156 / 536
142
SOLANGE MASLOWSKI
CYIL 7 ȍ2016Ȏ
– The first one: Member States are not obliged to provide social assistance to
economically inactive Union citizens during the first 3 months of their stay.
Union citizens are free to stay less than 3 months in the host Member State but
their right to access social benefits is dependent on the good will of the host
Member State, which has no obligation to provide anything.
– The second one: Member States are not obliged to provide social assistance to
economically inactive Union citizens who entered their territory in order to
seek employment as referred to in Article 14-3 of Directive 2004/38EC. These are
allowed to seek employment and should not be expelled as long as they can prove
that they are genuinely seeking employment and that they have a chance to be
engaged. Nevertheless, their right of access to social assistance is here also dependent
on the good will of the host Member State (Preamble 21 of Directive 2004/38/EC).
– The third derogation only concerns students, as Member States are not obliged to
provide student grants or loans to students who do not have permanent residence.
These three derogations of Article 24 of Directive 2004/38/EC should be
interpreted strictly, while the fundamental right of freedom of movement of persons
has to be interpreted widely, according to the Court of Justice of the European
Union.
17
They also have to comply with the general safeguards that exist (individual
approach, submission to the principle of proportionality, review of the level of
integration). Finally, Article 37 of Directive 2004/38/EC allows Member States
to take more favorable provisions towards economically inactive Union citizens.
This means that a Member State which wishes so can provide social assistance to
economically inactive Union citizens before their permanent residence.
1.3 The Court of Justice of the European Union
The decisions of the Court of Justice are fundamental in matters of the construction
of the principle of equality of treatment. They also inspired many of the provisions
of Directive 2004/38/EC. I will review the different steps of the evolution of the
decisions of the Court of Justice that have been described clearly and in detail in the
Commentary on the Citizenship Directive and in academic works.
18
At the beginning, the Court of Justice interpreted the principle of equality
of treatment of workers expansively. It enlarged the material scope of equality
of treatment, including all advantages which were generally granted to national
workers and widely
interpreting the notion of social advantages of Article 7-2 of
Regulation 1612/68.
19
The decisive criterion or approach of the Court was the
facilitation of the mobility of migrant workers of Member States.
17
See Commission v. Austria C-75/11, para. 54.
18
See GUILD E., PEERS S., TOMKIN J. (eds.),
The EU citizenship directive, A commentary
, Oxford
University Press, 2014. See also ISIDRO L.,
De la citoyenneté sociale au „tourisme social“,
p. 16-17.
19
For example, it included such advantages as travel reduction cards for large families (Cristini C-32/75)
or child raising allowances (Martinez Sala C-85/96).