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SAVING THE EU AND ITS WELFARE STATES THROUGH DISINCENTIVES…
on the part of Member States Citizens and the EU”
43
was added
to the resentment
caused by the fact that “national public administrators have lost their role as sole
administrative gatekeepers of the welfare state”.
44
The CJEU as part of the solution
The CJEU’s judgments are sometimes sparse regarding the answers that are
expected of them,
45
and often, due to the complexity of the national welfare systems
and the factual aspects of the case, leave the assessment of the key criteria fulfillment,
i.e. of whether an EU migrant created a real link with the host Member State or
whether he represents an unreasonable burden for its social system, to national
judges. From there comes a certain ambiguity of their content that does not permit
to draw a clear dividing line between the “old” CJEU case law that was friendly
towards EU-citizenship, and the CJEU’s “new approach” to the rights of migrating
EU citizens. Neither the statement that before 2014 migrating EU citizens “tended
to win their cases” nor that now it seems to be the other way around
46
apply without
exception. Even under the “old” case law such ruling as in the
G. de Cuyper
47
case
can be found, where the Grand Chamber of the CJEU stated, among other things,
that “the right to reside within the territory of the member state which is conferred
directly on every citizen of the Union by Article 18 EC is not unconditional”
(para 36) and applying strictly an EU secondary legal act (Regulation 1408/71
on the application of social security schemes to migrating workers
48
) concluded
that a residence clause (i.e. an obligation for Mr. De Cuyper not to leave Belgium)
could be imposed on an unemployed person as a condition for the retention of his
entitlement to unemployment benefit.
A full bias could therefore never be blamed on the CJEU. However, it is true
that during at least two decades after the inclusion of the right of EU citizens into
the Treaty, the CJEU had a tendency to stress the primacy of EU-citizenship rights
43
BLAUBERGER, M. SCHMIDT (n 11) 6.
44
CECILIA BRUZELIUS, ELAINE CHASE, MARTIN SEELEIB-KAISER, ‘Semi-Sovereign Welfare
States, Social Rights of EU Migrant Citizens and the Need for String State Capacities’ [2013]
SE
Journal
, Oxford Institute of Social Policy No 3 December, 3.
45
As the current President of the CJEU, K. Lenaerts, explained: “As consensus-building requires bringing
on board as many opinions as possible, the argumentative discourse of the ECJ is limited to the very
essential. In order to preserve consensus, the ECJ does not take ‘long jumps’ when expounding the
rationale underpinning the solution given to novel questions of constitutional importance.” See in
KOEN LENAERTS, ‘EU citizenship and the European Court of Justice’s ‘stone-by-stone’ approach’
[2015]
International Comparative Jurisprudence
. Vol. 1, Issue 1, 1.
46
SHUIBHNE (n 33) 894.
47
Case C-406/04
Gérald De Cuyper v Office national de l’emploi
EU:C:2006:491.
48
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security
schemes to employed persons and their families moving within the Community
[1971] Official Journal
L 149, 2-50.