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SOLANGE MASLOWSKI
CYIL 7 ȍ2016Ȏ
• The link between access to social assistance and primary law
In previous cases, the Court said that the right of residence and of equality of
treatment of economically inactive Union citizens derives directly from the Treaty’s
provisions mainly, Articles 18 and 21 TFEU.
32
Even economically inactive Union
citizens were allowed to rely on primary law based on their Union citizenship,
despite the restrictive provisions of secondary law. In Dano, the Court grounds its
argumentation on secondary law, especially Directive 2004/38/EC, which has
a minimalistic approach to access to social assistance. The Court applies to the letter
the provisions of Directive 2004/38/EC according to which social assistance is just
for those who have legal residence, i.e. sufficient financial resources. Moreover the
Court excludes the application of primary law, especially the Charter of Fundamental
Rights stating that when the Member States lay down the conditions for the granting
of special non-contributory cash benefits and the extent of such benefits, they are
not implementing EU law. Hence the Charter is not applicable. Similarly, the Court
dismisses the application of secondary law, Regulation 883/2004, which is much
more favorable than Directive 2004/38/EC.
• The choice of the more favorable provision
In the past, the aim of the Court was to search for the most favorable provision
for the Union citizen, the aim being the protection of Union citizenship and the
facilitation of freedom of movement of Union citizens. The Court on many occasions
already claimed that freedom of movement should be interpreted widely, while
restrictions to this fundamental right should be interpreted strictly.
In the Dano case, the Court opted for the less favorable EU provision concerning
the conferrence of social assistance to economically inactive Union citizens, which is
secondary law Directive 2004/38/EC. The Court had the choice of relying on more
favorable provisions like primary law Article 18 TFEU or the European Charter
of Fundamental Rights or even Regulation 883/2004, but did not do so. It also
avoided answering the question of the German Court in Dano, namely to what
extent the refusal of social assistance to non-economically active Union citizens
respects Article 1 (human dignity) and 20 (equality before the law) of the Charter
of Fundamental Rights of the European Union. Clearly, the aim of the Court was
not to apply the most favorable provision for economically inactive Union citizens
but rather to calm down Member States’ fear.
Why did the Court change its approach? Is this because the Court considers
economically inactive persons like the student Grzeczyk as good Union citizens, well
integrated into the host society and with a promising future, and Union citizens
32
See cases Baumbast and R. v. Secretary of State for the Home Department C-413/99 and The Queen
(on the application of Dany Bidar) v London Borough of Ealing, Secretary of State for Education and
Skills C-209/03.