CYIL 7 ȍ2016Ȏ THE SCOPE AND THE FUTURE OF EQUALITY OF TREATMENT… In the last two years, the Court has abandoned this generous approach concerning the access of economically inactive Union citizens. Indeed, in its Dano case 29 the Court held that economically inactive EU citizens who go to another Member State solely in order to obtain social assistance may be excluded from certain social benefits. In the Alimanovic case 30 the Court recognized that a Member State may exclude Union citizens who go to that State to find work from certain non-contributory social security benefits. In these two last decisions, the Court of Justice has abandoned the generous approach concerning four different parameters that it used before to acknowledge access to social assistance for economically inactive Union citizens: 31 • Financial solidarity In the Grzelczyk (1999) and Commission v. Austria (2012) cases, the Court stated that freedom of movement of persons allows for a certain degree of financial solidarity amongst nationals of the host Member State and nationals of other Member States. This financial solidarity was particularly recommended when the difficulties occurring were temporary. In the last cases such as Dano, the Court does not say any word about financial solidarity, which seems to have disappeared from its concern. • The link between access to social assistance and Union citizenship In its previous cases (Grzelczyk), the Court states that Union citizenship is the fundamental status of nationals of Member States enabling Union citizens on the move to enjoy equal treatment. In Dano, the Court first refers to Union citizenship and Article 18 TFEU but then quickly moves to secondary legislation, mainly Directive 2004/38/EC, which has a limited approach of access to social assistance. Union citizenship in itself is not sufficient anymore to confer social assistance to economically inactive Union citizens. Only those ones who have legal residence, i.e. sufficient financial resources, are entitled to access social assistance. Union citizenship seems to be useful only when it is used by self-sufficient Union citizens. The new position of the Court seems to refer to a kind of “market Union citizenship” and not at all a “social Union citizenship”. It is true that it is not the same “market citizenship” that was used in the early times where freedom of movement was reserved only to workers. It is a “market citizenship” opened to economically inactive Union citizens as long as they are self-sufficient. Maybe the word “self-sufficiency citizenship” would be more appropriate, as self-sufficient citizens benefit from equality of treatment.
29 See case Elisabeth Dano, Fliorin dano v. Jobcenter Leipzig, C-309/13. 30 See case Jobcenter Berlin c/ Alimanovic, C-67/14. 31 For more details, see the very interesting comparison of the cases Grzelczyk and Dano in Phoa P., EU citizenship: reality or fiction? A law and literature approach to EU Citizenship, pp. 75-80.