Giulia Barbone, LLB King’s College London
The judgments in Dano[1] and Alimanovic[2] have become landmarks for the contemporary understanding of Union citizenship and, thus, they must be fully understood. It is also important to note from the outset that this is not a political question as to whether or not economically inactive migrants should be entitled to social benefits. Indeed, those people who applaud the judgments purely on the basis of their political preference are closing their eyes to a much more troubling question: the CJEU has dramatically changed the legal meaning of Union citizenship without a legally sound justification. This is why the problem is not about being or not being on Ms Dano’s side. These judgments are about today’s legal content of Union citizenship and, for this purpose, political preferences should be kept aside.
Union Citizenship Pre-Dano/Alimanovic
The three seminal judgments that prior to Dano and Alimanovic gave legal sense to the concept of Union citizenship are Martínez Sala[3] Grzelczyk[4] and Baumbast[5]. As Prof Shuibhne explains[6], in these cases the CJEU took an ‘individual-centred approach’ and construed the concept of citizenship as a directly effective primary right. Seen as the ‘fundamental status of nationals of Member States’[7], Union citizenship was not viewed as inherently linked to the market economy of the Union. Rather, a citizen of any Member State would enjoy the same rights as any other citizen simply because of her status as Union citizen.[8] Moreover, the CJEU took the view that the right to non-discrimination (Art. 18 TFEU) could be enjoyed by every Union citizen.
The way the general principles outlined in Martinez Sala, Baumbast and Grzelczyk have been applied in subsequent judgments provides further clarification as to the legal content given to Union citizenship before Dano and Alimanovic. In Trojani,[9] the question was whether an economically inactive Union citizen living in a host Member State could rely on Arts. 18 and 21 TFEU to obtain social assistance benefits on the same conditions as the nationals of that Member State. The CJEU relied on the principle set out in Baumbast to hold that the applicant’s right to reside in the host Member State was provided for in Art. 21 TFEU and this right was regulated by the principle of non-discrimination laid down in Art.18 TFEU. This meant that the fact the citizen lacked sufficient resources as required by Directive 90/364 did not preclude her from relying on the Treaty provisions on Union citizenship. Provided she had lived in the host Member State for a certain length of time or possessed a residence permit, the claimant was entitled to receive social benefits on the same conditions as nationals of the host Member State. Similarly, in Bidar[10] EU secondary legislation did not require Member States to give maintenance aid to non-national students. However, the CJEU once again outlined that the student’s right to reside in the host Member State was primarily regulated by Art. 21 TFEU and, as a consequence, he enjoyed the right to equal treatment under Art. 18 TFEU and could obtain financial aid like national students. The decisions in Bidar and Trojani were greatly influenced by the CJEU’s appeal to the idea of financial solidarity between Member States to provide non-nationals with minimal financial assistance. Overall, Trojani and Bidar show that the CJEU took Union citizenship seriously as its content entailed the right to reside in a host Member State and the right not to be discriminated on the grounds of nationality.
Union Citizenship Post-Dano and Alimanovic
The CJEU’s approach in Dano and Alimanovic is by all means in great conflict with the one described above:
Ms Dano in 2011 was granted a resident certificate by the host Member State, but she was denied special non-contributory cash benefits. The CJEU ultimately ruled that Member States are not required to grant this type of social benefit to economically inactive Union citizens. Although starting the judgment with the Grzelczyk’s maxim that Union citizenship is a fundamental status, the CJEU decided to base its decision solely on the interpretation of the Citizens’ Rights Directive (‘CRD’) 2004/38. The turning point of the judgment can be found at paragraph 69 where the Court explains that the right to equal treatment is enjoyed only by those citizens whose residence is in compliance with the requirements set out in the Directive. This is the reason given for the CJEU’s decision to interpret the right to equal treatment under Art. 24(1) CRD in the context of the Directive itself without relying on the general principles of Union citizenship and non-discrimination set out in Arts. 18 and 21 TFEU.
In Dano, the CJEU does not even engage with an interpretation of the Treaty provisions on citizenship. Contrastingly, in the pre-Dano judgments, the CJEU would normally interpret secondary legislation in light of the general principles of Union citizenship set out by the Treaty provisions. By stating that Ms Dano’s right to reside in the host Member State is entirely regulated by the CRD, the CJEU is making a fundamental mistake: it is ignoring the fact that Union citizens are given the right to reside in host Member States directly and primarily by Art. 21 TFEU and that it is within the CJEU’s judicial tradition to review and scrutinise secondary legislation against primary law. [11]The very nature and content of Union citizenship as a fundamental status with no link to the market economy is thereby dismantled.[12] It could be argued that such attitude is justified by the wording of Art. 21 TFEU which provides that the provision is ‘subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.
However, the judgment in Brey[13] – which, interestingly, was delivered before Dano – is a perfect example of how subjecting the Treaty provisions to secondary law is not equivalent to ignoring en masse the general principles of primary legislation. The CJEU in Brey explained that the conditions of the CRD must be ‘construed narrowly’ in order to not undermine the fundamental principles of EU law. Moreover, it echoed the individual-centred approach of the early case-law on Union citizenship to rule that an overall assessment needs to be carried out to determine whether the person in question may become an unreasonable burden on the social system of the host Member State. Moreover, the CJEU once again invoked the idea of ‘financial solidarity between Member States’.[14] Indeed, when the CJEU was asked to deliver a judgment in Dano, it could have used the same approach taken in Brey as a way to compromise between primary and secondary law. Indeed, Ms Dano’s individual claim could have been assessed before being dismissed. However, the hope that the judgment in Dano would simply be an outlier in the citizenship jurisprudence was soon demolished by the CJEU’s judgment in Alimanovic.
The judgment in Alimanovic takes exactly the same approach seen in Dano. Actually, Alimanovic can be viewed as an even stricter application of the CRD as the applicants involved could not be categorised as ‘job-seekers’ under Art. 7(3)(c) CRD only owing to a technicality of their situation and this meant that the Directive allowed the Member State in question to derogate from granting social assistance. Indeed, Alimanovic confirmed that the CJEU was not willing to assess the situation of the individuals in question and the reasons why they would constitute a financial burden on the host Member State’s financial system.
The Meaning of Union Citizenship Today
In Dano and Alimanovic, the CJEU gave different explanations to justify its approach. Firstly, it held that the objective of the Directive is to prevent economically inactive Union citizens from becoming an unreasonable burden on the social system of the host Member State. However, this is arguably an arbitrarily narrow interpretation of the CRD as, in Brey, the CJEU held that the general aim of the Directive which the Court ought to endorse is to facilitate and strengthen the citizen’s right to move and reside freely which is granted by Art. 21 TFEU. Moreover, it can be argued that directly excluding a non-economically active individual from receiving social assistance is not really assessing whether there is a real possibility of creating an unreasonable burden on the host Member State. Indeed, an individual assessment ought to be carried out should the Court maintain its view on the Directive’s objective of preventing benefit tourism.[15]
Moreover, the CJEU also explained that full reliance on the provisions of the CRD furthers legal certainty as it sets out clear criteria that apply to different types of Union citizens. Indeed, the legal question presented in Dano could have been solved by an undergraduate law student by a straightforward application of the Directive alone. However, the hope behind the Dano case was that the CJEU would fully engage with the constitutional issue as to the legal concept of Union citizenship and the complex question on the interaction between primary and secondary legislation. Indeed, the heart of the problem in Dano and Alimanovic related to the more general jurisprudential and philosophical understanding of citizenship in the context of EU law. This was the question that would have been inaccessible to the undergraduate law student.
Nevertheless, the CJEU has taken a clear stance: Union citizenship in reality depends on one’s participation in the market economy and economically inactive Union citizens do not enjoy the same rights enjoyed by other citizens. They are, de facto, non-citizens. This not only runs counter the Union’s overall objective of fighting social exclusion[16] but it attaches to citizenship’s rights an implied duty to have sufficient resources which is, arguably, a wrong practice in principle.[17] In fact, the interpretation of the Treaty provisions on citizenship carried out in Grzelczyk and Baumbast endorsed the potential of Union law to create a new ideal of cosmopolitan citizenship[18] where it is the migratory genesis of the Union citizen rather than his contribution to the common market that opens the door to a wide range of rights. Unfortunately, the principle of market citizenship has won the game without relying on a sufficiently serious legal justification and the objective of creating an even closer union among the peoples of Europe has become mere rhetoric.
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[1] Case C-333/13 Dano v Jobcenter Leipzig [2014] ECLI-2358.
[2] Case C-67/14 Jobcenter Berlin Neukolnn v Nazifa, Sonita, Valentina and Valentino Alimanovic [2015] ECLI-597.
[3] Case C-85/96 Martínez Sala [1998] ECLI-217.
[4] Case C-184/99 Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECLI-458.
[5] Case C-413/99 Baumbast v SoS for the Home Department [2002] ECLI-493.
[6] N Shuibhne, ‘Limits rising, duties ascending: The Changing legal shape of Union citizenship’ (2015) 52 CMLR 889, 896.
[7] Footnote n 4, para 31.
[8] footnote n 5, para 83.
[9] Case C-456/02 Trojani v CPAS [2002] ECLI-488.
[10] Case C-209/03 Bidar v SoS for Education and Skills [2005] ECLI-169.
[11] Footnote n 6, 914.
[12]R Zahn, ‘Common Sense or a Threat to EU Integration? The Court, Economically Inactive EU Citizens and Social Benefits’ (2015) 44 Ind Law J 573, 581.
[13] Case C-140/12 Pensionsversicherungsanstalt v Brey [2012] ECLI-565.
[14] As in the case of Bidar.
[15] H Verschueren, ‘Free Movement of EU Citizens: Including the Poor?’ (2015), paper presented at the ISLSSL 21st World Congress, 16.
[16] Art. 3(3) TEU.
[17] See D Kochenov, ‘EU Citizenship without Duties’ (2014) 20 ELJ 482-498.
[18] A Hoogenboom, ‘In Search of a Rationale for EU Citizenship Jurisprudence’ (2015) 35 OJLS 301, 307-308.