CYIL Vol. 7, 2016

VÁCLAV ŠMEJKAL CYIL 7 ȍ2016Ȏ be considered as a certain culmination of this trend to expand citizenship rights that were derived directly from the EU Treaty. 23 The CJEU emphasized there that an EU citizen, even if his stay in another Member State did not correspond to the conditions laid down by EU law (then Directive 90/364, 24 predecessor of the current Directive 2004/38) but still legally residing in the host Member States from the perspective of its own national law, had the right to equal treatment and may not be discriminated against in access to social assistance to which local citizens were entitled in a similar situation (paras 39-40, 43-44). In parallel to this, the CJEU also advocated a broad definition of the EU-worker. This definition also covered employees with a contract for just a 10 week period, 25 or for a working week shortened to 10 or 12 hours. 26 The CJEU even did not rule out the possibility to recognize as genuine and effective employment a job for only 5.5 hours per week. 27 And quite recently, in 2013, in its decision L.N., 28 the CJEU confirmed that the motivation for taking part-time work in another Member State was irrelevant and might stem from a plan to obtain maintenance aid for full-time studies in that Member State. The only condition in these borderline cases remains whether EU-migrants pursue effective and genuine employment activities (para 47). Even poorly paid EU workers (and their family members) have always been entitled in the host Member State to equal treatment regarding also their access to social assistance. One can easily understand the growing resentment of several “old” Member States, especially after the EU’s enlargement to Central and Eastern Europe in 2004 and 2007 (when not all “old” Member States exploited the possibility to temporarily limit free migration) and then under the pressure of the financial and economic crisis, to grant to underpaid migrant EU workers and their family members (and in some cases also to job-seekers, pensioners and students) social benefits from their national welfare system to which these beneficiaries contributed little or nothing. The CJEU has become frequently blamed for “overstretching the Treaty provisions on freedom of movement“ 29 to the detriment of the functionality of national welfare systems. 30 23 Case C-456/02 Michel Trojani v Centre public d’aide sociale de Bruxelles (CPAS) EU:C:2004:488. 24 Council Directive 90/364/EEC of 28 June 1990 on the right of residence repealed by Directive 2004/38 26-27. 25 Case C-413/01 Franca Ninni-Orasche v Bundesminister für Wissenschaft, Verkehr und Kunst : EU:C: 2003:600. 26 Cases C-139/85 R. H. Kempf v Staatssecretaris van Justitie EU:C:1986:223 and C-444/93 Ursula Megner and Hildegard Scheffel v Innungskrankenkasse Vorderpfalz EU:C:1995:442. 27 Case C-14/09 Hava Genc v Land Berlin EU:C:2010:57. 28 Case C-46/12 L. N. v Styrelsen for Videregående Uddannelser og Uddannelsesstøtte EU:C:2013:97. 29 POPTCHEVA (n 11). 30 BLAUBERGER, SCHMIDT (n 11) 2.


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