CYIL Vol. 7, 2016

SOLANGE MASLOWSKI

CYIL 7 ȍ2016Ȏ

• The link between access to social assistance and primary law In previous cases, the Court said that the right of residence and of equality of treatment of economically inactive Union citizens derives directly from the Treaty’s provisions mainly, Articles 18 and 21 TFEU. 32 Even economically inactive Union citizens were allowed to rely on primary law based on their Union citizenship, despite the restrictive provisions of secondary law. In Dano, the Court grounds its argumentation on secondary law, especially Directive 2004/38/EC, which has a minimalistic approach to access to social assistance. The Court applies to the letter the provisions of Directive 2004/38/EC according to which social assistance is just for those who have legal residence, i.e. sufficient financial resources. Moreover the Court excludes the application of primary law, especially the Charter of Fundamental Rights stating that when the Member States lay down the conditions for the granting of special non-contributory cash benefits and the extent of such benefits, they are not implementing EU law. Hence the Charter is not applicable. Similarly, the Court dismisses the application of secondary law, Regulation 883/2004, which is much more favorable than Directive 2004/38/EC. • The choice of the more favorable provision In the past, the aim of the Court was to search for the most favorable provision for the Union citizen, the aim being the protection of Union citizenship and the facilitation of freedom of movement of Union citizens. The Court on many occasions already claimed that freedom of movement should be interpreted widely, while restrictions to this fundamental right should be interpreted strictly. In the Dano case, the Court opted for the less favorable EU provision concerning the conferrence of social assistance to economically inactive Union citizens, which is secondary law Directive 2004/38/EC. The Court had the choice of relying on more favorable provisions like primary law Article 18 TFEU or the European Charter of Fundamental Rights or even Regulation 883/2004, but did not do so. It also avoided answering the question of the German Court in Dano, namely to what extent the refusal of social assistance to non-economically active Union citizens respects Article 1 (human dignity) and 20 (equality before the law) of the Charter of Fundamental Rights of the European Union. Clearly, the aim of the Court was not to apply the most favorable provision for economically inactive Union citizens but rather to calm down Member States’ fear. Why did the Court change its approach? Is this because the Court considers economically inactive persons like the student Grzeczyk as good Union citizens, well integrated into the host society and with a promising future, and Union citizens 32 See cases Baumbast and R. v. Secretary of State for the Home Department C-413/99 and The Queen (on the application of Dany Bidar) v London Borough of Ealing, Secretary of State for Education and Skills C-209/03.

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