A tale of two citizens: The Brey-Dano proportionality gap in UK courts and tribunals
| Date | 01 June 2021 |
| Published date | 01 June 2021 |
| DOI | 10.1177/13882627211004958 |
| Author | Victoria E. Hooton |
| Subject Matter | Articles |
Article
A tale of two citizens: The
Brey-Dano proportionality
gap in UK courts and tribunals
Victoria E. Hooton
Faculty of Business and Law, Portsmouth, UK
Abstract
The role of proportionality and individual assessments in EU residency and welfare access cases has
changed significantly over the course of the last decade. This article demonstrates how a search for
certainty and efficiency in this area of EU law has created greater uncertainty, more legal hurdles
for citizens, and less consistency in decision-making at the national level. UK case law illustrates the
difficulty faced by national authorities when interpreting and applying the rules relating to welfare
access and proportionality. Ultimately, the law lacks the consistency and transparency that recent
CJEU case law seeks to obtain, raising the question of whether the shift from the Court’s previous,
more flexible, case-by-case approach was desirable after all.
Keywords
Citizenship, welfare, residency, free movement, proportionality
Introduction
This article assesses how courts and tribunals in the United Kingdom (UK) have interpreted
European Union (EU) law relating to welfare access for economically inactive citizens.
Inconsistencies in Court of Justice of the European Union (CJEU) jurisprudence creates
uncertainty for EU citizens and Member State authorities, by failing to unequivocally com-
municate how the principle of proportionality should be applied to decisions on welfare
access. In Brey,
1
the CJEU held that only an in-depth consideration of the personal and
financial situation of a citizen could lead to a proportionate decision to restrict their right
Corresponding author:
Dr Victoria E. Hooton Faculty of Business and Law, University of Portsmouth, Richmond Building, Portland Street,
Portsmouth, PO1 3DE, UK.
E-mail: Victoria.Hooton@port.ac.uk
1. C-140/12 Pensionsversicherungsanstalt v Peter Brey [2013] ECLI: EU:2013:565.
European Journal of Social Security
2021, Vol. 23(2) 144–171
ªThe Author(s) 2021
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to equal treatment. Later, in Dano,
2
the CJEU accepted that decisions could be systematic,
without in-depth consideration of personal circumstances. This article provides a view of how
this ‘proportionality gap’ is assessed and interpreted in UK case law, illustrating that the role
of individual assessments has not been carved out sufficiently by the CJEU, thus undermining
any attempt to create a clearer and more transparent approach to residency and welfare access.
Moreover, this article demonstrates how Brey could have been honed into a suitable system
for achieving both, if the CJEU had engaged further with individual assessments.
1. The proportionality gap
Proportionality has been a key concept in most CJEU case law on equal treatment to welfare access
for economically inactive EU citizens. Prima facie, proportionality is an adequate tool for man-
aging the inherent tension between the free movement rights of citizens and the redistributive
concerns of the Member States (Giubonni, 2007). The Court can assess (and set thresholds for)
provisions that go beyond what is necessary to legitimately protect social assistance systems, into
the territory of unjustifiable restrictions on EU free movement rights.
However, the success of proportionality for easing tensions without creating legal uncertainty
may be hindered by a lack of guidance for Member States aiming to remain proportionate in their
decision-making. The proportionality ‘gap’, for the purposes of this article, exists in the discre-
pancies between CJEU judgments that present near-polarised thresholds for Member States to act
proportionately when applying free movement law. The uncertainty exacerbates the open-textured,
ambiguous nature of some of the conditions of residency that can limit access to equal treatment
for welfare.
Decisions on welfare access for mobile EU citizens depend upon their residency status.
Those who fall under the definition of ‘worker’ are entitled to equal treatment regarding all
tax and social advantages, as per Art.7(2) Regulation 492/2011.
3
All other citizens are subject to
some form of restriction on their equal treatment. Art.24(2) of Directive 2004/38/EC (CRD)
4
stipulates that Member States do not have to offer social assistance to jobseekers, or citizens in
their first three months of residency, and that mobile students are not entitled to maintenance
loans or grants.
Significant ambiguity about welfare access exists for all categories of economically inactive
citizens. The focus of this article is those who are economically inactive, have been resident in the
Member State for more than three months, and do not hold the status of a jobseeker
5
or a student.
6
Until these citizens meet the criteri a for permanent residency,
7
restrictions on welfare access
operate through the parameters of Article 7(1)(b) CRD, which requires them to have ‘sufficient
resources’ so as to not become an ‘unreasonable burden’ on the social assistance system of the host
2. C-333/13 Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] ECLI: EU:2014:2358.
3. Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement
for workers within the Union [2011] OJ L 141.
4. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the
Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77
(‘CRD’).
5. ibid, Article 14(4)(b) sets out the residency conditions of jobseekers.
6. ibid, Article 7(1)(c) sets out the residency conditions of students.
7. ibid, Article 16: Citizens must reside lawfully and continuously for a period of 5 years to acquire permanent residence.
Hooton 145
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