Conundrum on European Citizen’s Right to Non-Discrimination, Union Citizenship and Right to Reside

* Sarthak Gupta

The Grand Chamber [GC] of the Court of Justice of the European Union (CJEU) in CG v The Department for Communities in Northern Ireland, pronounced a significant ruling on Union citizenship and equal treatment. The judgement deliberates on two issues, protection under European Union [EU] Law of an EU citizen who was conferred pre-settled status under United Kingdom [UK] law during the transition period, and whether the case is indicative of an expanding body of case law concerning EU citizens’ equal access to social assistance whilst residing in a host Member State.

The author in this article addresses the court’s rationale which exemplifies the CJEU’s conservative perception of the right to equal treatment of economically inactive EU citizens, which has been prevalent before Dano v Jobcenter Leipzig.  The author further addresses that CJEU’s resorting to the Charter of Fundamental Rights [herein after CFREU] to address the crevices in the diminishing right to equal treatment of economically inactive EU citizens, in an unanticipated and unfathomable approach.

The ‘Case’

The case concerns the young mother of two small children, ‘CG’, a European national, with dual Dutch-Croatian nationality, who came to Northern Ireland (UK) in 2018 to live with her partner, children’s father who holds Netherlands nationality. She has been residing in a women’s shelter and cares exclusively for her children since separating from her husband due to domestic violence accusations. She has never carried out any economic activity in her lifetime in the UK due to domestic violence and recent pregnancies. Therefore, she has no acquaintances to support her livelihood and her children.  The UK Home Office gave her pre-settled status [PSS] in June 2020, implementing the Settlement Scheme, which was introduced in consideration of the UK’s obligations within Part 2 of the Withdrawal Agreement on citizens’ rights, and is included in Appendix EU of the UK Immigration Rules. This status authorizes EU citizens to continue to stay in the UK for another five years after the transition period ends.

Thereafter, she applied for a social assistance benefit known as Universal Credit, to the Department for Communities in Northern Ireland [DCNI]. The DCNI dismissed her application on the premise that she doesn’t meet the residential requisites. The DCNI contended that only individuals with a right to reside in the UK, as defined under Regulation 9(2) of the Universal Credit Regulations 2016, are perceived to have their habitual residence in the UK and are thus qualified to assert Universal Credit. The applicants who are Nationals of Member States, such as CG, who have a right of residence under the EU Settlement Scheme are excluded from the list of prospective Universal Credit recipients under Regulation 9(3)(d)(i) of the  Universal Credit Regulations, 2016.

CJEU’s rationale

The question before the CJEU was, whether Article 18 of the Treaty on the Functioning of the European Union [TFEU] (the right to non-discrimination on the pretext of nationality and citizenship of Union) precludes the Member States from withholding equal accessibility to social assistance to Union citizens who have a right of residence under domestic legislation?


The CJEU on establishing its jurisdiction referred to Article 19(3)(b) TEU and Article 267 TFEU [Para 1 of the Article] that the Court has jurisdiction to give a preliminary ruling on the interpretation of EU law or the validity and interpretation of acts of the EU institutions. The Court held that the case’s concern falls in the realm of ratione temporis of EU law, according to Articles 126 and 127 of the Agreement on the withdrawal of the UK and the court has jurisdiction to issue a preliminary ruling on the referring court’s request, within the virtue of Article 86(2) of that agreement. However, the Court held that it lacks jurisdiction to rule on the first concern, which considers the interoperability of Regulations 9(3)(d)(i) of the 2016 Universal Credit Regulations with the UK’s obligations under the European Communities Act 1972 because that issue does not engage the understanding of EU law or the veracity of an act of the EU institutions within the connotation of the European Communities Act 1972.


Right to reside and non-discrimination

The CJEU then proceeded on to the subject of whether EU citizens can be unilaterally prohibited from social assistance and so regarded diversely from nationals. The Court observed that in all circumstances arising within the ambit ratione materiae of EU law, every Union citizen can depend on the prohibition of discrimination based on nationality enshrined in Article 18 TFEU. These instances also include incorporating the exercise of Article 20(2) TFEU para (a) and Article 21 TFEU’s right to move and reside within the boundaries of the Member States. The Court reiterated its long-held approach that Article 18 TFEU is a comprehensive right to non-discrimination that cannot be invoked in instances where a more specific expression of the same right also applies established in Dano and Jobcenter Krefeld cases. The Court further referred to Nalini Chenchooliah v Minister for Justice and Equality and held that EU citizens who move to or reside in Member State apart from their national, as articulated in Article 3(1) and Article 24(1) of  Directive (2004/38/EC), such individuals have the same right to equal consideration as nationals of the host Member State.

The Court taking the CG’s circumstances observed that it would fall in the realm of Article 24 of the Directive and Article 18 of TFEU won’t be applicable in the case. The Court held that the financial position of each individual ought to be determined, without taking consideration of claiming social benefits for examining whether the individual meets the requirement of having adequate resources [Article 7(1)(b) of the Directive]. Subsequently, as illustrated in the given scenario, CG doesn’t hold adequate resources, and it is plausible that she would become an unjustifiable responsibility on the UK’s social assistance structure. Therefore, the principle of non-discrimination enshrined in Article 24(1) of the Directive (2004/38/EC). In this instance, the order for reference directive cannot be relied forward upon.

Furthermore, even if the CG has the right to reside [temporarily] under national legislation, such right won’t be recognized as she doesn’t have any constitutional right under EU legislation [on the ground of Directive within the ambit of Article 24(1) of Directive]. The Court further held that the fact that national provisions regarding the right to reside of Union citizens which are more positive than those outlined in the Directive are unperturbed, does not imply that such regulations must be assimilated into the framework formulated by that directive, and it concludes, in specific, that it is up to each Member State to determine, as observed in Tomasz Ziolkowski and Barbara Szeja and Others v Land Berlin.

In the determination of the Charter’s spectrum in Article 51(1), the Charter’s provisions are only directed to the Member States when they are enforcing EU legislation. The Court in Terveys- ja sosiaalialan neuvottelujärjestö (TSN) v Hyvinvointialan liitto held that, according to Article 51(2), the Charter does not broaden the extent of EU law further than the European Union’s authorities, nor does it provide the European Union with any additional powers or responsibilities, nor does it amend the powers and tasks specified in the Treaties.

In this instance, the order for reference indicates that the UK authorities accorded CG a right of residency even though she lacked adequate resources. In regards to the right of residence, those authorities used more favourable norms. Those authorities acknowledged the right of a national of a Member State to reside freely on its territory, which is guaranteed to EU citizens under Article 21(1) TFEU, without giving reliance on the criteria and constraints imposed by the Directive.

This signifies that a Member State’s authorities can only withhold Union citizens, such as CG and her children social assistance after considering that such a rejection would not represent an “actual and substantial risk of infringement of their fundamental rights.” Furthermore, the Court stresses the following three fundamental rights, Article 1 CFREU compels the host Member State to ensure that the Union citizen can live in dignity. Under Article 7 CFREU, the state must also defend citizens’ right to privacy and family life, along with taking the highest concerns of children into account under Article 24 CFREU. The court concludes that when a citizen lacks the financial resources to meet his or her own and his or her children’s necessities and is isolated, those authorities should ensure that, even if social assistance is rejected, that person can nevertheless live with his or her children in a dignified way. Those authorities may consider all means of support given by national legislation, from which the citizen in question and her children are legally entitled to benefit, during that assessment.

CJEU’s labyrinthine rationale

The Court’s rationale in the CG case is far mysterious, at one place, the court held that EU citizens who have been accorded the right to reside under domestic legislation are duly recognized within the preview of the Charter. Subsequently, the court’s rationale on the right to equal treatment is conditionally both stringent and unreasonable. A rigorous understanding of the Directive [primarily Article 7(1)(b)] states, the applicant does not have the right to reside in the EU. However, under domestic legislation, she does have the right to reside. This is consonant with the Directive, which is a mechanism for minimum synchronization and permits the Member States to place more favourable standards under Article 37 of the Directive. The Court has previously in María Martínez Sala v Freistaat Bayern ruled that even though a Union citizen has a right of residence in a host country exclusively under domestic legislation, he/she/they may proceed to exercise the fundamental EU right to non-discrimination.

‘Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.’ [Para 62; Martínez Sala]

The Court’s rationale in the CG’s case took a divergent approach and held, a union citizen who has only been provided with the right to reside under domestic legislation may not exercise the fundamental right to equal treatment under Article 18 TFEU. She may rather depend exclusively on the auxiliary right to non-discrimination [Article 24; Directive]. Nevertheless, since the EU citizen is not granted citizenship and is not a resident under the Directive, the citizen cannot exercise her right to non-discrimination under the same Directive. Thereafter, the Court concludes that a Union citizen with a recognized right to reside would not have the right to equal treatment in the jurisdiction of the host Member State. This narrow rationale of the court draws a delineation between EU citizens who have a fundamental right to reside under EU law and those who have a lawful right under domestic legislation.

Notwithstanding the Court’s errors to uphold the right to equal treatment, CG is not denied all EU constitutional protection. The Court holds that the UK must continue to adhere to the Charter. CG cannot be denied access to social assistance when doing so would violate her EU Charter rights. Significantly, the Court over-looks Article 21(2) CFREU, which also guarantees for the right to non-discrimination on the account of nationality, but instead emphasizes Articles 1, 7, and 24 CFREU, which must be protected by national authorities.

In CG’s case, the protections enshrined under the Charter are accorded because she has a legal right to reside under domestic legislation. As held in Dano, an applicant who lacks sufficient resources and has not been awarded a more preferential residency right under national legislation will be denied access to the Charter.

Article 51(1) of the Charter states that the provisions of the Charter are addressed ‘to the Member States only when they are implementing Union law’. [Para 67, Dano]

Therefore, the Charter does not provide Union citizens with a broader spectrum of protection, but rather is exclusively accessible to the limited group of Union citizens who have been granted the right to reside under domestic law. The Court’s apparent concern was to preserve the individuals in this case, CG and her two children, and to assure that they can proceed to live concludes in Northern Ireland in a dignified manner. Unfortunately, by adopting a very restricted approach, the Court seriously restricted the impact of this judgment on the protection of the greater population of Union citizens and continues to undermine the fundamental right to equal treatment conferred by Article 18 TFEU.


* Sarthak Gupta is an undergraduate B.A; L.L.B [Hons] law student at the Institute of Law, Nirma University, India. His scholastic interest follows Constitutional Law, Human Rights & Gender Studies, and International Law.