12 colum. j. eur. l. 713

CITIZENSHIP AND FREE MOVEMENT: EUROPEAN AND AMERICAN FEATURES OF A

JUDICIAL FORMULA FOR INCREASED COMITY

Francesca Strumia*

This Article explores the judicial application of the doctrines of free movement and citizenship in the European Union and in the United States. A comparative examination of the case law on these two doctrines shows remarkable similarities in the European and American courts' combination of citizenship and free movement in resolving analogous judicial issues. Further investigation, however, reveals that behind a first sight affinity of judicial formulas, different rationales and diverging constitutional roots can be found in the two systems. In order to spell out more closely the role of citizenship in promoting unconstrained movement in the United States and in Europe, the Article takes into account additional factors incidental to the judicial interplay of citizenship and movement. Considerations of economic versus political integration and interstate equality versus state autonomy turn out to be key in identifying the centripetal forces that govern the role of citizenship in the two examined systems. The Article ultimately offers the outcomes of this investigation as a tool to direct the evaluation of European citizenship, assessing its potential contributions and its shortcomings in the evolving integration of Europe.

INTRODUCTION ....................................................................................................... 714 I. TRENDS IN EUROPEAN FREE MOVEMENT DOCTRINE: A CHANCE FOR

THE ECONOMICALLY INACTiVE .................................................................. 716 A. The Route to Trojani and Collins ..................................................... 718 B. Current Status of the Free Movement Doctrine: The Trojani Case .... 720 C. The Legislative Side: Directive 2004/31 .......................................... 723 D. Separated Social Security: A Persisting Barrier ............................... 724 E. The Status of Freedom of Movement in Europe: Between

Migration and Unconstrained Travel ............................................... 726 II. THE RIGHT TO TRAVEL IN THE UNITED STATES ......................................... 727

A. Origins and Early History of the Right ............................................ 727 B. The Equal Protection Branch of the Right to TraveL ...................... 730 C. Right to Travel and Non-Discrimination Rationale ......................... 735 D. Right to Travel and Citizenship ....................................................... 736

* SJ.D. Candidate, Harvard Law School. I would like to thank Professor Daniel J. Meltzer for his valuable supervision and advice during research and writing of this Article. Also, I am very grateful to Tim Corthaut for his research suggestions and to Yen-Tu Su, Chi Chung, Florian Sander, and Keyvan Rastegar for listening to ideas and sharing thoughts and remarks. Thank you also to Will Phelan for his helpful comments on an earlier draft of this Article.

713

714 COLUMBIA JOURNAL OF EUROPEAN LAW [Vol. 12

III. REVERSE PATTERNS: A GLANCE INTO THE KINGDOM OF THE ECONOMICALL y ACTIVE ............................................................................ 738

A. Students ............................................................................................ 739 l. Mobility of Students in the European Union ............................. 739 2. Mobility of Students in the United States .................................. 741

B. Professionals .................................................................................... 743 1. Professional Mobility in the European Union ............................ 743 2. Professional Licensing in the United States ............................... 744

C. Mobility of Lawyers ......................................................................... 746 l. Mobility of Lawyers Within the European Union ..................... 746 2. Mobility of Lawyers in the United States .................................. 747

CONCLUSION .......................................................................................................... 749

INTRODUCTION

Similar judicial formulas, blending citizenship and non-discrimination arguments, sustain the doctrine of free movement in the European Union and the right to travel doctrine in the United States. This Article challenges the apparent closeness of these formulas and discusses their hidden conceptual distance. Accordingly, the study of free movement is fundamental to understanding notions of citizenship in the two examined models. Unconstrained movement across the territory of the state is one of the main entitlements connected to the idea of membership expressed by citizenship; doctrines of free movement provide a privileged perspective on the operation of citizenship. Comparing the application of citizenship discourse in judicial opinions concerning free movement issues helps unmask the qualities and weaknesses of the membership status in a certain legal system. A superficial affinity in judicial rationales on both sides of the Atlantic masks considerable divergence in the role that citizenship plays in supporting the right to travel and the freedom to move. This divergence stems from a discrepancy in the American and European concepts of citizenship.

Recent European cases tend to apply the citizenship provision as an expansive tool, making it the core of a judicial effort to shift the doctrine of free movement from a model of economically active entitled categories to one of generalized entitlement. In the United States, instead, unconstrained travel on the territory of the union has always been a general right, and judges use notions of citizenship to guard this general entitlement against threats raised by state particularism. Different elements interact with citizenship in the two systems to create the architecture of free mobility. Considerations of state autonomy, right of residence, and economic cohesion combine to create a judicial formula blending citizenship, nondiscrimination, and free movement. While European citizenship represents great promise, the European Court of Justice is bestowing upon European citizenship a task it is not equipped to handle. Focusing on inconsistencies existing in the relationship of free movement and citizenship is a starting point to evaluate the potential of citizenship as an instrument of integration in Europe. The citizenship mechanism could be key at some point for Europe to deal with its increasing integration issues.

Part I of this Article focuses on the free movement doctrine in Europe. Freedom of movement was invented in the European Union for specific categories of

2006] CITIZENSHIP AND FREE MOVEMENT 715

economically active people. The doctrine has since been extended, in good part through the efforts of the European Court of Justice. Especially in recent years, the Court appears to have engaged in an effort to stretch the pre-existing categories and to generalize the freedom to move based on European citizenship and the principle of non-discrimination. The two most recent expressions of the Court's expansive effort are the judgments in the Trojani case, I rendered in September 2004, and in the Bidar case,z rendered in March 2005. The Bidar case primarily concerns the free movement of students, but it also discusses the citizenship-based doctrine of movement. The Trojani case fits squarely into what might be called the Court's concern for mobility of the non-economically active; it is a useful starting point for analysis.

Part II describes the origins and judicial evolution of the right to travel in the United States. The right to travel lacks a textual basis in the U.S. Constitution, but it is considered a fundamental right related to the nature of the federal union and belonging directly to the people.3 The non-discrimination component of right to travel case law introduces an element of affinity with the dormant commerce clause doctrine and the privileges and immunities clause. The interaction of these constitutional principles in case law results in a doctrine of unconstrained travel that is largely indebted to ideas of non-discrimination and equal citizenship. Despite the apparent affinity with recent judicial developments regarding free movement in the European Union (EU), federal citizenship in the U.S. has served the reverse function of the one observed in Europe. American citizenship guards the general entitlement to freedom of movement. EU citizenship has been used instead as a mechanism to extend this right; its function has been to prevent undue restraints on interstate mobility.

Part III explores reverse patterns of free movement in the European Union and in the United States. A review of the rights to free movement of economically active people shows the apparent inconsistencies in the two theories of mobility. Free movement of students and free movement of professionals are the two pillars of the analysis. Among professionals, particular attention is paid to lawyers as representatives of a professional category for which, due to a lack of homogeneity within the profession, mobility is especially challenging. This investigation reveals an apparent paradox. In the European Union, where free movement is a recently articulated principle and the systems pre-existing the union are highly disparate, the mobility of economically active categories and of students has received an unprecedented legal incentive. The scenario is different on the other side of the Atlantic. The mobility of professionals and students in the United States is more difficult than it has become in the European Union. The unexpected contrast could be attributed to different logics of integration. In the American federal system, maintaining political balance requires individual state autonomy. This autonomy is reflected in professional regulations, which vary from state to state, and in tuition incentives for resident students. Citizenship by marking permissible distinctions signals an area of undisputed sovereignty for the single state. If state autonomy is

I Case C-456/02, Trojani v. Centre public d'aide sociale de Bruxelles, 2004 E.C.R. 7573. 2 Case C-209/03, The Queen v. London Borough of Ealing, Secretary of State for Education and

Skills, 2005 E.C.R. 2119. 3 Smith v. Turner (Passenger Cases), 48 U.S. (7 How.) 283 (1849) (Taney, 1., dissenting).


clearly important to the federal system in the United States, supra-national integration in Europe disregards state autonomy to the extent necessary to create a strong internal market. When the supply of labor and services are involved, other rationales for integration prove much stronger than citizenship.

The mosaic that emerges from comparing the doctrines of free movement and right to travel is one of affinity and contrasts. Free movement and travel rely indeed on the same judicial formula blending citizenship and equal treatment. However, these similar formulas are based on very different values. In both systems, there is a connection between federal or common citizenship and right to free movement. The non-discrimination component of common citizenship also helps attenuate interstate disparities and inconsistencies that the exercise of individual sovereignty could create. Beyond these partial similarities, however, European jurisprudence is asking the notion of citizenship in the European Union to contribute more actively to advance free movement and interstate cohesion than has ever been asked of American citizenship. European citizenship, however, does not have as strong a status as American citizenship: It is a promising resource of integration, but in order to achieve its potential, it needs strengthening.

II. TRENDS IN EUROPEAN FREE MOVEMENT DOCTRINE: A CHANCE FOR THE ECONOMICALLY INACTIVE

The Treaty Establishing the European Community (EC Treaty) grants the freedom to move within the Community to specified categories of people, to whom this right is valuable in pursuing economic goals. Freedom of movement is derived from Article 39 (freedom of movement for workers), Article 43 (freedom of establishment), and Article 49 (freedom to provide services) of the EC Treaty. Over the years, these initial well-defined categories of free movers have been subject to an expanding force, first in response to the need to thoroughly integrate migrant workers into a host state, and later as an attempt to extend the freedom of movement to non-economically active people. In order to facilitate the migration and integration of workers, provisions have been enacted with regard to their family members that lay the conditions for them to follow the migrant worker and integrate themselves into another state. First steps in this direction can be found in a 1968 regulation4 which governs the rights ofresidence,5 employment,6 and education7 for family members of migrant workers. The interest in movement of the noneconomically active was first taken into account by the common legislator in three directives enacted in the 1990s, regarding, respectively, the right of residence in general,s the right of residence for employees and self-employed persons who have ceased their occupational activity,9 and the right of residence for students. 1O The rights of residence provided for in these directives are subject to the availability of

• Council Regulation 1612/68, 1968 OJ. (L 257) 12. s Id. art. 10. 6 Id. art. II. 1 Id. art. 12. 8 Council Directive 90/364/EEC, 1990 OJ. (L 180) 26. 9 Id. at 28. 10 Council Directive 93/96/EEC, 1993 OJ. (L 317) 59.


sufficient resources and rest on the belief that intra-community movement should not create financial burdens for the host states.

This is still, in good measure, the European philosophy supporting free movement of non-economic actors. However, some recent decisions in the European Court of Justice (ECJ)II suggest that there is an ongoing effort within the Community, particularly evident in the job of the judges in Luxembourg, to stretch the original borders of freedom of movement and to extend it from the economic field into the social one. In order to reach this goal, the Court is building a delicate network of basic EU law provisions by combining the citizenship clauses,12 the freedom of movement provisions, and the principle of non-discrimination on the basis of nationality.13 Behind this judicial effort, there is probably a renewed sense of the value of individuals in the European project. As some scholars have suggested,14 the Maastricht Treaty and the Charter of Fundamental Rights l5 have had a significant part in granting a status, at the Community level, to persons, who are no longer considered merely members of an economically active class. This development may be the initial step in a trend towards overcoming the layers of entitlementl6 that originally characterized the enjoyment of freedom to move within the Community. 17

The relevant ECJ case law evidences a judicial desire to expand the social connotation of movement, coupled with some hesitation. While becoming more and more concerned for the freedom of movement of EU citizens,ls the Court still relies on pre-existing categories whenever possible. Family members of migrant workers, for instance, hold a right to move as dependents of an economically active subject, even if they are citizens themselves. 19 Jobseekers are entitled to move as a marginal

II Case C-S5/96, Sala v. Freistaat Bayern, 1998 E.C.R. 2691; Case C-4I3/99, Baumbast v. Sec'y of State for the Home Dep't, 2002 E.C.R. 7091; Case C-456/02, Trojani v. Centre public d'aide sociale de Bruxelles, 2004 E.C.R. 7573.

12 Treaty Establishing the European Community arts. 17-IS, Nov. 10,1997, 19970.1. (C 340) 3, [hereinafter EC Treaty].

13 EC Treaty art. 12. I. Claudio De Rose, Osservatorio di DirillO Pubblico Comunitario--La libera circolazione delle

persone nell'Unione Europea: profili generali ed istituzionali anche con rijerimenlo alia normativa italiana, 54 CONSIGLIO DI STATO 599, 604 (2003) (underlining that Article 45 of the Charter of Fundamental Rights, by granting EU citizens a freedom of movement without conditions, indicates that conditions are possible but not intrinsecal to such freedom); Alain Buzelay, Libre circulation des travailleurs en Europe et protection sociale, 470 REVUE DU MARCHE COMMUN ET DE L 'UNION EUROPEENNE 448, 452-53 (2003) (underlining that the 1989 Charter and the 2000 Charter have changed the core of European citizenship from an ensemble of prerogatives connected to nationality to an ensemble of prerogatives connected to the person).

15 Charter of fundamental rights of the European Union, Dec. 18,2000,20000.1. (C 364) I. 16 This expression is borrowed from Sybilla Fries & Jo Shaw, Citizenship of the Union: First Steps

in the European Court of Justice, 4 EUROPEAN PUB. LAW 533, 535 (1998). 17 See id. at 535 (finding that Community Law has traditionally drawn distinctions between

economically active categories of migrants and migrants belonging to more marginal categories; distinctions of this kind have created a system of access to equal treatment and freedom of movement based on layers of entitlement).

18 See Case C-85/96, Sala v. Freistaat Bayern, 1998 E.C.R. 2691; Case C-456/02, Trojani v. Centre public d'aide sociale de Bruxelles, 2004 E.C.R. 7573.

19 See, e.g., Case C-4I3/99, Baumbast v. Sec'y of State for the Home Dep't, 2002 E.C.R. 7091.


class of workers and not as EU citizens.2o The Court's alternation between daring21 and pulling back22 has produced a wavering trend in its free movement judgments.

A. The Route to Trojani and Collins

Through the innovative application of particular Treaty provisions, the ECJ is attempting to strengthen the doctrine of free movement. A judicial approach to free movement, blending principles of citizenship and non-discrimination can be found in a number of recent cases, starting with Martinez Sala?3 Mrs. Sala, a Spanish national lawfully residing in Germany, encountered difficulty renewing her residence permit. Accordingly, she had no formal title of residence in Germany and because of this was denied a child-raising allowance.24 Given that Mrs. Sala was a lawful resident under German domestic law, the ECJ held that she was a European citizen under art. 18 EC, and was therefore entitled to equal treatment under Article 12 EC.25 The Court found that requiring Mrs. Salas to obtain a formal title of residence, which would not be requested of a German national, before receiving the child raising allowance, was discriminatory.26 In Sala, the ECJ puts down the first stones--citizenship and equal treatment-in the architecture of free movement. Even if the Court is not yet ready to grant direct effect to Article 18 EC, the Court enriches the European acquis27 with the concept of lawful residence notwithstanding economic status.28 The Martinez Sala case has drawn attention to the European judicial initiative to replace a stratified system of free movement with generalized personal mobility?9 The facts of the case also suggest that the Court's confident use of citizenship in this judgment is somehow encouraged by the economic justification for movement. Mrs. Sala was a worker when she originally moved to Germany; her freedom of movement rested on European provisions of well-tested application. Even if no longer employed at the time of the judgment, she was a lawful resident in Germany. Her migration to and her residence in Germany were legal under the existing jurisprudence. In this light, the Court's application of European citizenship as a general mechanism is less ambitious. As the dynamic aspect of movement rests here on well-known provisions, the Court only needs citizenship in order to support the non-discrimination component of free movement: A migrant European citizen is entitled to enjoy welfare benefits at the same conditions as nationals of the host state. The Court moved a step forward in the Baumbast case,30 where the judges explicitly affirmed, for the first time, that Article 18 EC has a direct effect on granting a right

20 &e, e.g., Case C-I38/02, Collins v. Sec'y of State for Work and Pensions, 2004 E.C.R. 2703. 21 See, e.g., Case C-85/96, Sa/a, 1998 E.C.R. 2691; Case C-456/02, Trojani, 2004 E.C.R. 7573. 22 See, e.g., Collins, 2004 E.C.R. 2703. 23 Case C-85/96, Sa/a, 1998 E.C.R. 2691. H Id. at 2715. 25 Id. at 2726. 26 Id. at 2724. 21 Acquis or acquis communautaire is derived from French and refers to the combination of

statutory and common law applicable to the European Union. 28 See Fries & Shaw, supra note 16, at 550. 29 Siofra O'Leary, PUlling F/esh on the Bones of European Union Citizenship, 24 EUR.L.REV. 68,

77 (1999) (observing that it seems that the Martinez Salajudgement "explodes the linkages with E.C. law previously required for the principle of non discrimination to apply").

30 Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, 2002 E.C.R. 1-7091.


of residence, even if this right is subject to legislative conditions.31 The Baumbast case joined the claims of two families, whose rights to reside in another Member State as workers or family members of workers had been put into question. Part of the decision deals with the residence rights of children of migrant workers, when their parents divorce or become unemployed. The more innovative part of the judgment grants direct effect to Article 18 EC:32 direct application of Article 18 is a strong step towards abolishing the requirement of lawful residence. Residency requirements remain the main impediment in the EU for migrants' enjoyment of equal rights. However the specifics of the situation temper enthusiasm for the effect of this judgment on European citizenship status. First, Mr. Baumbast, who claimed a right to stay in the United Kingdom, was employed and was covered by sickness insurance in Germany;33 behind the Court's decision there is therefore a steady and trustworthy financial position of the interested person. Secondly, the Court applies the provision on European citizenship to grant a right to a person having been originally a migrant worker. The citizenship provision is not yet independently applied, thus, but rather relied upon to perpetuate a pre-existing situation, originally based on other provisions, and now in need of a renewed basis of legitimacy. There is however some advancement between Sala and this case: Mrs. Sala was a lawful resident according to domestic law, and European citizenship was only used there to grant her benefits incidental to the right of residence. In Baumbast instead, the provision on European citizenship is used to remedy a situation of more radical lack of legal protection, by granting Mr. Baumbast the right to residence itself, which he no longer enjoyed.

A certain connection to the job market, once again in potential terms, can be found also in the D'Hoop judgment.34 Ms. D'Hoop was a Belgian national. She applied for an unemployment alIowance while seeking a job in Belgium, and was denied the benefit because she completed her secondary education in France.35 The D'Hoop Court relied on the citizenship clause to prevent discrimination against an EU citizen for having exercised the right to move.36 This decision adds to this line of cases a concern for freedom of movement as an independent value.37 Mobility has slowly become an interest to protect in the Court's case law and tends to require some form of financial cooperation among the states. Lack of such cooperation remains one of the more significant obstacles in the European Union, preventing operation of common citizenship in a way comparable to the United States. In the European Union, reluctance to extend social security to migrants is one of the reasons that make extending lawful residence status to migrants so complex. This complexity marks the line between free movement and migration, a line that it is still far from being erased in the EU, and that depends in part on the lack of social security cooperation among the Member States.

31 Id. "j[94. 32 /d. "j[84. 33 /d. "j["j[88-89. " Case C-224/98, Marie-Nathalie D'Hoop v. Office national de I'emploi, 2002 E.C.R. 1-6191. 35 /d. "j["j[1 O-Il. 36 /d. "j["j[27-28. 37 /d. at 394 (the idea underlying the judgment is that free movement does not only imply

prohibition of discrimination based on nationality but also opposition to obstacles for cross-border mobility.)


The European Court of Justice cannot introduce financial cooperation among the states, but it has underlined, in some cases, the need for financial solidarity. The Grzelczyk judgment is one example.38 Even if EU migrant students are required to have sufficient resources to support themselves,39 when Grzelczyk, previously financially self-sufficient, applied for a minimum subsistence allowance in his last year of study, he was denied this benefit. The Court admits that some degree of financial solidarity among the states is unavoidable.40 It is not the same solidarity historically acknowledged in the United States.41 It is not a historical doctrine, it is a rather young one, but the European Court is strongly advancing it, as recent decisions confmn.42

B. Current Status of the Free Movement Doctrine: The Trojani Case

The recent decision in the Trojani case43 advances judicial attitudes expressed in previous free movement cases and shows a commitment to coupling citizenship and free movement. Here, more than ever, the Court skillfully plays with provisions regarding citizenship and non-discrimination in order to grant a migrant, who is clearly not economically active, a social security benefit. Mr. Trojani was a French citizen, who moved to Belgium, where he claimed to have worked temporarily in the past. In Belgium, he became involved in a reintegration program of the Salvation Army, which provided him with room and board, and with a weekly allowance.44

When Mr. Trojani applied for the "minimex," the minimum subsistence allowance, the Bruxelles Centre Public d' Aide Sociale rejected his request, because he was not a Belgian citizen and did not qualifY as a worker.45

After dismissing the possibility that a person in Mr. Trojani's situation would qualifY as a worker under Community Law, the ECJ proceeded to examine his position in light of Union citizenship. Confirming that Article 18 EC is directly applicable, the judges held that Mr. Trojani, as a European citizen, could rely directly on this provision, in order to move and reside elsewhere in the Community.46 Under secondary legislation47 though, this right is not absolute; it depends on the availability of sufficient resources and requires that the right-holder be covered by sickness insurance. It would not have been easy therefore for a person in Mr. Trojani's situation to obtain a residence permit in Belgium under Article 18 EC. Mr. Trojani was a lawful resident under Belgian domestic law though. The Court relied therefore on Mr. Trojani's lawful residence to override the possibly

38 Case C-184/99, Rudy Grzelczyk v. Centre Public d'Aide Sociale d'Ottignies-Louvain-La-Neuve, 2001 E.C.R. 1-6193. This case will be discussed in more detail infra in Part III.

39 Council Directive 93/96/EC, OJ. 1993 (L 317) 59, repealed by Parliament and Council Directive 2004/38/EC, 2004 OJ. (L 158) 77.

40 Case C-184/99, Rudy Grzelczyk v. Centre Public d' Aide Sociale d'Ottignies-Louvain-La-Neuve, 2001 E.C.R. 6193, ~ 44.

41 See Edwards v. California, 314 U.S. 160 (1941). 42 See, e.g., Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of

Ealing, Secretary of State for Education and Skills, 2005 E.C.R. 1-2119. 43 Case C-456/02, Michel Trojani v. Centre public d'aide sociale de Bruxelles (CPAS), 2004 E.C.R.

1-7573 . .. 1d.~9. 45 Jd.~10. 46 Id. ~ 31. 47 See Council Directive 90/364/EC, 19900.1. (L 180) 26.


unjustified conditions of his original migration and focus instead on his right of nondiscrimination as a European citizen. Lawful residence provides Mr. Trojani with "amnesty" for not meeting the full conditions for free movement throughout the Community.48 The Court confidently stated that, by virtue of his status of European citizen, Mr. Trojani was entitled to equal treatment with the nationals of the host State under Article 12 EC.49 He could not be denied the minimum subsistence allowance, where a Belgian citizen in his same situation would have been granted one. 50

Trojani is distinct from Martinez Sala and other previous free movement cases because Mr. Trojani held a title to residence based on domestic rather than European law without regard to his past as a migrant worker. While the reasoning of the Court and the principles applied are similar to previous cases, Trojani represents a greater detachment from the logic of mobility of production factors and it may be the "hard case" that some scholars51 are looking for to support the belief that the Union intends to expand its social significance. In Trojani, the Court for the first time has granted equal treatment on the basis of European citizenship without any consideration of economic factors. Mr. Trojani clearly was neither economically productive nor financially independent. Enduring reliance on categories of domestic law tempers however the innovative character of the judgment. The Court confirms in any case its decreasing interest in categorized free movement to the advantage of the idea of general entitlements of European citizens.

Despite the Court's interest in general entitlements, the magnetic effect of economic categories remains strong. When dealing with issues involving migrants that could be classified as economically active with a stretch of the imagination, the Court will tend to do so. Community citizenship is only used for gap filling. The morass of layers of entitlement is hard to dismantle. It is easier to prevent the introduction of layers in a structure that is based on general entitlement, like it would be for the right to travel of U.S. citizens,52 than to merge layers into a real homogeneous class-a challenge facing the ECJ.

This issue is considered in another recent ECJ case, Collins v. Secretary of State for Work and Pensions.53 Mr. Collins was a citizen of the United States and of Ireland. When he moved to the United Kingdom, where he had previously studied, he sought a jobseekers' allowance. Mr. Collins was neither a worker nor a habitual resident. The ECJ considered Mr. Collins a jobseeker, in the penumbra of Article 39

•• Case C-456/02, Trojani, 2004 E.C.R. 1-7573, ~ 43 nA] citizen of the Union who is not economically active may rely on Article 12 EC where he has been lawfully resident in the host member State for a certain time or possesses a residence permit.") .

• 9 Id. ~ 40 (affirming that even if Member States can subject the stay on their territory of a European citizen to the availability of sufficient resources, they cannot deny to a European citizen, who is lawfully present on their territory the right to equal treatment, under Article 12 of the EC Treaty).

50 Id. ~ 46. 51 Annette Schrauwen, Sink or Swim Together? Developments in European Citizenship, 23

FORDHAM INT'L LJ. 778, 787 (1999--2000). 52 For an analysis of the right to travel in the United States, see infra Part II. 53 Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, 2004 E.C.R.I-

2703.


EC.54 Article 39 EC grants jobseekers equal treatment for access to work, but not with regard to social advantages.55 In previous cases, the Court leaned toward granting also social advantages in a non-discriminatory way to jobseekers,56 but it seemed to be willing to do this only for jobseekers, who have previously been employed in the state where they seek a job, and who retain a closer connection to the workers' category.57 However, in Collins, the Court extends social advantages to jobseekers, by relying once more on the citizenship provision. European citizenship is called here to play a gap-filling role rather than to generalize entitlement. European citizens-jobseekers are entitled to general equal treatment provided for in Article 12 EC. Social advantages cannot be foreign to this provision, and cannot be excluded from equal treatment under Article 39 EC, read together with the citizenship provision.58 The use made of the citizenship and equal treatment provisions in this case seems to realize the hope of scholars, who saw in the citizenship provision a potentially significant enhancement of social protection for jobseekers.59 There are many categories of non-economically active that the citizenship provision can in some way benefit; however, jobseekers are the only group who might escape the sufficient resources condition.60 The ECJ limits the reach of its holding by affirming that the job seeking allowance can be subject to residency requirements, being proportionate to a legitimate national aim and based on considerations independent of nationality.61 A habitual residency requirement could be justified in light of the need to establish a genuine link between the job seeker and the addressed job market.62 If the effort to abandon a system based on categories of free movers could partially reduce the distance between European Union and federally integrated entities, this position of the Court clearly marks a still wide conceptual distance from a more engaging philosophy of unconstrained movement.63 It suggests furthermore that European free movement is still closer to

5~ Case C-292/89, The Queen v. Immigration Appeal Tribunal, ex parte Gustaff Desiderius Antonissen, 1991 E.C.R. 1-745, ~ \3 (at1irming that Article 39 [former 48] EC must be read in the sense that freedom of movement for workers entails the freedom to move for purposes of job seeking).

55 Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, 2004 E.C.R. 1-2703, ~~ 56-58.

56 See Case C-85/96, Martinez Sa/a v. Freistaat Bayem, 1998 E.C.R. 1-2691. 57 Michael Dougan, Free Movement: the Workseeker as Citizen, 4 CAMBRIDGE Y.B. EUR. LEGAL

STUD. 93, 95-96 (2001) (suggesting that the Court in Martinez Sala seemed to consider that jobseekers have to be treated like workers under every point of view, but adding that this judicial choice was likely referred to jobseekers who have already worked in the host State).

58 Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, 2004 E.C.R. 1-2703, ~ 63.

59 See Michael Dougan, supra note 57, at 1 \3-17 (noting that while the citizenship provision cannot be particularly helpful for jobseekers in terms of right to residence, it could be instead very helpful, in combination with the principle of non discrimination to extend the guarantee of equal treatment for jobseekers also to social advantages).

60 Id. at 119-22 (observing that jobseekers are not subject to any de iure condition of availability of sut1icient resources when exercising their freedom to move; this aspect situates them in a better position than, for example, students). Peculiar aspects of intra-Community mobility of students will be examined infra in Part III.

61 Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, 2004 E.C.R. 1-2703, ~ 73.

62 Id. ~ 69. 63 See Fries & Shaw, supra note 16, at 558 (hoping that the combination of principle of equa/

treatment and citizenship clause might lead to consider the freedom to move and the consequent burdens


traditional migration concepts than to American free interstate travel principles. It is in the end a fragmentary decision that shows a hesitant attitude in the Court. While jobseekers are partly referred to as workers,64 citizenship is used as a complement. This shows that, even if ambitious, citizenship is not yet an absorbing status.

C. The Legislative Side: Directive 2004131

While freedom of movement jurisprudence reached its last stage with the Trojani and Collins decisions, a directive regarding this same freedom entered into force in April 2004.65 The directive still needs to be implemented in the Member States and has not been applied in the recent commented decisions. Its purpose is to coordinate and merge provisions regarding the mobility of European citizens and their families,66 provisions previously distributed into different legislative instruments.67 There is no revolutionary innovation: The directive repeats preexisting legislative provisions ordering them in a more consistent framework. In some parts, though, it implements rules of judicial origin.68 In addition, it introduces an unconditional right of residence for up to three months,69 and a right of permanent residence after five years of lawful residence in a host State.70 In the temporal space between the two, residence is regulated more or less like before. Article 7 of the directive grants a right of residence over three months to students, workers, and the self-employed if they have sufficient resources and sickness insurance. Family members of people belonging to the said categories are also entitled to residence. 71

Article 7 of the directive expresses the legislature's preference for the categorized system of free movement over judicial experiments with entitlements based on citizenship. Categories seem to be confirmed and expanded by virtue of the combination between the concept of economic activity, the concept of financial independence, and the idea of family reunion.72 Articles 12, 13, and 14 of the directive, determining the conditions for the continuing residence of family

for public authorities as an incident of EU citizenship, in line with the U.S model, in which the right to travel is seen as an incident of federal citizenship).

(>4 But see Case C-138/02, Brian Francis Collins v. Secretary of State for Work and Pensions, 2004 E.C.R.I-2703, '1133 (clarifying that a person in the position ofMr. Collins is not a worker for the purposes ofTitle \I, Part I, of the regulation 1612/68).

65 Council Directive 2004/38/EC, 2004 OJ. (L 158) 77. 66 See premise n.3 to the Directive (suggesting that union citizenship is the fundamental condition

behind the freedom of movement and this is what commands a codification and review of the various dispositions regarding freedom of movement of different categories of people).

67 Directive 2004/38 modifies Regulation 1612/68 and repeals Directives 64/221, 68/360, 72/194, 73/148, 75/34, 75/35,90/364,90/365 and 93/96.

68 See M. Dolores Blazquez Peinado, EI Derecho de Libre Circulacion y Residencia de los Ciudadanos de la Union y de los Miembros de sus Familias, Ultimos Desarrollos Normativos: la Directiva 20041381CE del 29 de Abril, 233 GACETA JURiDiCA U.E. Y COMPETENCIA 18,28 (2004) (noting that Article 24 of the directive creates a link between equal treatment and freedom of movement, which existed before only in the ECJ case law). For other judicial influence in the directive content, see Articles 12, 13, and 14.

69 Council Directive 2004/38/EC art. 6,2004 OJ. (L 158) 77. 70 Council Directive 2004/381EC art. 16,2004 OJ. (L 158) 77. 71 Council Directive 2004/38/EC art. 7,2004 OJ. (L 158) 77. 72 See Blazquez Peinado supra note 68, at 21-22 (observing that the directive enlarges the concept

of family members by including couples registered according to the legislation of a Member State.)


members, in case of death, departure or breach of the marriage link with the original entitled person, clearly echo the Baumbast case.73 Article 24 of the directive also follows judicial suggestions in openly linking free movement and equal treatment. The provision states that all European citizens residing on the basis of the directive in a host Member State shall enjoy equal treatment with the nationals of the host State. The breadth of this statement is reduced by the specification that such equality remains subject to other provisions in the Treaty or in secondary legislation, and particularly by the exception introduced in Article 24, paragraph 2, according to which states are not required to grant social assistance during the three months of unconditional residence.

The ensemble of these provisions casts a shadow on the status of EU citizenship in the Court's case law. The provisions of the directive do not rely on notions ofEU citizenship. The legislative approach to free movement relies on the old system of categories and does not solicit optimism for bypassing financial considerations in granting free movement rights. However, the same directive introduced a possible way out of the layered categorization system by suggesting that other possible criteria of lawful residence external to the directive remain effective and by providing for a right of permanent residence. This is also the most innovative provision. According to premise 17/4 behind the idea of permanent residence, there is a will to "strengthen the feeling of union citizenship" in those who have chosen to reside long term in another Member State, facilitating "social cohesion.,,75 The directive suggests the creation of a real citizenship bringing about seeds of a new identity. Even if the directive relies on a category-based concept of free movement, the European Parliament and the Council show some openness to the idea of a freemoving people of Europe. By providing for a right of permanent residence, they introduce a long-term durational residency requirement, which leads to complete and unconditional integration in the host State.

D. Separated Social Security: A Persisting Barrier

Stretching the concept of citizenship is not enough to achieve harmony. There are material obstacles that a more integrated and dynamic Europe has to cope with. A first barrier to the realization of an authentic and unconditional freedom of movement for the people of Europe is the lack of a common system of social security. Issues of social security have long been perceived as connected to freedom of movement on a Community level.76 Commentators observe that "it is one thing to allow a person to stay, but another to enable a person to stay.,,77 Clearly there is

73 Case C-413/99, Baumbast and R v. Secretary of State for the Home Department, 2002 E.C.R. 1-7091.

7. Premise 17 to the Council Directive 2004/38/EC, 2004 0.1. (L 158) 77 ("[E]njoyment of permanent residence by Union citizens who have chosen to settle long term in the host member State would strengthen the feeling of Union citizenship and is a key-element in promoting social cohesion, which is one of the fundamental objectives of the Union .... ").

75 See Bhizquez Peinado, supra note 68, at 26. 76 See Enrico Limardo, La Sicurezza Sociale Comunitaria tra Riforme /stituzionali e Allargamento

dell 'Unione Europea, 2004 DIRITTO DEL LAVORO 99, 100-01 (2004). 77 David O'Keeffe, Margot Horspool, European Citizenship and the Free Movement of Persons,

XXXI THE IRISH JURIST 145, 155 (1996).


some distrust of the reliability of a concept of citizenship, which is still mainly market-based, as a vehicle of European social rights.78

At present, Community law provides for a coordination of social security systems with regard to migrant workers. The main rules are set forth in Regulation 1408/71.79 The regulation adopts the principle of the State of belonging,80 stating conditions for the export of social security benefits enjoyed in the home State and for the combination of periods of social security coverage completed in different states.81 The fact that the regulation only applies to workers and students82 shows its compatibility with category-based freedom of movement rather than general entitlement theory. The regulation has proved inadequate to protect certain marginal categories-unemployed migrants83 and jobseekers,84 who can only rely on the legislative provisions with significant limitations. With regard to the social security rights of migrants, who do not fit in any of the traditional free movement categories, Community law is silent.

State control over the administration of welfare is still a national prerogative in Europe, but it has been noted that ECJ case law on citizenship and freedom of movement subjects this sovereignty to judicial scrutiny.85 The activity of the Court in this area is likely to solicit a legislative response at some point.86 In a delicate field where national cultures and identities are so marked, it is difficult or impossible to think about a reunification, but many voices call for a review of the relevant harmonization rules.87 It is true that the Community does not have a "welfare responsibility" comparable to the one of the U.S. federal govemment,88 but the European case law applying Article 18 EC to free movement issues lays foundations for the social rights of migrants89 and calls for some degree of European

78 Stefano Giubboni, Liberta di Circolazione e Protezione Sociale nell'Unione Europea, 77 GIORNALE DIR. LAVORO E RELAZ. INDUSTRIALI 81, 84-85 (1998) (stating that freedom of movement is still dependent on the economic integration paradigm and it will be hard for the concept of citizenship to pull it out of this paradigm. It is still far from being a fundamental right of the person ut sic. In the light of this consideration, it is particularly difficult to extend social guarantees to forms of mobility not immediately dependent on productive goals).

79 Council Regulation 1408171, 1971 OJ. (L 249) 2. 80 See JOrg Markt & Gerhard Schick, Freiziigigkeitfiir Arme in der Europtiischen Union, 50/2 ZFW

179, 183 (2001) (stating that the currently applied principle of the State of belonging, in the absence of a coordination of social security systems, threatens perpetual immobility for the poor).

8' See Limardo, supra note 76, at 103 (stating that the fundamental principle in the system of coordination implemented by the Regulation 1408171 are equal treatment, unicity of the applicable law, prohibition of double contribution, cumulation of insurance periods and exportability of social security benefits).

82 Regulation 1408171, according to Article 2 of the same regulation, originally applied only to employed people and their family members. A 1999 regulation (Council Regulation 307/99,1999 OJ. (L 38) I), though, has extended its coverage to students. See Limardo, supra note 76, at 110.

83 See Giubboni, supra note 78, at 97 (providing a detailed analysis of the indirect limits of social protection for unemployed migrants).

S< See Dougan, supra note 57, at 96-98 (looking at the conditions that jobseekers must meet in order to obtain social assistance during the enjoyment of their freedom to move).

85 See Fries & Shaw, supra note 16, at SS8. 86 See Matthew Moore, Freedom of Movement and Migrant Workers' Social Security: an Overview

of the Case Law of the Court of Justice, 1997-2001,39 COMMON MKT. L.R. 807, 837-39 (2002). 87 See Fries & Shaw, supra note 16, at SS8; see also Limardo, supra note 76, at 117-19 . • 8 See Fries & Shaw, supra note 16, at SS8. 89 See Moore, supra note 86, at 814.


responsibility in this area. This paraJlels the "degree of financial solidarity" called for by the judges.90 A European model of social security should be "migration neutral" in order to avoid national resistance, and resentments of taxpayers reluctant to fund the mobility of others.91 Further harmonization of social security is a delicate undertaking, which raises a number of issues and requires a significant shift in Community competence. A real space without frontiers, where intra-Community travel is as simple as intrastate travel requires abolition of both material welfare barriers and individual psychological barriers. The ECJ commitment to designate mobility as an individual right of European citizenship could provide a valid conceptual basis for subsequent social integration.92 On the other hand, the judicial initiative requires reflection on the results of continuing integration.

E. The Status of Freedom of Movement in Europe: Between Migration and Unconstrained Travel

This overview confirms that there is a judicial trend in Europe moving from endorsing the free movement of the economically active to granting a right of free movement to citizens in general. The ECJ has started to use the citizenship clauses (Articles 17-18 EC) combined with the principle of equal treatment (Article 6 EC), in order to stretch the pre-existing categories of intra-Community migrants, and subsume them into a wider conceptual container.

While these undertakings of the ECJ reinforce free movement and expand its scope, they are not yet sufficient to completely eradicate aspects of migration from the European doctrine of free movement. European judges acknowledged direct effect to the right of residence of European citizens, but this right is conditional. The most ambitious decisions were made in Luxembourg where the claimants had obtained rights of residence on the basis of domestic rather than European law. This is an area of divergence between the European and the American systems. In the European Union, lawful residence is a necessary condition for complete equality of treatment notwithstanding nationality; lawful residence is not automatically granted to every person that moves throughout Europe. In the United States, every citizen can easily become a lawful resident in another state. This distinction in ideas of residence and local citizenship seems to mark the boundary between the discourse of migration and the discourse of free movement. While making this boundary less pronounced, European judicial efforts have not yet overcome this gap.

European citizenship, blended with other provisions of Community law serves as an impetus for recognizing free movement rights. But there are obstacles that citizenship alone, especiaJly a citizenship with the prerogatives of the European one, cannot overcome. Territorial residence and heterogeneous social security systems stand in the way of integration and developing European citizenship. American citizenship encounters lesser obstacles in preserving a system of generalized entitlement to free travel. Citizenship is not expected to add to the right to travel nor is it expected to increase integration. Associating the two merely contributes to the

90 Case C-184/99, Rudy Grzelczyk v. Centre Public d'Aide Sociale d'Ottignies-Louvain-La-Neuve, 2001 E.C.R. 1-6193, ~ 44.

9\ See Markt & Schick, supra note 80, at 197. 92 Limardo, supra note 76, at 119 (stating that through EU citizenship, it should be possible to

construe a common system of values, which could be the central element ofa social Europe).


balance between national homogeneity and state idiosyncrasy that is the essence of a federal system.

II. THE RIGHT TO TRA VEL IN THE UNITED STATES

The right to travel in the United States is well grounded in tradition. However, the lack of a direct constitutional right to travel and differing judicial approaches to the right induce continuous debate with regard to its scope. There seems to be, in the background of the right to travel, an idea of national solidarity, which finds expression in the renowned words of Justice Cardozo in the case of Baldwin v. G.A.F. See/ig:93 the union rests on a concept of comity, which links the American people and dictates that they should "sink or swim together." The philosophy of sharing luck and bad luck supports the interstate equality component of the right to travel. The right to travel does not derive from a single class of constitutional norms, but national citizenship is certainly a common background idea that reinforces the doctrine.94 Enriched by the flavor of national comity, citizenship is the general foundation of the freedom to "ingress and egress the different States,,95 and of the non-discrimination rights that mobility triggers. The abyss between American travel and European movement lies exactly here. In Europe, the nascent notion of European citizenship is being used as a mechanism to stretch pre-existing categories and generalize entitlement to move. In the United States, a bicentenary citizenship provides the basis for a right to mobility perceived as fundamental, for the union, and for its people. It has been a right of all, not the right of a carefully defined group of categories.

A. Origins and Early History of the Right

The right to travel has no clear early history or definitive origins. Likely origins include the Commerce Clause,96 or the Privileges and Immunities Clause of Article IV.97 The Supreme Court has blended various constitutional doctrines to uncover the roots of the fugitive right. By mixing individual rights dialectic with equal protection-inspired discourse, the Court has added to the original confusion.98

The connection between right to travel and national citizenship is discussed, as early as 1849 in Justice Taney's dissent in the Passenger Cases.99 Whatever the textual source of the right, it clearly entitles U.S. citizens to move in and out of every part of the U.S. territory.

93 Baldwin v. GAF. Seelig, 294 U.S. 511 (1935). "' See Justice Taney dissenting in the Passenger Cases, 48 U.S. 283 (1849); see also Rebecca

Zietlow, Belonging, Protection and Equality: the Neglected Citizenship Clause and the Limits of Federalism, 62 U. PITT. L. REV. 281,317 (2000).

95 U.S. ARTS. OF CONFEDERATION art. IV. 96 See JOHN E. NOWAK & DONALD D. ROTUNDA, CONSTITUTIONAL LAW § 14.38 (7th ed. 2004). 97 See, e.g., Justice O'Connor in Zobel v. Williams, 457 U.S. 55 (1982) and Saenz v. Roe, 526 U.S.

489 (1999). 98 See Nzelibe, Free Movement: a Federalist Reinterpretation, 49 AM. UNIV. L. REV. 433, 462

(1999). 99 Passenger Cases, 48 U.S. 283 (1849). These are a group of cases in which state statutes

imposing taxes on alien passengers entering the ports of that state were challenged. These cases were argued together in front of the Supreme Court, and the challenged statutes were held unconstitutional.


History suggests that the idea of free travel might have been born in reaction to a very constrained situation in seventeenth century England. loo There migration suffered severe limits, imposed by a rigid organization of professions and arts, and by a parish-based system of relief for the poor. 101 People were only granted assistance by the parish to which they belonged. If they moved elsewhere and encountered economic difficulties, their only chance would have been to go back to their home parish. In this system, not only were parishes reluctant to welcome new residents, but they tended to discourage their own residents from leaving, for fear that they would return in need for help.lo2 The immobility of this society made the territories of the American colonies an attractive destination, where there were less legal and traditional constraints to thwart individual entrepreneurship.103 The silence of the colonial charters on the issue of freedom of movement has been interpreted by modem scholars as a sign that the right to travel was taken for granted. 104 The first and sole explicit mention of the right to "ingress and regress to and from any other State" is found in the Articles of Confederation. 105 This has been considered an early expression of federal intent. 106 Article IV of the Articles of Confederation links mobility with an interest in "perpetuating mutual friendship and intercourse among the people of the different States.,,107 Cohesion and movement represent, in a relationship of mutual dependence, the building blocks of the Federation. The same cannot be said of the European Union, where only recently the ECJ has redirected free movement, a liberty originally introduced for purposes of economic integration, to support goals of increased cohesion.

The right to ingress and egress was already mature and solid when the U.S. Constitution was drafted. Accordingly, the right was not explicitly mentioned. Scholars have suggested that the fact that the right was mentioned in the Articles of Confederation, and then left out in the Constitution, might suggest an intent to repudiate this right on the part of the drafters. 108 A similar conclusion seems to conflict however with the historical development from confederation to federation. The thesis that freedom of movement was taken for granted by the framers, and impliedly resides in some other Constitutional provision, has generally prevailed:09

Notwithstanding doubts about the origins of the right, travel is an acknowledged liberty in the United States, recalled and reinforced in a varied, but rich line of cases. The courts tum to the right to travel in two types of situations: when there are

IOU See ZECHARIAH CHAFEE, 1885-1957: THREE HUMAN RIGHTS IN THE CONSTITUTION OF 1787 163 (1956); see also Bradley A. Meyer, Constitutional Law-Right to Travel: the United States Supreme COllrt Invalidates a Statute Requiring Welfare Recipients to Reside in a State for One Year before Receiving Full Benefits, 76 N.D. L. REV. 427, 430--31 (2000).

101 See CHAFEE, supra note 100, at 163. 102Id. at 163-67. 103Id. at 167. "" Id. at I 77-81. The right to travel was taken for granted I ike "something in air or blood of

Americans-people went where work called." 105 U.S. ARTS. OF CONFEDERATION § 4 ("The people of each state shall have free ingress and regress

to and from any other state."). 106 See CHAFEE, supra note 100, at 184. 1t11 U.S. ARTS. OF CONFEDERATION § 4. ItIS &e CHAFEE, supra note 100, at 185; see also Gerald M. Rosberg, Free movement of persons in

the United States, in II COURTS AND FREE MARKETS-PERSPECTIVES FROM THE UNITED STATES AND EUROPE 275,281 (1982).

1t19 &e CHAFEE, supra note 100, at 185; see also Rosberg, supra note 108, at 281.


barriers to movement and when differences in treatment of residents and cItIzens imply a restraint on the rreedom to migrate. 110 The former attitude has prevailed in an early series of cases. Today, it seems to be clear that interstate mobility cannot encounter direct barriers. I I I

The consolidation of the right to travel takes place through the dicta in a number of landmark decisions. Almost twenty years after Justice Taney's dissent in the Passenger Cases, I 12 the right to travel was awarded judicial recognition in Crandall v. Nevada. There the Court struck down a one-dollar tax imposed on every passenger leaving the State as a restraint on the right of citizens to move rreely throughout the country and to "come to the seat of the federal government.,,113 The combination of individual entitlement and the belief that citizens should have rree access to the seat of government served to support the recognition of a right to travel. The Court's reasoning in Crandall anticipates the confusion that arises when the language of fundamental rights and federalism are both used as the basis for a right. 114 Although still working in the general rramework of individual rights the Court also considers the importance of taking into account equality in right to travel cases like the one presented in Edwards v. California. I 15 This case stands at the crossroad between mobility rights and social solidarity. The holding eventually privileges this second element. The same dualism between concern for mobility rights and for social solidarity can be found in European jurisprudence on rree movement, where it is not yet clear which of the two aspects is predominant. I 16 Mr. Edwards was convicted under a California statute, which punished transporting or assisting in the transport of indigent persons into the state. He had driven his indigent brother-in-law rrom Texas to California. The Court held that the California statute constituted an impermissible burden on interstate commerce and recalled the

110 See Bryan H. Wildenthal, State Parochialism, the Right to Travel. and the Privileges and Immunities Clause of Article IV, 41 STAN. L. REv. 1557, 1569-74 (1989); see also Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-or Reveal the Structure of the Present?, 113 HARV. L. REV. 110, 133 (1999) (looking at the validity of dividing in the concept of travel the concept of "physical movement" from the concept of "change of legal environment").

III Actually old precedents affirming quarantine laws could support the view that states are still entitled to impose barriers for health reasons. Justice Jackson, concurring in Edwards v v. California, 314 U.S. 160 (1941), seems to admit that restraints of this type still remain. It is not sure, however, that the Court would rule in favor of health barriers, if faced with a similar issue today. Its reluctance to admit, in more recent judgments, health related barriers even for goods suggests an even stronger resistance to using health reasons as an obstacle to people. See Rosberg, supra note 108, at 293-94. Health, together with public security and public policy, is one of the reasons that still allow restraints on migration within the EU, according to the wording of the 2004 Directive on the right to residence. This apparently subtle distinction of attitudes in the United States and in the EU reveals though that what in one continent is a doctrine of free movement, in the other one is still in good part a discourse of migration.

112 Passenger Cases, 48 U.S. 283 (1849). 113 Crandall v. Nevada, 73 U.S. 35 (1867). II. See Jide Nzelibe, supra note 98, at 435 (observing that the Supreme Court has contributed to

make the boundaries of this right less clear by mixing a lexicon of federalism with a lexicon of individual rights).

115 Edwards v. California, 314 U.S. 160 (1941). 116 See A.P. Van der Mei, Freedom of Movement for Indigents: a Comparative Analysis of

American Constitutional Law and European Community Law, 19 ARIZ. 1. INT'L & COMPo L. 803, 831-38 (2002).


"sink or swim together" philosophy of Justice Cardozo. lI7 The Court emphasized that the recent industrial development demanded a shift in the nation approach to welfare assistance and the maturation of national solidarity in this field. I IS

Concurrences by Justice Jackson and Justice Douglas treat the right to travel in depth. These opinions rely on the Privileges and Immunities Clause of Article IV to connect freedom of movement and citizenship.119 Justices Douglas and Jackson articulate the importance of free movement that remains latent in the majority opinion. Justice Douglas argued that freedom of movement, even for the poor, is a necessary ingredient of a federal system and an incomparable guarantee of freedom of opportunity.120 Again, federalism and individualism, specifically autonomy in making individual choices of life, are joined to substantiate the right to travel. Federalist reasoning for the right to travel also appears in the most recent case dealing with the dynamic aspect of the right to travel, 12l u.s. v. Cuest.l22 Cuest is the first case where the individual's right to travel was protected against private interference. According to the Court, interstate mobility and the ability to engage in interstate commerce occupy a "position fundamental to the concept of our federal union.,,123

Equality concerns come into the courts' agenda, when the right of citizens to be treated equally at the end of their journey becomes an important component of the right to travel doctrine. In some sense, thus, there is a stretch also in the American case law regarding the right to travel. While the ECJ focuses on expanding the club of those entitled to move, the U.S. Supreme Court is busy showing that the right to travel entails an additional component, the right to settle down and start over in a new state. 124

B. The Equal Protection Branch of the Right to Travel

The passage from the dynamic to the static aspect of the right to travel has not always been linear in judicial decisions. Inconsistencies and doctrinal obstacles have hampered the way from time to time. 125 In the end, the route has been from a doctrine targeting direct deterrence on travel to a doctrine where the value of travel

117 Edwards, 314 U.S. at 173-74. IIsld. at 174-75. The Edwards holding suggests that major switches in the American federal

attitude to welfare have been dictated by economic and political changes on a global scale more than by intentions of integration deepening. The historical and temporal gap makes it difficult to forecast whether pursuing more integration could be enough to trigger more welfare solidarity in Europe.

119 See Justice Douglas concurring in Edwards v. California, 314 U.S. 160 (1941) (suggesting that the freedom to move from State to State is an "incident of national citizenship").

120 Ill. 121 But see Bradley A. Meyer, supra note 100, at 433 (stating that u.s. v. Guest might be the

connecting ring to cases, where there is no real issue of movement, but the right to travel is nonetheless relied upon).

122 U.S. v. Guest, 383 U.S. 745 (1966). In this case, the Supreme Court holds that denying the right to use public accomodation to a person because of racial considerations violates the right to travel from state to state, and to necessarily use in doing so highways and other instrumentalities of interstate commerce.

123/d. at 757. m See Shapiro v. Thompson, 394 U.S. 618, 629 (1969). 125 See Gregory B. Hartch, Wrong Turns: a Critique of the Supreme Court's Right to Travel Cases,

21 WM. MITCHELL L. REV. 457, 471-72 (1995).


itself is only tangential, while the equal protection element is predominant. 126 One major issue is in this context the difference in treatment among newly arrived and long-time residents. Since the late 1960's durational residency requirements have become a main concern of the courts. States impose these requirements as a condition to enjoy various benefits, including education, health care, and welfare. 127

The Supreme Court has been most daring in experimenting with the movementcitizenship-non-discrimination triad in cases involving welfare benefits and durational residency requirements. These cases illustrate how the ECJ and the U.S. Supreme Court are using the same three concepts. Fundamental differences in these three concepts result in different practical outcomes of freedom of movement cases in the United States as compared to the European Union. One example is the divergent interpretation of residence in the U.S. and the EU. In the European Community, it is difficult to obtain residence in one of the Member States. That residency, however, is a condition of full membership in the national community. Until the European Community has no authority to determine residency of its citizens, its power is limited. In the United States, residence defines state citizenshipl28 and is easily granted. 129 The problem is that it is in the United States a weak status,130 vulnerable to state attempts to fragment it into classes. Federal citizenship as a source of general entitlements is however a valuable tool to prevent inequalities based on residence.

Durational residence requirements for welfare benefits are central in the 1969 case that signaled a turning point in the Court's right to travel doctrine, Shapiro v. Thompson. 13 I The Supreme Court held that a one-year state residence requirement to obtain welfare assistance is unconstitutional. The decision of the Court rested on the equal protection clause of the Fourteenth Amendment and on the due process clause of the Fifth Amendment. 132 Length of residence cannot be used to create different classes of needy people. 133 Excluding indigents from the right to migrate means foreclosing for them, or at least discouraging, a chance to "resettle, find a new job and start a new life." In this way the residency requirement constituted an impermissible penalty on the affected person's right to travel.

Later, in the Solo-Lopez case,134 the Court specifically defined what should be considered an infringement on the right to travel. A state law offends the right to travel when it deters travel, has as first objective the impediment of travel, or uses a

126 See Bryan H. Wildenthal, supra note 110, at 1578. 127 See, e.g., Shapiro, 394 U.S. at 629; Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974),

Starns v. Malkerson, 326 F. Supp. 234 (D.C. Minn.197I), aff'd 401 U.S. 985 (1971). 128 U.S. CON ST. amend. XIV, § I ("All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside .... "). 129 See Van der Mei, supra note 116, at 850; see also Wildenthal, supra note 110, at 1586. 130 BRYANT G.GARTH, Migrant Workers and Rights of Mobility in the European Community and the

United States: a Study of Law, Community, and Citizenship in the Welfare State, in INTEGRATION THROUGH LAW-EuROPE AND THE AMERICAN FEDERAL EXPERIENCE 85, 108-09 (1986).

131 Shapiro v. Thompson, 394 U.S. 618 (1969); see also Wildenthal, supra note 110, at 1572-74 (observing that Shapiro initiates the equal protection strand of the right to travel cases).

132 Shapiro, 394 U.S. at 642. 133 Id. at 627. 13' Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986) (holding that New York's

restriction of its service preference to veterans who entered armed forces while residing in New York was unconstitutional).


classification that penalizes the enjoyment of this right.135 In this way, Soto-Lopez confirmed and perpetuated Shapiro's penalty rationale. In subsequent cases, the court, in deciding whether there had been disruption of the right to travel, focused on the nature of the citizen's interest with regard to which equal treatment was being denied. 136 In Memorial Hospital v. Maricopa County, the Supreme Court struck down a one-year residence requirement for access to non-emergency medical care. 137 Recalling Shapiro's rationale, the judges underlined that medical care, like welfare, is a primary necessity of life. 138 The Court also considered the importance of the benefit sought in Sosna v. lowa,139 where the Court upheld a one-year residence requirement. The requirement was found to be valid based on the importance attributed to divorce. Persons filing for divorce must demonstrate a significant attachment to the state before the state gmnts something as important and final as a divorce. The judicial trend moving away from travel in the direction of equal protection that began in the 1980's seems to have continued. '40 The court addressed discrimination based on residency with renewed vigor in Zobel v. Williams. 141 Here, the Court struck down an Alaska statute providing for the distribution of oil revenues, which granted residents a certain number of units proportional to their length of stay in Alaska. This distribution plan was found to be invalid under the Equal Protection Clause ofthe Fourteenth Amendment. Justice Burger, writing for the Court, explained that, in the end, "the right to travel analysis is little more than a particular application of the equal protection analysis.,,'42 The right to travel, indeed, apart from protecting against obstacles that actually thwart mobility, protects new residents from being penalized because of their migration. Protecting new residents from discrimination is one aspect of closeness between the American and European judicial analysis. An echo of the Court's attitude in Zobel can be found, in Europe, in the D 'Hoop case,143 where the emigrant citizen returning to his state of origin was protected from state-imposed disadvantages arising from her concrete enjoyment of the freedom to move. Concurring opinions in Zobel expanded on the right to tmvel analysis. In his concurrence, Justice Brennan considered the possible effect of adoption of regulations compamble to the one adopted by Alaska in all the states. The loss of seniority caused by movement and the need to start back from the beginning in another state would be the worst deterrent for mobility and a severe encroachment upon the right to travel. 144 According to Justice Brennan, mobility has a huge value for the social order and the economic progress of the nation. '45 His words reflect a vision of mobility deeply rooted in the fabric of the Union and connected to the essence of citizenship. 146 The European right to movement, based

I3S Id. at 903. 136 Wildenthal, supra note 110, at 1581. IJ7 Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974). 138/d. at 259. 139 Sosna v. Iowa, 419 U.S. 393 (1975). 140 Wildenthal, supra note 110, at 1581-87. 141 Zobel v. Williams, 457 U.S. 55 (1982). 142 Id. at n.6. 143 Case C-224/98, Marie-Nathalie D'Hoop v. Office national de I'emploi, 2002 E.C.R. 1-6191. 144 Zobel v. Williams, 457 U.S. 55,68 (1982) (Brennan, J. concurring). 145 Id. at 68. 146 Id. at 69--70.


as it is on economic justifications, has a hard time keeping pace with a concept of travel so deeply indebted to the idea of social, political, and economic union. 147

In the 1990s, there was a new wave of interest in residence requirements for welfare benefits after the enactment of the Personal Responsibility and Work Opportunity Act (PRWORA), which decentralized the welfare system. 148 Under the Temporary Assistance to Needy Families program (T ANF), which is partially funded by the Federal government, states are encouraged to experiment in the field of social assistancel49 and they are also allowed to use mechanisms like durational residence requirements. 150 T ANF led to the widespread adoption of durational residency requirements, some of which are being challenged on the basis of Shapiro.

In 1999, durational residence requirements knocked again on the Supreme Court's door. In Saenz v. Roe,151 the Court unexpectedly applied the privileges and immunities clause of the XIV Amendment, made silent more than a century before by a very restrictive interpretation in the Slaughter House Cases. 152 In Saenz v. Roe, the challenged California statute enacted a welfare scheme limiting welfare assistance during the first year of residence in California to the level of benefits that the new resident used to receive, or would have received, in the state of previous residence. 153 Therefore, the Court addressed with sharper determination a less aggressive form of discrimination than the one at stake in Shapiro. In Shapiro, welfare benefits were being completely denied within a certain time frame. Here, they were merely capped for the first year of residence in California. The Court addressed the issue by analyzing and decomposing the right to travel into three different parts. This right entails the freedom of citizens to enter and leave other states, the right to be "treated as a welcome visitor" while temporarily staying in another state, and the right of newly arrived residents to the same privileges and immunities enjoyed by other citizens. 154 This third component of the right to travel, which the Court held protected by the Privileges and Immunities Clause of the XIV Amendment, was the one threatened by the California scheme. 155 In order to strike down the statute at issue, the Court used a judicial blend of privileges and immunities, equal protection, and citizenship. The equal protection tone is evident in the passage of the judgment in which the judges underline that the California scheme creates several different classifications among citizens, merely on the basis of the

147 See JONATHAN D. VA RAT, Economic Integration and Interregional Migration in the United States Federal System, in COMPARATIVE CONSTITUTIONAL FEDERALISM-EuROPE AND AMERICA 21,50 (1990) (considering the different relative weight of goals of political union and of economic integration in the United States, and evaluating the role of a framework of political union in shaping the features of integration ).

148 See Van der Mei, supra note 116, at 808-09. According to the author description, the current welfare system provides for three types of welfare programs. One part, the Supplemental Security Income Program is administered on a federal level. The second part, T ANF, is partially financed by federal government, but the states are responsible for its management. The third part consists of programs of Home Reliefwhich are entirely administered at a local level.

149 See id. at 809. 150 See Saenz v. Roe, 526 U.S. 489, 497 (1999). 151 Id. 152 Slaughter House Cases, 83 U.S. 36 (1872). 153 Saenz, 526 U.S. at 497. 154 Saenz, 526 U.S. at 500. 1551d. at 502.

734 COLUMBIA JOURNAL OF EUROPEAN LA W [Vol. 12

level of welfare benefits acknowledged in their previous state of residence. 156 Citizenship is crucial to defeat the argument that Congress, through the PR WORA, has authorized California's legislation. The Court relies upon the Citizenship Clause of the XIV Amendment, to affirm that the introduction of degrees of citizenship is foreclosed not only to the states, but also to the federal government. 157 And the federal government has therefore no power to authorize the violation of the XIV Amendment by the states. 15S The judgment in Saenz is at the same time incredibly close to the positions of the ECJ and miles away from it. On the one hand, the constitutional instruments that the Supreme Court applies here are the same that the ECJ uses in the Trojani case and its immediate forerunners: a blend of freedom of movement, equal protection, and citizenship. There is a partially common goal, making free movement more effective by enhancing interstate equality, but there are also conceptual and practical gaps that seem hard to fill in the short term. In the U.S. cases, indeed, the Court deals with a freedom to move of the citizen, which is taken for granted. The right to travel, to migrate, to settle down elsewhere, start a new life, and obtain benefits like other citizens is already granted. 159 The Court is working on marginal conditions, such as time frames for complete equality that risk casting a shadow on the strong status of federal citizenship. 160 In the European Union, instead, freedom of movement and citizenship, in their joint effort, are a newly introduced concept,161 whose enforcement is currently enduring all the resistance of well-established national contours and of well-defined pre-existing categories. To extirpate all these unwanted borders, the citizenship provision seems quite lonely and inadequate. It does not share indeed the federal strength of U.S. citizenship.162

Insistence on the right to travel, in Saenz, might detract attention from another less blatant, but not less important focus of the Court in this case: 163 the entitlement to welfare throughout the union. The nexus between freedom to move and recourse to social assistance provides another point of contact between European Union and the United States. The same concern that animates in Europe the resort to financial restrictions for migrants leads to the introduction in the United States of durational residence requirements. l64 Discussion over the possible impact of social tourism accompanied the enactment of residence requirements during the era that goes from

1561d. at 505. 157/d. at 507--{)8 (affirming that the protection granted to citizens by the citizenship clause of the

Fourteenth Amendment is a limitation imposed both on the power of states and on the power of the federal government).

158/d. at 507--{)S. 159 See Passenger Cases, 48 U.S. 283 (1849) (Taney, J. dissenting) ("For all the great purposes for

which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.").

160 See, e.g., Saenz v. Roe, 526 U.S. 489 (1999). 161 See Van der Mei, supra note 116, at 850-51 (observing that legal tools like citizenship and right

to travel, traditionally available to the U.S. Supreme Court were not until recent time available to the ECJ).

162 See Thomas Faist, Social Citizenship in the European Union: Nested Membership, 39 J. COMMON MKT. STUD. 37,48-49 (2001) (stating that the derivative status ofEU citizenship determines its weakness and at the same time impedes its smooth evolution into a status of real federal citizenship).

163 See Kevin Maher, Like a Phoenix from the Ashes: Saenz v. Roe, the Right to Travel, and the Resurrection of the Privileges or immunities Clause of the 14th Amendment, 33 TEX. TECH L. REv. 105, 124 (2001).

I"" See Van der Mei, supra note 116, at 814.


Shapiro to Saenz. 165 The main worry is that the threat of social tourism might lead states to engage into a race to the bottom in the provision of welfare benefits. 166 The most recent research seems to discourage the idea that states are likely to tum into welfare magnets in the United States. 167 The consequent reduced appeal of residence requirements facilitates the Court's role in Saenz, in emphasizing the nondiscrimination rationale enshrined in citizenship and in its privileges and immunities. 168 The non-discrimination argument reinforces on the other hand the Court's undertaking to protect the right to travel. Travel and non-discrimination doctrines have indeed shared destiny in a number of judicial decisions.

C. Right to Travel and Non-Discrimination Rationale

Ideas of non-discrimination bring together the right to travel and two other constitutional doctrines, whose features are helpful in unfolding all aspects of the mobility doctrine.

Both the Commerce Clause and the Privileges and Immunities Clause of Article IV have origins in common with the right to travel. They all proceed from the same provision in the Articles of Confederation. 169 The Commerce Clause and the Privileges and Immunities Clause were transferred later into the Constitution. The right to travel, as mentioned above,I7O remained homeless, but judicial applications preserved the germaneness of the three original clauses by emphasizing common themes in the relative doctrines.

On the one hand, dormant commerce clause analysis and privileges and immunities clause analysis have been applied in similar contexts. 171 On the other hand, some early cases regarding personal mobility have been decided under the insignia of the Commerce Clause.172

The dormant commerce clause, like the right to travel, is the product of a constitutional textual silence. The courts have progressively affirmed that the power explicitly granted to Congress with regard to the regulation of commerce l73 implies restraints on the regulatory power of the states in fields that have some connection to

165 Id. at 821. 166 Nan S. Ellis & Cheryl M. Miller, Welfare Waiting Periods: A Public Policy Analysis o/Saenz v.

Roe, II STAN. L. & POL'y REV. 343, 349 (1999-2000). 167 See Van der Mei, supra note 116, at 821, (stating that more recent studies show less concern for

welfare migration and the consequent race to the bottom in welfare benefits. In light of this it would be more justified to talk of a job magnet rather than of a welfare magnet. See also Ellis & Miller, supra note 166, at 349-50 (looking at how the theory of states as welfare magnets does not work). Welfare migration is rare and people are generally attached to a job market. Migration is determined by a multitude of factors and welfare is only one.

168 See Van der Mei, supra note 116, at 828. 16. See Nzelibe, supra note 98, at 436-39. 170 See CALVERT CHIPCHASE, Saenz v. Roe: The Right to Travel, Durational Residency

Requirements, and a Misapplication 0/ the Privileges or Immunities Clause, 23 U. HAW. L. REV. 685 (2001).

171 See Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371 (1978); Toomer v. Witsell 334 U.S. 385 (1948); see also JOHN E. NOWAK & DONALD D. ROTUNDA, TREATISE ON CONSTITUTIONAL LA W : SUBSTANCE AND PROCEDURE 190-91 (3d ed. 1999).

172 See Crandall v. Nevada, 73 U.S. 35 (1867); Edwards v. California, 314 U.S. 160 (1941); see also NOWAK & ROTUNDA, supra note 171, at 187-88.

173 See U.S. CON ST. art. I, § 8.


interstate commerce. 174 The rationale at the basis of judicial holdings in this regard is related to the creation of a national market. 175 The dormant commerce clause spells out the logic behind interstate economic equality. Even ifthe focus is partially removed from the one of personal interstate mobility, similar ideas of nondiscrimination among the states inform the doctrine. The presence of an ideal of national cohesion both in the right to travel and in the dormant commerce clause doctrine underlines a further divergence from the European Union. In the EU, personal mobility is developing as a further step of the initial rationale of economic cohesion. In the United States, national cohesion has been the common goal of separate and parallel constitutional doctrines, promoting different angles of a common view of non-discrimination.

Friendly interstate intercourse and prevention of discriminations among citizens are goals pursued also through the adjudication of the Privileges and Immunities Clause of Article IV. The clause states that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.,,176 In its judicial "modem era," the Privileges and Immunities Clause has turned out to rely mainly on a non-discrimination rationale. 177 The clause has found judicial application mainly in cases regarding constitutional rights and economic activities. 178

It closes in this way the circle involving the dormant commerce clause and the right to travel. The dormant commerce clause encourages and protects the common market among the states of the union. The right to travel protects the freedom of American citizens to pass and re-pass through every part of the union. 179 The Privileges and Immunities Clause of Article IV creates and maintains a substrate of interstate equality, which is fundamental to realize the goal of national cohesion inherent in the other two doctrines.

The non-discrimination idea is not the only inheritance of the Privileges and Immunities Clause in right to travel cases. The clause illustrates also the helpful connection between travel and citizenship spelled out in concurring and dissenting opinions in the right to travel cases. In this regard, the clause of Article IV is a companion to the oile of Amendment XIV.180 Even before the Saenz case added the clause of Amendment XIV to the profile of the right to travel, the two privileges and immunities clauses were partners indeed in founding and developing a model of citizenship which underlies the right to travel rationale.

D. Right to Travel and Citizenship

The two privileges and immunities clauses, the one in Article [V of the U.S. Constitution and the other one in the Fourteenth Amendment, belong to two different moments of constitutional history. [fthe first one is aimed at protecting the status of state citizens, the second and younger one undertakes the defense of rights connected

m See NOWAK & ROTUNDA, supra note 171, at 131. 1751d. at 133. 176 See U.S. CONST. art. IV, § 2. 177 Id. at 250-51. 178 See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 449 (2d ed. 2002). 179 See Passenger Cases 48 U.S. 283 (I 849} (Taney, J. dissenting). 180 See U.S. CONST. amend. XIV, § I ("No state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States.").


to federal citizenship.181 Notwithstanding these different roles, the two clauses can be said to cooperate in some way to build and expand the American concept of citizenship.182 The Privileges and Immunities Clause of Article IV, by guaranteeing an equal ity of status among the citizens of the several states, lays the foundations for union citizenship. The late born clause of the XIV Amendment protects the privileges and immunities of federal citizenship while working on a pre-existing basis of equality among citizens of the states that the Privileges and Immunities Clause of Article IV is responsible for. 183 The first phase of equality building is what has been lacking in Europe: the citizenship provision of Article 18 EC simply added a new artificial status to pre-existing national citizenship. Only now, the ECJ is starting to work on harmonization of the condition of different nationals, using as a unirying tool a combination of citizenship and non-discrimination. The freedom of movement and the right to travel offer, in this regard, a privileged ground of observation for comparing the harmonizing role of the citizenship provisions in the United States and in Europe. Equal treatment is indeed one of the imperatives of mobility.

In the United States, several concurring opinions in the main right to travel cases have suggested reliance on this community of values, in order to stretch the right to travel, reinforce its equality component, and make mobility and resettling effective and rewarding in the United States. A first symptom of this attitude can be found in Justice Bradley dissent in the Slaughter House Cases: after affirming that the XIV Amendment has made federal citizenship the primary status of the Americans, he adds that federal citizens have now the right to go and reside in any State of their choice and claim there citizenship and equality.184 As he points out, "the whole power of the nation is pledged to sustain (the citizen) in this right.,,185 An early reliance on the Fourteenth Amendment privileges and immunities is evidenced by the words of Justice Douglas in Edwards v. California. He defines the freedom to move as an "incident of national citizenship," which the Fourteenth Amendment protects from state interference. 186 Justice Jackson, concurring in the same case, shares his view and reflects upon "the power of citizenship as a shield against oppression.,,187 He also underlines that the right to enter any state either for temporary sojourn or for the establishment of permanent residence is a privilege of national citizenship. 188 In Zobel v. Williams, Justice Brennan concurring observes that the "right to travel and equality of citizenship are the essence of the Republic.,,189 The most promising re-evaluation of the Privileges and Immunities

181 See MAHER, slipra note 168, at 110-14. 182 See id. at 112 (observing that the Fourteenth Amendment was passed as a remedy to the

ineffectiveness of the Privileges and Immunities Clause of Article IV and therefore the latter clause should be a guide to understand the Privileges and Immunities Clause of the Fourteenth Amendment).

183 See Justice O'Connor concurring in Zobel v. Williams, 457 U.S. 55 (1982), whose attempt to fill the emptiness of protection left by the two clauses, by expanding the scope of the clause of Article IV, shows that the underlying equality among citizens of different states contributes to "put flesh on the bones" of the American federal citizenship.

18< See The Slaughter House Cases, 83 U.S. 36, 112-13 (1872)(Bradley, 1. dissenting). 185 [d. at 113. 186 Edwards v. California, 314 U.S. 160, 178 (1941) (Douglas, J. concurring). 187 [d. at 182-83 (Jackson, J. concurring). 188 [d. at 183. 189 Zobel v. Williams, 457 U.S. 55, 70 (1982) (Brennan, J. concurring).

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Clause, in its Article IV version, is however in the words of Justice O'Connor in this same case. 190 Justice O'Connor acknowledges a legal association based on the Articles of Confederation between the right to travel and the Privileges and Immunities Clause of Article IV.191 In particular, she suggests a way to overcome the obstacle that the clause of Article IV has only been held applicable to citizens, who, moving to another state, do not acquire citizenship there: the fact that the discrimination "unfolds" after the travel element has finished and the person has become a resident of the new state should not preclude the application of this clause, as the situation underlines the disability of the "citizen of State A who has ventured in State B" to establish a home there. l92 This analysis underlines the ambiguity of the Privileges and Immunities Clause of Article IV and its high content in terms of interstate equality, notwithstanding its fundamental rights evoking aspect. In the end, the right to travel, privileges and immunities, and the theory of nondiscrimination build an extremely delicate and surprisingly complex architecture, where interstate equality and citizenship are key to the trade-off between individual dignity and concerns of the federation. 193

For the sake of the federal system, this interstate equality seems to be in perpetual tension with the value of state autonomy. State autonomy might be key in explaining some reverse patterns of mobility that the exam of peculiar categories will reveal in the following part of this analysis. Certain values fall in the United States on the side of state autonomy rather than interstate equality.194 Among these values, there are certain economic goals. In the European Union, instead, economic goals are the first instance of union, demanding equality.

III. REVERSE PATTERNS: A GLANCE INTO THE KINGDOM OF THE ECONOMICALLY ACTIVE

In this Part, two peculiar categories of free movers will be the target of a comparative analysis of U.S. and European solutions. First of all, I will briefly examine the regime of student mobility in the two systems. With an eye to mobility issues, students stand at the intersection of the class of economically active and economically inactive people. On the one hand, they represent an appendix of the economically active, as their status is structurally aimed at entering this c1ass. 195 At the same time, they are not financially independent. Then, I will address, in a general and exemplificative overview, patterns of mobility (or immobility) of

I"U See Wildenthal, supra note 110, at 1585-87. 191 Zobel v. Williams, 457 U.S. 55, 79--81 (1982) (O'Conner, J. concurring). In Id. at 74-75. 1"3 See Rebecca Zietlow, Belonging, Protection and Equality: the Neglected Citizenship Clause and

the Limits a/Federalism, 62 U. PITT. L. REV. 281, 308 (2000) (the citizenship clause which has also been relied upon in Saenz stands "at the intersection offederalism and individual rights"); see also Jonathan D. Varat, State Citizenship and Interstate Equality, 48 U. CHI. L. REv. 487, 494 (1981).

194 See id. at 35-37 (describing how generally' states cannot, by using their regulatory and taxing power, impose stricter requirements on non residents or non instate business than on instate ones and residents. But such obligation is lifted where State has complete autonomy in choosing how to spend its money; for instance with regard to welfare payments and education. This freedom, combined with freedom to move, makes the States the firms offering goods to people and directing their choice of where to settle. In some way this sacrifices economic integration, but confers value to political union).

195 See Siofra O'Leary, supra note 29 (discussing the idea that students, even if not squarely fitting in the category of the economically active, are in preparation for a future economic activity).


professionals subject to license requirements in the European Union and in the United States, in order to assess features of free movement for economically active people in the two systems. In particular, I will focus on the rules and cases regarding the mobility of lawyers. Incentives or lack thereof, for the mobility of lawyers can prove particularly meaningful in exploring the attitude of legal orders towards free movement, as the interest in mobility of this class encounters a natural hardship, for the intrinsic localism that familiarity with a peculiar jurisdiction requires. 196

There are apparent incongruities in the approach to mobility for economically active and economically inactive people in the two compared systems. Consideration of the original scope and essence of the union in the two cases might be helpful in understanding how citizenship and state autonomy interplay in the two orders, according to a different level of relative weight.

A. Students

I. Mobility of Students in the European Union

The current statute of the European migrant studene97 has been progressively shaped through an inter-play of case law and secondary legislation, with a sudden reinforcement in a very recent judgment of the European Court. 198 Before the adoption of the Maastricht Treaty, lack of a common competence in the field of education, forced the ECJ to expand the rights of moving students by a combination of the provision on vocational training l99 and the principle of equal treatment.200

This judicial expedient led to the early affirmation in case law of the right to equal treatment in access to vocational training. The Gravier case201 represents the foundation in this area. The ECJ considered here the Belgian imposition of a university enrolment fee only on foreign students as an impermissible form of national discrimination in access to vocational training.202 The rule of equal access to education received judicial strengthening and delimitation in the co-eve cases of Brown and Lair.203 Both cases dealt with the denial of study allowances in the host state to students who were nationals of a different Member State. The ECJ clarified that the equal access right under Article 12 of the EC Treaty pertains only to registration and tuition fees. 204 Maintenance grants are, instead, excluded from the

196 On the peculiarity of the lawyer's profession, see Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) (Rehnquist, J. dissenting).

197 See Jacques Pertek, Le Statut de i'fitudiant mobile dans la Communaute europeenne, 7/8 ACTUALITE JURIDIQUE DROIT ADMIN. 539 (1999).

198 Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of Ealing, Secretary of State for Education and Skills (2005), available at http://curia.eu.intljurisp/cgibinlform.pl?lang=en.

199 See EC Treaty art. 50. 2") Id. art. 6. 201 Case C-293/83, Fran,<oise Gravier v. City of Liege, 1985 E.C.R. 593. 2021d. ~~ 21-23. 203 Case C-197/86, Steven Malcolm Brown v. The Secretary of State for Scotland, 1988 E.C.R.

3205; Case C-39/86, Sylvie Lair v. Universitat Hannover, 1988 E.C.R. 3161. 2,," In the United States, there have been debates about the admissibility of admission quotas for

residents and non-residents. In Europe, this kind of discrimination among national and international


non-discrimination coverage.205 They are instead awarded on an equal basis to migrant students who are family members of migrant workers.206 Connections to employment-related mobility do indeed reinforce the non-discrimination coverage.

The Court's approach seems to enucleate in the status of students two different components: the element of education consumer as a potential future worker, who deserves equal protection, and the element of migrant economically inactive person, which in the prelude to the introduction of European citizenship, cannot yet fit in any category entitled to move. This second self of the student has to rely on his own forces for facing life costs. The Court's sanction will tum into legislative condition, with Directive 93/96,207 which requires of migrant students that they have sufficient resources. The idea itself that migrant students have an independent right of residence, which Directive 93/96 crowns, was born once again in a judicial statement. In the Raulin case,208 the European judges clarified that, as a consequence of the right of equal access to vocational training, a student who has been admitted into an education program in a Member State other than his state of nationality, enjoys there a right of residence for the duration of the education program.209

The current judicial trend in the ECJ, tending to enhance free movement, as a result of the joint effort of citizenship and equal treatment, has improved opportunities of mobility also for students. Early symptoms of these renewed chances for students' mobility can be read in the above-mentioned Grzelczyck . d 210 JU gment.

Then, as mentioned above, the Court has vigorously confirmed its rightexpansive attitude in a decision rendered in March 2005 in the Bidar case.211 There, the Court openly overcame the distinction between equality for access to vocational training and for maintenance aid while studying. The Bidar case regarded a French student, who moved to the United Kingdom to follow his mother and pursued there a good part of his secondary education.212 When later he started his studies in economics, he received assistance for his tuition fees, but he was denied maintenance aid because he did not satisfY the requirement of national law that he be settled in the United Kingdom.213 Called to decide whether maintenance grants and loans are within the scope of Community law in light of developments of EU law and whether, as a consequence, U.K. legislative requirements entail a form of forbidden nationality-based discrimination, the ECJ engaged in wrinkle-less

students does not seem to be an issue and the European Court has coped mainly with the financial conditions of admission.

205 Case C-293/83, Fran~oise Gravier v. City of Liege, 1985 E.C.R. 593, ~~ 15-16. 206 See Council Regulation 1612/68 art. 12, 1968 OJ. (L 257) 2; and Parliament and Council

Directive 2004/38IEC art. 24, 2004 OJ. (L 158) 77. 207 Council Directive 93/961EC, OJ. 1993 (L317) 59, repealed by Parliament and Council Directive

2004/38/EC, 2004 OJ. (L 158) 77. 2U8 Case C-357/89, V. J. M. Raulin v. Minister van Onderwijs en Wetenschappen, 1992 E.C.R. l

Ion 2(19 Id. ~ 34. 211' Case C-184/99, Rudy Grzelczyk v. Centre Public d' Aide Sociale d'Ottignies-Louvain-La-Neuve,

2001 E.C.R.6193. 211 Case C-209/03, The Queen (on the application of Dany Bidar) v. London Borough of Ealing,

Secretary of State for Education and Skills (2005), available at http://curia.eu.intljurisp/cgibinlform.pl?lang=en.

212 Id. ~ 20. 213 Id. ~~ 21-22.


reasoning, in which it applied the most successful formulas of its free movement judgments. A national of a Member State, who lives in another Member State and pursues there secondary education, is a lawful resident under Article 18 EC and under the 1990 directive on the right of residence, if no claim has been raised that he does not have sufficient resources or that he lacks sickness insurance?14 Quoting the Trojani decision, the Court added that a European citizen who is not economically active, but is lawfully resident, is entitled to equal treatment under Article 12 EC,215 and this entails maintenance aid for students.216 Notwithstanding the degree of financial solidarity concept that the Grze/czyk judgment contributed to students' free movement, in order for maintenance grants not to become an unreasonable burden, it is legitimate to require that the benefiting students have a certain degree of integration into the host state.217 This degree of integration can be proved for instance by length of residence and is certainly accomplished by students who have pursued a significant part of their secondary studies in the host state.218

The Bidar judgment confirms the judicial engagement to evade, in the context of free movement, categories of entitlement, by reliance on citizenship and equal treatment. The stretching trend reaches its zenith. In addition, the judgment provides a valuable map of the free movement doctrine by applying systematically principles affirmed in different lines of free movement cases.219 At the same time, the Court's reasoning reaffirms a well-experienced external boundary of its citizenship game: lawful residence, granted by a Member State, is still the threshold for entitlement, whose persistence impoverishes somehow the independence of European citizenship.

2. Mobility of Students in the United States

In the United States, economic implications of travel do not favor integration, but rather justifY state autonomy.220 This attitude finds its first expression in the field of students' mobility. The Supreme Court has repeatedly held that a distinction between residents and non-residents for tuition purposes does not violate equal protection, nor chills the right to travel. It pursues, instead, legitimate state goals, such as the one of making sure that state resources are primarily reserved for those who made a contribution to state wealth.221 In this light, reduced tuition is

WId.'36. 215 Id., 37. 216Id.,42. 211 Id. , 57. 218/d. " 59-63. 219 It provides indeed a sum up of the concept of financial solidarity expressed in the Grzelczyk

judgment (, 56), of the conditions for social assistance of lawfully resident, but not economically active European citizens (, 37), of the degree of integration in the host state, which can be required respectively ofa student and ofajobseeker, in order to grant social assistance (" 57-58).

220 See VARAT, supra note 147, at 50 (observing that the presence of a political union framework may make economic protectionist impulses more reduced. It produces less anti-common market policies and those adopted are accepted as expression of local autonomy. Economic integration, in the United States, has not been granted an independent constitutional value of the same strength as political integration and people's freedom to move temporarily or permanently).

221 See, e.g., Starns v. Malkerson, 326 F. Supp. 234 (D.C. Minn., 1971) aff'd 401 U.S. 985 (1971).


considered an element of bona fide residence.222 In this optic, the California Court of Appeals in Markowitz v. University of Californid23 recently upheld a one-year residence requirement for purposes of in-state tuition. A limit to the differentiation between in-state and out-of-state students has been established in Vlandis v. Kline, where it was held that while durational residency for instate tuition is admissible, non-rebuttable presumptions of out-of-state residence are illegitimate and quotas of admission based on residence cannot be established.224

Streams of students moving throughout the country to earn a degree at a certain school are regarded to some extent as an endemic phenomenon of mobility that could have to do with the structure of the education system in the United States and with the ranking of schools,225 and at the same time with an absence of residential bounds, which is peculiar of a certain phase of life?26 In this light, residence rights for students belong to a peculiar category. Classifications according to this criterion in the field of education satisfy needs for fair distribution of resources and contribution rationales and represent a permissible exception to principles of interstate equality.227 There is definitely an inverse regime in comparison with the European Union where mobility for purposes of education has been supported as a collateral factor of economic integration. While common citizenship in the EU supports attempts of equalization for students' condition, peculiarity of students in the United States leads to derogations from their status of equal citizens.

On the one hand, thus, certain background traditions of life make it hard to compare the regime of educational mobility in the EU and in the United States. In the former, there is indeed an economic-drawn desire to pull people out of a state of immobility perceived as normal. As schools in Europe are not ranked as clearly as in the United States, having a high number of out-of-state students could be a reason for prestige, while there is no realistic threat that the afflux of out-of-state students would displace education opportunities of local residents. Language and cultural barriers reinforce a tradition of low student mobility and dilute these worries. In the United States, where moving for education purposes is the rule rather than the exception, there is a fear that fluxes of out-of-state students would represent a disincentive for states to invest in good education facilities, as benefits would not accrue mainly to local residents.

222 Id. at 240--41. 223 Markowitz v. University of California, No. A096182, 2002 WL 31428619 (Cal. Ct. App. Oct 30,

2002). m See Gary J. Simson, Discrimination against Nonresidents and the Privileges and Immunities

Clause of Article IV, 128 U. PA. L. REV. 379, 395-96 (1979). But see Jonathan D. Varat, State Citizenship and Interstate Equality, supra note 193, at 552-54 (stating instead that colleges and universities should not be exempt from the general rule that state-created resources can be kept for residents. States might not want to create a large system of education big enough to accommodate also educational needs of non residents, even if they are willing to pay.

m See Starns v. Malkerson, 326 F. Supp. 234, 240 (D.C. Minn., 1971), affd 401 U.S. 985 (1971) (affirming that there is a presumption that a student who is in Minnesota for purposes of studying is not a permanent resident).

226 See Thomas B. Parent, Tuition Residence ReqUirements: a Second Look in Light of Zobel and Martinez, 61 IND. LJ. 287, 311 (1986) (suggesting that the tendency of students to move merely for purposes of attending college induces to suspect that relocation is simply temporary); see also Gary J. Simson, supra note 224, at 386-87.

227 See id. at 396.


B. Professionals

I. Professional Mobility in the European Union

Free movement of professionals is a clearly affirmed commitment for the European Union, where it finds a basis in the original Treaties.228 The two main pillars of the current regime are harmonization and recognition of diplomas.

The ECJ, as in many other fields, has made the first efforts in this direction.229

Judges in Luxembourg have relied particularly on the Treaty provisions on the freedom of establishment and provision of services, whose direct application and expansive reading certainly support chances of movement for professionals. In the Reyners case,230 the Court affirmed the direct applicability of Article 43 EC (freedom of establishment) in order to give relief to the claim of a Dutch national, who, even if in possession of the required legal title, had been denied admission to the practice of the profession of lawyer in Belgium, because he was not a Belgian national.23I In the same year, and in another case, the Court also granted direct effect to the provisions on freedom to provide services,232 in order to allow a Dutch national to provide his services of legal representative in the Netherlands even if established in Belgium.233

After this first expansive grip for freedom of professionals in EU case law, legislative development followed. First came a series of sector-specific directives, aimed at liberalizing the trans-national exercise of certain professions.234 The typical legislative scheme for each sector entailed a recognition directive, aimed at the recognition of diplomas gained in states other than the one where the professional activity is to be exercised, and a harmonization directive, aimed at the harmonization of the conditions for the exercise of a profession.235

[n 1989, this category-based system was improved with the adoption of a general directive on the recognition of diplomas,236 which is residual in nature and applies in all situations not specifically considered in one of the previous directives. The concept of diploma adopted in the directive is deprived of any academic connotation. Diploma is the title achieved upon completion of a period of training of at least three years and enabling the practice of a certain activity.237 The idea at the

228 See EC Treaty arts. 39,43,49. 229 See Fabio Ferraro, Avvocati: Cronaca di una Condanna do Tempo Annunciata per / 'ftalia, 3

DIRITTO PUBBL. COMPo ED EUROPEO 1270, 1273 (2002). 230 Case 2-74, Jean Reyners V. Belgian State, 1974 E.CR. 631. 231 Id. ~ 32. 132 See EC Treaty arts. 49-55. 233 Case 33-74, Johannes Henricus Maria van Binsbergen v. Bestuur van de Bedrijfsvereniging voor

de Metaalnijverheid, 1974 E.C.R. 1299. m See, e.g., Council Directive 78/687/EEC, 1978 OJ. (L 233) 10; Council Directive 78/686/EEC,

1978 O. J. (L 233) I (pertaining to dentists); Council Directive 85/384/EEC, 1985 OJ. (L 223) 15 (pertaining to architects).

235 See Ugo Villani, 1/ riconoscimento dei Titoli di Studio e Le Professioni nella Comunita Europea, XLIX LA COMUNITA INTERNAZIONALE 497,502-03 (1994).

236 Council Directive 89/48/EEC, 1989 OJ. (L 19) 16. 231 See Villani, supra note 235, at 503-04 (observing that academic recognition of diplomas with an

eye to continuing studies was left out because the Community was at the time not yet competent in the field of education).


basis of recognition of diplomas is a principle of mutual trust. The directive rests on the assumption that the length and kind of training necessary to become competent for the exercise of a certain profession is more or less the same everywhere.238

Recognition is key therefore, while the legislative intent is not in this case harmonization: States remain free to maintain and introduce their own regulations.239 This degree of state autonomy in regulating access to professions obviously poses the problem of guaranteeing, together with mobility, uniformity in the quality of the supplied services. To this purpose, the directive entails some adjustment mechanisms/40 differences in content or duration of the pursued studies can be made up for, at the choice of the interested person, through a period of adaptation or the successful passing of an aptitude test in the host state.241 In 1992, another directive was passed, which extended the recognition to diplomas received upon completion of periods of training inferior in length to three years.242

The ECJ has looked at the effective implementation of these directives243 and from time to time creatively contributed to professional integration. In the Kobler case,244 for instance, European judges held that legislation granting a special length of service increment to professors in Austrian universities after fifteen years of service curtailed freedom of movement if it did not allow the taking into account, for the purpose of awarding the increment, years of service in other Member States.245

Therefore, legislative measures are not only in place to facilitate transfer of professional activities and professional competences from one state to another, but the European judiciary has also undertaken to make sure that national provisions do not provide disincentives to professional movement.

2. Professional Licensing in the United States

In the United States, professional licensing or certification is a prerogative of the states. It is considered that states have a compelling interest in regulating professions, as part of their power to provide for public health, wealth, and other relevant state interests?46 The interest of the state in this field was judicially affirmed in a landmark case in 1889, Dent v. State of West Virginia. 247 In that case, the Supreme Court responded to a challenge to a West Virginia statutory requirement that all practitioners of medicine have a certificate of the State Board of Health, by making clear that it is in the power of states to require proof of a certain level of skill and knowledge in order to practice a profession.248 In performing their

238 See Jacques Pertek, Free Movement of Professionals and Recognition of Higher Education Diplomas, 12 Y.B. EUR. L., 293, 312 (1992).

239 See Vincenzo De Sensi, La Libera Circolazione delle Persone e il Riconoscimento Reciproco dei Diplomi, XXI LE NUOVE LEGGI CtVILI COMMENTATE 1116, 1126 (1998).

240 See Villani, supra note 235, at 509. 241 Council Directive 89/48/EEC, 1989 OJ. (L 19) 16, ~ 4. 242 Council Directive 92/51IEEC, 1992 OJ. (L 209) 25. H3 Italy, for instance, has recently been condemned for maintaining a residence requirement for

dentists. See Case C-202/99, Commission of the European Communities v. Italian Republic, 2001 E.C.R. 1-9319.

244 Case C-224/01, Gerhard KObler v. Republik Osterreich, 2003 E.C.R. 1-10239. mld.';~ 71-72. 246 See 58 AM. JUR. 2D ~ 2 (2004). W Dent v. West Virginia, 129 U.S. 114 (1889). HS/d. at 122.


task to protect the community from the risks connected with fraud and ignorance, states are free to assess the degree of stringency that is likely to absolve this purpose.249 Later cases have confirmed that the principle expressed in Dent can be extended to other professional fields. 250 A limit to state-enacted requirements is, however, that they must have a rational relationship with the applicant's capacity to practice the chosen profession.251

While licensing is a state competence, in the interest of interstate equality, there are limits to barriers that a state can impose on the professional activity of out-ofstate residents or new residents. In the Piper case of 1985,252 the Supreme Court held a residency requirement for admission to a state bar to be in contrast with the Privileges and Immunities Clause of Article IV of the Constitution. This judgment, even if specifically regarding lawyers, has been read as a broadband rejection of instate residency as a prerequisite for licensure.253 Apart from judicially enforced restraints on the states' prerogatives, several states maintain rules of reciprocity for admission to the practice of a profession of persons licensed in other states. Reciprocity leads to the recognition of licenses released in other states, where the state of release would grant a similar treatment to licensees of the first state.254

Reciprocity certainly represents a factor of openness to inter-state mobility, but its dynamic value should not be overstated. Several cases255 have made clear that having a license in a state does not automatically equate to being licensed in other states.256 Every state remains free to enact additional requirements and to exercise a certain margin of discretion in granting reciprocal licenses. Reciprocity is not considered in the United States as a means to construe a welI-functioning system of professional circulation. It seems rather to be aimed at responding at specific individual needs, examined on a case-to-case basis.

At the same time, the care for disincentives to mobility expressed by the ECJ in the Kobler case does not find a correspondence in American judicial attitudes. In the comparable case of Devereaux v. New York State Teachers Retirement Board,257 the Court held that a New York statute providing for a right to reemployment and for certain benefits in pay and status for teachers inducted into military service did not create an obligation for the Board to take into account the military service rendered by a teacher in New Jersey. This seems to be in sharp contrast with the ECJ's

249 [d. ("As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and leaming upon which the community may confidently rely. The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity.").

250 See, e.g., Smith v. State of California, 336 F.2d 530 (9th Cir. 1964); see also RANDOLPH P. REAVES, THE LAW OF PROFESSIONAL LICENSING AND CERTIFICATION 5 (4th ed. 2001).

251 See REAVES, supra note 250, at 9. 252 Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). 253 See REAVES, supra at note 250, at 47. 254 [d. at 50. 255 See, e.g., Valdes v. New Jersey State Board of Medical Examiners, 501 A.2d 166 (N.J. Super. Ct.

App. Div. 1985); Sellers v. Board Of Psychologist Examiners, 739 P.2d 125 (Wyo. 1987); Frank v. Wyoming Board of Dental Examiners, 965 P.2d 674 (Wyo. 1998). These cases reflect in good part the choice of cases presented in REAVES, supra note 250, at 50.

256 See REAVES, supra note 250, at 50. 257 Devereaux v. New York State Teachers Retirement Board, 429 N.Y.S.2d 743 (N. Y. App. Div.

1980).


commitment to community-wise equality of treatment and oppositIOn to disincentives to mobility. This case shows that in the American view, certain professional privileges and protective measures are strictly state-related.

C. Mobility of Lawyers

That lawyers belong to a special category has been affirmed in the United States by Justice Rehnquist, in his dissent in Supreme Court of New Hampshire v. Piper.258

He stated that "[t]he reason that the practice of law should be treated differently is that law is one occupation that does not readily translate across state lines. Certain aspects of legal practice are distinctly and intentionally non-national." Justice Rehnquist considered that this field of activity embodies a doctrine opposite to the principles of interstate equality expressed in the Privileges and Immunities Clause of Article IV.259 Rehnquist's perception of the practice of law finds support in U.S. case law on admission to the bar: Even if mechanisms are in place to facilitate to some extent interstate practice, admission to the bar is firmly considered a statebased prerogative. In the EU, instead, rules on recognition of diplomas have eroded state sovereignty with regard to licensing of lawyers. Considering that differentiation of laws and jurisdictional systems is certainly higher in the EU Member States than in the United States, European liberalization of intraCommunity practice oflaw stands in strong contrast with Rehnquist's reflections.

I. Mobility of Lawyers within the European Union

As the Reyners and the Van Binsbergen cases260 mentioned above261 suggest, for lawyers, as for several other categories, it was a judicial impulse to give the first incentive to the improvement of professional mobility. In the Vlassopolou case,262 the European Court held that freedom of establishment under Article 43 EC requires that authorities of a Member State, in considering admission to the bar of a foreign applicant, carry out a comparative examination of the applicant's knowledge and credentials. I f the exam results in a lack of equivalence, the foreign applicant must nonetheless be given the opportunity to prove her acquisition ofknowledge.263

The legislative commitment to enhanced mobility started for lawyers with a 1977 directive on the provision of services.264 Under this regime, lawyers are allowed to perform certain acts in other states under the title of the state of origin. 265

258 Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 289-90 (1985) (Rehnquist, J. dissenting).

2591d. at 290-91 (stating that there is an interest in interstate equality which is defended by the Privileges and Immunities Clause of Article IV, but the Constitution builds a federal system, which allows for the independent operation of sovereign States).

260 Case 2174, Jean Reyners v. Belgian State, 1974 E.C.R. 631; Case 33174, Johannes Henricus Maria van Binsbergen v. Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid, 1974 E.C.R. 1299.

261 Id. ~~ 41-42. 262 Case C-340/89, Irene Vlassopoulou v. Ministerium fur Justiz, Bundes- und Europaangelegenheiten

Baden-Wurttemberg 1991 E.C.R. 2357. 263 Id. ~ 23. 264 Council Directive 77/249/EEC, 1977 0.1. (L 78) 17. 265 See Jacques Pertek, L 'Europe des Profossions D 'Avocat Apres fa Directive 9815 sur L 'Exercice

Permanent dans un Autre Etat Membre, 445 REVUE D. MARCHECOMMUN ET DE L'U. E. 106, 107 (2001).


Directive 89/48 later provided a chance for integration into the professional environment of another state.266 Admission to the bar of other states for lawyers already licensed elsewhere in the Community is subject to the passing of an aptitude test or to a period of adaptation according to the choice of the host Member State?67

Directive 98/5268 then introduced a system of recognition of diplomas specific to lawyers. Under this directive, every lawyer licensed in a Member State can practice in another Member State under the title of his country of origin, and then after three years he is completely integrated into the national practice and can use the local title. 269 At this point, migrant lawyers can choose to take an aptitude test and be immediately integrated in the national practice under Directive 89/48, or they can practice effectively and regularly for three years and be integrated in the national practice as a result of their own activity.270

European case law, in the wake of the 1998 directive, is directed at sanctioning defaults in the implementation of the new system, and at the same time brings an echo of the European judiciary temptation to engage in expansive approaches. In the first sense, in 2002, Italy was once more condemned for non-compliance with Community provisions.271 In the second expansive sense, the ECJ has recently taken care of the rights of lawyer trainees moving throughout the Community and has held that Articles 39 and 43 EC protect their status.272

2. Mobility of Lawyers in the United States

In the United States, bar admission is absolutely state specific. While there are some legislative rules that allow partial attenuation of this feature, state authority remains hard to challenge in this area. In general, the requirement to take the state bar exam is seen as rationally-related to the state interest in the quality of its bar.273 In Goldfarb v. Virginia,274 the Supreme Court affirmed that "[t]he interest of the states in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been officers of the courtS.,,275

The relevant case law provides a history of enlargement and restraint at the same time. In partial continuity with the above-mentioned Piper case, in Supreme Court of Virginia v. Friedman,276 the Supreme Court struck down a permanent

0000.

266 Council Directive 89/481EEC, 1989 OJ. (L 19) 16. 267 Council Directive 89/48/EEC, 1989 OJ. (L 19) 16, ~ 4. 268 Council Directive 98/5/EC, 1998 OJ. (L 77), 36 2691d. art. 2. 270 See Pertek supra note 265, at III. 27. Case C-145199, Comm'n v. Italy, 2002 E.C.R. 1-2235. 272 Case C-313/01, Morgenbesser v. Consiglio dell'Ordine degli avvocati di Genova, 2003 E.C.R. 1-

273 See id. m Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). mId. at 792. This is said in a case regarding the evaluation of fee schedules for certain legal

services as anticompetitive conduct within the scope of the Sherman Act. In holding such schedules in contrast with the Sherman Act, the Supreme Court specifies that states have a compelling interest in regulating professions and this interest is not affected by the judgment that a certain conduct is anticompetitive.

276 Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988).


residency requirement for admission on motion to the state bar. Other conditions, less burdensome than residency, can be validly enacted to make sure that a person admitted on motion has a real interest in the practice of law in the state. Consistently, the Supreme Court held in the Tolchin case,277 that the requirement of maintaining a bona fide office in state is rationally related to the state legitimate interest in regulating the practice of law within its borders.

It seems clear, in light of the previous cases, that residency is not a valid criterion for determining admission to a state bar. Another strand of cases raised challenges to the strictness of requirements for admission to the in-state practice of law, of professionals already admitted in other states. For instance, in Lowrie v. Goldenhersh,278 the Seventh Circuit considered the claim of a lawyer who did not meet the requirements for admission on motion in Illinois, as he had not practiced law in another state for five continuous years, within the previous seven, even if he had altogether practiced law for thirteen years.279 Lowrie challenged the rule on admission on motion as a violation of equal protection, of due process, and of the right to travel. The Court rejected his claim, holding that the Illinois rule was a valid alternative to the requirement of passing the Illinois bar, and that it had a rational basis in the state concern for the character and fitness of the applicant.28o In particular, the right to travel had not been not violated, because, as the Court pointed out, "after all the written bar examination is a well-accepted prerequisite to bar admission for the majority of applicants in nearly every state in our union.,,281 This last statement underlines that the bottom line in the U.S. system is state regulation of the practice of law. Regimes of exam waiver and reciprocity seem to be an exception, and their regulation can therefore legitimately be more or less strict, while their application can be targeted on individual features, without much concern for an equal pattern of inter-state integration.

* * *

This brief overview of the rules on professional licensing and on professional mobility in the United States and in the EU suggests some final considerations. The European system for free movement of professionals is largely based on the principle of mutual recognition of diplomas. The problem of recognizing educational credentials does not exist, however, in the United States. As a paradox, the starting point is here a greater degree of uniformity than in Europe. In the EU, though, the free circulation of professionals turns out to be an acknowledged and encouraged goal, harmonization of conditions of access to professions in different states is actively promoted, and disincentives to movement are targeted as an obstacle to remove. In the United States, the system rests on a basic homogeneity of interstate education and training. The introduction of effective incentives for deeper professional integration throughout the nation seems to be nonetheless thwarted by the need to preserve the single states as meaningful bundles of authority.

277 Tolchin v. Supreme Court of the State of New Jersey, III F.3d 1099 (3rd Cir. 1997). 278 Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983). 279 Id. at 402. 280 Id. at 408--09. 281 Id. at 413.


Rules on the practice of law provide a further, significant proof of the strength of the European commitment to professional integration. European lawyers are no longer required to take more than one bar exam. As a result, practicing and being integrated in another jurisdiction is now easier in Europe than in the United States, even if national laws within the EU are likely to be more diversified and are the product of diverging cultures and diverging judicial systems. In this light, European progress towards easy mobility of lawyers seems paradoxical.

The paradox could perhaps find a solution in the logic of economic integration underlying the European project. The drive towards creating a common market of services can overcome significant professional differences and well-defined boundaries, such as those among different jurisdictions. This level of integration is functional to an economic rationale that U.S. federalism shares only in part.

CONCLUSION

Free movement and right to travel doctrines offer a privileged perspective to evaluate citizenship. Unconstrained movement throughout the territory is in some sense an intuitive prerogative of citizenship in a modem state. Structures of multitiered governance tend to alter and fragment the natural correlation between citizenship and movement. Subtle challenges face the judicially mediated endeavor of using citizenship to facilitate free movement in the European Union. Such challenges involve considerations of interstate equality and depend in part on specific centripetal forces operating in different communities.

Considering the rights of movement and travel in the European Union and United States reveals significant differences in these underlying forces. The apparent similarity of jurisprudence is deceiving. Diverging goals and diverging tools hide in the shadow of similar rationales. Spelling out these differences is meant to help decipher the potential and the shortcomings of European citizenship. The peculiar logics of the European Union pose, as a condition of generalized free movement, a more autonomous citizenship armed against the obstacles of residence and empowered in front of state resistance. Additionally, citizenship and movement are a promising joint venture, likely to play an active role in the still uncertain future of European integration. Waiting for further emancipation of European citizenship, the outcome of this alliance, in terms of enhanced opportunities, will playa role, in favor of European citizens' increasing perception of belonging to Europe.

12 colum. j. eur. l. 713

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