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migrant Union citizens and the nationals of the host Member State in so far as Union
citizens on the move do not become an unreasonable burden on the public finances
of the Member States concerned (Grzeczyk). The concept of unreasonable burden on
the social assistance system of the host Member State was the limit for the Conference
of Social Assistance to Economically Inactive Union citizens. Economically inactive
Union citizens who are reasonably using the social assistance of their host Member
State can rely on its generosity and solidarity. Unfortunately, the Court was not precise
about under which circumstances we can presume that one individual becomes an
unreasonable burden for the whole national social system.
25
Fearing that Member States would use the limit of unreasonable burden abusively
to refuse social assistance to Union citizens on the move, the Court established
a list of safeguards that Member States should respect while analyzing a request
for social assistance. These safeguards have been taken back in Directive 2004/38/
EC especially for protecting Union citizens against expulsion and are explained in
the Communication of the Commission (2009) 313 final.
The first element of protection is the individual approach. Before taking a decision
restricting the right of residence or the right to equal treatment of a Union citizen, the
host Member State should take into consideration the personal circumstances of the
applicant, like his or her age, economic and social situation of the applicant etc. No
collective approach targeting a group of persons is allowed.
26
The second element is respect for the principle of proportionality that requires
taking into account the degree of integration of the persons concerned, the length
of their residence in the host Member State, their age, state of health, family and
economic situation and their links with their country of origin according to Recital 23
of the Preamble of Directive 2004/38/EC.
The level of integration can be measured by different elements as long as these
elements are not exclusive in nature or as long as one element does not unduly
favour aspects which are not necessarily representative of the real and effective
degree of connection in existence (Lucy Stewart).
27
One reasonable element can be
the existence of genuine or real links with the host society (D’Hoop),
28
even if this
element should not be fixed in a uniform manner for all benefits. On the contrary,
it should be determined according to the nature and objectives of the particular
benefit.
25
See the Communication of the Commission on guidance for better transposition and application of
Directive 2004/38/EC on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States- COM (2009) 313 final.
26
This is in line with the case Commission v Belgium, C-321/87, para. 10.
27
See case C-503/09 Lucy Stewart v Secretary of State for Work and Pensions, para. 20.
28
See case
Marie-Nathalie D’Hoop v Office national de l’emploi C-224/98 which states that in such
a context it is legitimate for the national legislature to wish to ensure that there is a real link between
the applicant for that allowance and the geographic employment market concerned (para. 38).