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SAVING THE EU AND ITS WELFARE STATES THROUGH DISINCENTIVES…
right of every EU citizen.
11
Free movement of economically active EU citizens (i.e.
the present Articles 45 and 49 TFEU) began to be seen as a special case of freedom of
movement derived in general from the EU citizens’ rights laid down in the provisions
of Part Two of the TFEU on non-discrimination and EU citizenship. The key
Article 21(1) TFEU on the right of every EU citizen to move and reside freely within
the territory of the Member States (subject to the limitations and conditions laid
down in the Treaties and the measures taken to implement them) was found by the
CJEU to be directly effective.
12
The Treaty thus gave to EU citizens directly claimable
rights regardless of their economic status.
13
CJEU “strongly supported this fundamental
freedom” and stipulated that measures to restrict it should be interpreted narrowly
and applied with regard to the principles of proportionality and equal treatment.
14
In its “classic” decisions from the turn of the millennium (
Martinez Sala,
15
Grzelczyk,
16
Baumbast,
17
Bidar
18
) the CJEU gave an extensive and openly euro-
optimistic definition of EU citizenship as “fundamental status of nationals of the
Member States”.
19
The treatment of economically inactive EU-citizens in a host
Member State where they did not get permanent residency but applied there for
social aid, was complicated by the CJEU’s requirements of their equal treatment
and also of a thorough individual assessment of whether they had already built
“a genuine link”
20
with the society and the labor market of the host Member State.
If it was so, the host Member State was expected to show a “certain degree of
solidarity”,
21
i.e. not to expel EU-migrants in need but rather to provide them with
the necessary assistance.
22
The CJEU’s decision
Trojani
from September 2004 can
11
See for instance: EVA-MARIA POPTCHEVA, ‘Freedom of movement and residence of EU citizens.
Access to social benefits’ [2014] Member’s Research Service – European Parliamentary Research Service
140808REV1, 4; MICHAEL BLAUBERGER, SUSANNE K. SCHMIDT, ‘Welfare migration? Free
movement of EU citizens and access to social benefits’ [2014]
Research & Politics
, October-December, 2.
12
Case C-413/99
Baumbast and R v Secretary of State for the Home Department
EU:C:2002:493, paras 80,
81, 84.
13
ROBERT SCHÜTZE,
European Union Law
(Cambridge University Press, 2012) 600.
14
SOLANGE MASLOWSKI, ‘The Expulsion of European Union Citizens from the Host Member
State: Legal Grounds and Practice’ [2013]
Central and Eastern European Review
, Vol. 4, No. 2, 67.
15
Case C-85-96
María Martínez Sala v Freistaat Bayern
EU:C:1998:217
.
16
Case C-184/99
Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve
EU:C:2001:458.
17
Grzelczyk
(n 16).
18
Case C-209/03
The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of
State for Education and Skills
EU:C:2005:169.
19
Grzelczyk
(n 16) paras 30, 31.
20
Bidar
(n 18) para 62.
21
Grzelczyk
(
n 16) para 44.
22
The CJEU acknowledged in these judgments too that “the exercise of the right of residence… can be
subordinated to the legitimate interests of Member States” (
Baumbast
(n 12)
para 90) and that EU-
migrants should not become an unreasonable drain of resources in their host Member States [
Grzelczyk
(n 16)
paras 42-44]. Nevertheless, these caveats were supposed to be treated as rare and restrictively and
proportionally applied exceptions from the primary rights to move freely and get equal treatment.