CYIL Vol. 7, 2016

SOLANGE MASLOWSKI CYIL 7 ȍ2016Ȏ – The first one: Member States are not obliged to provide social assistance to economically inactive Union citizens during the first 3 months of their stay. Union citizens are free to stay less than 3 months in the host Member State but their right to access social benefits is dependent on the good will of the host Member State, which has no obligation to provide anything. – The second one: Member States are not obliged to provide social assistance to economically inactive Union citizens who entered their territory in order to seek employment as referred to in Article 14-3 of Directive 2004/38EC. These are allowed to seek employment and should not be expelled as long as they can prove that they are genuinely seeking employment and that they have a chance to be engaged. Nevertheless, their right of access to social assistance is here also dependent on the good will of the host Member State (Preamble 21 of Directive 2004/38/EC). – The third derogation only concerns students, as Member States are not obliged to provide student grants or loans to students who do not have permanent residence. These three derogations of Article 24 of Directive 2004/38/EC should be interpreted strictly, while the fundamental right of freedom of movement of persons has to be interpreted widely, according to the Court of Justice of the European Union. 17 They also have to comply with the general safeguards that exist (individual approach, submission to the principle of proportionality, review of the level of integration). Finally, Article 37 of Directive 2004/38/EC allows Member States to take more favorable provisions towards economically inactive Union citizens. This means that a Member State which wishes so can provide social assistance to economically inactive Union citizens before their permanent residence. 1.3 The Court of Justice of the European Union The decisions of the Court of Justice are fundamental in matters of the construction of the principle of equality of treatment. They also inspired many of the provisions of Directive 2004/38/EC. I will review the different steps of the evolution of the decisions of the Court of Justice that have been described clearly and in detail in the Commentary on the Citizenship Directive and in academic works. 18 At the beginning, the Court of Justice interpreted the principle of equality of treatment of workers expansively. It enlarged the material scope of equality of treatment, including all advantages which were generally granted to national workers and widely interpreting the notion of social advantages of Article 7-2 of Regulation 1612/68. 19 The decisive criterion or approach of the Court was the facilitation of the mobility of migrant workers of Member States. 17 See Commission v. Austria C-75/11, para. 54. 18 See GUILD E., PEERS S., TOMKIN J. (eds.), The EU citizenship directive, A commentary , Oxford University Press, 2014. See also ISIDRO L., De la citoyenneté sociale au „tourisme social“, p. 16-17. 19 For example, it included such advantages as travel reduction cards for large families (Cristini C-32/75) or child raising allowances (Martinez Sala C-85/96).

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