EU citizenship and access to social assistance benefits: A future-oriented perspective based on recent decisions of the European Court of Justice

That the EU has significant impact in areas where its competences are limited becomes evident when analysing the area of social welfare. The European Court of Justice has generally expanded the EU citizenship provisions broadly, increasingly eroding the national boundaries of welfare. However, in more recent case law – Dano and Alimanovic – the EU citizenship provisions were interpreted more restrictively and EU citizens were denied benefits in their Member State of residence. While those cases have been much criticised, this Paper takes a different perspective and argues that those cases should provide the basis for future developments in this field. To understand why, the Paper starts by explaining why the extent to which non-national EU citizens should be included in the national systems of social sharing should depend on the ties of reciprocity established with the host Member State. The paper demonstrates that what follows from this is that it is justifiable to draft eligibility criteria that need to be fulfilled before economically inactive Union citizens are entitled to social assistance benefits. The subsequent question is how those eligibility criteria are best to be defined. For a long time, the ECJ has assumed responsibility for defining when mobile Union citizens are entitled to benefits. This paper, however, suggests that for reasons of legal certainty, administrative manageability, and most importantly, principles of democracy, eligibility criteria are best to be determined by comprehensive legislation. National authorities, who have to deal with larger number of cases need relevant criteria that can be applied in a consistent and easy manner. Such criteria cannot be created in an ad-hoc, case-by-case manner. Instead, the criteria of residence and time, as employed in secondary legislation, offer a more manageable way of determining who should be entitled to social assistance benefits. It is, however, not only because of reasons of feasibility and legal certainty that the ECJ should defer to secondary legislation, but also because the secondary law reflects the democratically approved equilibrium. It is for these reasons that Dano and Alimanovic need to be welcomed. Those decisions depart from earlier decisions and defer, instead, to the criteria of residence and time within the secondary legislation. Because this approach has not been applied consistently across the board, the case law still is very fragmented. It is suggested, therefore, that future case law should continue the trajectory taken in Dano and Alimanovic for reasons of democratic legitimacy, legal certainty and coherency.