The right to social assistance for economically inactive migrating Union citizens: The Court disregards the principle of proportionality and lets the Charter appease the consequences
| DOI | http://doi.org/10.1177/1023263X221116229 |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| Subject Matter | Case Notes |
The right to social assistance for
economically inactive migrating
Union citizens: The Court
disregards the principle of
proportionality and lets the
Charter appease the
consequences
Herwig Verschueren*
Abstract
In a new case on the right to social assistance for inactive migrating Union citizens, the CJEU
delivered a judgment in which it confirmed its restrictive interpretation of the relevant primary
and secondary Union law. At the same time, however, it invoked the EU Charter to appease the
consequences of that. This case note critically analyses the Court’s restrictive application of the
comments on the Court’s implicit refusal to apply the principle of non-discrimination of Article
18 TFEU to a migrating Union citizen who has acquired a right of residence in the host country
solely on the basis of the national law of that Member State. Further, it examines the role
ascribed by the Court in this case to the Charter. The conclusion is that this judgment risks
jeopardizing a number of fundamental basic principles of Union law while leaving a number of
questions open.
Keywords
*
Law, University of Antwerp, Antwerpen, Belgium
Corresponding author:
Herwig Verschueren, Law, University of Antwerp, Venusstraat 23, Antwerpen, Belgium.
E-mail: herwig.verschueren@uantwerpen.be
Case Note
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(4) 483–498
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/1023263X221116229
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1. Introduction
Once again, the Court of Justice has had to decide on the question under which conditions econom-
ically inactive migrating Union citizens have access to social assistance in the host Member State.
1
This debate is quite controversial, particularly because it deals with the politically sensitive question
of the extent of the host State’sfinancial solidarity. The application of Residence Directive 2004/38/
EC
2
is pivotal in this case, specifically the application of Article 7 regarding the right of residence
and Article 24 regarding the right to equal treatment.
This debate was initiated by the case law of the CJEU, which stated that, since the introduction of
principle, rely on the prohibition of discrimination on grounds of nationality,
3
including for social
assistance.
4
Still, this initial case law did not imply that economically inactive Union migrants have
unconditional access to these social benefits. The CJEU required the person involved not to be an
unreasonable burden on the public finances.
5
cases Article 24(1) which guarantees Union citizens who reside in the territory of a host
country based on this directive, the right to equal treatment within the scope of the Treaty.
subject to having a right of residence based on this directive. During the first five years, this
residence for economically inactive Union citizens depends on the question whether or not
they are an unreasonable burden on the host country’s social assistance system.
6
In Dano,
however, the Court did not perform this unreasonableness test and denied the Union citizen
in question the right to equal treatment because she had never been economically active or
had never sought a job in the host country.
7
Still, very recently the Court allowed, with
much less restrictions, the use of provisions on equal treatment elsewhere in Union law, such
as in the law on free movement of workers, including for the right to social assistance in the
host State.
8
This case law has generated much discussion, not to mention in legal doctrine.
9
Some believe
that the first judgments were an all too generous interpretation of Union citizenship and the host
Member States’obligation concerning solidarity.
10
Others, however, were of the opinion that the
most recent case law was too restrictive and had failed to do justice to the essence of Union
2. Directive2004/38/EC of the European Parliament and 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 L 229/35).
6. Art. 7(1)(b) juncto Art. 14(3) Directive2004/38/EC. For the first application, see CaseC-140/12 Brey, EU:C:2013:565.
8. CaseC-181/19 Jobcenter Krefeld, EU:C:2020:794. For a comment see: H. Verschueren, ‘The Right to Social Assistance
for Migrating Union Citizens: A New Step Forward in the Case Law of the Court of Justice’,23European Journal of
Migration and Law (2021), p. 202.
9. For an in-depth analysis, see: D. Kramer (2020), Earning Social Citizenship. Free Movement, National Welfare and the
European Court of Justice, diss. Vrije Universiteit Amsterdam, p. 103.
10. K. Hailbronner, ‘Union Citizenship and Access to Social Benefits’,42Common Market Law Review (2005), p. 1245 and
O. Golynker, ‘Jobseekers’Rights in the European Union: Challenges of Changing the Paradigm of Social Solidarity’,30
European Law Review (2005), p. 111.
484 Maastricht Journal of European and Comparative Law 29(4)
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