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CYIL 7 ȍ2016Ȏ
THE SCOPE AND THE FUTURE OF EQUALITY OF TREATMENT…
resources and of health insurance coverage. Similarly, the Students’ Directive 93/96
also restricted access to maintenance grants for students.
12
All these acts have been repealed in 2004 by the citizenship Directive 2004/38/
EC, which better clarifies the concept of equality of treatment for economically
inactive Union citizens.
13
A special provision on equality of treatment is indeed
inscribed in the Directive, Article 24. The first part of Article 24 claims, as a general
rule, that Union citizens and their family members are entitled to be treated equally
to nationals of the host Member State. This nice proclamation is accompanied
by derogations mentioned in the second part of Article 24 that aim to prevent
economically inactive Union citizens from using the host Member State’s welfare
system to fund their means of subsistence.
Part Two of Article 24 provides derogations to the general principle of equal
treatment that have a limited material and personal scope:
– The derogations only concern access to social assistance
and not, for example, to
the right of residence.
14
Social assistance should be understood as all assistance
introduced by public authorities, whether national, regional, or local level, that
can be claimed by an individual who does not have sufficient resources to meet
his own basic needs and the needs of his family.
15
The field of the conference of
social assistance to Union citizens by Member States is still between two fires, as
Member States are sovereign in determining the scope and the content of their
social benefits. Despite far-reaching Europeanization, access to social protection
has, since the Treaty of Rome in 1957, remained firmly national and EU law still
does not treat economic and social rights in an equivalent way (Barbier, 2013).
16
– The derogations are only targeting economically inactive Union citizens, while
workers benefit from the first part of Article 24.
– These derogations are only targeting stays before the permanent residence. Once
the Union citizen (worker or non-worker) has acquired permanent residence, he
will benefit from equality of treatment
.
A reading of Article 24 allows one to identify three types of derogations to the
general principle of equality of treatment:
12
Council Directive 93/96/EEC of the Council of 29 October 1993 on the right of residence for students.
13
The same year, the adoption of an important regulation on the coordination of national social security
systems, Regulation (EC) No 883/2004 will also participate to the development of equality of treatment
of Union citizens, whatever their economic status.
14
Nevertheless, even if Article 24-2 does not mention derogations to equality of treatment regarding the
right of residence, we do know from Article 7 of Directive 2004/38/EC that economically inactive
Union citizens have a differential treatment in this area. Indeed, their right of residence is depending
on their possession of sufficient financial resources and of comprehensive sickness insurance.
15
See the case Brey C-140/12, para. 61.
16
BARBIER J.C., To what extent can the European deliver “social citizenship” to its citizens? In
Social
policy and citizenship
, Oxford University Press, 2013, p. 97.