Saving the EU and its Welfare States Through Disincentives to Migration? On Recent CJEU Case Law Limiting the Access of EU Migrants to Social Assistance

Abstract

The Court of Justice of the EU (CJEU) has in rulings Dano, Alimanovic, Garcia-Nieto, decided in 2014-2016, changed its traditional approach to the protection of rights of migrating EU citizens. Their rights that used to be derived primarily from their citizenship status, i.e. directly from the Treaty, seem now to be exhaustively and restrictively defined by the conditions of Directive 2004/38. The paper argues however, that the three cases concerned, represented rather a limited set of situations such as claims to specific social assistance by economically inactive EU-migrants or their request of specific social assistance at the beginning of their residence and before they found a job in the host Member State. More importantly and contrary to this development, the CJEU keeps strengthening rights and entitlements of those who want to be economically active, i.e. of EU migrant workers and self-employed persons. Thus, regardless of its change of approach in the specific cases Dano, Alimanovic, Garcia-Nieto, the CJEU remains opposed to the restrictions of rights of economically active EU-migrants as they were discussed and promised by EU statesmen at the European Council summit in February 2016.

Keywords: EU citizenship, Court of Justice of the EU, Directive 2004/38, free movement of persons