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SOLANGE MASLOWSKI
CYIL 7 ȍ2016Ȏ
citizens. She is leading one Czech research project on Selective issues deriving from
the transposition and implementation of Directive 2004/38/EC in six Member
states (France, Germany, England, Poland, Czech Republic, Romania) and she is
a member of different Czech and International research projects.
Apart from the right of residence in the host Member State, the right to equal
treatment is one of the most important rights of Union citizens on the move. It allows
them to be treated equally to nationals of their host Member State in different
areas that have been delimited by the treaties, secondary law and the Court of
Justice.
1
This right has been recognized for national workers of Member States since
the beginning of the European project and has been developed in the framework of
freedom of movement of persons and Union citizenship. Nevertheless the right to
equal treatment is still not total for Union citizens on the move. Indeed Article 24 of
Directive 2004/38/EC
2
provides special derogations for economically inactive Union
citizens.
3
These restrictions are solely concerning access to social assistance and to
students’ grants or loans. Despite its existing restrictiveness regarding economically
inactive Union citizens, the right to equal treatment is nowadays being questioned by
some Member States, willing to deny its access to non-workers, especially to those
who do not possess sufficient financial resources.
The aim of this paper is to examine the right to equal treatment of economically
inactive Union citizens through different axes, including primary law, secondary
law, the jurisprudence of the Court of Justice of the European Union, as well as
Member States’ and the European Commission’s statements. It will also address the
evolution of the principle of equality of treatment through the development of the
fundamental right of freedom of movement of persons. The main focus will be put
on equality of treatment regarding access to social assistance as it directly concerns
the main restriction on economically inactive Union citizens. This general study of
the principle of equality of treatment will allow one to identify the reasons for its
present weaknesses and to foresee its possible future.
1
We know from primary law (Article 18 TFEU) that equality of treatment first concerns non-
discrimination on the ground of nationality. The Court of Justice extended it, however, to other areas
and also to indirect forms of discrimination, which lead in fact to the same result.
2
Directive 2004/38/EC of the European Parliament and of 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.
3
For the purpose of this article, Union citizens on the move will be considered as economically inactive
when they do not fulfill the habitual criteria of workers according to the Court of Justice of the
European Union (Case Levin C-53/81, para. 21) and when they do not retain their status as workers
according to Article 7-3 of Directive 2004/38/EC. We should also take in consideration the fact that
the scope of workers has been progressively enlarged by the CJEU, reducing consequently the scope of
economically inactive Union citizens.