VÁCLAV ŠMEJKAL CYIL 7 ȍ2016Ȏ to all this information, the question of Mr. Peña-Cueva’s and his son’s entitlement derived from their status as an EU-migrant family was strangely avoided in the judgment as if, without formalization of the Peña-García relationship, their factual situation was totally irrelevant. All three cases thus have in common several features. Directive 2004/38 was used in all of them as the basic rule governing the status and entitlements of migrating EU-citizens in another Member State. Questions regarding the balance between the Directive and the rights of EU citizens derived from EU primary law or the personal situation of migrant applicants as well as their factual status under the national law of the host Member State (all resided in Germany legally, but not in line with the EU Directive 57 ) should no longer complicate the decision making about the access of economically inactive EU migrants to social assistance. If we stop asking those questions to which the CJEU did not give satisfactory answers in its three recent judgments, then the situation of one category of migrant EU- citizens has undoubtedly been clarified. Instead of trying hard to ponder the appropriateness of exceptions in an individually assessed situation, the relatively straightforward rules imposed by Directive 2004/38 should be strictly applied. They show that EU-migrants without the status of EU-worker (or self-employed or their formal family member) cannot claim equal treatment in access to social assistance of host Members States until they become permanent residents there according to 2004/38 Directive (i.e. after five years of continuous legal residence). This outcome is both clear and reasonable, at least for any national social system and its expenses spent on applicants from other Member States in dubious situations that would have previously presented “hard cases” to solve without infringing EU law. From a legal theory perspective, however, the question remains of how the provisions of secondary legislation can push to the side any consideration about EU primary law precedence, especially when reminded about the CJEU’s previous usage of Treaty provisions to increase the value of EU citizenship as the fundamental status of Europeans. 58 The binding EU Charter of Fundamental Rights seems to be completely of no use – regardless of an EU-element of free movement. For legal practice, a question imposes itself about the fate of those EU citizens who, while staying in another Member State, have no right of residence there under Directive 2004/38 but cannot be expelled as the conditions of expulsion pursuant to Article 28 of the Directive are formulated much more strictly than the conditions of equal access to social assistance. If the CJEU does not harden in the near future its approach towards the expulsion of those EU citizens who without presenting any threat to public order, security or health, have been, in line with the Directive, refused social assistance, then unwanted 57 It must be reminded that in the aforementioned case Trojani (n 23) the CJEU took the legal residence under the national legislation as a ground for equal access to social assistance. 58 For an interesting analysis of this aspect of the recent CJEU case law see SHUIBHNE (n 33).