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CYIL 7 ȍ2016Ȏ
THE SCOPE AND THE FUTURE OF EQUALITY OF TREATMENT…
Later on, the Court contributed to clearing up doubt about the application of
the principle of equality of treatment to economically inactive Union citizens. In
its decision Martinez Sala,
20
an economically inactive Spanish national residing in
Germany claiming allowances for raising a child, the Court had to decide about
the extension of equality of treatment to this category of persons. As there were
no express provisions on the conference of equality of treatment to economically
inactive citizens in secondary law, the question was about the capacity of Martinez
Sala to rely upon the general treaty’s provision on the prohibition of discrimination.
Obviously Martinez Sala could not rely on Article 45 of the Treaty reserved to
workers. The Court of Justice decided that Martinez Sala, as a Union citizen, is
entitled to rely on primary law. The relevant criterion for relying upon the Treaty
provision is, according to her, Union citizenship and legal residence. Basing its
argumentation on the fact that Union citizenship is the fundamental status of
nationals of Member States,
21
it recognized Martinez Sala’s right to rely upon the
provision of Article 18 TFEU.
The following decisions of the Court of Justice regarding the conferring of equal
treatment to economically inactive Union citizens similarly link this principle to
Union citizenship. Once Union citizens were legally using their right to freedom of
movement and residence, they fall under the scope of EU law and they are entitled
to rely upon the treaties’ provisions. Their Union citizenship enables those who find
themselves in the same situation to enjoy the same treatment in law irrespective
of their nationality, subject to such exceptions as are expressly provided for.
22
The
generous approach of the Court of Justice passed over the restrictive provisions
of secondary law towards economically inactive Union citizens. In many cases,
students and job-seekers succeeded in getting equality of treatment regarding access
to social assistance based on their Union citizenship.
23
As time passed, the generous approach of the Court of Justice towards economically
inactive Union citizens began worrying Member States fearing for their national social
security system. “In resolving such cases, the Court of Justice was confronted with the
delicate task of striking a balance between facilitating the exercise of free movement
rights with preserving the effective functioning of Member States’s social security
systems” (Guild, 2014).
24
For this reason, the Court of Justice opted for a compromised approach by
recognizing that EU law allows for a certain degree of financial solidarity amongst
20
See the case Martínez Sala v Freistaat Bayern, C-85/96.
21
See the case Grzeczyk C-184/99, para. 31.
22
Idem.
23
See, for example, the cases Grzeczyk, Bidar (C-209/03), Collins (C-138/02), Forster (C-158/07) and
Gottwald (C-103/08).
24
ELSPETHGUILD, STEVE PEERS, JONATHANTOMKIN,
The EUcitizenship directive, A commentary
,
Oxford University Press, 2014, p. 225.