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European Union Citizenship and 'Tourism of Welfare': Challenging European Social Rights in Times of Enduring Crisis

Daniela Fisichella, Ricercatore di Diritto internazionale, Università di Catania

Prendendo spunto dalla cittadinanza europea dopo tanti anni dalla sua introduzione nei Trattati europei, l’articolo si propone di verificarne l’effettiva portata nell’ambito della libera circolazione delle persone e del diritto di soggiorno, alla luce di un’attenta disamina della pertinente giurisprudenza della Corte di giustizia. Messa in discussione dal perdurare della ormai decennale crisi economica e finanziaria, che acuisce i nazionalismi statali, e minacciata dal fenomeno mai attenuato di un’immigrazione massiccia alle frontiere esterne dell’Europa, la cittadinanza europea è sempre meno avvertita dagli Stati come una risorsa nelle dinamiche dell’integrazione europea. Di fatto, il radicato euroscetticismo trova in essa un antagonista da avversare, tanto più in considerazione della circostanza che i cittadini degli Stati membri possono avvalersi del sistema di assistenza sociale dello Stato ospite. A fronte dei numerosi rinvii pregiudiziali, la Corte ha progressivamente accolto le argomentazioni statali volte a negare i benefici sociali ai cittadini non nazionali, sottovalutando la cittadinanza europea a favore della preservazione della stabilità finanziaria dei sistemi nazionali di welfare. Così in Brey, Dano, Alimanovic malgrado la diversa, e coerente, giurisprudenza in Zhu Chen, Rottmann, Ruiz Zambrano, McCarthy, Dereci, Iida, O and S, Alokpa et al., Ymeraga. La Corte ha così interpretato la Direttiva 2004/38/CE relativa al diritto dei cittadini dell’Unione e dei loro familiari di circolare e di soggiornare liberamente nel territorio degli Stati membri, al fine di prevenire il c.d. “turismo del welfare”, che colpisce gli Stati membri in grado di erogare apprezzabili misure di sostegno sociale, così attirando i cittadini degli Stati membri con minore benessere. Nel tradizionale bilanciamento degli interessi in gioco, la Corte opera un delicatissimo equilibrio tra cittadinanza europea e solidarietà da un lato, e la tenuta dei sistemi nazionali di welfare dall’altro, spesso attivati dalla richiesta di misure di sostegno ad opera di cittadini di Stati terzi, familiari del cittadino europeo al quale si rivolgono i diritti tutelati dalla Direttiva 2004/38. Se il godimento dei diritti fondamentali da essa contemplati privilegia lo status di lavoratore, in grado di provvedere al proprio sostentamento e a quello dei familiari, il rischio è di una cittadinanza europea a doppia velocità, che certo non favorisce l’integrazione.

PAROLE CHIAVE: Direttiva 2004/38/CE - crisi finanziaria - diritti sociali - cooperazione - corti nazionali - Corte di giustizia - European Union Citizenship - tourism of welfare

The paper aims to investigate how European Union (EU) citizenship can currently deal more with internal Euroskeptical trends than external pressure of migration flows. Boundaries have never been so firmly claimed before: EU is facing a severe challenge on its external borders due to huge migration from many third countries and, at the same time, is questioning freedom of movement of persons between Member States, thus increasing limitations to it. The European project is trying to survive to a long-lasting storm, softly started in 2002 by Euro introduction as a single currency for those Member States accepting it and worsened by both 2008 financial crisis and growing migration on external borders. EU citizenship, solemnly declared in 1992, intended to be the European core, bringing with it extended rights filling freedom of movement of persons already assessed. European Court of Justice’s relevant case law on Union citizenship and social rights, is now jeopardizing social solidarity instead of giving emphasis on Union citizenship alleged rights: from Brey (2013) to Dano (2014) and Alimanovic (2015), claims for social benefits have been more and more delimited to prevent other Member States nationals becoming an unreasonable burden for host State social assistance system. Consistent Court’s rulings on Zhu Chen, Rottmann, Ruiz Zambrano, McCarthy, Dereci, Iida, O and S, Alokpa et al., Ymeraga are not so back in time: the same Court, early interpreting EU law to the maximum extent of guarantees, now strives to preserve Member State financial stability in their social system. It could be argued that Directive 2004/38 on the right of EU citizens and their families to move and reside freely within territories of Member States, needs to be thoroughly clarified to refrain Union citizens from boosting a “tourism of welfare”, harming few countries still providing for a healthy welfare system and improving free movement of Union citizens from less wealthy Member States.

It’s therefore urging to explore how the Court is going to balance social solidarity and Union citizenship rights with Member States' claims aimed to reduce social benefits to inactive non-national citizens: a “double-speed citizenship” grounded on citizens’ income would never be acceptable.

KEYWORDS

Union citizenship  Directive 2004/38/EC  Financial Crisis  Social Rights – Cooperation Between National Courts and Court of Justice Workers’ and Jobseekers’ Rights – Rights of Citizens’ Familiar Members  Free Movement and Minor’s Rights – Social Assistance – Social Security

Sommario:

I. Introduction. Great expectations on European Union benefits versus Euroskepticism: can we afford EU citizenship? - II. Directive 2004/38/EC and Union citizenship through a leap to European federalism, proportionality principle and judicial cooperation between European Court of Justice and national courts. Zhu Chen, Rottmann, Ruiz Zambrano case law. - III. After Ruiz Zambrano, a careful analysis of Directive 2004/38/EC: McCarthy - IV. Dereci. - V. Iida. - VI. O., S. v. Maahanmuuttovirasto, and Maahanmuuttovirasto v. L. - VII. Ymeraga and Alokpa. - VIII. O. v. Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v. B. – S. v. Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v. G. - IX. Social welfare and social tourism: solidarity v. financial stability. On the uncertainty of European rule of law on social rights. - X. Social solidarity to non-economic and inactive EU citizens: a loophole for unequal treatment justification or a fair guarantee for Member States financial stability? Brey, Dano, Alimanovic, García-Nieto cases. - XI. Freedom of movement, right to reside and social benefits in the latest Court’s rulings. - XII. Conclusions. - NOTE


I. Introduction. Great expectations on European Union benefits versus Euroskepticism: can we afford EU citizenship?

The widespread debate on migration flows across European Union[1] external borders is unfolding beside the one on EU citizenship values for Member States nationals, as well as derogations narrowing its broad extension – obviously claimed by Member States in order to keep their sovereignty. Leaving aside political issues and focusing on third countries nationals movement in Europe, neglecting visas, asylum and migration EU policy, ruled by other provisions than those on free movement of persons, the legal core issue revolves around EU citizenship benefits, assessed to Member States nationals dwelling on their European size –  and identity, may be. In the long run, European institutions have been ruling thoroughly on third-country nationals’ legal rights, out of human rights already guaranteed [2], to securing them not as such but for their link to Union citizenship rights, values and status. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 [3], quoted as Citizens’ Rights Directive [4], is the most relevant EU secondary law act on European citizenship impact to non-European citizens’ movement throughout EU territory. EU citizenship, introduced to European Communities Treaties by Maastricht Treaty in 1992, was intended to start up building a European identity among Member States nationals, first to found and then to increase the individual European citizens’ sense of their belonging to Europe. At the same time, Union citizenship aimed to ease the exercise of rights of free movement and residence already guaranteed by primary Treaties, in order to strengthen them at implementing level [5]. EU citizenship is therefore intended to introduce a new legal status to give more emphasis to European membership under national civil societies’ view, helping to forge a “Europaeus civisˮ [6] as the civil unit of contemporary European Union [7]: Union citizenship is thus a meaningful clarification of non-discrimination principle, as matched in Treaty on the Functioning of European Union (TFEU) Art. 18 and 19 (no discrimination on whatever ground) and Art. 20 and 21 (Union citizenship). Furthermore, it’s targeted to broaden free movement of persons as an internal market policy goal, notably evolved from previous European Economic Community common market. Free movement of Member States nationals has thus changed from its [continua ..]

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II. Directive 2004/38/EC and Union citizenship through a leap to European federalism, proportionality principle and judicial cooperation between European Court of Justice and national courts. Zhu Chen, Rottmann, Ruiz Zambrano case law.

In early 2000s, following CRD adoption, although not in force yet, byZhu Chen case the Court significantly ruled on the right of residence in EU of a young minor, a Member State national needing to be cared by an adult who was, in this case, her third-country national mother, willing to move to UK and facing a refusal of a long-term residence permit from the host State [14]. The Court’s judgement aimed to prevent a EU citizen forced leaving of EU territory as a consequence of the adult’s third-country nationality taking care of him/her. The right to reside in EU is thus derived to Mrs Chen, the Chinese mother of Catherine, born in Ireland, from Union citizenship of the young minor, unable to stay in EU territory without her mother but owner of the right to stay because of her Union citizenship and notwithstanding freedom of movement of persons rules weren’t applicable to her, since she never moved from Ireland. The Court said that: «situation of a national of a Member State who was born in the host Member State and “has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation”, thereby depriving that national of the benefit in the host Member State of the provisions of Community law on freedom of movement and of residence …» [15]. The Court rejects to qualify it as an “internal situation” in order to promote and guarantee Union citizenship rights by Art. 18 of European Community Treaty (TEC), now Art. 21 [16]; consistently to Opinion of Advocate General Tizzano [17], it leads the case under Directive 90/364/EC of 28 June 1990 on the right of residence, thus overcoming UK refusal of a long-term residence permit according to national provisions. The Zhu Chen case was extensively commented and disapproved too [18], since the Court legitimated possible abuse in Member State’s acquisition of nationality, to the purpose of enjoying the right to permanent residence in a Member State as a result of Union citizen’s rights extension to his/her family members, third-country nationals [19]. Ex post, by Zhu Chen case the Court opened up a broad application of Union citizenship legal regime, implementing it extensively as it had already done for free movement of goods from Cassis de Dijon case, by principle of mutual recognition of national [continua ..]

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III. After Ruiz Zambrano, a careful analysis of Directive 2004/38/EC: McCarthy

The core value in Ruiz Zambrano is probably the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen declared by the Court. It wasn’t fully clear what is included in it and it still isn’t, the Court following a stone-by-stone approach gradually delimiting these rights [30]. Other than in Ruiz Zambrano, where the minors (Union citizens) could be forced to leave EU territory as a consequence of their father’s (a third-country national) expulsion, thus annulling Union citizenship rights, in McCarthy the Court’s reasoning doesn’t meet Mrs McCarthy requests, since she could enjoy EU citizenship rights anyway, although in a different EU country than the one she’d like to move to with her husband [31]. Mrs McCarthy holds both an English and an Irish nationality, so far having relied only on the former, since she ever lived in UK. Getting married to a Jamaican national, who lacks a leave to stay in UK according to Immigration Rules, she applies for an Irish passport obtaining it. In UK, Mrs McCarthy has never been a worker, nor a self-sufficient person and she receives State benefits. She applies for a residence permit in UK, although she is a national and she’d never enjoyed the freedom of movement, since she ever resided in UK. Her purpose was to get a residence permit in UK for her husband (a third-country national) through EU citizenship rights as guaranteed by CRD implementation. The Court states for non applicability of both Art. 21 TFEU and 3, para. 1 of CRD, since both provisions don’t concern «a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State.» [32]. In addition, with regard to Art. 21, it says that «the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.» [33]. To be reminded also Art. 7 CRD on right of residence for more than three months, which relevance is not disputed by the Court in this case since it stands for CRD non applicability [34].

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IV. Dereci.

In Dereci case, the Court confirms CRD implementation under freedom of movement strict legal framework [35]. In Dereci case all applicants are third-country nationals, family members of EU citizens all living in Austria, never enjoying their freedom of movement nor economically dependent on applicants for their subsistence. Likewise in McCarthy as well as other case law on the issue, the third-country nationals applying to claim EU law implementation for them through an EU citizen, often entered EU territory illegally or by a temporary visa. Several situations concerning freedom of movement of EU citizens and their third-country national familiars, actually are based upon the latter illegal status. Therefore Union citizenship rights, steady linked to freedom of movement provisions, often cross migration, mostly ruled by national legal acts framing a different rationale. On McCarthy stream, EU citizens in Dereci are not entitled as “beneficiaries” under CRD, Art. 3, para. 1, by consequent they can’t convey to their family members rights legitimately derived by beneficiary original status. Similarly to McCarthy, where the Court excluded both CRD Art. 3, para. 1 and 21 TFEU, in Dereci it states that «Article 20 TFEU must be interpreted to the effect that it does not apply to a Union citizen who is the spouse, parent or minor child of a national of a non-member country, where that Union citizen has never exercised his right to move freely between the Member States and has always resided in the Member State of which he is a national, in so far as the situation of that Union citizen is not accompanied by the application of national measures which have the effect of depriving him of “the genuine enjoyment of the substance of the rights attaching to his status as a Union citizen or of impeding the exercise of his right to move and reside freely within the territory of the Member States”.» [36]. As far as concerns ECHR Art. 8 and the right to respect for private and family life, the Court preliminarily remarks the correspondence of this right to Art. 7 of EU Charter. Its application is a normative consequence of EU law applicability, as EU Charter doesn’t extend the field of application of EU law beyond Union’s tasks and powers already agreed [37]. Two remarks on case law above: a) the Court’s purpose is not to propose the [continua ..]

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V. Iida.

The Court’s reasoning inIida is consistent to previous case law, Mr Iida’s right of residence lacking requirements as occurred in Ruiz Zambrano  [40]. Mr Iida, a national of Japan, had married a German national in United States. They moved to Germany after their daughter’s birth and Mr Iida got a residence permit for family reunion, just before starting to work full time under a contract of employment for an unlimited period. Later on, Mrs Iida started a full time work in Vienna and she went on travelling for a while, then moving to Austria to settle down with her daughter, attending school there. Mr and Mrs Iida didn’t divorced and they managed a very good relationship: Mr Iida regularly visited her daughter in Austria and she used to spend most of her holidays in Germany with her father who, in the meantime, lost his right to a residence permit as a consequence of breaking to living together with his spouse and their daughter, before the two years required by German law to obtain it. Although he was issued by a residence permit for his employment in Germany, its extension was both discretionary and temporary and didn’t let him enjoy freedoms and rights like a residence permit issued for family reunion (a residence card for a Union citizen’s family member); his application was thus rejected more than once because of lacking requirements to be fulfilled. The Court upheld national authorities refusal, since Mr Iida and his daughter – having she three nationalities: German, Japanese and American – wouldn’t be in Zhu Chen case situation, as the child’s parent she lives with is a Union citizen, affording her economic support not being dependent on Mr Iida’s revenues. Other than in Ruiz Zambrano, Mr Iida was not at risk of expulsion, he has a regular job, relations with his daughter are excellent, therefore he can easily care after her anyway. The child would never be forced to leave EU territory, as in Ruiz Zambrano, nor she has to move to Germany: she carries on living in Austria with her mother and Mr Iida doesn’t need a permanent residence permit for family purposes. According to the Court, Mr Iida is therefore not entitled to claim for a right of residence derived from a Union citizen when there is no other connection to EU law provisions on citizenship [41].

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VI. O., S. v. Maahanmuuttovirasto, and Maahanmuuttovirasto v. L.

Shortly afterIida case, the Court gave another preliminary ruling on two joined cases both concerning CRD application and Directive 2003/86/EC on the right to family reunification in Finland [42]. The cases brought before the Court concern two third-country nationals claiming for a right of residence in EU as family members of two third-country nationals, having a permanent right of residence in Finland, mothers of children whose they are fathers, but having previously given birth to children born in a relationship to a Finnish father, therefore getting Finnish nationality and EU citizenship from it. Both mothers were granted the sole custody of each single Union citizen child and joint custody of each third-country national child. First applicant’s spouse is gainfully employed, while the second one never worked, gaining subsistence support and other benefits. The first applicant had been employed for a while, for the second one there wasn’t any evidence of having been gainfully employed, but he declared his ability to work in Finland due to his linguistic skills. Both men applied for a residence permit, relying on their family settlement in Finland, but they were rejected for lacking of affordable means of subsistence. Moreover, although it isn’t so important in Court’s reasoning, the second applicant was returned to his country of origin (Algeria) and it was not clear if he holds contact with his child. Consistent to its previous case law on Union citizenship, focused on “the genuine enjoyment of the substance of the rights attaching to status as a Union citizen”, the Court firstly remarked that principles stated in Ruiz Zambrano case only apply in exceptional circumstances, but their application is not confined to situations in which there is a blood relationship between the third-country national claiming for a right of residence and the Union citizen who is a minor from whom that right of residence might be derived. Facts in these two joint cases are wholly different than the one in Ruiz Zambrano, since applicants haven’t the sole care of their children and, on the contrary, minors live with their mothers, both caring of them. If both situations fall under Directive 2003/86, its requirements must be met in order to get a residence permit for family reunification: Art. 7 of the Directive states that: «1. When the application for family reunification is submitted, the Member [continua ..]

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VII. Ymeraga and Alokpa.

In Ymeraga case, the applicants are all from Kosovo [47]. At teen age, Mr Kreshnik Ymeraga went to Luxembourg joining his uncle, a Luxembourg national, who became his legal guardian. Later on, other family members got to Luxembourg, applying for residence authorisations on ground of family reunification, been rejected by national authorities; when at last Mr Kreshnik Ymeraga acquired Luxembourg nationality, his parents applied for a residence permit as family members of an EU citizen. According to Luxembourg authorities, Ymeraga applicants aren’t entitled to protection afforded by Directive 2003/86 and Directive 2004/38. The first one only deals with reunification of third-country nationals and doesn’t apply to EU citizens family members [48]. Directive 2004/38 entitles «all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.» [49]. Therefore, family member is: a) the spouse; b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if host Member State legislation rules on registered partnerships similarly to marriage and in accordance with conditions laid down by relevant legislation of the host Member State; c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b) [50]. Although Mr Khresnik Ymeraga used to send money to his parents when they were in Kosovo, it wasn’t an evidence of their dependence on him. Similarly, his brothers couldn’t be automatically considered as “members of the household”according to Luxembourg law, since Mr Ymeraga had left Kosovo a long time before his brothers’ applications. Most important, Mr Ymeraga had never exercised his right to freedom of movement, since he ever resided in the same Member State conferring him the nationality relevant both to EU law on citizenship and to Directive 2004/38, which therefore wasn’t applicable neither to him nor to his family members, since they weren’t “beneficiaries” for the purpose of Art. 3, para. 1 of the Directive. As far as it concerns Art. 20 TFEU, the Court is consistent to [continua ..]

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VIII. O. v. Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v. B. – S. v. Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v. G.

The long judicial path to define EU citizenship legal asset is enriched in 2014 by two joined cases concerning CRD and, more relevantly, Art. 21 TFEU, as implemented by Dutch authorities [56]. Both cases affect the right to reside of a third-country national, family member of an EU citizen, who temporarily leaves his country of origin, spending some time to another Member State (O. in Spain, B. in Belgium) or providing services (S. and G. both in Belgium) and coming back to the country of origin. By these claims, the Court has the opportunity to state on the right to reside of a third-country national, a family member of an EU citizen, to the purpose of enjoying his/her rights in the country of origin, having already exercised the freedom of movement. CRD isn’t engaged on “return” of European citizens to their State of origin, Art. 3 only ruling «to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Art. 2 who accompany or join them.», thus declaring a derived right to reside only for a third-country national, family member of a EU citizen having exercised the freedom of movement [57]. A similar derived right is not provided for a third-country national, family member of an EU citizen who never left his country of origin [58]. In joined cases above, EU citizens’ freedom of movement is undisputed, only the right to reside has to be delimited. The Court recalls Singh and Eind cases [59], noting that, here other than there, EU citizens resided in the host Member State not as workers, like in Singh and Eind, but as Union citizens, according to Art. 21 TFEU and as recipient of services for Art. 56 TFEU. In order to fully understand the Court’s reasoning in these joined cases, challenging several EU laws and principles application, AG Sharpston’s Opinion is far more helpful than Court’s ruling, addressed to national referring court. A teleological and systemic interpretation of CRD doesn’t lead to a derived right to reside of a third-country national, family member of an EU citizen leaving the State of origin and returning to it, AG therefore stating its inapplicability «directly to EU citizens returning to their Member State of nationality.» [60]. Nonetheless, Directive should «apply by analogy where that Union [continua ..]

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IX. Social welfare and social tourism: solidarity v. financial stability. On the uncertainty of European rule of law on social rights.

Judicial case law analysed so far fully clarifies Union citizenship extent by relation to EU primary and secondary law on free movement of persons and the right to reside. Implemented through a case-by-case reasoning, nonetheless Directive 2004/38 and Artt. 20 and 21 TFEU all match to a systemic legal framework. Most recent cases show a judicial cautious attitude, prone to meet Member States claims aimed to narrow free movement and residence of EU citizens out of nationals. CRD Art. 7 on financial self sufficiency, as a strict requirement to be entitled to a permanent residence permit, thus becomes the social rights cornerstone to exercise freedoms and enjoy legal rights [72]. After twenty-five years and according to well-established Court case law, EU citizenship is expected to be the legal (and moral) foundation for all EU law rules on freedom of movement of persons [73], third-country nationals included if bound to a EU citizen (Directive 2004/38) and economically active on EU territory (Regulation 1231/2010) [74]. EU political institutions are now still working to harmonize rules on free movement and to limit barriers on a residence ground, aiming also to prevent frauds and abuses. EU citizens’ rights dissemination boosts free movement of Member States nationals, relying on their European fundamental status and reaping the benefits for their families too. Although they are not ever fully aware of their rights, they tend to exploit effective chances, therefore spurring freedom of movement. To date, social benefits are the most challenged issue among social rights: stemming from national welfare systems, where States still have discretionary powers and EU competence is lacking, Union citizenship deals with domestic barriers while urging to conform national laws in order to guarantee broad EU citizens’ rights. It’s the ordinary internal market asset and it’s up both to EU legislator and the judiciary to remove domestic restrictions to European freedoms. Unlike movement of goods and Cassis de Dijon principle, which easily opened up internal market of goods, on national welfare system equality principle is hardly implemented, as “residence” is the milestone for EU citizens to access most of social benefits. Notwithstanding some Member States soft attitude when dealing with issuance of a residence permit to non-nationals citizens, thus allowing them to stay and run an [continua ..]

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X. Social solidarity to non-economic and inactive EU citizens: a loophole for unequal treatment justification or a fair guarantee for Member States financial stability? Brey, Dano, Alimanovic, García-Nieto cases.

Some preliminary rulings recently brought before the Court make it clear how Union citizenship impacts on inactive citizens rights under CRD and freedom of movement EU law, included Reg. 883/2004 on coordination of social security systems. Mr Brey and his wife, both German nationals, had moved to Austria. In Germany, Mr Brey received, on a monthly basis, an invalidity pension and a care allowance; as long as Mrs Brey lived in Germany, she received a basic benefit, no more paid after her moving to Austria. Accordingly, Mr Brey applies for a compensatory supplement in Austria, on the ground that his retirement pension is too low and his wife and him lack sufficient resources to lawfully reside in Austria [93]. National court needs to define a “compensatory supplement” to ascertain if it falls under “social assistance benefits” within CRD Art. 14, para. 1 (b). Referring to EU citizens right to reside, it is crucial to assess whether EU secondary law on residence refers to “social assistance” to same extent as EU law on social security. In this regard, the brilliant AG Wahl’s Opinion is helpful [94], whereas he compares the notion of “social assistance” under Directive 2004/38 as well as both Directive 2003/109 concerning the status of third-country nationals who are long-term residents, and Directive 2003/86 on the right to family reunification, finding that its meaning it’s similar in all the three documents and it should therefore be interpreted accordingly. Unlike Reg. 883/2004, differently ruling on social assistance and social security, according to Art. 3, para. 5 [95]. Notwithstanding the residence permit already issued, Austria refuses Mr Brey the benefit on the ground that, according to its national legislation, he lacks sufficient resources to be lawfully resident, since a right to reside for a period of longer than three months requires EU citizens to have sufficient resources for themselves and their family members, and prevent them to become a burden on the social assistance national system. Admittedly, Mr Brey’s right to reside would be lawful only if a compensatory supplement would be granted by Austrian authorities in order to make him and his wife self-sufficient and therefore enjoy the right to reside. The Court’s reasoning confirms the broad extent of EU law on free movement, precluding competent authorities of the host Member State to [continua ..]

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XI. Freedom of movement, right to reside and social benefits in the latest Court’s rulings.

The Court’s case law on EU mobile citizens enjoyment of social rights doesn’t leave room to divergent views, but rather to disagreement. After many preliminary rulings, inEuropean Commission v. United Kingdom of Great Britain and Northern Ireland the Court is requested by European Commission to check if United Kingdom (UK) has failed to comply with its obligation under Reg. 883/2004, Art. 4 [117]. The equal treatment principle is argued again with regard to access to social security benefits and the notion of habitual residence according to CRD Art. 7. Reminding of its judicial case law, the Court contends Commission’s submission that UK systematically checks whether applicants for social benefits, nationals from other Member States, comply with the conditions set by CRD to assessing the right to reside; accordingly, UK legislation doesn’t affect CRD Art. 14, para. 2. Indeed, as submitted by UK, this control is consistent to Court’s reasoning in Brey, Dano and Alimanovic cases, declaring that it’s lawful to require economically inactive EU citizens to give evidence of the right to reside in order to apply for social security benefits; furthermore, the host State is not compelled to grant social benefits to EU citizens, whereas they could become an unreasonable burden for the social assistance system of the host State. Principle of equal treatment enshrined in Art. 4 of Reg. 883/2004 must be read accordingly [118]. In alternative, the Commission complains that the introduction of the right to reside test in the national legislation  results in direct, or at least indirect, discrimination, infringing Art. 4 of Regulation No 883/2004. The Court disagrees, declaring that, in principle, nothing prevents the grant of social benefits only to EU inactive citizens meeting “necessary” requirements set by relevant EU law to reside lawfully in the host Member State [119]. The Court’s judgement sounds a little hasty, may be because it could rely on unequivocal reasoning expressed in recent cases on the issue. More punctual, from the legal compliance to EU law, is AG Opinion, where he refers to principle of proportionality as a key issue within EU legal order, whenever restrictions to basic freedoms are to be introduced [120]. It could be argued that the Court is not recalling proportionality as a paradigm to legitimate national restrictions because of [continua ..]

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XII. Conclusions.

All in all, and notwithstanding Directive 2004/38 large extent, it’s apparent the Court’s willingness to narrow social rights implementation, as provided by EU law, whenever a “real link” to the host State is lacking, defining it mostly through economic and/or financial bounds to the State concerned. The Court’s reasoning resorts to some EU fundamental principles, like “equality” and “no discrimination”, whether freedom of movement itself is at stake and host State is not asked to grant benefits. The Court’s extensive implementation of “involuntary unemployment” in Florea Gusa case strengthen the long lasting economic crisis as a slowing factor for social rights enjoyment. Therefore a driver has to be found. Beyond secondary law on freedom of movement, the right to reside [144], social rights, as spotlighted by European citizenship, a “principle of equality” seems to be still now the most suitable tool to deal with huge complexity of our present times. Thus the first question is: «How far European citizenship go to overcome national claims against social assistance measures granted to non-nationals?», given the Court’s case law accepting several restrictions [145]. According to figures [146] and notwithstanding some Member States’ fear – UK above all – a “welfare tourism” isn’t likely to occur so far: Member States nationals don’t exercise their freedom of movement in order to access host Member State social benefits, but seeking for a job most of times, and for family needs sometimes. Therefore, job searching and /or private life are main drivers for movement of European citizens and their family members across Europe, while applications for grants only are the “dark side” of this job seeking and losing.   The second question is focused on “solidarity”, since it has to be ascertained whether it’s envisaged as a European value [147]: does a multi-level welfare system comply with European citizenship embodied rights [148]? Or should we definitively conceptualise “market citizens” entitled to enjoy their social rights by a “real link” to the host Member State, mainly related to labour market and levies payment [149]? Although a “real link” search between European citizen and host [continua ..]

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