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Earning Social Citizenship in the European Union: Free Movement and Access to Social Assistance Benefits Reconstructed

Published online by Cambridge University Press:  08 November 2016

Dion KRAMER
Dion KRAMER*
Affiliation:
Department of Transnational Legal Studies, Vrije Universiteit Amsterdam
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Abstract

While ideas on ‘earned citizenship’ have been around in discussions on the coexistence of freedom of movement and nationally-bounded welfare states in the European Union, both the concept and the process it entails have hardly been explored in connection to EU (case) law. This contribution identifies earned citizenship as a technique of government in the broader political strategy of neoliberal communitarianism, requiring Union citizens to ‘earn’ access to the welfare system through an emphasis on their individual responsibility to fulfil the economic, social and cultural conditions of membership. Analysing economically inactive Union citizens’ access to social assistance benefits, it argues that earned citizenship has been visible since the Court’s early citizenship jurisprudence, but has been reconstructed with the recent Dano-line of case law.

Keywords

European Unionearned citizenshipsocial citizenshipsocial assistancefree movementwelfare state
Type
Articles
Information
Cambridge Yearbook of European Legal Studies , Volume 18 , December 2016 , pp. 270 - 301
Copyright
© Centre for European Legal Studies, Faculty of Law, University of Cambridge 

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Footnotes

*

This article was written in the context of a NORFACE ‘Welfare States Futures’ funded research project, TransJudFare (http://www.transjudfare.eu). An earlier version was presented at the ECPR SGEU conference in Trento, Italy, June 2016. I thank the participants, Gareth Davies, Susanne Schmidt and the editors and external reviewer of the Yearbook for their valuable comments. Part IV.B.3 draws on earlier research conducted within the ACELG of the University of Amsterdam, for which I am grateful to Annette Schrauwen. Errors are my own.

References

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13 In strong disagreement with Chalmers and Booth, who submit that ‘only the most flagrant examples of abuse or high sums [of social assistance] are therefore likely to be able to be refused’. D Chalmers and S Booth, ‘A European Labour Market with National Welfare Systems: A Proposal for a New Citizenship and Integration Directive’ Open Europe Policy Brief, 3 November 2016 http://openeurope.org.uk/intelligence/immigration-and-justice/citizenship-and-integration/.

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18 Art 21 TFEU confers on every citizen of the Union ‘the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’ It could be argued that modern national citizenship made cross-border movement a rather exceptional activity, see Hindess, note 14 above.

19 Union citizens who have earned their social citizenship on a permanent basis can be described as ‘denizens’, immigrants holding permanent residence status enjoying virtually all civil and social rights. See Faist, T, ‘Social Citizenship in the European Union’ (2001) 39 (1) Journal of Common Market Studies 37 CrossRefGoogle Scholar. The social protection offered by EU law also covers Union citizens who have not reached the status of denizen yet and are ‘in between’, as discussed in Parts III and IV.

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29 Ibid, p 704.

30 Art 6 Directive 2004/38/EC.

31 Art 7(2) of Council Regulation (EEC) 1612/68 [1968] OJ L257/2 provided equal treatment with respect to social and tax advantages, which include social assistance benefits. Hoeckx, C-249/83, EU:C:1985:139. Regulation (EC) No 883/2004 [2004] OJ L166, though extending the personal scope beyond the economically active population, still restricts its material scope to statutory social security benefit schemes. See Pennings, F, ‘EU Citizenship: Access to Social Benefits in Other EU Member States’ (2012) 28 (3) International Journal of Comparative Labour Law and Industrial Relations 307 Google Scholar.

32 Fraser, N and Gordon, L, ‘Contract Versus Charity; Why Is There No Social Citizenship in the United States?’ (1992) 22 Socialist Review 45 Google Scholar, pp 60–61.

33 Ibid, p 60.

34 Tomuschat, see note 8 above, p 456.

35 Thym, D, ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union Citizens’ (2015) 52 (1) Common Market Law Review 17 Google Scholar, p 34. See also Davies, G, “Any Place I Hang My Hat?’ Or: Residence Is the New Nationality’ (2005) 11 (1) European Law Journal 43 CrossRefGoogle Scholar.

36 Hammar, see note 15 above, p 54. Cf Nic Shuibhne, see note 4 above, p 933, who submits that this strategy might reduce public spending on both social assistance and bureaucratic costs of expulsion.

37 It was on this basis that Sweden in 2004 warned of a labour market divided into ‘first team’ and ‘second team’ players, see Puttick, K, ‘EEA Workers’ Free Movement and Social Rights after Dano and St Prix: Is a Pandora’s Box of New Economic Integration and ‘Contribution’ Requirements Opening?’ (2015) 37 (2) Journal of Social Welfare and Family Law 253 CrossRefGoogle Scholar, p 261.

38 Hammar, see note 15 above, p 54. Art 7 Directive 2004/38/EC lists these conditions.

39 Hammar (see note 15 above, p 54) submits that welfare states can only tolerate a social differentiation for those ‘who in a real sense are temporary guests … and then only for a short period, since no temporary stay can last more than short period.’

40 Art 24(2) Directive 2004/38/EC.

41 Art 7(3) Directive 2004/38/EC.

42 Sinn, see note 9 above.

43 Puttick, see note 37 above, p 261.

44 O’Brien’s discussion of the shared discourse of the economic responsibility imposed on EU migrants and the EU-wide responsibility model of welfare is exceptional in this regard. O’Brien, CR, ‘I Trade, Therefore I Am: Legal Personhoods in the European Union’ (2013) 50 (6) Common Market Law Review 1643 Google Scholar.

45 Eleveld, A, ‘Work-Related Sanctions in European Welfare States: An Incentive to Work or a Violation of Minimum Subsistence Rights?’ (2016) (1) Access Europe Research Paper Google Scholar.

46 Handler, JF, ‘Social Citizenship and Workfare in the Us and Western Europe: From Status to Contract’ (2003) 13 (3) Journal of European Social Policy 229 CrossRefGoogle Scholar.

47 Roche, M, ‘Social Citizenship: Grounds of Social Change’, in E Isin and B Turner (eds), Handbook of Citizenship Studies (Sage Publications, 2002)Google Scholar.

48 Thym, see note 35 above, p 36.

49 Davies, see note 35 above, p 56.

50 Schinkel, see note 23 above, p 277.

51 Ferrera, M, ‘The New Spatial Politics of Welfare in the EU’ in G Bonoli & D Natali (eds), The Politics of the New Welfare State (Oxford Scholarship Online, 2012)Google Scholar. Brochmann, G, ‘Citizenship and Inclusion in European Welfare States’ in S Lavenex and EM Uçarer (eds), Migration and the Externalities of European Integration (Lexington Books, 2002)Google Scholar.

52 Part III.B discusses language requirements attached to the reception of social assistance in the Netherlands. Member States can hold the view that such measures can be indirectly discriminatory, but justified on the basis of a legitimate concern. See Lenaerts, K and Heremans, T, ‘Contours of a European Social Union in the Case-Law of the European Court of Justice’ (2006) 2 (1) European Constitutional Law Review 101 CrossRefGoogle Scholar, p 106.

53 Although not ‘duties’ in the formal sense of the citizenship concept, such nation state guided processes suggest that the state has reinvented citizenship as a discursive tool for processes of inclusion and exclusion rather than departed from citizenship as a ‘duties-inspired rhetoric and law’. Kochenov, Cf D, ‘EU Citizenship without Duties’ (2014) 20 (4) European Law Journal 482 CrossRefGoogle Scholar, p 495.

54 Handler, see note 46 above, p 230.

55 It is then not only through a decrease of communal willingness to fund social structures that immobile Union citizens might lose out, but also by the reinforcement of the principle of reciprocity itself. Cf Witte, see note 28, p 703.

56 Council Directives (EC) No 90/364 [1990] OJ L180, No 90/365 [1990] OJ L180 and No 93/96 [1993] OJ L317. Based on a broad reading of Art 7(2) Regulation 1612/68 (current 492/2011), the Court had already prohibited any discrimination, also with respect to minimum subsistence benefits, that might impede the mobility of workers. See Hoeckx, EU:C:1985:139; Scrivner, C-22/84, EU:C:1985:145; and Kempf, C-139/85, EU:C:1986:223.

57 Baumbast, C-413/99, EU:C:2002:493, paras 87, 90; Grzelczyk, C-184/99, EU:C:2001:458, para 38; and Trojani, EU:C:2004:488, para 33.

58 Grzelczyk, EU:C:2001:458, para 31. See also Martínez Sala, C-85/96, EU:C:1998:217, para 63.

59 Baumbast, EU:C:2002:493, para 84.

60 Grzelczyk, EU:C:2001:458, paras 42–43.

61 Ibid, para 42. Most explicitly in Trojani, EU:C:2004:488, para 45.

62 Grzelczyk, EU:C:2001:458, para 44.

63 Ibid, paras 10, 11, 29.

64 Ibid, para 44.

65 Baumbast, EU:C:2002:493, paras 92–93.

66 Trojani, EU:C:2004:488, paras 39–45.

67 See Davies, G, ‘The European Union Legislature as an Agent of the European Court of Justice’ (2016) 54 (4) Journal of Common Market Studies 846 CrossRefGoogle Scholar, pp 856–857.

68 Rec 18 and Art 14 (3) Directive 2004/38/EC.

69 Rec 16 Directive 2004/38/EC.

70 For an extensive analysis of the development of Dutch legal practice towards economically inactive Union citizens and their access to social assistance see: Kramer, D, ‘Verdiend Verblijf: EU-Burgers en de Sociale Bijstand’ (2016) (2) SEW, Tijdschrift voor Europees en Economisch Recht 60 Google Scholar.

71 Art 11(1) Participation Act.

72 Art 11(2) Participation Act in combination with Art 8(e) Aliens Act.

73 Art 4.3.2 of Ch B10 of the Aliens Circular 2000.

74 The position of the Dutch government that resources could only be considered ‘sufficient’ if they were available for at least a year resulted in Commission v Netherlands, C-398/06, EU:C:2008:214. The Court regarded this requirement disproportionate.

75 Letter from the Commission to the Netherlands, infringement no. 1999/2029, C(2003)990, 2 April 2003, p 15.

76 Art 4.3.2 of Ch B10 of the Aliens Circular. The warning on the residence permit would come to read: ‘recourse to the public means can have consequences for the right to residence’ (emphasis added).

77 The sliding scale is not an exceptional technique of government in Dutch migration policy and a similar scale has been subject to an infringement procedure. According to the Court, the relevant national provisions made it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion with respect to Union citizens. See Commission v Netherlands, C-50/06, EU:C:2007:325.

78 The ‘scale’ considered any claim to social assistance unreasonable during the first year of residence, a claim to social assistance for more than three months unreasonable during the second year of residence, a claim to social assistance for more than six months unreasonable during the third year, etc. Longer periods of reliance were tolerated with respect to supplementary claims to social assistance. When applying the proportionality test, account was also taken of other factors, such as the reason for the claim, the remaining ties with the country of origin, family ties and the medical situation.

79 Parliamentary document 2003–2004, 29 407, No 1, p 8.

80 Stronks, M, ‘Een Bijna Ongebreidelde Beteugeling Van De Tijd; Een Analyse Van Aanscherpingen Van De Glijdende Schaal’ (2013) (34) Nederlands Juristenblad 2306 Google Scholar.

81 The groups targeted were workers, job-seekers, the economically inactive, students and the homeless. Parliamentary document 2011-2012, 29 407, No 132, p 15.

82 Since 2012, any recourse to social assistance within the first two years is considered reasonable, unless personal circumstances oppose such a decision. Even in the fifth year of residence, a claim to social assistance for longer than six months is assumed to be unreasonable. Age, reliance on other social benefits, the amount of social contributions paid, the degree of integration and future prospects are now also factors to be considered.

83 A joint-investigation from 2008 revealed that cooperation on the link between social assistance and lawful residence was not effective. Between 2006 and 2008, the Immigration Service did not even assess the residence of Union citizens due to ‘other policy priorities’. Inspectie Werk en Inkomen/Informatie- en Analysecentrum IND, ‘Bijstand, WW en verblijfsvergunning’, V08/05, December 2008.

84 Centrale Raad van Beroep, Case 12/165 and 12/166, NL:CRVB:2013:BZ3857.

85 This derogation was implemented in the Social Assistance Act.

86 Minderhoud, PE, ‘Bevoegdheid Vaststellen Verblijfsrecht bij Bijstandsaanvraag EU Burger’ (2013) (86) Rechtspraak Vreemdelingenrecht 1 Google Scholar.

87 Letter in possession of author.

88 Groenendijk, K and Minderhoud, P, ‘Taaleis in de Bijstand: Discriminerend, Disproportioneel en Onnodig’ (2016) (3) Nederlands Juristenblad 183 Google Scholar.

89 Stating that ‘all people have responsibility to independently raise a living and take part in society’ which starts with ‘investing in their own knowledge and skills’, the Minister argues that an age-independent obligatory education can underpin the system of social security. Parliamentary document 2010-2011, 32 824, No 1, p 11.

90 Parliamentary document 2013-2014, 33 975, No 3, pp 11–13. That the language requirement can be justified is disputed by Groenendijk and Minderhoud, see note 88 above.

91 As interpreted by Agamben, G, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998)Google Scholar.

92 O’Brien, C, ‘Real Links, Abstract Rights and False Alarms: The Relationship between the ECJ’s “Real Link” Case Law and National Solidarity’ (2008) 33 European Law Review 643 Google Scholar, pp 650–656.

93 Dougan, M, ‘Judicial Activism or Constitutional Interaction? Policymaking by the ECJ in the Field of Union Citizenship’, in H-W Micklitz & B de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Intersentia, 2012), p 124 Google Scholar.

94 O’Brien, see note 92 above, pp 661–662.

95 As predicted by O’Brien, ibid, pp 662–663.

96 For a perspective on the judicial transformation of Union citizenship as a long-term process of constitutional dialogue, see Dougan, see note 93 above, pp 139–145.

97 See Blauberger, M, ‘With Luxembourg in Mind… the Remaking of National Policies in the Face of ECJ Jurisprudence’ (2012) 19 (1) Journal of European Public Policy 109 CrossRefGoogle Scholar. Also Blauberger, M and Schmidt, SK, ‘Welfare Migration? Free Movement of EU Citizens and Access to Social Benefits’ (2014) 1 (3) Research and Politics 1 CrossRefGoogle Scholar.

98 Cf O’Brien, see note 4 above, p 4.

99 Shaw, see note 1 above, p 21.

100 Obermaier, AJ, The End of Territoriality? The Impact of ECJ Rulings on British, German and French Social Policy (Ashgate, 2009), pp 141–144 Google Scholar.

101 Member States may ‘emulate’ an ‘ECJ-proof’ template from other Member States, see Blauberger, p 114, note 97 above. From a critical perspective, such national ‘distortions’ of EU law feedback into and distort in turn EU law as its source, see O’Brien, see note 4 above, p 3.

102 Opinion of AG Wathelet in Alimanovic, C-67/14, EU:C:2015:597, para 4.

103 See Part IV.B.2.

104 See Part IV.B.1 and 2, but see especially Alimanovic, EU:C:2015:597, para 61, and García-Nieto, EU:C:2016:114, para 49.

105 Trojani, EU:C:2004:488, para 31.

106 Ibid, para 45.

107 Dano, EU:C:2014:2358, para 69 (emphasis added).

108 Nic Shuibhne, see note 4 above, p 909 (emphasis in original). Note that O’Leary, commenting on the Martínez Sala case, still assumed that the conditions imposed by the Directive (90/364) were constitutive; O’Leary (1999), see note 7 above, p 79. In a way, Dano meant a return to the position before Grzelczyk.

109 Alimanovic, EU:C:2015:597, para 49.

110 Ibid, para 50. Dano, EU:C:2014:2358, para 69.

111 Commission v UK, EU:C:2016:436, para 75. See also O’Brien, see note 4 above, p 14.

112 See eg McMarthy, C‑434/09, EU:C:2011:277, para 32.

113 Brey, C-140/12, EU:C:2013:565, para 70.

114 In Ziolkowski and Szeja, the Court admitted that while ‘it is true that Directive 2004/38 aims to facilitate and strengthen the exercise of the primary and individual right to move and reside freely … the fact remains that the subject of the directive concerns … the conditions governing the exercise of that right and the right of permanent residence’; C-424/10 and C-425/10, EU:C:2011:866, para 36. But see especially Dano, EU:C:2014:2358, para 77 and Alimanovic, EU:C:2015:597 para 50.

115 García-Nieto, EU:C:2016:114, para 45.

116 Ziolkowski and Szeja, EU:C:2011:866, para 38.

117 Brey, EU:C:2013:565, para 27.

118 Ibid, paras 76–77.

119 García-Nieto, EU:C:2016:114, para 43.

120 Ibid, para 45.

121 Ibid, paras 46–48. A discussion of this reasoning is provided in the next section.

122 Ibid, para 49.

123 For this argument see D Kramer, ‘Short-term Residence, Social benefits and the Family; an Analysis of Case C-299/14 (García-Nieto and others)’ European Law Blog, 9 March 2016 http://europeanlawblog.eu/?p=3120.

124 Brey, EU:C:2013:565, para 64.

125 Ibid, para 70.

126 Dano, EU:C:2014:2358, para 82.

127 Ibid, para 81 (emphasis added).

128 Ibid, para 80 (emphasis added).

129 In the context of minimum subsistence benefits, Brey, EU:C:2013:565, para 69. In the context of tide-over allowances, Prete, C‑367/11, EU:C:2012:668, paras 50–51. In the context of the exportability of study finance, Prinz and Seeberger, C-523/11 and C-585/11, EU:C:2013:524, para 38.

130 Ibid, para 78.

131 Ibid, para 26.

132 Ibid, paras 35–37.

133 Ibid, para 39.

134 Verschueren, H, ‘Preventing “Benefit Tourism” in the EU: A Narrow or a Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ (2015) 52 (2) Common Market Law Review 363 Google Scholar, p 374.

135 Nic Shuibhne, see note 4 above, p 913.

136 Verschueren, see note 134 above, p 380.

137 Alimanovic, EU:C:2015:597, para 53.

138 Ibid, para 57.

139 Ibid, para 59.

140 Ibid, para 60 (emphasis added).

141 Ibid, para 60 (emphasis added).

142 Commission v UK, EU:C:2016:436, paras 76–77.

143 Ibid, paras 79–80.

144 Commission v UK, EU:C:2016:436, paras 83–84.

145 Opinion AG Cruz Villalón in Commission v UK, C-308/14, EU:C:2015:666, para 97 (emphasis in original).

146 Commission v UK, EU:C:2016:436, para 53.

147 Collins, C-138/02, EU:C:2004:172, para 67.

148 Art 16 Directive 2004/38/EC.

149 COM(2001) 257, 25 September 2001, OJ C270E.

150 Common Position (EC) No 6/2004, 5 December 2003, OJ C54E, p 31, and Communication from the Commission, SEC/2003/1293 final - COD 2001/0111, p 11.

151 Council, Interinstitutional File 2001/0111 (OCD), No 12519/02, Outcome of Proceedings of the Working Party on Free Movement of Persons on 20 September 2002, point II.6.

152 Ibid, point II.6.2. Reasons for the opposition to the inclusion of students can only be based on speculation. However, since the average study program takes up to four years, Member States may have been reluctant to grant foreign students automatic access to the social welfare system upon graduation. When conceiving of permanent residency as an economically conditioned entitlement, students may not have ‘contributed’ to the national burden-sharing community before acquiring the right to equal treatment in the field of social assistance. This explanation is partially supported by an earlier proposal by Belgium to take into account the time spent as a student once a person changes category. See ibid.

153 Council of the European Union, Interinstitutional File 2001/0111 (OCD), No. 12538/03, Note from the Presidency to the Permanent Representative Committee, 16 September 2003, p 5.

154 See Opinion AG Trstenjak in Lassal, Case C‑162/09, EU:C:2010:592, note 33.

155 The Court, while taking account of the travaux préparatoires, concludes that that the rationale for permanent residence is based on an integration objective, revolving around the link between a person and the host Member State. Lassal, EU:C:2010:592, paras 55–56.

156 See Somek, note 7 above, p 812.

157 Ziolkowski and Szeja, EU:C:2011:866, para 33.

158 Ibid, paras 40, 46.

159 Dias, C-325/09, EU:C:2011:498, para 64.

160 Onuekwere, C-378/12, EU:C:2014:13, para 26.

161 Interrupted by the Second World War, the entitlement to permanent residence would finally find its way into a final version of the Migration for Employment Convention in 1949, albeit narrowed down from all workers, as originally envisaged in the 1938 draft, to those workers who suffered from occupational incapacity. The domestic and international sources justifying five years in the run-up to the Long Term Residence Directive are provided by the Commission in COM(2001) 127 final 2001/0074 (CNS).

162 Report III of the 24th Session, International Labour Conference, Geneva, 1938, p 160.

163 Ibid, pp 113, 159.

164 Ibid, p 160.

165 On the supervision and data collection of the residence status of foreign Union citizens, see the Huber, C-524/06, EU:C:2008:724.

166 Although the approach of the Court to residence permits and certificates could still be described as ‘a systematic destruction of their worth and purpose’, the Court appears to attach importance to them for the purpose of equal access to social benefits. See Davies, G, ‘Bureaucracy and Free Movement: A Conflict of Form and Substance’ (2003) 4 Nederlands Tijdschrift voor Europees Recht 81 Google Scholar. Compare for example Dias, EU:C:2011:498, paras 53–55 with Trojani, EU:C:2004:488, paras 37, 43, 46 and Brey, EU:C:2013:565 para 78.

167 See Nic Shuibhne, note 4 above, pp 915–916, 933–934.

168 Ibid, p 931.

169 Förster, C-158/07, EU:C:2008:630, paras 50–57.

170 Schinkel, see note 23 above, p 266.

171 Somek, see note 7 above, p 801.

172 See also Mantu, S, ‘Concepts of Time and European Citizenship’ (2013) 15 (4) European Journal of Migration and Law 447 CrossRefGoogle Scholar.

173 Somek, see note 7 above, pp 808–809.