also through legal expropriations ), then the right to freedom of movement , which is understood as the “ right to home ”, has become irrelevant.

The right to free movement does not override the right of private property owners to attach conditions to permission to enter their property or to remain on this property. Tenants and tenants are also entitled to exercise their domiciliary rights and B. to ask unwelcome visitors to leave their home. A right to enter military areas or even military security areas by civilians does not exist.

Switzerland

In Switzerland , freedom of movement is guaranteed as a fundamental right to all Swiss citizens as freedom of establishment in Article 24 of the Federal Constitution .

Since Switzerland is not a member of the EU , it is - unlike the surrounding countries, all of which with the exception of Liechtenstein are EU members - dependent on signing bilateral agreements on freedom of movement with other countries. This is used to control immigration to Switzerland .

literature

Web links

Wikisource: Law on Free Movement of Persons. From November 1, 1867 (North German Confederation)  - Sources and full texts
Wiktionary: Freedom of movement  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Universal Declaration of Human Rights # Article 13 on Wikisource
  2. ↑ Arash Abizadeh: Democratic Theory and Border Coercion: No Right to unilaterally Control Your Own Borders. In: Political Theory. 36, 1, 2008, ISSN  0090-5917 , pp. 37-65; Francesca Falk: A Gestural History of the Border. How liberalism reaches its limits on the border. Fink, Paderborn 2011, ISBN 978-3-7705-5202-3 .
  3. ↑ Stefano Caldoro, National Protection of Cultural Property and Freedom of Movement of Union Citizens , 2009, p. 9 f.
  4. ↑ Jan Brezger, International Freedom of Movement as a Human Right, 2018, p. 41 ff.
  5. ↑ ECJ, judgment of March 11, 2004, Az .: Rs. C 9/02 ( Hughes de Lasteyrie du Saillant ) = EuZW 2004, 270
  6. ^ Deutsche Welle (www.dw.com): Corona in the EU: Nation versus community? | DW | March 20, 2020. Retrieved on March 26, 2020 (German).
  7. ↑ See Michael Jansen, Basics of Passport Law for Foreigners, ZAR 1998, 70, 72
  8. ↑ Ordinance on the temporary introduction of the passport requirement of July 31, 1914 (RGBl. P. 264)
  9. ↑ ↑ § 1 of the Ordinance, Regarding Other Regulations of Passport Requirements, of June 21, 1916 (RGBl. P. 599)
  10. ^ Ordinance on a fee for foreign travel (RGBl. 1931, 376)
  11. ↑ See collection of sources on the history of German social policy 1867 to 1914 , Section I: From the time when the Empire was founded to the Imperial Social Message (1867-1881) , Volume 7: Poor law and freedom of movement , 2 half volumes, edited by Christoph Sachße, Florian Tennstedt and Elmar Roeder, Darmstadt 2000.
  12. ↑ Christoph Gröpl / Kay Windhorst / Christian von Coelln / von Coelln , study commentary GG , 2013, p. 191.
  13. ↑ a b c Hans D. Jarass / Bodo Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary , 2014, p. 327.
  14. ↑ Hans D. Jarass / Bodo Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary , 2014, p. 328.
  15. ^ A b Hans D. Jarass / Bodo Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary , 2014, p. 329.
  16. ↑ Decisions of the Federal Constitutional Court, Volume 80, p. 150.
  17. ↑ Decisions of the Federal Constitutional Court, Volume 6, p. 35.
  18. ↑ Decisions of the Federal Constitutional Court, Volume 72, p. 245.
  19. ↑ Decisions of the Federal Constitutional Court, Volume 6, p. 34.
  20. ^ A b Hans D. Jarass / Bodo Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary , 2014, p. 328.
  21. ↑ Michael Sachs / Martin Pagenkopf , Basic Law Commentary , 2014, p. 522.
  22. ↑ Christoph Gröpl / Kay Windhorst / Christian von Coelln / von Coelln , study commentary GG , 2013, p. 193.
  23. ↑ Even the words "for the inventory" were not yet included in the original version of the Basic Law of 1949 (Basic Law for the Federal Republic of Germany, in: Bundesgesetzblatt . Part I. No. 1 of May 23, 1949 [ Federal Law Gazette p. 1 ] , 1 - 9 [2]). The entire phrase "to ward off an impending danger to the existence or the free democratic basic order of the federal government or a state" only came into force on June 28, 1968 - as a result of the seventeenth law amending the constitution of June 24, 1968 ( https://lexetius.de/GG/11,2 <Basic Law for the Federal Republic of Germany of May 23, 1949. Historisch-Synoptische Edition. 1949–2019. Published by Thomas Fuchs> [last accessed on April 5, 2020]; cf. Seventeenth law amending the Basic Law, in: Bundesgesetzblatt, Part I. No. 41 of June 27, 1968, pp. 709-714 ( Federal Law Gazette I, p. 709 ) (709; § 1 No. 3).
  24. ↑ Christoph Gröpl / Kay Windhorst / Christian von Coelln / von Coelln , Studienkommentar GG , 2013, p. 191.
    In the government draft for the emergency laws it was initially proposed to add the following third paragraph to Article 91: “To combat dangers, natural disasters or accidents in the For the purposes of this provision, the basic right of freedom of movement (Article 11) can be restricted by law or on the basis of a law. ”(Bundestag printed matter V / 1879 < http://dipbt.bundestag.de/doc/btd/05/018/0501879 .pdf >, p. 3)
    As a justification it said: “Article 91, Paragraph 3 empowers the legislature to continue the basic right of freedom of movement during regional or supra-regional internal emergency insofar as this is necessary to avert the danger Limit normal times. There is a need for such a possibility of restriction, in particular, because one could doubt whether the legal reservation provided for in Article 11, Paragraph 2, `` to prevent criminal acts '' would allow people to be temporarily prohibited from entering a certain unrest area by law the intent of a criminal act would not be demonstrable. "(ibid., 24)
    The formulation" regional [r ...] internal [r] emergency "is used in the draft in relation to Article 91 paragraph 1 and the wording" supra-regional [r] internal emergency ”is used in relation to Article 91 (2) (ibid., 23).
    The Legal Committee of the Bundestag had then - as passed later - proposed to formulate this new (additional) possibility of restricting the freedom of movement directly in Article 11, but to adhere to the emergency reference: "The Federal Government [...] has the opportunity to do so To further restrict the fundamental right of freedom of movement in the event of an internal emergency beyond what is already permissible under the current version of Article 11 by law, provided for in Article 91 Paragraph 3 of the government draft. As already stated, the Legal Affairs Committee was unable to decide to follow the form of the proposal made by the Federal Government. In substance, the additions to Article 11, Paragraph 2 proposed by the Legal Affairs Committee correspond to the government draft on Article 91, Paragraph 3. ”(Bundestag printed matter V / 2873 < http://dipbt.bundestag.de/doc/btd/05/028/0502873 .pdf >, p. 14).
    The committee report also contains the designation of the regulation of "Article 91 Paragraph 1" (that is, the designation of the paragraph of Article 91, which - as in Article 11 - contains the wording "Defense against an impending threat to the existence or the liberal democratic basic order of the federation or a state ”) as regulation“ of a regional internal emergency ”(ibid., p. 14).
    It is therefore correct to say that both qualifications (danger to the existence of the federal government or a state / danger to the fdGO) require “an emergency situation according to Art. 91 GG”.
  25. ↑ Hartz IV recipients are free to choose their place of residence . social services.info. June 2, 2010. Retrieved October 28, 2012.
  26. ↑ BSG strengthens freedom of movement for Hartz IV recipients . In: Associated France-Presse (AFP) . N24. June 1, 2012. Retrieved October 28, 2012.
  27. ↑ Federal Constitutional Court, judgment of the First Senate of March 17, 2004 - 1 BvR 1266/00 - , BVerfGE 110, 177 .
  28. ↑ Hans D. Jarass / Bodo Pieroth / Jarass , Basic Law for the Federal Republic of Germany Commentary , 2014, p. 332.
  29. ^ Judgment of the Federal Administrative Court of September 29, 2008 in the Garzweiler II case ( Memento of September 20, 2011 in the Internet Archive )
  30. ↑ Unrestricted immigration has given Switzerland a huge redistribution in favor of entrepreneurs and at the expense of the Swiss “Büezer”. In: weltwoche.ch 46/2009 (editorial).