CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SAVING THE EU AND ITS WELFARE STATES THROUGH DISINCENTIVES… It is true that Directive 2004/38, approved two days before the “Eastern enlargement” and in effect in EU countries from May 2006, 31 stressed that those EU citizens who would like to stay in another Member State for more than three months without being economically active there, must have sufficient resources for themselves and their families in order not to become a burden on the social assistance system of that State [Articles 7(1)(b) and 24(2)] and expressly allowed for some exceptions to equal treatment. 32 The intention of some Member States to legalize a certain cap on rights derived from EU citizenship, as expressed in the Directive, 33 however was not somehow fully taken into account by the CJEU, at least during the first years of its application. On one hand, the CJEU recognized in its decision Förster from 2008 34 that maintenance grants could be refused to a student during the first five years of residence in another Member State. 35 On the other hand, even after the adoption of Directive 2004/38 and the “Eastern enlargement”, the Grand Chamber of the CJEU adopted the aforementioned controversial judgment in Trojani. 36 Further, e.g. in the case Vatsouraz and Koupanatze 37 the CJEU stated that financial benefits which are intended to facilitate access to the labor market of the host Member State cannot be regarded as social assistance within the meaning of Article 24(2) of the Directive and therefore cannot be refused to jobseekers during the first three months of residence or, where appropriate for a longer period (para 45). And recently (2013) in the Brey 38 ruling, concerning the retired German couple that moved to Austria without sufficient resources to establish their lawful residence there, the CJEU 31 Directive 2004/38/EC of the European Parliament and of the Council 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. 32 Article 24 of Directive 2004/38 allows the host Member State not to confer entitlement to social assistance to EU-migrants during the first three months of residence or, where appropriate, a longer period, as well as not to grant maintenance aid for studies consisting in student grants or student loans to persons other than workers, self-employed persons and members of their families prior to acquisition of the right of permanent residence. 33 The Commission’s draft was more favorable to the expansion of rights based on EU citizen status. Member States in the Council inserted several limitations to it. See for details Maslowski (n 14) 69; NIAMH NIC SHUIBHNE, ‘Limits rising, duties ascending: The changing legal shape of Union citizenship’ [2015] Common Market Law Review vol 52(4), 895-897. 34 Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep EU:C:2008:630. 35 Facts of the case preceded Directive’s 2004/38 coming into force. The CJEU, however, in conformity with its provisions, upheld the right of a Member State to refuse maintenance grant to a student that does not fulfill the requirement of five years’ prior residence even though such a requirement was not imposed on nationals of that Member State. 36 The case also fell under the regime of the previous Directive 90/364, whose requirements were in this respect, however, quite similar to the newer legislation. 37 Cases C-22/08 and 23/08 Athanasios Vatsouras and Josif Koupatantze v Arbeitsgemeinschaft (ARGE) Nürnberg 900 EU:C:2009:344. 38 Case C-140/12 Pensionsversicherungsanstalt v Peter Brey EU:C:2013:565.


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