CYIL vol. 7 (2016)

145

CYIL 7 ȍ2016Ȏ

THE SCOPE AND THE FUTURE OF EQUALITY OF TREATMENT…

In the last two years, the Court has abandoned this generous approach concerning

the access of economically inactive Union citizens. Indeed, in its Dano case

the

Court held that economically inactive EU citizens who go to another Member State

solely in order to obtain social assistance may be excluded from certain social benefits.

In the Alimanovic case

the Court recognized that a Member State may exclude

Union citizens who go to that State to find work from certain non-contributory

social security benefits.

In these two last decisions, the Court of Justice has abandoned the generous

approach concerning four different parameters that it used before to acknowledge

access to social assistance for economically inactive Union citizens:

• Financial solidarity

In the Grzelczyk (1999) and Commission v. Austria (2012) cases, the Court

stated that freedom of movement of persons allows for a certain degree of financial

solidarity amongst nationals of the host Member State and nationals of other

Member States. This financial solidarity was particularly recommended when the

difficulties occurring were temporary. In the last cases such as Dano, the Court does

not say any word about financial solidarity, which seems to have disappeared from

its concern.

• The link between access to social assistance and Union citizenship

In its previous cases (Grzelczyk), the Court states that Union citizenship is the

fundamental status of nationals of Member States enabling Union citizens on the

move to enjoy equal treatment. In Dano, the Court first refers to Union citizenship

and Article 18 TFEU but then quickly moves to secondary legislation, mainly

Directive 2004/38/EC, which has a limited approach of access to social assistance.

Union citizenship in itself is not sufficient anymore to confer social assistance to

economically inactive Union citizens. Only those ones who have legal residence, i.e.

sufficient financial resources, are entitled to access social assistance. Union citizenship

seems to be useful only when it is used by self-sufficient Union citizens. The new

position of the Court seems to refer to a kind of “market Union citizenship” and not

at all a “social Union citizenship”. It is true that it is not the same “market citizenship”

that was used in the early times where freedom of movement was reserved only to

workers. It is a “market citizenship” opened to economically inactive Union citizens as

long as they are self-sufficient. Maybe the word “self-sufficiency citizenship” would be

more appropriate, as self-sufficient citizens benefit from equality of treatment.

See case Elisabeth Dano, Fliorin dano v. Jobcenter Leipzig, C-309/13.

See case Jobcenter Berlin c/ Alimanovic, C-67/14.

For more details, see the very interesting comparison of the cases Grzelczyk and Dano in Phoa P., EU

citizenship: reality or fiction? A law and literature approach to EU Citizenship, pp. 75-80.