CYIL vol. 7 (2016)

166

VÁCLAV ŠMEJKAL

CYIL 7 ȍ2016Ȏ

to all this information, the question of Mr. Peña-Cueva’s and his son’s entitlement

derived from their status as an EU-migrant family was strangely avoided in the

judgment as if, without formalization of the Peña-García relationship, their factual

situation was totally irrelevant.

All three cases thus have in common several features. Directive 2004/38

was used in all of them as the basic rule governing the status and entitlements of

migrating EU-citizens in another Member State. Questions regarding the balance

between the Directive and the rights of EU citizens derived from EU primary law or

the personal situation of migrant applicants as well as their factual status under

the national law of the host Member State (all resided in Germany legally, but not in

line with the EU Directive

) should no longer complicate the decision making

about the access of economically inactive EU migrants to social assistance. If we

stop asking those questions to which the CJEU did not give satisfactory answers

in its three recent judgments, then the situation of one category of migrant EU-

citizens has undoubtedly been clarified. Instead of trying hard to ponder the

appropriateness of exceptions in an individually assessed situation, the relatively

straightforward rules imposed by Directive 2004/38 should be strictly applied. They

show that EU-migrants without the status of EU-worker (or self-employed or their

formal family member) cannot claim equal treatment in access to social assistance

of host Members States until they become permanent residents there according to

2004/38 Directive (i.e. after five years of continuous legal residence). This outcome

is both clear and reasonable, at least for any national social system and its expenses

spent on applicants from other Member States in dubious situations that would have

previously presented “hard cases” to solve without infringing EU law.

From a legal theory perspective, however, the question remains of how the

provisions of secondary legislation can push to the side any consideration about EU

primary law precedence, especially when reminded about the CJEU’s previous usage of

Treaty provisions to increase the value of EU citizenship as the fundamental status of

Europeans.

The binding EU Charter of Fundamental Rights seems to be completely

of no use – regardless of an EU-element of free movement. For legal practice, a question

imposes itself about the fate of those EU citizens who, while staying in another

Member State, have no right of residence there under Directive 2004/38 but cannot

be expelled as the conditions of expulsion pursuant to Article 28 of the Directive are

formulated much more strictly than the conditions of equal access to social assistance.

If the CJEU does not harden in the near future its approach towards the expulsion

of those EU citizens who without presenting any threat to public order, security or

health, have been, in line with the Directive, refused social assistance, then unwanted

It must be reminded that in the aforementioned case

Trojani

(n 23) the CJEU took the legal residence

under the national legislation as a ground for equal access to social assistance.

For an interesting analysis of this aspect of the recent CJEU case law see SHUIBHNE (n 33).