‘Common Sense’ or a Threat to EU Integration? The Court, Economically Inactive EU Citizens and Social Benefits

Abstract

In Elisabeta Dano, Florian Dano v Jobcenter Leipzig,1 the Court of Justice of the European Union (CJEU) ruled that an economically inactive European Union (EU) citizen who does not have sufficient resources to support herself and therefore does not fulfil the requirements set out in Article 7(1)(b) of Directive 2004/38 for legal residence was not entitled to equal treatment with nationals of the host Member State. As a result, such citizens could be denied access to non-contributory social benefits. In determining whether individuals have sufficient resources to support themselves, national authorities must take individual circumstances into account. The CJEU justified its decision by recognising that Member States must be allowed to prevent Union citizens from becoming ‘a burden on the social assistance system’2 of the host State. The case, which was referred to the CJEU by a German Social Court (Sozialgericht Leipzig), comes at a time of intense public debates taking place in a number of ‘old’ Member States over possible ways to limit the free movement of EU citizens. Such debates have arisen in the wake of the recent EU enlargements which occurred in 2004 and 2007 and which were unprecedented in scale in the EU’s history. They have led to a steep increase of inner EU migration, especially of ‘new’ Member State workers to ‘old’ Member States. Despite economic evidence pointing to ‘new’ Member State workers having a positive impact on the economies of their host states,3 public opinion in ‘old’ Member States is increasingly hostile to EU migration.4 National politicians have begun to question the very concept of freedom of movement for EU citizens and legislative proposals have been implemented in a number of countries which restrict EU citizens’ rights to certain social benefits. While EU law provides various legal tools for Member States to react to problems related to the freedom of movement,5 there is some uncertainty over their scope. The CJEU’s decision in Dano has attempted to clarify the circumstances in which economically inactive EU citizens may claim social benefits and, in doing so, has been welcomed by policymakers and politicians. However, the judgment must nonetheless be treated with caution as it may have serious ramifications for our understanding of the scope of EU citizenship. This case note first outlines the facts of the case and summarises the opinion of the Advocate General and the judgment of the CJEU. It then considers the effects of the judgment on the interpretation of Directive 2004/38 and discusses its broader consequences. It concludes with a discussion of the CJEU’s unwillingness to engage with the Charter on Fundamental Rights (CFR).

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