CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SAVING THE EU AND ITS WELFARE STATES THROUGH DISINCENTIVES… (Article 18 TFEU) and with the general right of residence (Article 21 TFEU). Simply, in the light of the traditional CJEU approach towards EU-migrants in need in a host Member State, the outcome did not seem that obvious. The CJEU reasoning, however, was relatively simple. Although the Court recognized its older case law, such as the above quoted Grzelczyk or Brey, it did it more to stress that the fundamental status of EU citizens was never without limits and it was never allowed to them to migrate and get social assistance free of any conditions (paras 58, 63). Furthermore, it based its reasoning exclusively on the provisions of Directive 2004/38, especially Article 24(2), allowing for an exception to the principle of non-discrimination. By consistently applying the terms of the right of residence within the meaning of the Directive, the CJEU concluded that the applicable EU law must be interpreted as not precluding the legislation of a Member State under which nationals of other Member States are excluded from entitlement to certain “special non-contributory cash benefits” although those benefits are granted to nationals of the host Member State who are in the same situation, as long as those nationals of other Member States do not have a right of residence under Directive 2004/38 in the host Member State (para 84). The CJEU remained silent on whether the requirements of the Directive could be softened with respect to the directly effective provisions of Articles 18 and 21 TFEU and to the personal circumstances of Ms. Dano. Additionally, the CJEU refused very briefly also the application of the EU Charter of Fundamental Rights, quoting a highly formalistic reason that Regulation 883/2004, which defines the term “special non-contributory cash benefits”, was not intended to lay down the conditions creating the right to those benefits, and therefore Germany, by fixing these conditions on its own, did not implement EU law (paras 89, 91). The CJEU thus surprised legal observers in the Dano case, because the solution to apparently difficult questions of whether and how the primacy of great EU principles and Treaty clauses could be limited by narrowly interpreted exceptions laid down in secondary legislation, is to be found in the literal application of the provisions of Directive 2004/38. 52 One who does not have under its provisions any right to reside in another Member State is therefore not entitled to equal treatment in that State (para 81). Especially in the case of an economically inactive EU-migrant who does not seek a job, this outcome seems so obvious that the person can be refused social assistance within the meaning of the Directive without assessing their genuine link with the Member State’s society. There is no need to consider the application of such concepts as EU - citizenship or solidarity , because the CJEU has never used these previously highly valued terms in the grounds of its judgment. Even more strikingly, this new tendency of the CJEU to limit formerly unavoidable provisions of the Treaty and fundamental principles of EU law by conditions laid down in 52 For an interesting discussion of this aspect of the ruling see: SHUIBHNE (n 33) 935.

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