177 / 536
163
CYIL 7 ȍ2016Ȏ
SAVING THE EU AND ITS WELFARE STATES THROUGH DISINCENTIVES…
(Article 18 TFEU) and with the general right of residence (Article 21 TFEU). Simply,
in the light of the traditional CJEU approach towards EU-migrants in need in a host
Member State, the outcome did not seem that obvious.
The CJEU reasoning, however, was relatively simple. Although the Court
recognized its older case law, such as the above quoted
Grzelczyk
or
Brey,
it did it more
to stress that the fundamental status of EU citizens was never without limits and it
was never allowed to them to migrate and get social assistance free of any conditions
(paras 58, 63). Furthermore, it based its reasoning exclusively on the provisions of
Directive 2004/38, especially Article 24(2), allowing for an exception to the principle
of non-discrimination. By consistently applying the terms of the right of residence
within the meaning of the Directive, the CJEU concluded that the applicable EU law
must be interpreted as not precluding the legislation of a Member State under which
nationals of other Member States are excluded from entitlement to certain “special
non-contributory cash benefits” although those benefits are granted to nationals of the
host Member State who are in the same situation, as long as those nationals of other
Member States do not have a right of residence under Directive 2004/38 in the host
Member State (para 84).
The CJEU remained silent on whether the requirements of the Directive could
be softened with respect to the directly effective provisions of Articles 18 and 21
TFEU and to the personal circumstances of Ms. Dano. Additionally, the CJEU
refused very briefly also the application of the EU Charter of Fundamental Rights,
quoting a highly formalistic reason that Regulation 883/2004, which defines the
term “special non-contributory cash benefits”, was not intended to lay down the
conditions creating the right to those benefits, and therefore Germany, by fixing
these conditions on its own, did not implement EU law (paras 89, 91).
The CJEU thus surprised legal observers in the
Dano
case, because the solution to
apparently difficult questions of whether and how the primacy of great EU principles
and Treaty clauses could be limited by narrowly interpreted exceptions laid down
in secondary legislation, is to be found in the literal application of the provisions of
Directive 2004/38.
52
One who does not have under its provisions any right to reside
in another Member State is therefore not entitled to equal treatment in that State
(para 81). Especially in the case of an economically inactive EU-migrant who does
not seek a job, this outcome seems so obvious that the person can be refused social
assistance within the meaning of the Directive without assessing their genuine
link with the Member State’s society. There is no need to consider the application
of such concepts as
EU
-
citizenship
or
solidarity
, because the CJEU has never used
these previously highly valued terms in the grounds of its judgment. Even more
strikingly, this new tendency of the CJEU to limit formerly unavoidable provisions
of the Treaty and fundamental principles of EU law by conditions laid down in
52
For an interesting discussion of this aspect of the ruling see: SHUIBHNE (n 33) 935.