CYIL 2015

191

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

These examples show that with respect to free movement it is not always easy

to separate economically active Union citizens from the inactive. Under certain

circumstances, the more favourable legal regime which has been designed for active

EU citizens can be accessible also to migrant EU citizens who are not employed. The

legal regulation of the free movement of EU citizens is further marked by a number

of vague terms, such as “sufficient resources”, “unreasonable burden on the social

assistance system” or “a genuine chance of being engaged”. In this situation, we can

hardly overestimate the key role of the CJEU, which often solved the problem of

inaccurate definitions by introducing other vague terms, such as e.g. “purely marginal

and ancillary” activities. Other problems of interpretation will be presented in the

next chapter, in the context of recent CJEU case-law.

It remains to be added that, in addition to the concepts of short-term residence

and long-term residence, Directive 2004/38 also regulates the right to permanent

residence. Under Article 16 of Directive 2004/38, permanent residence shall be

granted to Union citizens who have resided legally for a continuous period of five

years in the host Member State. After EU citizens have gained permanent residence in

another Member State, they no longer have to prove sufficient funds. This regulation

suggests that, in terms of the migration of economically inactive Union citizens into

the social systems of richer EU Member States, the category of permanent residence

does not cause significant troubles. That is why we are not going to deal with the

question of whether permanently residing inactive EU citizens represent a burden on

the social assistance systems of Member States. For the purposes of this study we will

focus on problems concerning the long-term stay of economically inactive EU citizens.

2.2 The access of economically inactive EU citizens to social benefits

in the host Member States

The rules concerning the migration of economically inactive EU citizens to social

security systems of host Member States are laid down primarily in EU Directive

2004/38, which sets up certain restrictions to the fundamental freedom of movement.

The aim of the relevant provisions is to protect the national social assistance systems

against an unreasonable burden. In this sense, the preamble to Directive 2004/38

contains two relevant references.

Firstly, Recital 10 of the preamble to Directive

2004/38 provides that, during an initial period of residence, migrating EU citizens

shall not become an unreasonable burden on the social assistance system of the host

Member State and, therefore, the long-term residence shall be subject to certain

conditions. Recital 16 of the preamble to Directive 2004/38 considers the issue of

expulsion of EU citizens in the event that they become an unreasonable burden on

the social assistance system of the host Member State. According to this standard,

the expulsion of a Union citizen shall not become an automatic consequence of

Further references to the term “unreasonable burden on the social assistance system of the host Member

State” are contained in Articles 7, 12 and 14 of Directive 2004/38.