CYIL 2015

189

THE LIMITS OF SOǧCALLED BENEFIT TOURISM AND THE FREE MOVEMENT OF EU CITIZENS

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.

2.1 Economically active and inactive EU citizens

First of all, EU law categorizes the various forms of residence according to their

duration. According to Article 6 of Directive 2004/38 the short stay of EU citizens and

their family members (right to residence for up to three months) shall be guaranteed

without any conditions or any formalities other than the requirement to hold a valid

identity card or passport. The directive, however, does not address the question of how

the Member State shall determine whether the residence of a particular EU citizen

on its territory exceeds the period of three months. As far as access of EU citizens to

the social system of the host Member State is concerned, Article 14 paragraph 1 of

Directive 2004/38 stipulates that short-term resident EU citizens shall not become

an unreasonable burden on the social assistance system of the host Member State.

With regard to the right to long-term stay (right to residence for more than three

months) it is necessary to distinguish between economically active EU citizens on

one hand, and economically inactive EU citizens on the other. According to Article 7,

paragraph. 1 lit. a) of Directive 2004/38, workers and self-employed persons belong

to the first category. Their long-term residence shall not be subject to further financial

conditions, such as e.g. a minimum monthly income or other financial resources.

Economically inactive EU citizens have the right to long-term residence in another

Member State if they, firstly, have for themselves (and their family members) sufficient

resources not to become a burden on the social assistance system in the host Member

State during their stay and, secondly, they have comprehensive sickness insurance cover

in the host Member State.

To this category belong e.g. migrant pensioners from EU

Member States and people not seeking employment. As a special subcategory of

inactive EU citizens Article 7, paragraph 1 lit. c) of Directive 2004/38 regulates the

stay of students from EU Member States

and, as in the case of other inactive EU

citizens, adequate resources and sickness insurance covering all risks are required.

However, the strict division into economically active and inactive EU citizens

is not fully carried out by Directive 2004/38 to all its consequences. In practice,

there have been considerable difficulties concerning e.g. the definition of workers

who are probably the most important group of migrant EU citizens. Already in its

Article 7, paragraph 1 affirms the right of workers to freedom of movement and the freedom of

establishment which are guaranteed by primary EU law (see Art. 45 and 49 TFEU).

See Article 7, paragraph 1 lit. b) of Directive 2004/38.

With regard to current issues of free movement of EU citizens for education see FOREJTOVÁ,

MONIKA. Občanství v judikatuře Soudního dvora EU v Evropském roce aktivního občanství.

Acta

Universitatis Carolinae – Iuridica

, 2/2013, 45-55.

Previously such criteria had been laid down in Directive 93/96/EEC of 29 October 1993, which first

extended the right of freedom of movement for students.