The Court of Justice and Citizenship of the Union – From a Principled to a Formalistic Approach to please the ‘Zeitgeist’?

The Court of Justice of the EU was arguably the decisive actor in developing EU Citizenship into an effective tool, from which countless Nationals of one of the Member States rely to move to and reside throughout the EU for a variety of purposes including economic, e.g. work, and non-economic activities, such as to pursue studies. The Court, with a principle based reasoning, early on linked the right to legal residence of EU citizens to the right to equal treatment with nationals of the host States (Martinez Sala) and developed EU Citizenship into the fundamental status EU citizens have when living in another Member States, which also benefits non-economic individuals and forces Member States to provide a level of financial solidarity with nationals from other Member States enjoying their free movement rights (Grzelczyk). In short, the Court developed a strong body of case law based on the principle of equal treatment which in effect forces the Member States to argue why such equal treatment cannot in the individual case be afforded (compare Brey). This approach, based on individual assessments and undefined formulas the Court created to assess individual cases created a high burden for national administrations. This paper will argue that the Court, in judgments starting with in Förster, then Ziolkowski and Szeja, and lately with Dano, Alimanovic , or Garcia-Neto has reversed this approach and is nowadays relying on Citizens Directive (2004/38) and its formal description of legal residence and rights of EU citizens. This change of approach from focusing on the great principles embedded in treaty articles to conditions for legal residence laid down in secondary law has profound implications on the administrative practice within the Member States. The assessment of legality of residence and entitlements of EU citizens, for example to welfare, has become easier. In effect, the change in the case-law will make it easier to deny residence or access to welfare, which is, maybe coincidentally, fully in line with a more nation oriented, closed attitude, which is visible throughout the EU at the moment, foremost in the UK.