EU citizens’ rights to social security: some more and less straight-forward issues

In: Court of Justice of the European Union|European Union

25 May 2015

EU

To the relief of many, and surprise of some, the Court of Justice affirmed in Dano (Case C-333/13) in November 2014 that EU citizens cannot just move into a Member State and start taking benefit of its welfare systems.

Yes, affirmed is correct. Let’s be clear about this: EU law has never granted the right to move into a Member State and have immediate access to its welfare systems.

The Treaties establish the right for the citizens to enter and reside in Member States (Articles 20, 21 TFEU and 45 of the Charter). Yet, these rights are subject to limitations, and the Citizens’ Rights Directive (CRD, 2004/38) makes it rather clear that the right to settle in another Member State is initially reserved to those who are not going to be burden to the Member State’s social security system (Articles 7 and 14 CRD). Accordingly, those who can benefit from the free movement are workers, self-established and service providers.

Students and pensioners can also move, provided that they have the means to support themselves. Job-seekers, while they can move into the Member State, their right to residence is restricted for three months, and they are excluded from the right to social benefits (Article 24(2) CRD).

The decision in Dano fits well in this scheme and therefore does not give much of a surprise.

Yet, this does not mean that issues surrounding the EU citizens’ rights to social benefits are settled. There are increasing number of reports of Member States expelling EU citizens on grounds that those citizens are not able to support themselves. The need for further clarification may arise in particular with respect to part-time workers, as they may need a recourse to social security to continue living in the Member State.

The Court considers part-time workers as workers if the work is genuine. In this case, also part-time workers are entitled equal treatment as to social benefits under Article 24 CRD. However, the Member States may consider that the employment is less genuine in cases where the part-time workers need to make recourse to the social security assistance in order to support themselves.

The answer to this question may reveal to us more about the nature of the free movement for EU citizens. First, it needs to be asked clearly whether we are intentionally moving from citizenship to migration law. The first, citizenship, gives the right to move and reside, whereas in the framework of the latter, migration law, the person needs to satisfy the state authorities in that he or she has a valid claim to stay. Furthermore, the limitations on access of part-time workers to social security should be seen also as a feminist issue as there are more women in part-time work. Finally, if the right to social benefits is mainly extended symbolically to those who have no need for it, these developments may even strengthen the view, or be part of the self-fulfilling prophesy, of European Union as an elitist project.

Dr. Helena Raulus

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