CYIL 2015

THE LIMITS OF SOǧCALLED BENEFIT TOURISM AND THE FREE MOVEMENT OF EU CITIZENS of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. 2.1 Economically active and inactive EU citizens First of all, EU law categorizes the various forms of residence according to their duration. According to Article 6 of Directive 2004/38 the short stay of EU citizens and their family members (right to residence for up to three months) shall be guaranteed without any conditions or any formalities other than the requirement to hold a valid identity card or passport. The directive, however, does not address the question of how the Member State shall determine whether the residence of a particular EU citizen on its territory exceeds the period of three months. As far as access of EU citizens to the social system of the host Member State is concerned, Article 14 paragraph 1 of Directive 2004/38 stipulates that short-term resident EU citizens shall not become an unreasonable burden on the social assistance system of the host Member State. With regard to the right to long-term stay (right to residence for more than three months) it is necessary to distinguish between economically active EU citizens on one hand, and economically inactive EU citizens on the other. According to Article 7, paragraph. 1 lit. a) of Directive 2004/38, workers and self-employed persons belong to the first category. Their long-term residence shall not be subject to further financial conditions, such as e.g. a minimum monthly income or other financial resources. 1 Economically inactive EU citizens have the right to long-term residence in another Member State if they, firstly, have for themselves (and their family members) sufficient resources not to become a burden on the social assistance system in the host Member State during their stay and, secondly, they have comprehensive sickness insurance cover in the host Member State. 2 To this category belong e.g. migrant pensioners from EU Member States and people not seeking employment. As a special subcategory of inactive EU citizens Article 7, paragraph 1 lit. c) of Directive 2004/38 regulates the stay of students from EU Member States 3 and, as in the case of other inactive EU citizens, adequate resources and sickness insurance covering all risks are required. 4 However, the strict division into economically active and inactive EU citizens is not fully carried out by Directive 2004/38 to all its consequences. In practice, there have been considerable difficulties concerning e.g. the definition of workers who are probably the most important group of migrant EU citizens. Already in its 1 Article 7, paragraph 1 affirms the right of workers to freedom of movement and the freedom of establishment which are guaranteed by primary EU law (see Art. 45 and 49 TFEU). 2 See Article 7, paragraph 1 lit. b) of Directive 2004/38. 3 With regard to current issues of free movement of EU citizens for education see FOREJTOVÁ, MONIKA. Občanství v judikatuře Soudního dvora EU v Evropském roce aktivního občanství. Acta Universitatis Carolinae – Iuridica , 2/2013, 45-55. 4 Previously such criteria had been laid down in Directive 93/96/EEC of 29 October 1993, which first extended the right of freedom of movement for students.

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