Mobility Rights in the European
Union and Canada
Armand de Mestral and Jan Winter
The authors use mobility rights within Canada and
the European Union to illustrate the idea that a federation
is always a work in progress. Both Canada and the EU
have been concerned with personal mobility since incep-
tion. In Canada mobility rights have been traditionally
understood as a function of the law governing provincial
legislative competence over business, professions, and
services, and the interrelationship between these powers
and federal jurisdiction. Since 1982, however, the Cana-
dian Charter of Rights and Freedoms has enshrined a
right to mobility in its section 6, which the authors ex-
amine to identify the provision’s underlying objectives.
Within the EU, in contrast, mobility is principally a right
exercised by employees and employers to seek and give
work, paralleled by the right of establishment of profes-
sional worers and the broader theme of the free move-
ment of services. Through treaty amendment, legislation,
jurisprudential change, and most recently, the Charter of
Fundamental Rights of the European Union, EC law has
expanded the meaning of mobility, resulting in a para-
digm shift from the rights of worers to the rights, more
generally, of persons, and latterly, of citizens. The Cana-
dian experience suggests that while a constitutionalized
right of mobility may become a central element of con-
stitutional discourse, it does not signal a break from the
past trend of incremental change. This lesson is relevant
to the EU, where the process of constitutionalization is
currently, if controversially, underway.
de
Les auteurs, a travers tin examani d.- la h’
circulation an Canada et dans ‘Union euvp&nn
re-
marquent qu’une f&L.nttion rest. toujours tin proet ea
dvolution. Afisi les deux f!rations oant fait dz- la libre
circulation des personnes una question importanta d.-pais
ler cration. En droit constitutionnal canzli cn.
liBie
circulation dtait traditionnellemant fonction diu droit gou-
vernant la compatence provinciale en matire commzr-
ciale, professionnalle ct do serices ct &- la relition entre
ces pouvoirs ct les champs &2 compdte -c f&daraux.
Toutefois, depuis 1982. rarticle 6 daea Carre cara-
dienne des drits et librt&s garantit la libert
dcircula-
tion et d’dtablissement, ct les autcurs font dtat des oblz-
tifs sous-jacents 4i I’adoption deo ccte disposition. Dans
I’Union curop
:nnn, par contre, la hbert, do circulation
est principalement un droit ew.crd par Irs trmuillmrs ct
les employeurs pour reecrtehar ct offrir ds crmp!oi% qui
s’inscnt en paralIle avic
i droit d’dtblissemn d:s
professionnels et la question plus large do la libre cicula-
tion des scrvices. Nd!anmoins. h travers des amndrnts
atmx traitas, l’adoption do rimsures I6gislathcs. I’&-olution
do lijurisprudence ct is rnrte Charte des draiisforda-
nentaur de I’Union eunopeenne, Ia droilt communanutaire
a dlargi le champ d’appliration do l albetri d circula-
tion, avec pour rd’sultat un changemenn d’ozientation pour
cele-ci, des droits des travaillcurs awx droits d
la per-
sonne ct du citoyen. L’cpiencc cn.Jierm= suc;qre
que Fenchassernent di droit a la libre circulanion, bFn
qu’elle tende a en faire tin &ment central du discours
constitutionnel, ne signifie pas una rpture avec son vo-
lution graduelle. Salon les auteurs, cette conclusion cst
pertinnte an processus similaie en cours en Europe.
. Armand de Mestral, Professor, Faculty of Law & Institute of Comparative Law, and Acting Di-
rector, Institute of Air and Space Law, McGill University. Jan Winter, Professor of European Union
Law, Faculty of Law, Free University at Amsterdam. We wish to acknowledge the invaluable assis-
tance of Alexandra Boivin.
McGill Law Journal 2001
Revue de droit de McGill 2001
To be cited as: (2001) 46 McGill LJ. 979
Mode de rf6rence: (2001) 46 R.D. McGill 979
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Introduction
1. Mobility Rights under the Constitution of Canada
A. An Economic Scheme?
B. Human Rights?
C. “Nation-Building” Rights?
D. Limitations on Subsection 6(2) Rights
II. Freedom of Movement of Persons and Residence in the European
Union
A. The Provisions on Free Movement and Residence
B. Jurisprudential Developments
1. Economically Active Persons
2. Non-economically Active Persons
C. Freedom of Movement and Citizenship
Conclusion
2001]
A. DE MESTRAL & J. WINTER – MOBILITY RIGHTS
Introduction
Comparison serves to reveal similarities and differences. Similarities emerge
when two apparently different systems are revealed to have the same deep structure
and to promote similar goals. Differences appear when it can be shown that two ap-
parently similar systems have, in fact, quite different objectives and are actually de-
signed to promote different values. Above all, comparison serves to reveal the true
nature of a system to those trying to understand it. In light of such positive assump-
tions regarding the value of comparison, we posit that comparing the Treaty on Euro-
pean Union’ and its companion European Co untnity Treaty with the Constitution of
Canada is a worthwhile endeavour.
Comparisons have frequently been made between the U.S. Constitution, particu-
larly its “commerce clause”, and certain aspects of the TEUIEC Treaty.’ Since the two
units are of roughly the same size, and given their economic rivalry, the comparison
seems natural. It is well-known that equals like to be compared, if only to display their
respective superiority to others. As we hope to show in this article, however, a more
telling comparison is possible between the TEUIEC Treaty and the Constitution of
Canada.
inafter TE)].
‘ Consolidated Version of the Treaty on European Union, [1997] OJ. C. 340/2 37 LL.M. 67 [here-
2 Consolidated Version of the Treaty establishing the European Conrnunit, 10 November 1997,
[1997] OJ. C. 340/3,37 LL.I. 79 [hereinafter EC Treaty].
3 U.S. Const. art. I, 8, cl. 3.
4 See e-g. T. Sandalow & E. Stein, eds., Courts and Free Markets: Perspectives from the United
States and Europe, 2 vols. (Oxford: Clarendon Press, 1982); M. Cappelletti, M. Seccombe & 1. Wei-
ler, eds., Integration through Lav: Europe and the American Federal Erperience, 5 vols. (Berlin:
Walter de Gruyter, 1986); K. Lenaerts, ed., Two Hundred Years of U.S. Constitution and Thirty )ears
of EEC Treaty (Brussels: Kluwer, 1988); “Symposium: The European Union and the Treaty of Am-
sterdam” (1999) 22 Fordham Int’l L.; M. Zuleeg, “What Holds a Nation Together? Cohesion and
Democracy in the United States of America and in the European Union” (1997) 45 Am. J. Comp. L
505; J.C. Cohen, ‘The European Preliminary Reference and U.S. Supreme Court Review of State
Court Judgments: A Study in Comparative Judicial Federalism” (1996) 44 Am. J. Comp. L 421; hi .
Dundas, B.C. George & J.E. Hallas, “The Transposal Processes of the EC Directives and the U.S.
Uniform Codes: A Comparative Analysis” (1998) 21 B.C. Int’l & Comp. L Rev. 43; GA. Bermann,
‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States”
(1994) 94 Colum. L. Rev. 331; J. Fitzpatrick, “The Lugano Convention and Western European Inte-
gration: A Comparative Analysis of Jurisdiction and Judgments in Europe and the United States”
(1993) 8 Conn. J. Int’l L. 695; P.R Hugg, ‘Transnational Convergence: European Union and Ameri-
can Federalism” (1998) 32 Comell Int’l LJ. 43; T.C. Fischer, “‘Federalism’ in the European Commu-
nity and the United States: A Rose by Any Other Name… :’ (1994) 17 Fordham Int’l L.J. 389.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
One of the principal difficulties in comparing anything with the TEUIEC Treaty is
that the European “Union”, “Community”, “Single Market” is not a finished concept.
It is already much more than a customs union and it is unlikely to remain static as an
economic union. It is a work in progress, and what may be said of it at any one time
may cease to be true at a later time. Regardless of the manner in which one defines the
rules and structures created by the TEUIEC Treaty, we believe that the EU is more
properly compared with a federation, that is, a political entity, than with a free trade
association. The presence of supranational law-making institutions and supreme law
having direct effect on the citizens of each Member State, combined with the broad
jurisdiction conferred upon the EC, have created a quantum difference between the
EU and the many free trade associations that exist throughout the world today.
Comparing a newly emerging Europe with a well-established federal union that
dates back to 1867 may, at first blush, appear to prejudge the question so many com-
mentators are asking as to whether the European experiment has already metamor-
phosed into a federation of its own. We make no such claim; rather, one central con-
clusion of our comparative analysis is that, while existence in the form of a constitu-
tionally established federation does entail certain consequences with respect to stabil-
ity and longevity, a federation can also be described as a work in progress. However
complex and tightly drafted the federal constitution may be, it is no assurance against
the forces of change, which are in fact central to a healthy federation. If comparative
constitutional law reveals anything, it is that change is inevitable and generally desir-
able.
Multiple points of comparison might be pursued, but we have chosen personal
mobility to illustrate this article’s thesis. Both Canada and the EU have been vitally
concerned with the promotion and maintenance of personal mobility since inception.
For a unitary state, mobility is virtually axiomatic, except under totalitarian condi-
tions, but for a federation the matter is much more complex and will depend greatly
upon the division of legislative powers. In Canada personal mobility has been seen as
an incident of citizenship, but provincial jurisdiction over business and professional
activities has often posed problems for citizens wishing to move physically from one
province to another and to pursue economic activities. Within the EEC, then the EC,
and now the EU, it has always been necessary to promote and define the exercise of
the mobility rights of workers, persons, and services, as well as the rights of estab-
lishment. The process of definition has been long and complex and is certainly not yet
complete. There is thus a common concern for mobility at different levels, including
physical mobility, mobility as an economic value, mobility as an incident of citizen-
ship, and finally, mobility as a human right. This article is therefore devoted to a sin-
gle theme, but one that we believe illustrates a broader truth.
This article follows the internal logic of Canadian constitutional law and the dif-
ferent aspects of EC law designed to promote mobility. Thus in Part I mobility rights
in the Canadian constitutional setting are understood initially as a function of the law
governing provincial jurisdiction over business, professions, and services, including
social and medical services, and the interrelationship between these heads of jurisdic-
tion and federal jurisdiction over such matters as citizenshiD, criminal law. and inter-
2001]
A. DE MESTRAL & J. WINTER – MOBIuTY RIGHTS
provincial trade. After 1982 the dominant theme has become the exploration of mo-
bility as a fundamental freedom, either seen as a right of personal mobility or an as-
pect of the complex right to equality. In Part 11, while mobility in the EU is primarily a
right exercised by employees and employers to seek and give work, it is paralleled by
the right of establishment enjoyed by professional workers and the broader theme of
the free movement of services. Through treaty amendment, legislation, and incre-
mental change resulting from interpretation by the European Court of Justice (“ECJ”),
EC law has expanded the meaning of mobility in many ways, including a paradigm
shift from the rights of workers to the rights of persons, and lately, to the rights of citi-
zens. The human rights dimension of mobility is gradually asserting itself through the
same process.
!. Mobility Rights under the Constitution of Canada
The right to personal mobility has not been the subject of much attention by Ca-
nadian courts since its entrenchment! As Canadians are slowly struggling with its
‘ The Canadian Charter of Rights and Freedoms, s. 6, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Canadian Charter], reads as fol-
lows:
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent
resident of Canada has the right
to move to and take up residence in any province; and
(a)
(b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
(a) any laws or practices of general application in force in a province other
than those that discriminate among persons primarily on the basis of
province of present or previous residence; and
(b) any laws providing for reasonable residency requirements as a qualifica-
tion for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has
as its object the amelioration in a province of conditions of individuals in that
province who are socially or economically disadvantaged if the rate of em-
ployment in that province is below the rate of employment in Canada.
This article does not discuss issues related to the international mobility of Canadian citizens. See eg.
United States v. Buns, [2001] 1 S.C.R. 283, 175 D.L.R. (4th) 1; Chiarelli v. Canada (Minister of
Employmnent and Imnigration), [1992] 1 S.C.R 711, 90 D.LR (4th) 289; United States v. Cotroni,
[1989] 1 S.C.R. 1469,96 N.R. 321; AJ. Arkelian, “Freedom of Movement of Persons between States
and Entitlement to Passports” (1985) 49 Sask. L. Rev. 15; P. Blache, “Les libertds de circulation et
d’tablissement’ in G.-A. Beaudoin & E. Mendes, eds., The Canadian Charter of Rights and Free-
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
meaning, extent, and application, they are at the same time trying to define its justifi-
cations and purposes. Lee and Professor Trebilcock, in an interesting article, suggest
three rationales for the protection of personal mobility: (a) mobility enhances eco-
nomic efficiency; (b) mobility is linked to privacy and personhood, and is therefore a
personal right in the sense of a human right; and (c) mobility is a characteristic of citi-
zenship.’ Identifying the rationale behind such a right is useful for determining the
scope of mobility rights in Canadian constitutional law. We will therefore examine
each of these justifications in light of the text of the Canadian Charter, the interpreta-
tion given to it by courts, and the situation as it was before the Canadian Charter was
enacted.
A. An Economic Scheme?
The first of the three rationales often invoked for the adoption of section 6 of the
Canadian Charter is the will to increase the economic integration of the country; the
provision is meant to be a response to a perceived balkanization of the Canadian
economy caused by the development of the provinces as separate and competitive
economic units.
The drafters of the Constitution Act, 1867′ while designing the new confedera-
tion, seem to have sought to create both a new integrated political unit and an inte-
grated national economy. Although much effort had been made to secure the political
integration of the constituent colonies, it was assumed that economic integration
would flow naturally from the political integration. A strong central government hav-
ing powers to legislate on matters related to “The Regulation of Trade and Com-
merce”,’ “Currency and Coinage”,” “Banking, Incorporation of Banks, and the Issue
dons, 3d ed. (Toronto: Carswell, 1996) 8-1; H. Brun & C. Brunelle, “Les statuts respectifs de citoyen,
rdsident et 6tranger, A la lumi~re des chartes des droits” (1988) 29 C. de D. 689; J.-G. Castel & S.A.
Williams, “The Extradition of Canadian Citizens and Sections 1 and 6(1) of the Canadian Charter of
Rights and Freedoms” (1987) 25 Can. YB. Int’l L. 263; R.P Cohen, “Fundamental (In)justice: The
Deportation of Long-Term Residents from Canada” (1994) 32 Osgoode Hall L.J. 457; S. Slosar, “lat
citoyennet6 canadienne et ses effetsjuridiques” (1979) 10 R.D.U.S. 157.
6 See T. Lee & MJ. Trebilcock, “Economic Mobility and Constitutional Reform” (1987) 37
U.T.L.J. 268 at 281.
7 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. 11, No. 5.
‘ See Black v. Lav Society of Alberta, [1989] 1 S.C.R. 591, 58 D.L.R. (4th) 317 [hereinafter Black
cited to S.C.R.]; Lawson v. Interior Tree Fndt and Vegetable Committee of Direction, [1931] S.C.R.
357 at 373, [1931] 2 D.L.R. 193; E.S. Binavince, “The Impact of the Mobility Rights: The Canadian
Economic Union-A Boom or a Bust?” (1982) 14 Ottawa L. Rev. 340 at 341-42; P. Bernhardt, “Mo-
bility Rights: Section 6 of the Charter and the Canadian Economic Union” (1987) 12 Queen’s L.J.
199 at 199-200.
9 Constitution Act, 1867, supra note 7, s. 91(2).
‘0 Ibid., s. 91(14).
2001]
A. DE MESTRAL & J. WINTER – MOBILTY RIGHTS
of Paper Money”,” “Savings Banks”,’2 “Bills of Exchange and Promissory Notes”,”
“Interest”,’4 and “Bankruptcy and Insolvency”,1 and to raise “Money by any Mode or
System of Taxation”,” was thought to be the main way in which to achieve economic
integration among the polity, the federal government bearing the responsibility for
forging the Canadian economic union. Complementary to this scheme, a “partial free
trade” was established amongst the provinces by virtue of the act, which states that
“All Articles of the Growth, Produce, or Manufacture of any one of the Provinces
shall, from and after the Union, be admitted free into each of the other Provinces;””
and the building of a transcontinental railway.
The drafters’ vision of the Canadian economy and its development was proven to
be grossly mistaken: the value of the Canadian market was overestimated, as was its
ability to function independently from the American market, and the simplistic per-
ception of the Canadian regions’ industries and resources as “diversified and comple-
mentary”‘8 precluded the drafters from foreseeing the fierce competition that would
take place amongst provinces. The development of the provinces as separate and
competitive economic units was even more accentuated by the judicial interpretation
of the Constitution Act, 1867. First, the federal power to regulate trade and commerce,
notwithstanding its broad language, was read as having a much more restricted effect
than its American counterpart (the interstate commerce clause), thus leaving to the
provinces a wide range of issues as coming within their legislative power over “Prop-
erty and Civil Rights”.’9 Second, although section 121 precludes the imposition of
customs duties between the provinces, it has not yet been said to preclude non-tariff
barriers to trade?
“Ibid, s. 91(15).
‘2Ibid. s. 91(16).
13bid, s. 91(18).
14!bid, s. 91(19).
5Ibid, s. 91(21).
16bid, s. 91(3).
7Ibid, s. 121.
“See Binavince, supra note 8 at 342.
“Constitution Act, 1867, supra note 7, s. 92(13). See e g. Citizens Insurance Co. v. Parsons (1881),
7 A.C. 96 (P.C.); Canada (A.G.) v. Alberta (A.G.), [1916] 1 A.C. 588, 10 W.W.R. 405 (P.C.); Re the
Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919 (1921), [1922] 1 A.C.
191, 60 D.L.R. 513 (P.C.); Toronto Electric Conunissioners v. Snider, [1925] A.C. 396, [1925] 1
W.W. 785 (P.C.); British Colunbia (A.G.) v. Canada (A.G.), [1937] A.C. 377, [1937] 1 D.LR. 691
(C.); Canadian Federation of Agriculture v. Quebec (A.G.) (1950), [1951] A.C. 179, [1950] 4
D.LYR 689 (PC.).
“On the interpretation of this provision, see Binavince, supra note 8 at 351ff.; Atlantic Smoke Shops
v. Conlon, [1941] S.C.R. 670, [1941] 4 D.L.Rt 129, aff’d, [1943] A.C. 550, [1943] 2 All E.R. 393
(P.C.); Gold Seal v. Dominion Express Co. (1921), 62 S.C.R. 424, 62 D.LR. 62; R. v. J.J. Beamish
986
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[Vol. 46
In the context of mobility of labour, the existence of barriers having a distorting
effect on the national economy had been amply analyzed prior to the adoption of the
Canadian Charter’ Examples such as the prevention of out-of-province workers
from employment on large projects and the exclusion of out-of-province construction
firms from provincial construction projects were invoked in the House of Commons
to support the entrenchment of mobility rights.’
If the enhancement of Canada’s economic efficiency were the main goal of the
mobility right, that is, promoting rapid movements of the labour force so as to adjust
to the changing needs of the market, one would not have found a provision such as
subsection 6(4) of the Canadian Charter or a clause providing for “equalization pay-
ments” between provinces.’ By creating incentives for the labour force to stay where
it is, even if it does not correspond with the best allocation of resources, those clauses
run counter to the economic objective that a mobility clause attempts to reach.
Finally, it is relevant to note that corporations cannot benefit from section 6
rights2 and also that subsection 6(2) applies only to restrictions related to interprovin-
cial mobility barriers, which seems to indicate that it is therefore possible to discrimi-
Construction Co., [1968] 1 O.R. 5, 65 D.L.R. (2d) 260 (C.A.), aff’d, [1968] 1 O.R. 31 (note), 65
D.L.R. (2d) 286 (note) (S.C.C.); Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626, 15
D.L.R. (2d) 145; Manitoba (A.G.) v. Manitoba Egg & Poultry Association, [1971] S.C.R. 689 at 717,
19 D.L.R. (3d) 169; Reference Re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198 at
1267-68, 84 D.L.R. (3d) 257.
21 See Lee & Trebilcock, supra note 6 at 273.
22 See Binavince, supra note 8 at 346, for a list of situations invoked as arguments for the entrench-
ment of a mobility right and relevant references.
23See Constitution Act, 1982, supra note 5, s. 36.
1 See Parkdale Hotel v. Canada (A.G.), [1986] 2 F.C. 514, 27 D.L.R. (4th) 19 (T.D.); Groupe des
ileveurs de volailles de l’est de l’Ontario v. Canadian Chicken Marketing Agency, [1985] 1 .C. 280,
14 D.L.R. (4th) 151 (T.D.) [hereinafter Canadian Chicken]; Binavince, supra note 8 at 357; Blache,
supra note 5 at 8-5, 8-11; J.-P. Gervais, “Les personnes morales et la Charte canadienne des droits et
libertfs” (1993) 38 McGill LJ. 263 at 306, 308, 309; B. Godbout, “Le droit au travail: une garantic
constitutionnelle A ddfinir. Est-ce que les Chartes reconnaissent le droit au travail? L’dtendue de cc
droit et ses limites” in Barreau du Qu6bec, Formation Permanente, Diveloppements rdcents en droit
adininistratif (1992) (Cowansville, Qc.: Yvon Blais, 1992) 121 at 127; C. Jacquier, “La libert6 de cir-
culation des 6tudiants au Canada: une libert6 garantie et quasi absolue” (1985) 16 R.G.D. 511 at 532;
J.B. Laskin, “Mobility Rights under the Charter” (1982) 4 Supreme Court L.R. 89 at 90; Lee & Tre-
bilcock, supra note 6 at 284; D.A. Schmeiser & KJ. Young, “Mobility Rights in Canada” (1983) 13
Man. L.J. 615 at 627; Slosar, supra note 5 at 176; P.W. Hogg, Constitutional Law of Canada, loose-
leaf (Toronto: Carswell, 1997) at 43-10.
2001]
A. DE MESTRAL & J. WINTER – MOBILTY RIGHTS
nate on the basis of region.’ Such a scheme could hardly be qualified as having for its
primary goal to ensure the economic integration of the country.
Nevertheless, one should not understand what has been said as denying any im-
pact to subsection 6(2) in the increased economic integration of the country. On the
contrary, paragraph 6(2)(b) has been used to strike down a provincial regulation that
had the effect of impairing the ability to form interprovincial law firms.’ It is implicit
in this decision that the Supreme Court considers economic integration worthy of some
protection. Indeed, the majority in Black went so far as to say that there should be no
doubt that the “right ‘to pursue the gaining of a livelihood in any province”‘ guaranteed
by paragraph 6(2)(b) meant that “a person can pursue a living in a province without be-
ing there personally,”‘ making reference to the possibility of income earned in a prov-
ince even though that person is there only through the instrument of an agent. That being
said, it remains that the primary nature of subsection 6(2) is not economic.
B. Human Rights?
Lee and Professor Trebilcock suggest that personhood and privacy might be a ra-
tionale for mobility rights in Canada, and in so doing they refer to an argument made
by Professor Tribe regarding the American “right to travel”?. We believe that even
though subsection 6(2) offers protection that might be assimilated to human rights
protections, the way it is framed and its subsequent judicial interpretation suggest that
it is not primarily a human rights clause.
Paragraph 6(2)(b) has been held by the Supreme Court to guarantee “not simply
the right to pursue a livelihood, but more specifically, the right to pursue the liveli-
hood of choice to the extent and subject to the same conditions as residents:'” In an-
Demaere v. P., [1983] 2 EC. 755, 11 D.LR. (4th) 193 (C.A.). We must qualify this assertion by
noting that discrimination based on the region of residence may sometimes amount to discrimination
based on province of residence, eg. if preference for a job is given to residents of the northern part of
a province, one could be tempted to argue that it is not discrimination based on the province of resi-
dence, since both southerners of that province and residents of other provinces (i.e. residents and non-
residents) are denied benefit. But the logic of this case would deny that while some residents would be
eligible for the job, all non-residents would not. Therefore, it seems that if interregional barriers to
mobility are valid, they must not be totally intraprovincial.
“Black, supra note 8.
1Wbi at 621.
See Lee & Trebilcock, supra note 6 at 281, citing L.H. Tribe, American Constitutional Lan, (New
York: Foundation Press, 1978) at 953. Prof. Tribe relies on Shapiro v. Thompson, 394 U.S. 618 at
642-43, 89 S. Ct. 1322 (1969), where Stewart J. describes the right to travel as “not a mere conditional
liberty subject to regulation and control under conventional due process or equal protection standards”
but “a virtually unconditional personal right’.
Black, supra note 8 at 617-18.
988
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other case a provincial medical services commission refused to issue a billing number
to a qualified medical doctor to practice as a general practitioner in her chosen loca-
tion.’ She was disadvantaged because preference was given to other members for
billing numbers, based on residence and previous practice. The court rejected the ar-
gument that she was not disadvantaged because she could require her patients to pay
her directly; it was unrealistic to expect patients with access to public medical insur-
ance to obtain the services of a doctor whose services were not covered by the medi-
cal plan. The court went on to state that the right to pursue the gaining of a livelihood
“can only mean the right to practise on a viable economic basis'”‘
But this right is not a “free-standing” right. The Supreme Court concluded
unanimously in Law Society of Upper Canada v. Skapinker that paragraph 6(2)(b)
does not establish a separate and distinct right to work divorced from the mobility
provisions in which it is found.2 In that case a South African citizen resident in Can-
ada met all the requirements for membership in the Ontario bar except the citizenship
requirements imposed by the Law Society Act.” The plaintiff thus sought a declaration
that the citizenship requirement was inoperative and of no force to the extent that it
discriminated between Canadian citizens and permanent residents of Canada, and in
particular, that it was inconsistent with paragraph 6(2)(b). The Supreme Court con-
cluded that, in the absence of the interprovincial aspect of the mobility right, para-
graph (b) did not avail a permanent resident of an independent constitutional right to
work as a lawyer in the province of residence so as to override the provincial legislation.
This decision implicitly expresses the strong reluctance to entrench social and
economic rights in the Canadian constitution, particularly a general right to work,”
and the uselessness of subsection 6(2) to combat preferences for citizens over perma-
so See Mia v. British Columbia (Medical Service Commission) (1985), 17 D.L.R. (4th) 385, 61
B.C.L.R. 273 (S.C.) [hereinafter Mia cited to D.L.R.].
” Ibid. at 408. See also Wilson v. British Columbia (Medical Services Commission) (1987), 36
D.L.R. (4th) 31, 9 B.C.L.R. (2d) 350 (S.C.), rev’d on other grounds (1988), 53 D.L.R. (4th) 171, 30
B.C.L.R. (2d) 1 (C.A.), leave to appeal to S.C.C. refused, [1988] 2 S.C.R. viii, 92 N.R. 400 (note).
32 [1984] 1 S.C.R. 357 at 382,9 D.L.R. (4th) 161 [hereinafter Skapinker cited to S.C.R.].
“R.S.O. 1980, c. 233, s. 28(c).
See e.g. Godbout v. Longueuil (City oJ), [1995] RJ.Q. 2561, 31 M.RL.R. (2d) 130 (C.A.), aff’d,
[1997] 3 S.C.R. 844, 152 D.L.R. (4th) 577 [hereinafter Godbout]; Masse v. Ontario (Ministry of
Community and Social Services) (1996), 134 D.L.R. (4th) 20, 35 C.R.R. (2d) 44 (Ont. Div. Ct,); BeL
liveau v. Comit de discipline du Barreau du Quibec, [1992] R.J.Q. 1822 (C.A.), leave to appeal to
S.C.C. refused, [1993] 1 S.C.R. v, 148 N.R. 240 (note); Gosselin v. Quebec (PG.), [1992] R.JQ.
1647 (Sup. Ct.), aff’d (23 April 1999), Montreal 500-09-001092-923 (C.A.), leave to appeal to S.C.C.
granted (1 June 2000), 27418 (S.C.C.); Benoit v. Gestion Tex-Di, [1987] R.J.Q. 1401, 50 D.L.R. (4th)
627 (Sup. Ct.); Lunvick v. Nackawic (Town oJ) (1987), 82 N.B.R. (2d) 401, 43 D.L.R. (4th) 746
(Q.B.).
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A. DE MESTRAL & J. WINTER – MOBILTY RIGHTS
nent residents in a job setting. It must be noted, however, that the citizenship require-
ment for admittance to the bar was subsequently struck down by the Supreme Court
as violating another right, the equality right guaranteed by the Canadian Charter.”
Moreover, that only interprovincial-as opposed to intraprovincial-mobility
rights are guaranteed by subsection 6(2) can hardly be explained on the basis of a
human rights theory of personal freedom. It would be difficult to argue that intra-
provincial barriers affect human dignity to a lesser degree than interprovincial ones. In
fact, such a theory of personal freedom was more likely to be developed, as was the
case, under section 7 of the Canadian Charter, the terms of which are broader;” and
provincial human rights laws, such as the Quebec Charter of Human Rights and
to invalidate a resolution
Freedoms.’ These sections were invoked in Godbout
adopted by a city requiring all new permanent employees to reside within its bounda-
ries. This resolution was invalidated because it was held to violate the personal auton-
omy of the employees: “[C]hoosing where to establish one’s home is … a quintessen-
tially private decision going to the very heart of personal or individual autonomy.'” It
is to be noted that subsection 6(2) was not invoked in that case, and that a paragraph
6(2)(b) argument had been dismissed in a similar case dealing with a residence re-
quirement in a municipal bylaw.”
Furthermore, subsection 6(2) has been inefficient in protecting property rights
linked to mobility. The provision does not expressly confer the right to acquire or hold
property in a province; such rights were deleted from the drafts of subsection 6(2) at
the request of the government of Prince Edward Island.” An example of the reluc-
35 Supra note 5, s. 15(1). See Andrews v. Lnv Society of British Coltmbia, (1989] 1 S.C.R. 143, 56
D.L.R. (4th) 1.
Section 7 of the Canadian Charter, ibid , provides that:
7. Everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice.
See ag. Godbout, supra note 34.
R.S.Q. c. C-12. Article 5 provides:
5. Every person has a right to respect for his private life.
3 Supra note 34.
39/bi at para. 66.
” See McDermott v. Nackawic (Town of) (1989), 89 N.B.R. (2d) 333, 53 D.,.R. (4th) 150 (CA.).
One might argue that this case was wrongly decided, because any municipal residence requirement
automatically involves a provincial residence requirement and such requirement should be invalid un-
der s. 6(2) as discriminating against out-of-province workers, but s. 6(2) is really not seen as a meas-
ure of personal autonomy protection.
” See Morgan v. Prince Edward Island (A.G.), [1976] 2 S.C.R. 349, 55 D.L.R. (3d) 527, where a
provision limiting the rights of non-residents to own land in the province had been unsuccessfully
challenged prior to the enactment of the Canadian Charter.
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tance of courts to strike down laws related to non-resident ownership of land is
McCarten v. Prince Edward Island.”2 It was held there that a section of the Real Prop-
erty Tax Ace’ that does not give a tax credit to landowners who do not reside within
the province for an uninterrupted period of at least six months per year does not vio-
late subsection 6(2).
Also, the mobility right per se did not have much effect on the residence require-
ment for voting. A twelve-month residence requirement was held not to violate para-
graph 6(2)(a),I” and it was even said that residence restrictions imposed on voting
rights had nothing to do with subsection 6(2) rights.’ Instead, residence requirements
for voting rights have generally been examined under section 3 of the Canadian
Charter, which guarantees that “[e]very citizen of Canada has the right to vote in an
election of members of the House of Commons or of a legislative assembly and to be
qualified for membership therein ” ‘
Finally, the narrow scope of subsection 6(2) is further evidenced by the definition
of its beneficiaries. The term “citizen of Canada” used to define who benefits from
section 6 rights is used in only two other sections of the Canadian Charter: (a) the
right to vote in provincial or federal elections; and (b) minority language educational
rights. ‘ The first is not so much a human right as an attribute coming with the fact of
being a member of the Canadian polity. The second protects only French and English
linguistic minorities and was not entrenched to protect basic human rights, but rather
to protect a certain vision, or an identity of the Canadian polity. As for the expression
“permanent resident”, it is not found anywhere in the Canadian Charter other than
subsection 6(2). Therefore it cannot be said that the drafters intended to exclude only
corporations from section 6 by opting for expressions like “citizen” and “permanent
resident”. If that was their goal, they could have used expressions such as “every indi-
vidual” found at the equality clause ‘ and interpreted as meaning that only “individu-
als” could benefit from this right and that corporations are excluded.” But instead they
“2 (1994), 112 D.L.R. (4th) 711, 117 Nfld. & P.E.I.R. 1 (P.E.I. C.A.), leave to appeal to S.C.C. re-
fused, [1994] 2 S.C.R. viii, 115 D.L.R. (4th) viii.
4 R.S.P.E.I 1988, c. R-5, s. 5.
“Hedstrom v. Commissioner of Yukon Territory, [1985] 6 W.W.R. 690, 16 C.R.R. 37 (YT. S.C.).
41 See Storey v. Zazelnchuk (1984), 21 Sask. R. 158, 5 C.R.R. 99 (Q.B.), aff’d (1984), 36 Sask. R.
103, 12 C.R.R. 261 (C.A.). See also Re Allman and Commissioner of the Northwest Territories,
[1984] N.W.T.R. 65, 8 D.L.R. (4th) 230 (C.A.), leave to appeal to S.C.C. refused, [1984] N.WT.R.
xxxix, 55 N.R. 394 (note) (S.C.C.).
46 Supra note 5, s. 3.
47 bid.
4sIbid., s. 23.
49Ibid., s. 15.
‘o See e.g. Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326,64 D.L.R. (4th) 577.
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A. DE MESTRAL & J. WINTER – MOBILTY RIGHTS
chose “citizens” and “permanent resident”. It seems, therefore, that the limitation on
who is to benefit from mobility rights is not grounded in a human rights theory, but in
other concerns. We suggest that these other concerns may be more readily affiliated
with the will to create a national unity through a common citizenship.
C. “Nation-Building”Rights?
In Malartic Hygrade Gold Mines v. R., ‘ Chief Justice Deschtnes of the Quebec
Superior Court had to decide whether paragraph 6(2)(b) guaranteed the right of a
member of the bar of Ontario to participate in a judicial proceeding in Quebec without
a licence or permit from the Barreau du Qudbec. The chief justice held, “Cette dispo-
sition vise sans doute h donner h la citoyennet6 canadienne son sens vdritable et a
pr6venir l’6rection de murailles artificielles entre les provinces:”‘ This statement has
since been quoted with approval in both Supreme Court judgments dealing with sub-
section 6(2) rights.
The legal links between mobility, work, and citizenship had been established long
before in Canadian case law. Courts have been prepared to characterize certain attrib-
utes as fundamental rights flowing from a person’s citizenship. In 1899 the Judicial
Committee of the Privy Council dealt with the validity of a British Columbia statute
prohibiting people of Chinese descent from being employed in mines.’ The Privy
Council found the provision to be invalid as being ultra vires the provincial legisla-
ture. The Constitution Act, 1867 gave exclusive authority over “naturalisation and ali-
ens” to the federal Parliament, and “naturalisation” was held to include “the power of
enacting … what shall be the rights and privileges pertaining to residents in Canada
after they have been naturalized.’ ‘ Provincial interference with a resident’s rights to
live and work in the province was thus prohibited.
In Winner v. S.M.T (Eastenz),” Rand J. made clear that Canadian citizenship car-
ried with it certain rights. He held:
What this implies is that a province cannot, by depriving a Canadian of the
means of working, force him to leave it it cannot divest him of his right or ca-
pacity to remain and to engage in work there: that capacity inhering as a con-
[1982] C.S. 1146, 142 D.L.R. (3d) 512 [hereinafter cited to C.S.].
52 Ibid. at 1150.
53 See Skapinker, supra note 32 at 381; Black, supra note 8 at 615.
4 Union Colliery Co. v. Byden, [1899] A.C. 580 (P.C.) [hereinafter Bryden].
Supra note 7, s. 91(25).
Supra note 54 at 586. See also Cunninghan v. Tonzey Honmta, [1903] A.C. 151 (P.C.), where the
disenfranchisement of naturalized Canadians by a provincial government was upheld, as the right to
vote was considered as merely an “incident of status”.
[1951] S.C.R. 887, [1951] 4 D.L.R 529 [hereinafter lMinner cited to S.C.R.].
992
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stituent element of his citizenship status is beyond nullification by provincial
action….
It follows, a fortiori, that a province cannot prevent a Canadian from en-
tering its territory except, conceivably, in temporary circumstances, for some
local reasons as, for example, health. With such a prohibitory power, the coun-
try could be converted into a number of enclaves and the “union” which the
original provinces sought and obtained disrupted. In a like position is a subject
of a friendly foreign country; for practical purposes he enjoys all the rights of
the citizens.
Such, then, is the national status embodying certain inherent or constitutive
characteristics, of members of the Canadian public, and it can be modified, de-
feated or destroyed, as for instance by outlawry, only by Parliament.:’
Four elements of pre-Canadian Charter law flowing from this excerpt merit our
attention in light of post-Canadian Charter law:
1. All Canadian citizens-naturalized or native-born–cannot be deprived by
provinces of the benefit of the right to remain and to engage in work in any
province. This seems wider in scope than subsection 6(2) rights, since it does
not require any interprovincial element.
2. Under pre-Canadian Charter law, the federal Parliament retained the capac-
ity to alter or even “destroy” such citizenship rights. Subsection 6(2) had the
effect of limiting both the provincial and federal powers to do so.”
3. One could wonder what practical purposes militate in favour of the fact that a
“subject of a friendly foreign country … enjoys all the rights of the citizens.”
In public international law, however, the federal government is responsible
for its federated states’ acts. Therefore, such a position could be understood
as the will to face the world as one single entity capable of respecting the
rules imposed by international comity.
4. The major policy reason behind such citizenship rights, as we emphasized in
the quotation from Winner, is national unity, the fear of disintegration of the
state and of political balkanization. The Constitution Act, 1982 (which in-
cludes the Canadian Charter) was a response to those fears; it was adopted
following the defeat of Quebec sovereigntists at the 1980 referendum. The
Canadian Charter was intended to be the “people’s package”, and national
unity was surely one of its main goals.
” Ibid. at 919-20 [emphasis added].
“9See e.g. Pineview Poultry Products v. Canada, [1994] 2 RC. 475,73 F.T.R. 50 (T.D.).
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A. DE MESTRAL & J. WINTER – MOBILITY RIGHTS
The latter comment is the key that enables one to understand the scope and func-
tion of subsection 6(2) in the Canadian constitutional setting. This is evidenced even
further by La Forest J.’s comments in Black, that even if economic concerns undoubt-
edly played a part in the constitutional entrenchment, the purpose of section 6 was to
“secure to all Canadians and permanent residents the rights that flow from member-
ship or permanent residency in a united country.” Even if, technically, subsection
6(2) rights did not add much protection to what Canadian citizens already had, the
mere fact that they were expressly entrenched in the constitution gave an explicit sig-
nal to the population that its country was one country and that it should not be limited
in its aspirations by “artificial provincial walls” created by governments. The call
seems to have been heard mostly in the legal community, since a large part of the most
important case law on subsection 6(2) originates from challenges to bar regulations.!’
The provision has also been used, however, to challenge regulations dealing with ac-
countants,’ medical doctors,
taxi drivers,” univirsity tuition fees,’ interprovincial mar-
keting schemes set up by the Canadian government,’ and direct sellers. ‘
Supra note 8 at 612.
6 1 See e.g. Tapper v. Lznv Society of Upper Canada (1998), 113 O.A.C. 370 (CA); Skapin.er, at-
pra note 32; Black, ibid.; Richards v. Barreau du Qubec, [1992] RJ.Q. 2847 (Sup. C); O’Neill v.
lav Society of New Brunswick (1993), 141 N.B.R. (2d) 1, 115 D.L.L (4th)423 (Q.B.).
Wahlker v. Prince Edward Island, [1995] 2 S.C.R. 407, 124 D.L.R. (4th) 127; Taylor v. Institute of
CharteredAccountants of Saskatdmvan (1989), 75 Sask. RL 153,59 D.LR. (4th) 656 (CA.).
Rombaut v. New Brunswick (Minister of Health) (2000), 95 A.C.W.S. (3d) 1159 (N.B. CA);
WIldman v. British Colunbia (Medical Serices Conumission) (1999), 177 D.LR. (4th) 321, [1999]
12 W.W.R. 542 (B.C. CA); Mia, supra note 30.
6’ United Taxi Drivers’Fellowsldp of Southern Alberta v. Calgary (City oJ) (1998), 217 A.R. 1, 45
M.P.LR. (2d) 16 (Q.B.).
‘ See Ruel v. Quibec (Ministre de l’tducation) (11 February 1998), Montreal 500-05-032573-972,
J.E. 98-565 (Sup. Ct) [hereinafterRue/I, where the Students’ Society of McGill University challenged
a decision by the minister of education to raise tuition fees for out-of-province Canadian students.
One of the arguments invoked by the plaintiff was that differential fees were incompatible with s. 6
mobility rights because they created an obstacle for students wishing to study in Quebec. The Supe-
rior Court dismissed this argument by pointing to the relatively low fees charged and the non-abusive
nature of the amounts in question. It remains to be seen whether the Court of Appeal will uphold this
reasoning.
6 Archibald v. Canada, [2000] 4 F.C. 479, 188 D.L-R (4th) 538 (CA); Canadian Egg Marketing
Agency v. Richardson, [1998] 3 S.C.RL 157, 166 D.L.R. (4th) 1; British Columbia (Milk Marketing
Board) v. Aquilini (1998), 165 D.L.R. (4th) 626, 59 B.C.LR. (3d) 143 (CA); Canadian Chicken, su-
pra note 24.
‘ Basile v. Nova Scotia (A G.) (1984), 62 N.S.R. (2d) 410, 11 D.LRL (4th) 219 (CA).
994
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D. Limitations on Subsection 6(2) Rights
Before concluding this section, we would like briefly to outline limitations to the
application of subsection 6(2) rights. First, section 33 of the Canadian Charter, which
gives Parliament and the legislatures the power expressly to declare that an act or a
provision thereof shall operate notwithstanding a provision of the Canadian Charter,
does not apply to section 6 rights.’ Second, subsection 6(3), La Forest J. said in Black,
“acts as more or less a footnote to s. 6(2). It merely qualifies s. 6(2).”
In addition,
paragraph 6(3)(b), which stipulates that the rights specified in subsection 6(2) are
subject to any laws providing for reasonable residency requirements as a qualification
for receiving public social services, has not been subject to judicial interpretation. One
reason is that under a federal statute provinces are prohibited from requiring a period
of residence within the province for welfare benefits funded on a shared-cost basis
with the federal government.”0 Such programs amount to a large portion of social
services available in Canada. Subsection 6(4)–the affirmative action section-has
also not been subject to any known judicial interpretation. This is probably because of
the importance that section 15-the equality clause-has assumed in constitutional
litigation. Third, once an infringement of a Canadian Charter right has been recog-
nized, courts must examine whether that right was “subject … to such reasonable lim-
its prescribed by law as can be demonstrably justified in a free and democratic soci-
ety'”‘ If the legal norm fails that test, it must be invalidated.’ Finally, the biggest
limitation to mobility rights is the absence of a real political consensus as to what
should be seen as the primary political and economic unit in Canada: should it be the
provinces or the federal state itself? As we have seen, Canada is still struggling with
its “new” mobility rights provision. At the bottom of such struggle and of the diffi-
culty to reach a better economic integration is the never-ending obstacle to Canadian
unity: the ill-defined concept of a Canadian nationhood. Canadian people are still tom
apart by the interplay of multiple identities, by multiple allegiances. Those conflicting
identities are particularly evident in the Province of Quebec, where humorist Yvon
Deschamps has neatly coined the will of the Quebec population, having “an inde-
pendent Quebec within a strong, united Canada”.
Supra note 5, s. 33(1).
Supra note 8 at 624. The French version says that s. 6(3) “sert plus ou moins A expliquer le par.
6(2). fIne fait que nuancer le par. 6(2)” (ibid.).
7 See Federal-Provincial FiscalArrangements Act, R.S.C. 1985, c. F-8, s. 13(l)(c). This prohibition
was formerly in the Canada Assistance Plan Act, R.S.C. 1985, c. C-1, s. 6(2)(d), as rep. by Budget
Implementation Act, 1995, S.C. 1995, c. 17, s. 32.
” Canadian Charter, supra note 5, s. 1.
7 Constitution Act, 1982, supra note 5, s. 52.
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A. DE MESTRAL & J. WINTER – MoBILITY RIGHTS
995
II. Freedom of Movement of Persons and Residence in the
European Union
A. The Provisions on Free Movement and Residence
The objectives of the provisions on free movement and residence in the TEU and
the EC Treaty have always been much debated. In essence, they do not appear very
different from those underlying the mobility rights entrenched in the Canadian con-
stitution. On the one hand, the primary goal pursued by the authors of the EC Trealy
was enhancing economic rationality. A fully integrated area would not only require
the abolition of restrictions on the free movement of goods, but also the elimination of
obstacles to the free movement of persons. Common markets are thought to produce a
more efficient allocation of resources and to generate more substantial welfare effects
than less far-reaching forms of economic co-operation such as free trade zones and
customs unions.’ On the other hand, the human dimension of free movement raises
certain social justice concerns. The right attaches to persons who, when they move to
another state to take up residence with a view to working and improving their stan-
dard of living and economic prospects, are entitled to be treated in accordance with a
common code of fundamental values. The tensions between the purely economic and
the social aspects of the free movement provisions are reflected in the case law of the
ECJY*’ As early as 1974 the Court confirmed that free movement rules are instruments
not only of economic interpenetration, but also of social interpenetration.” The Court
has frequently refused to interpret the relevant treaty provisions in a manner reducing
free movement to a mere instrument of economic integration.’
See eg. AJ. Mackenzie Stuart, ‘ Problems of the European Community-Transalantic Parallels”
(1987) 36 LC.L.Q. 183 at 191; W. Molle & A. van Mourik, ‘International Movements of Labour un-
der Conditions of Economic Integration: The Case of Western Europe” (1988) 26 J. Common Market
Stud. 317.
7,For a discussion of the case law, see P. Craig & G. de Btrca, EU Law: Terts, Cases, and Materi-
als, 2d ed. (Oxford. Oxford University Press, 1998) c. 16, 17.
‘ Reywers v. Belgiw, C-2/74, [1974] E.C.R. 631 at 651, [1974] 2 C.M.L.R. 305 [hereinafter
Reyners].
76 This approach is quite clearly expressed by Advocate General Jacob’s opinion in Konstantinidis
(Referencefor a preliminary ruling fron the Antsgericht Tiibingen):
[A] Community national who goes to another Member State as a worker or self-
employed person … is entitled not just to pursue his trade or profession and to enjoy the
same living and working conditions as nationals of the host state; he is in addition enti-
fled to assume that, wherever he goes to earn his living in the European Community, he
will be treated in accordance with a common code of fundamental values, in particular
those laid dovn in the European Convention on Human Rights. In other words, he is
entitled to say “civis europeus sum” and to invoke that status in order to oppose any
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As appears to be the case in Canada, freedom of movement in Europe is seen as
an important element of an embryonic European citizenship and a catalyst for further
political integration. The TEU has introduced new provisions in this respect, but it
would appear that the rules on free movement of persons remain the backbone of the
concept of Union citizenship. Finally, the Charter of Fundamental Rights of the
European Union also proclaims the rights of free movement to be among the basic
rights to be safeguarded in the EU. ‘
The EC Treaty distinguishes between “wage earners” (workers) and non-wage
earners, i.e. self-employed professional people and tradespeople wishing to take up
and pursue economic activities in another Member State of the Community. Articles
39 to 42 govern the free movement of workers. The free movement of the self-
employed (both natural and legal persons) is to be secured within the framework of
the rules on the freedom of establishment and the rules on the freedom to provide
services.” Whereas establishment implies the setting up of a more or less permanent
residence in another Member State, the rules on the freedom to provide services apply
where a person wishing to provide services across national borders requires only oc-
casional and temporary entry into another Member State.
The ECJ has emphasized time and again that the free movement of persons repre-
sents one of the fundamental freedoms of the EC Treaty and that, as such, the provi-
sions in this area may be relied on by private individuals through the doctrine of direct
effect and shall not be interpreted restrictively. The Court has played a decisive role
here, by extending the personal and substantive scope of application of free move-
ment rights for workers and self-employed persons as much as possible.
It should nonetheless be remembered that securing the free movement of eco-
nomically active persons is insufficient to create a general right of residence for all
Community citizens. Since the entry into force of the TEU in 1993, a right “to move
and reside freely within the territory of the Member States””0 is vested in every citizen
of the Union, i.e. every person holding the nationality of a Member State,” but this
violation of his fundamental rights (C-168/91, [1993] E.C.R. 1-1191 at 1-1211 to I-
1212, (sub nom Konstantinidis v. Altensteigstandesamt) [1993] 3 C.M.L.R. 401).
18 December 2000, [2000] O.J. C. 364/1, art. 45 [hereinafter EU Charter]. It remains to be seen
whether the proclamation of this document, which has not been given formal legal binding force, will
have an impact on the scope of the rights already accruing to Community nationals by virtue of the
EC rules on free movement of workers, the self-employed, providers and recipients of services, and
various categories of persons who are not economically active or not fully economically active.
7’8 EC Treaty, supra note 2, arts. 43-48.
‘9Ibid, arts. 49-55.
Ibiad, art. 18(1).
Ibid., art. 17(1).
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A. DE MESTRAL & J. WINTER – MOBILITY RIGHTS
right is subject to the limitations and conditions laid down in the treaty. So, in princi-
ple, it is up to the Council of Ministers to adopt measures to secure the same rights of
free movement for non-economically active citizens of the Union.
In practice, however, there has been an absence of legislative activity surrounding
this question, and it is the Court that has shown a particular interest in bridging the
gap between the rights of the economically active and the non-economically active
categories of Community citizens. It has done so by extracting maximum effect from
the treaty provisions and the various Regulations and Directives adopted to flesh out
the rights of economically active Community citizens and their dependants, and then
extending, where possible, the reach of these provisions for the benefit of non-
economically active persons.
While there are indications that the Court is prepared to use the concept of Union
citizenship as a basis for extending equal treatment rights,n it is not to be expected that
judicial activism will go so far as to ignore social, economic, and political realities.
Indeed, it is impossible at the present stage of the development of the EU to presume
that solidarity between the Member States has progressed to the point where, as a
matter of law, all Community nationals must be given access to public services and
publicly financed benefits available in other Member States on equal footing with the
state’s own nationals.
B. Jurisprudential Developments
1. Economically Active Persons
The following points will serve to highlight the ECJ’s essential contributions in
the area. First, despite (or perhaps because) there is an extensive body of secondary
legislation governing the conditions of entry, residence, and treatment of EC workers,
their families, the self-employed, retired workers, etc., the Court of Justice has been
frequently called upon to determine the precise scope of the free movement provi-
sions.’ The case law is particularly abundant in respect of the definition of the term
“Ibid., art. 18(1).
“See Sala v. Freistaat Bayem, C-85/96, [1998] E.C.R. 1-2691 [hereinafter Sala].
“See e.g. EEC, Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions
on movement and residence within the Conununity for workers of Member States and their families,
[1968] OJ. L. 257/13; EEC, Council Directive 73/148/EEC of 21 May 1973 on the abolition of re-
strictions on movement and residence within the Conunity for nationals of Member States with re-
gard to establismunent and the provision of services, [1973] OJ. L. 172/14; EEC, Council Regulation
1612/68 on the free movement of workers within the Community, [1968] OJ. L 257/2 [hereinafter
Regulation 1612/68]; EEC, Council Regulation 1408171 of 14 June 1971 on the application of social
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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“worker”. Some of the cases reveal the tension between the economic and the human
rights aspects of the rules on intra-Community free movement.”
The standard criterion used by the Court for finding that a worker comes under
Community protection is that the person concerned performs services under the di-
rection of another person for remuneration and that the employment involves “effec-
tive and genuine activities”.’ The reasons for taking up employment are immaterial
and so is the amount earned. Community law does not apply, however, where the ac-
tivities are on such a small scale as to be regarded as purely marginal and ancillary.
The Court’s judgments have been similarly generous on the status of EU citizens who
have been previously in employment or who are job seekers.
Second, services within the meaning of Articles 49 and 50 are those activities that
are “normally provided for remuneration”.” According to Article 50, the beneficiaries
of the provisions on free movement of services are the persons who wish temporarily
to pursue activities in the state where the service is to be provided. Such persons are
entitled to equal treatment with nationals. While these provisions do not mention the
rights of the recipients of services, the secondary legislation protects the position of
such recipients who travel to another Member State for the purpose of receiving a
particular service.’
security schemes to employed persons and their families moving within the Community, [1971] 01.
L. 149/2 [hereinafter Regulation 140871]; EEC, Council Regulation 1251/70 on the right of workers
to remain in the territory of a Member State after having been employed in that State, [1970] O.J. L,
142/24; EEC, Council Directive 75/35/EEC of 17 December 1974 extending the scope of Directive
No 64/221/EEC on the coordination of special measures concerning the movement and residence of
foreign nationals which are justified on grounds of public policy, public security or public health to
include nationals of a Member State who exercise the right to remain in the territory of another
Member State after having pursued therein an activity in a self-employed capacity, [1975] O.J. L.
14/14.
See e.g. Levin v. Staatssecretaris van Justitie, C-53/81, [1982] E.C.R. 1035, [1982] 2 C.M.L.R,
454; Kempfv. Staatssecretaris van Justitie, C-139/85, [1986] E.C.R. 1741, [1987] 1 C.M.L.R. 764.
‘ For an application of the test, see Lawrie-Blum v. Land Baden-Wiirttemberg, C-66/85, [1986]
E.C.R. 2121, [1987] 3 C.M.L.R. 389, where the Court found that a trainee teacher qualified as a
worker although the amount of remuneration received was modest.
” EC Treaty, supra note 2, art. 50. In the ever-expanding telecommunications and media sectors, the
providers of services often do not receive payment from the service users because their income is
largely generated by advertising. In response to such cases the Court has accepted that art. 49 does not
require that the services be paid for by their direct beneficiaries. See Procureur du Roi v. Debauve, C-
52179, [1980] E.C.R. 833, [1981] 2 C.M.L.R. 362; Bond van Adverteerders v. Netherlands, C-352/85,
[1988] E.C.R. 2085, [1989] 3 C.M.L.R. 113.
See Luisi & Carbone v. Ministero del Tesoro, C-286/82 & C-26/83, [1984] E.C.R. 377, [1985] 3
C.M.L.R. 52. See also Cowan v. Trisorpublic, C-186/87, [1989] E.C.R. 195, [1990] 2 C.M.L.R 613
[hereinafter Cowan].
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Third, the removal of obstacles to free movement and residence is based primarily
on the principle of equal treatment. As such, Articles 39, 43, and 49 represent a spe-
cific application of the general prohibition of discrimination on grounds of nationality
in Article 12 of the EC Treaty. This prohibition covers, in the first place, situations
where a national measure explicitly differentiates on nationality grounds. This is
called “direct” or “overt” discrimination. The principle of non-discrimination also ap-
plies to cases of “indirect” or “covert” discrimination, such as the situation where
measures draw no distinction on the basis of nationality, but by the application of
other criteria of differentiation, achieve in practical effect the same result, because
persons from other Member States are placed at a disadvantage.v
Free movement is also thought to postulate the absence of restrictions on free
movement that flow from national measures that do not discriminate against non-
nationals in law or in practical effect. Measures that are “indistinctly applicable” to
nationals and non-nationals alike may be caught by the treaty prohibitions if they hin-
der or impede the pursuit by Community citizens of occupational activities beyond
the territory of their home state.
With respect to freedom of establishment, compliance with indistinctly applicable
measures laying down, for example, conditions for access to certain professions, or
the use of professional titles such as “avocato”, may be just as burdensome for nation-
als as for non-nationals. But given that without such measures intra-Community
movement of self-employed persons would be easier, the said measures may qualify
as restrictions on the freedom of establishment.9′ Similarly, in relation to the freedom
to supply services,. a restriction does not escape from the scope of Article 49 merely
because it is genuinely non-discriminatory. If the measure affects the possibility for
See e-g. Wrirtembergisehe Mildzvenvertmg-Sikbnildi-AG v. Ugliola, C-15/69, [1969] E.C.R.
363, [1970] C.M.L.R 194; Sotguiv. DeutsdzeBundespost, C-152/73, [1974] E.C.R. 153.
See e.g. Union Royale Beige des Socist&s de Football Association ASBL v. Bosman, C-415/93,
[1995] E.C.R. 1-4921, [1996] 1 C.M.L.R1 645; Graf v. Filwmoser Mascldnenbatt GmbH, C-190198,
[2000] E.C.R. 1-493, [2000] 1 C.M.L.1. 741.
” See Gebhard v. Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, C-55194, [1995]
E.C.R. 1-4165 at 1-4194, [1996] 1 C.M.L.R. 603 [hereinafter Gebhard cited to EC.L]. For a similar
case involving indistinctly applicable French rules (requirement that all practising lawyers be regis-
tered at the bar) and which were held to be in breach of the rules on freedom of establishment, unless
objectively justified, see Gullung v. Conseil de l’ordre des avocats du barreau de Colmar et de Sm’-
erne, C-292/86, [1988] E.C.R. 111, [1988] 2 C.M.L.R 57.
‘ See e-g. Sager v. Denneneer & Co., C-76190, [1991] E.C.R. 1-4221, [1993] 3 CN.LR. 639
(German legislation reserving certain activities in the field of maintenance of industrial property rights
-C-R. 1-1141,
to patent agents); Alpine Investments BV v. Minister van Fmancin, C-384/93, [1995]
[1995] 2 C.M.L.R. 209 (Dutch prohibition on the making of unsolicited phone calls to offer financial
services (cold calling)).
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service providers to gain access to markets in another Member State, it constitutes a
restriction that is forbidden unless it can be justified by the regulating state.”
Finally, mobility rights granted by the EC Treaty are not without exception. First,
freedom to take up employment or to pursue self-employed activities abroad is sub-
ject to exceptions and derogations in the context of employment in the public service”
and of activities that in any given state are connected, even occasionally, with the ex-
ercise of official authority.”‘ Second, workers and their families, job seekers, and all
other beneficiaries of the freedom of movement of workers are entitled to admission
to and residence in the territory of a host Member State, but subject to limitations jus-
tified on grounds of public policy, public security, or public health.” Similarly, Mem-
ber States may invoke these same grounds when they wish to refuse entry or residence
to foreign nationals seeking to benefit from the free movement rules on establishment
and services, or to justify expulsion of such persons from the national territory.”
Third, if Member States enact restrictive measures that are not discriminatory but
nevertheless hinder free movement, such measures may be compatible with the treaty
if they can be objectively justified by the need to satisfy imperative requirements
linked to the general interest and proven not to be an unsuitable or disproportionate
instrument for attaining an acceptable goal.”
The removal of obstacles to the free movement of workers, self-employed per-
sons, and providers and recipients of services implies that entry visas and similar re-
strictions are outlawed and that residence rights are automatically granted. In addition,
the beneficiaries of these rights are to be placed on an equal footing with a state’s own
nationals as regards remuneration, working conditions, training, diplomas and other
evidence of formal qualifications, and generally the conditions for taking up and pur-
“‘This position was clearly explained by the Court in Gebhard
It follows, however, from the Court’s case-law that national measures liable to hinder or
make less attractive the exercise of fundamental freedoms guaranteed by the Treaty
must fufil four conditions: they must be applied in a non-discriminatory manner; they
must be justified by imperative requirements in the general interest; they must be suit-
able for securing the attainment of the objective which they pursue; and they must not
go beyond what is necessary in order to attain it (supra note 91 at 1-4197 to 1-4198
[reference omitted]).
94 EC Treaty, supra note 2, art. 39(4). For an interesting case concerning the scope of the exception,
see Coimnission v. Belgium, C-149/79, [1980] E.C.R. 3881, (sub nom. Re Public Employees: E.C.
Commission v. Belgium) [1981] 2 C.M.L.R. 413.
9″EC Treaty, ibid., arts. 45, 55. Such exceptions are given a narrow scope. See e.g. Reyners, supra
note 75.
EC Treaty, ibid., art. 39(3).
97 Ibid., arts. 46, 55.
9′ See supra note 93.
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suing economic activities. Whenever a person comes within the personal scope of the
free movement provisions, he or she is entitled to full social and economic equality as
set forth in the secondary legislation, namely, Regulation 1612/68′ and Regulation
1408/71.'” In the case of persons invoking the freedom to supply services, however,
the secondary legislation is silent.
2. Non-economically Active Persons
Obviously, persons who do not participate in, or perform, some sort of economic
activity within the meaning of Articles 39, 43, or 49 cannot rely on the treaty provi-
sions on the freedom of movement to claim a right of entry and residence in another
Member State. Yet since the seventies there has been a growing awareness that meas-
ures are needed for strengthening the Community’s identity and for developing
Community citizenship. This would imply granting free movement rights to “resid-
ual” categories of persons, such as students and pensioners. The main problem en-
countered here was, of course, that Member States were-and still are-not prepared
to permit or encourage “benefits tourism” and other forms of “free riding”. It has been
generally thought to be unproblematic to allow nationals from other Member States
free entry rights so long as this does not mean that the principle of non-discrimination
would demand recognition of equal treatment rights concerning access of such per-
sons to public benefits and publicly financed services. It would indeed be difficult to
allow persons having no genuine link with the wealth-generating processes in a for-
eign country the same financial advantages as nationals of the host state.
This state of affairs is precisely why Cowan’ must be considered an important
yet controversial step forward. The case concerned a British holidaymaker in France
who fell victim to a violent crime and who was denied publicly financed compensa-
tion by the government because he was not a French national. When the French pol-
icy was challenged before the ECJ, it was found to be discriminatory under Article
12.'” Given the tenuous connection between a recipient of tourist services and the
economic life of the host Member State, as well as the weak link between the freedom
to receive services and a compensation scheme for victims of crime, we find the po-
tential impact of the Cowan ruling to be tremendous.
Practically speaking, every benefit that a state reserves for its own nationals and
for those lawfully residing in the national territory may have an impact on the free
movement of anybody moving across state borders, because it is not easy to visit an-
” Supra note 84.
1oSupra note 84.
,0,Supra note 88.
“2EC Treaty, supra note 2. This provision prohibits any discrimination on grounds of nationality.
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other Member State without being at the receiving end of the service industry of that
state. Therefore, even though the ECJ has accepted that non-nationals may invoke Ar-
ticle 12 to claim equality of treatment in respect of access to public museums'” and
the right to use minority languages in court proceedings,” ‘ it is unsurprising that the
Court does not appear to be prepared to generalize the Cowan ratio any further.
Moreover, the ECJ’s cautious approach to claims made by students seeking access
to higher education in a host state shows an unwillingness to widen the scope of the
equality principle enshrined in Article 12 so as to present a risk for Member States’
capacity to provide their residents with proper public services and benefits, or to jeop-
ardize budgetary and financial stability. In fact, the Court has clearly declined to read
a right of access to public institutions of higher education into the treaty provisions on
the freedom to provide services.”
Whether a student is to be considered a recipient of services could of course be
sidestepped by basing a student’s claim on Article 12, which prohibits any discrimi-
nation on grounds of nationality “within the scope of application of this Treaty”. This
is precisely what happened in the famous Gravier case.” There the Court found that
the conditions of access to vocational training’ fell within the scope of application of
the treaty. The imposition on students from other Member States of higher enrolment
or tuition fees than those charged to students who were nationals of the host state con-
stituted a case of discrimination incompatible with Article 12.'” It is to be noted, how-
ever, that the Court, while prohibiting discriminatory fees, has ruled that the principle
of non-discrimination does not require equal treatment with regard to financial aid de-
signed to cover the general living costs of students.”
A few years after these judgments the Council finally adopted a set of measures to
extend residence rights to a wider group of persons than the beneficiaries of the “eco-
,’ See e.g. Commission v. Spain, C-45/93, [1994] E.C.R. 1-911.
‘”See e.g. Bickel and Franz, Criminal proceedings against (1998), C-274/96, [1998] E.C.R. 1-7637,
[1999] 1 C.M.L.R. 348.
10 See Belgium v. Humbel, C-263/86, [1988] E.C.R. 5365, [1989] 1 C.M.L.R. 393, aff’d by Wirth v.
Landeshauptstadt Hannover, C-109/92, [1993] E.C.R. 1-6447, where educational facilities funded by
the state were held not to be services within the meaning of the EC Treaty, supra note 2, art. 50, be-
cause they could not be said to be “normally provided for remuneration”.
‘6 Gravier v. Lige (City ofi, C-293/83, [1985] E.C.R. 593, [1985] 3 C.M.L.R. 1 [hereinafter
Gravier].
‘icBlaizot v. University of Liege (1988), C-24/86, [1988] E.C.R. 379, [1989] 1 C.M.L.R. 57, ex-
pands the scope of the Gravier ruling to most forms of higher education.
‘” Compare the holding of the Quebec court in Ruel, supra note 65.
’09 Lair v. Universitit Hannover (1988), C-39/86, [1988] E.C.R. 3161 at paras. 15, 16, [1989] 3
C.M.L.R. 545; Brown v. Secretary of State for Scotland, C-197/86, [1988] E.C.R. 3205, [1988] 3
C.M.L.R. 403.
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A. DE MESTRAL & J. WINTER – MOBILnY RIGHTS
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nomical” free movement rights. The Council adopted three Directives”‘ granting resi-
dence rights to categories of persons other than workers or the self-employed and
their dependants, on condition that the beneficiaries have sufficient resources to avoid
becoming a burden on the social assistance system of the host Member State. When
the TEU came into force in 1993, these conditions and limitations were constitution-
alized in Article 18,” which recognized every citizen’s right to move and reside freely
within the EU, subject to limitations and conditions laid down in the treaty and by the
measures adopted to give it effect. It would thus be misleading to suggest that the citi-
zens of the European Union enjoy a general right of residence throughout the Union’s
territory comparable to that granted to citizens of Canada or the United States across
provinces or states.”‘
The question that must now be examined is whether, despite the limiting clause in
Article 18 of the EC Treaty, citizenship of the Union may entail a lifting of the limita-
tions inherent in the non-discrimination clause and a more generous entitlement for
nationals from other Member States to social benefits available in a country in which
they are not performing or have not performed occupational activities.
C. Freedom of Movement and Citizenship
The TEU has introduced the concept of citizenship of the Union.”‘ Since mobility
rights are an important ingredient of citizenship,”‘ and since, for the time being, Euro-
1o EC, Council Directive 90/364/EEC of 28 June 1990 on the right of residence, [1990] OJ. L
180/26 (“playboy” Directive); EC, Council Directive 90/365/EEC of 28 June 1990 on the right of
residence for employees and self-employed persons who have ceased their occupational activity,
[1990] OJ. L. 180/28; EC, Council Directive 90/366/EEC of 28 June 1990 on the right of residence
for students, [1990] OJ. L. 180130.
‘ EC Treaty, supra note 2.
” In Micheletti v. Delegacidn del Gobierno en Cantabria, C-369190, (1992] F.C.R. 1-4239, the
Court confirmed that determination of nationality falls within the exclusive competence of the Mem-
ber States and went on to add that this competence must be exercised with due regard to the require-
ments of Community law.
.. EC Treaty, supra note 2, arts. 17-22.
” For discussions regarding the notion of European citizenship, see ag. S. O’Leary, The Evolving
Concept of Cormnunity Citizenship: Front the Free Movement of Persons to Union Citizenship (The
Hague: KIuwer Law International, 1996); S. O’Leary, “The Free Movement of Persons and Services”
in P. Craig & G. de Bdrca, eds., The Evolution of EU Law (Oxford: Oxford University Press, 1999)
377; U.K. PreuB, “Problems of a Concept of European Citizenship” (1995) I Eu. LJ. 267; P. Neussl,
“European Citizenship and Human Rights: An Interactive European Concept” (1997) 24:2 Legal Is-
sues Eu Integration 47; C. Closa, “he Concept of Citizenship in the Treaty on European Union”
(1992) 29 C.AML. Rev. 1137; P.1. Schuck, “Citizenship in Federal Systems” (2000) 48 Am. J. Comp.
L. 195; Zuleeg, supra note 4.
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pean citizenship does not involve the recognition of substantial political rights and
obligations for the nationals of the Member States,’ one might have thought that the
introduction of European citizenship could at least herald a broadening of rights to
free movement and attendant rights to equal treatment. The conditions and limitations
pertaining, in particular, to the free movement rights of the non-economically active,
however, have not become less prominent since the implementation of the TEU than
they were before. If anything, these conditions and limitations have become more
firmly entrenched in Article 18.
It is fairly obvious that the drafters of these provisions were careful not to formu-
late citizens’ rights in a manner conducive to the idea that every national of a Member
State is entitled to complete freedom of movement and to the social and economic
benefits that the host state makes available to its own nationals, merely because he or
she is a citizen of the Union. Nevertheless, in 1998 the ECJ made creative use of Arti-
cle 17 and the concept of citizenship, showing itself prepared to extend the scope of
the provision on equal treatment”
in a manner recalling the best traditions of judicial
activism. In Sala”‘ the Court was confronted with whether a national of a Member
State who was not a worker, former worker, or person otherwise enjoying rights under
secondary legislation, but who was just a citizen of the European Union, could benefit
from the non-discrimination provision of Article 12. The case concerned a Spanish
national who had lived in Germany for thirty years and who, having held jobs at vari-
ous intervals, had received social assistance for the previous ten years. Since she was
lawfully residing in a contracting state of the European Convention on Social and
Medical Assistance, the German authorities could not deport her, even though her
residence permit was no longer valid.”8 When Mrs. Sala claimed a child-raising bene-
fit from the Bavarian government, her application was rejected on the ground that she
did not have German nationality, a residence entitlement, or a residence permit. As a
result, the question that was referred to the Court was whether requiring nationals of
other Member States to produce a formal residence permit to receive a child-raising
allowance constituted discrimination within the scope of Article 12.
” EC Treaty, supra note 2, grants every citizen the right to vote and to stand as a candidate at mu-
nicipal elections (art. 19(1)), as well as in elections to the European Parliament (art. 19(2)) in the
Member State in which he resides, under the same conditions as nationals of that state; art. 20 guar-
antees diplomatic and consular protection to every citizen in the territory of a third country, even
though the Member State of which the citizen is a national is not represented; art. 21 grants every citi-
zen the right to petition the European Parliament (art. 21(1)), to apply to the Ombudsman (art. 21(2)),
and to write to any of the EU Institutions in any of the languages recognized at art. 314.
“6 Ibid, art. 12.
“. Supra note 83.
118 11 December 1953, 218 U.N.T.S. 255, art. 6.
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Because the plaintiff was neither a worker nor a person who could otherwise in-
voke the Community provisions on free movement, and because it was decided that
Article 18 does not create an independent right of free movement for all citizens of
the Union,”9 the Court had to find a gateway to the non-discrimination clause, which it
did in Article 17:
As a national of a Member State lawfully residing in the territory of another
Member State, the appellant in the main proceedings comes within the scope
rationepersonae of the provisions of the Treaty on European citizenship.
Article 8(2) of the Treaty attaches to the status of citizen of the Union the
rights and duties laid down by the Treaty, including the right laid down in Arti-
cle 6 of the Treaty, not to suffer discrimination on grounds of nationality within
the scope of application ratione inateriae of the Treaty.”
In this manner, the Court stated that Article 12 is more than an instrument de-
signed to strengthen the legal position of those nationals of a Member State who, by
virtue offree movement rights granted by the EC Treaty, may lawfully reside in an-
other Member State. Indeed, the duty of non-discrimination applies equally to situa-
tions where Union citizens reside lawfully in a Member State in circumstances where
there is no obligation under Community law for the host state to grant free movement
and residence rights to such persons.
The message of Sala is far-reaching. EU citizens no longer enjoying rights as
economically active persons in a wide sense within the meaning of the various free
movement provisions, and citizens deriving a right of residence under the secondary
legislation’ who no longer satisfy the requirement concerning the possession of ade-
quate financial resources, will remain entitled to equal treatment as long as their con-
tinued residence on the national territory of the host state has not been declared un-
lawful. Clearly this poses risks for Member States. They may have to pay social as-
sistance to foreign nationals who are not wanted on the national territory but who, for
one reason or another, cannot be repatriated.’2 This may result in a tendency to in-
“‘ Sala, supra note 83 at para. 60. In light of the judgment of the Court of First Instance in
Kuchlenz-Wmter v. Coimnission, T-66/95, [1997] E.C.R. 11-637 at para. 47 (rendered the day after the
oral hearing on 15 July 1997 in Sala), it now seems certain that EC Treat,, supra note 2, art. 18, does
not of itself create free movement and residence rights, independently from the specific treaty provi-
sions such as arts. 39, 43, 49. For a critical comment, particularly in regard of the Court’s having side-
stepped whether art. 18 should be seen as the gate to art. 12, see C. Tomuschat, “Case C-8596, Maria
Martnez Sala v. Freistaat Bayern, Judgment of 12 May 1998, Full Court. [19981 ECR 1-2691″ Case
Comment (2000) 37 C.M.L. Rev. 449.
‘2 Sala, ibid. at paras. 61, 62.
2 , See supra note 84.
‘
‘ According to the European Con’ention on Social and Medical Assistance, supra note 118, art.
11, which has been ratified by the vast majority of the EU Membar States, residence baomes unlaw-
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crease controls on immigrants so as to enable the authorities to terminate a person’s
status of lawful resident (e.g. by revoking a residence permit) before that person can
apply for social benefits.
On 7 December 2000 the presidents of the European Parliament, the Commis-
sion, and the Council, in the presence of the heads of state and government assembled
in Nice, proclaimed with much solemnity the EU Charter.'” As the EU Charter con-
tains essentially new descriptions of existing fundamental rights that belong poten-
tially to the acquis communautaire, it is not easy to determine the value added that it
brings to fundamental rights protection in the EU.’24 In particular, most of the rules on
citizens’ rights'” appear to be little more than paraphrased versions of the provisions
on Union citizenship laid down in Articles 18 to 21 of the EC Treaty. Thus, Article
45(1) provides: “Every citizen of the Union has the right to move and reside freely
within the territory of the Member States.’ At first sight this article appears broader
than the corresponding Article 18(1) of the EC Treaty because the latter provision
provides that the right of citizens to move and reside freely shall be subject “to the
limitations and conditions laid down in this Treaty and by the measures adopted to
give it effect.” The right of free movement and residence guaranteed by the EU
Charter under Article 45(1), however, is no wider than that granted under Article
18(1) of the EC Treaty. Indeed, Article 52(2) of the EU Charter states: “Rights recog-
nised by this Charter which are based on the Community Treaties or the Treaty on
European Union shall be exercised under the conditions and within the limits defined by
those Treaties ”
So EU Charter rights that correspond to rights expressly mentioned in the treaties
are co-extensive with the equivalent treaty rights, and the same is true for the condi-
tions governing their exercise. Likewise, rights contained in the EU Charter that cor-
respond with rights guaranteed by the Convention for the Protection of Human Rights
and Fundamental Freedoms'” are stated to have the same meaning and scope as those
laid down in that convention.'”
It may be concluded that the provisions on citizens’ rights set forth in the EU
Charter are not as such a step forward on the road to extending to all citizens of the
ful after a person has been ordered to leave the country, but art. 6 ensures that such an order cannot be
issued in respect of a person lawfully residing in a contracting state on the sole ground that that person
is in need of assistance.
” Supra note 77.
2 See E. de Smijter & K. Lenaerts, “A ‘Bill of Rights’ for the European Union” (2001) 38 C.M.L.
Rev. 273.
‘2EU Charter, supra note 77, arts. 39-46.
4 November 1950,213 U.N.T.S. 221, Eur. T.S. 5.
‘ 7EU Charter, supra note 77, art. 52(3). But according to the last sentence of this provision, it shall
not prevent Union law from providing more extensive protection.
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A. DE MESTRAL & J. WINTER – MOBILITY RIGHTS
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EU a general right of movement and residence under conditions of full social equality.
It should be noted, however, that the document does not remain silent on equal rights
of access to public services and benefits. Under the heading “Solidarity” the EU
Charter lists rights relating to social security and social assistance’ and health care.'”
Admittedly, the inclusion of such provisions appears to be a confirmation that we are
in the presence of important principles, rather than the mere definition of enforceable
rights.'” Nevertheless, even though the EU Charter only amounts to soft law for the
time being, the principles it defends may be used as stepping stones for administrators
and judges wishing to combat unjust and unnecessary restrictions on the rights of
movement and residence of Union citizens.
Conclusion
Canada began in 1867 as a political union; the EU, in contrast, began in 1957, es-
sentially as a project for an economic union. One important consequence of this dis-
tinction on mobility rights is that, in Canada, it is the federal government that decides
for the whole country who will be a citizen and hence who can exercise mobility
rights, while in the EU, Member States alone determine who will be counted among
their citizens and hence who will be able to exercise the mobility rights guaranteed by
the treaties. For this reason, the law in Canada has developed around the need to fill in
the economic gaps revealed over time, while in the EU, the law’s development proc-
ess has involved movement from an economic institution towards one having more
overtly political goals.
Analysis of the Constitution of Canada and the body of treaties governing the EU
and the EC reveals that they are both “works in progress”. The experience of Cana-
dian federalism suggests that those in Europe who consider that their political or legal
difficulties will be fundamentally changed upon the adoption of a genuine European
“constitution”, clearly defining Community and Member States’ powers, may well be
disappointed. In fact, analysis of the evolution of mobility rights under the Constitu-
tion of Canada suggests that constitutional development does not end with the crea-
tion of a formal political unit governed by a formal constitution. Rather, the constitu-
tion continues to be shaped by changing social, economic, and political forces.
‘ !Nd, art. 34(2), states that every person residing and moving legally within the EU is entitled to
social security benefits and social advantages in accordance with Community law and national la,’s
and practices.
‘”Tbk, art. 35, states that everyone has the right of access to preventive health care and the right to
benefit from medical treatment under the conditions established by national laws and practices.
‘” See P. Pescatore, “Nice–Aftermath” (2001) 38 C.UL Rev. 265 at 267-68.
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As an economic construct, it would seem, on the one hand, that the EU protects
mobility rights against infringement more effectively than is the case under the Con-
stitution of Canada. In the EU the Community has authority to harmonize national
laws with a view to promoting greater mobility. Furthermore, even indistinctly appli-
cable laws may well be held to violate mobility rights, and traditional public policy
justifications for such systemic barriers to the movement of goods and services have
not stood up to challenges by persons seeking to enlarge the ambit of their freedom of
movement. On the other hand, in Canada, the fact of citizenship protects those who
move from one province to another against many barriers to free physical movement
and the right to participate in the political process or to invoke the benefit of funda-
mental civil rights. Several civil and economic rights long taken for granted by Cana-
dians have yet to be seen as incidents of EU law. This is particularly true with respect
to mobility rights and rights to public benefits enjoyed by non-economically active
citizens. It is for this reason, among others, that developments such as the Schengen
Agreement”‘ and its subsequent incorporation into the Treaty of Amsterdam”‘ consti-
tute such a significant step in EU law. It can therefore be concluded that a federal con-
stitution is the more solid and durable construct of the two systems.
The manner in which the Canadian Charter of Rights and Freedoms has been in-
voked to fill the economic gaps in the Canadian constitution in respect of mobility is
instructive. The Canadian Charter has in a few short years become a central element
of Canadian constitutional discourse, including that relating to mobility. It can be con-
fidently asserted that the same process is already under way in Community law and
that the Charter of Fundamental Rights of the European Union is bound eventually to
play the same role even as a declaratory text, and even more so when it will come to
enjoy treaty status.
In both Canada and the EU, mobility rights, especially as incidents of more fun-
damental civil rights, are invoked as a justification for a political community. Indeed,
politicians often refer to mobility rights and other fundamental freedoms as evidence
of a strong and definable political community that serves the interests of its citizens.
In Canada it has been interesting to note the incremental growth of mobility
rights. When the Canadian Charter was adopted there may have been considerable
political fanfare, but it did not, in fact, constitute a total break with the past; rather, it
“‘ Schengen Agreement Between the Governments of the States of the Benelux Economic Union, the
Federal Republic of Germany and the French Republic on the gradual abolition of controls at the
common frontiers, 14 June 1985, 30 I.L.M. 68 [hereinafter Schengen Agreement]. The Schengen
Agreement has been subsequently amended several times, notably to include all the Member States
except the United Kingdom and Ireland.
“‘ Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the
European Communities and certain related acts, 2 October 1997, [1997] O.J. C. 340/I.
2001]
A. DE MESTRAL & J. WNTER – MoBuTY RIGHTS
1009
was added on to rights already existing in the constitution. A similar process of devel-
opment can be identified in the EU and is likely to continue as the EU Charter comes
to assume even greater significance in the legal system.
Finally, analysis of the development and protection of mobility rights under the
Constitution of Canada shows clearly that the Canadian constitutional debate is about
devolution from the centre, or ensuring a proper balance of rights betwecn the central
government-already enjoying broad jurisdiction over citizenship-and the social,
cultural, linguistic, and regional interests that the provinces were established to pro-
tect. While in the EU the debate concerns limitation on the sovereignty of Member
States with a view to gradually strengthening mobility rights and citizenship, sover-
eignty is limited each time it is decided that the Community power is better able to
protect mobility rights and values than are the Member States.
