CYIL vol. 7 (2016)

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SOLANGE MASLOWSKI CYIL 7 ȍ2016Ȏ
What could contribute to soothing Member States’ fear without endangering
freedom of movement of Union citizens? It is clear that the clarification of key
notions of Directive 2004/38/EC would certainly bring more legal certainty both for
Member States and for Union citizens.49 Indeed, the concept of equality of treatment
of economically inactive Union citizens is based on two institutions that are vague and
not clearly defined: the criteria of self-sufficiency for stays of more than three months
and the limit of unreasonable burden on the social assistance system.
The criteria of self-sufficiency is quite problematic as it does not take into
consideration economic imbalances between Member States and therefore between
Union citizens on the move. Indeed it is very requiring to obligate a Romanian
citizen who has just arrived in France (4 months of residence) to be self-sufficient
to possess 550 euros per month while this corresponds to twice his or her salary in
Romania. A Romanian citizen used to living on 200 euros per month is capable of
living, even in France, on a lower standard than an ordinary French citizen. Shall
we not accept that Union citizens coming from economically poorer Member States
that are not reaching the minimum national subsistence living standard in their host
country would be given more time than three months to reach these standards? This
would correspond to a kind of transitional period like those ones which are allowed
to new Member States not able to fulfill the EU criteria upon their entrance in the
EU. Of course, there should be a limit to the conference of transitional periods,
which could be the prohibition on the Union citizen being an unreasonable burden
for the host social assistance system. Such a step, of course, requires a minimum of
tolerance and solidarity from Member States.
The limit of unreasonable burden is also not clear despite the recommendations of
the European Commission in its guideline from 2009 [COM (2009) 313 final].50 The
utility of this provision is doubtful as, in practice, the shortness of the stay excludes the
existence of an unreasonable burden, the access to social assistance not being available
most of the time (Lhernoud, 2012 and Minderhoud, 2009).51 This argumentation
Grounds and Practice, CEEMR 2015, online:
articles/expulsion-european-union-citizens-host-member-state-legal-grounds and Maslowski S., The right
of freedom of movement for economically inactive Union citizens, BeuCitizens 2015, online: http://
citizens/.
49 The principle of legal certainty is a fundamental principle of Community law which requires, in particular,
that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their
rights and obligations are and may take steps accordingly (Case Belgium v Commission, C-110/03, para. 1).
50 This document refers to Recital 16 of Directive 2004/38/EC which indicates three series of criteria to
measure the burden of social assistance on the host social security system: the duration of residence, the
personal circumtances and the amount of aid granted.
51 LHERNOUD J. P., Non-discrimination en raison de la nationalité enmatière sociale, in Francette Fines,
La non-discrimination entre les Européens, Eds. Pedone, Paris 2012, p. 236 and Paul Minderhoud,
Access to Social Assistance Benefits and Directive 2004/38, in GUILD, E., GROENENDIJK, K.,