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The Social Dimension of EU Citizenship – A Castle in the Air or Construction Gone Wrong?

Published online by Cambridge University Press:  06 March 2019

Tina Oršolić Dalessio

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This year is designated the “European Year of Citizens”. It marks the 20th anniversary of the establishment of the European Union citizenship under the Treaty of Maastricht. It is important to ask what exactly will be celebrated on this occasion. Specifically, which rights did the European peoples gain by virtue of their so-called fundamental status of EU citizenship, and were the guarantees embedded in those rights satisfactory? This article will address these questions by focusing on the social rights field, a field which has been dramatically affected by the development of the European Union citizenship concept.

Type
Articles
Information
German Law Journal , Volume 14 , Issue 7 , 01 July 2013 , pp. 869 - 888
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Copyright © 2013 by German Law Journal GbR 

References

1 See European Parliament, European Year of Citizens: raising awareness of EU citizens’ rights, European Parliament News (3 September 2012), available at: http://www.europarl.europa.eu/news/en/pressroom/content/20120903IPR50346/html/European-Year-of-Citizens-raising-awareness-of-EU-citizens%27-rights (last accessed: 27 June 2013).Google Scholar

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3 As proclaimed by the Court of Justice of the European Union (“CJEU”), “Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for”; Case C-184/99, Grzelczyk, 2001 E.C.R. I-6193, at para. 31.Google Scholar

4 The reference to “social rights'” used in this paper primarily concerns the rights of Union citizens to access social benefits (mainly non-contributory ones) in other Member States. Since this paper analyzes precisely the expansion of those kinds of social rights of Union citizens, my subsequent uses of terms such as “the field of social rights”, “the area of social policy”, “the social/welfare field” etc., will also refer to this limited notion of social rights and, more generally, social policy.Google Scholar

5 Damian Chalmers et al., European Union Law: Text and Materials 597 (2006).Google Scholar

6 Since economic EU migrants were assimilated into the welfare society of their host Member States even prior to the introduction of Union citizenship, this concept seems to have added little to their rights; Michael Dougan & Eleanor Spaventa, Educating Rudy and the (Non-) English Patient: A Double Bill on Residency Rights under Article 18 EC, 28(5), Eur. L. Rev. 699, 700 (2003). This paper will thus focus on the right of access to benefits of economically inactive migrant Union citizens. This category of persons includes pensioners and self-sufficient persons, previously covered by Directives 90/364/EEC and 90/365/EEC, and students, previously covered by Directive 93/96/EEC.Google Scholar

7 Case C-85/96, Martínez Sala, 1998 E.C.R. I-2691.Google Scholar

8 See further Miguel Poiares Maduro, Europe's Social Self: The Sickness Unto Death, in Social Law and Policy in an Evolving European Union 337, 340, 342 (Jo Shaw ed., 2000).Google Scholar

9 See id. at 332; Michelle Everson, The Legacy of the Market Citizen, in New Legal Dynamics of the European Union 73 (Jo Shaw & Gillian More eds., 1995); Shaw, Jo, Citizenship of the Union: Towards Post-National Membership?, in Collected Courses of the Academy of European Law 1995, Vol. VI, Book 1 246 (The European University Institute ed., 1998); O'Keeffe, David, Union Citizenship, in Legal Issues of the Maastricht Treaty 93 (David O'Keeffe & Patrick Twomey eds., 1994); Mark Bell, Anti-discrimination law and the European Union 18 (2002).Google Scholar

10 See Jo Shaw, The Interpretation of European Union Citizenship 61(3) M.L.R. 293, 298 (1998); see also Catherine Jacqueson, Union citizenship and the Court of Justice: something new under the sun? Towards social citizenship, 27 Eur. L. Rev. 260, 279–281 (2002).Google Scholar

11 See for example, Hans Ulrich Jessurun d'Oliveira, European Citizenship: Its Meaning, Its Potential, in Europe after Maastricht: An Ever Closer Union? 141 (Renaud Dehousse ed., 1994). Reich observed that Union citizenship has remained a metaphor and that it is yet to be seen whether it can become a genuine source of rights; Norbert Reich, Union Citizenship: Metaphor or Source of Rights? 7(1) Eur. L. J. 4, 23 (2001).Google Scholar

12 See Shaw, supra note 10, at 298 and Shaw, supra note 9 at 247–8; see also Síofra O'Leary, The Evolving Concept of Community Citizenship: From the Free Movement of Persons to Union Citizenship 16, 104–105, 118, 134 (1996).Google Scholar

13 Martínez, supra note 7.Google Scholar

14 Id. at para 63.Google Scholar

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16 Id. Google Scholar

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18 Jacqueson, , supra note 10, at 265; see further, Sybilla Fries & Jo Shaw, Citizenship of the Union: First Steps in the European Court of Justice, 4(4) Eur. Pub. L. 544, 543 (1998).Google Scholar

19 Id. at para 61.Google Scholar

20 Martínez, supra note 7, at paras 62–3.Google Scholar

21 Namely, with its judgment in: Case 316/85, Lebon, 1987 E.C.R. 2811, in which the Court “appeared to set strict limits upon the scope of equal treatment principle for those without independent means unless they were the dependants of migrant workers themselves”; Fries & Shaw, supra note 18, at 550; see further, Jacqueson, supra note 10, at 265–6.Google Scholar

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24 Id. at para 19.Google Scholar

25 Id. at para 29.Google Scholar

26 Id. at para 32.Google Scholar

27 Id. at para 33.Google Scholar

28 Id. at paras 33–35.Google Scholar

29 Case C-456/02, Trojani, 2004 E.C.R. I-7573, at para 42.Google Scholar

30 Case C-209/03, Bidar, 2005 E.C.R. I-2119, at paras 37–48; Case C-158/07, Förster, 2008 E.C.R. 00000.Google Scholar

31 Case C-75/11, Commission v Austria, 2012 E.C.R. 00000, at para 43. However, the Court also clarified that such transport costs for students do not come within the derogation from the principle of equal treatment provided for in Article 24(2) of Directive 2004/38. According to the Court, this derogation from the principle of equal treatment provided for in Article 18 TFEU requires a narrow interpretation, which, more concretely, means that only maintenance aid for studies ‘consisting in student grants or student loans’ come within its scope: Id. at paras 54, 55.Google Scholar

32 See Case 197/86, Brown, 1988 E.C.R. 03205, at para 18; see also, Case 39/86, Lair, 1988, E.C.R. 03161, at para 15. In these cases, the Court has pointed out that student assistance falls within the scope of EU law only in so far as it is intended to cover registration and other fees, in particular tuition fees, charged for access to education. See, Lair, supra note 32, at para 16; see, Brown, supra note 32, at para 17.Google Scholar

33 See Jacqueson, supra note 10.Google Scholar

34 Grzelczyk, , supra note 3, at para 36.Google Scholar

35 Id. at paras 30, 32, 37.Google Scholar

36 White, Robin, Free Movement, Equal Treatment, and Citizenship of the Union, 54 Int'l & Comp. L. Q. 885, 887 (2005). See also Gráinne de Búrca & Paul Craig, EU Law: Text, Cases and Materials 848 (4th ed. 2008).Google Scholar

37 Grzelczyk, , supra note 3, at para 31. Emphasis added.Google Scholar

38 See for example, Trojani, supra note 29, Bidar, supra note 30, and Förster, supra note 30.Google Scholar

39 Jacqueson, , supra note 10, at 267. Welfare tourism is understood here as “movement undertaken for the sole purpose of exploiting a more generous welfare system of another Member State”. Derrick Wyatt et al., Wyatt and Dashwood's European Union Law 666 (5th ed. 2006).Google Scholar

40 See for example, Bidar, supra note 30, at para 51, citing Case 152/73, Sotgiu, 1974 E.C.R. 153, at para 11, Case 57/96, Meints, 1997 E.C.R. I-6689, at para 44, and Case 212/99, Commission v Italy, 2001 E.C.R. I-4923, at para 24. See further, Anne Pieter van der Mei, Free Movement of Persons within the European Community: Cross-Border Access to Public Benefits 74–77 (2003).Google Scholar

41 See Case C-224/98, D'Hoop, 2002, E.C.R. I-6191, Case C-138/02, Collins, 2003, E.C.R. I-2703, and Case C-258/04, Ioannidis, 2005 E.C.R. I-08275. Jobseekers enjoy a special status under EU, which in fact places them in the category of economic migrants within the meaning of Article 45 of the TFEU: see Collins, supra note 41, Ioannidis, supra note 41, and joined Cases C-22/08 & C-23/08, Vatsouras and Koupatantze, 2009 E.C.R. 00000. However, even though they can rely on this Article to claim equal treatment in access to benefits intended to facilitate access to employment, their right to equal treatment is subject to certain limitations and they are not considered as workers within the meaning of Regulation 1612/68 when they move to a host Member State in search for work: see case C-138/02 Collins, at paras 26–33. In that respect, it can be claimed that, even though they do constitute economic migrants, they resemble to a certain extent to non-economic migrant EU citizens, as they share certain important limitations in access to social benefits.Google Scholar

42 See Förster, supra note 30, at paras 52, 53.Google Scholar

43 Id. at para 53.Google Scholar

44 Id. at para 56.Google Scholar

45 Bidar, , supra note 30.Google Scholar

46 Under the UK legislation, the person is settled in the UK if he/she is ordinarily resident there without being subject to any restriction on the period for which he may remain in the territory. As became clear from the national case law submitted to the Court, this requirement is impossible of being satisfied by nationals of other Member States in their capacity as students: Id. at paras 17–18.Google Scholar

47 Id. at para 53.Google Scholar

48 Id. at para 54.Google Scholar

49 Id. at para 56.Google Scholar

50 Id. at para 57. This implies that the legitimate aim justifying the unequal treatment in question is that of protecting the Member State's public finance from unreasonable burdens from abroad. See the Opinion of AG Sharpston in Case C-542/09, Commission v Netherlands, at para 84.Google Scholar

51 Bidar, , supra note 30, at para 59.Google Scholar

52 Id. at paras 18, 61.Google Scholar

53 Id. at paras 61, 62.Google Scholar

54 Id. at para 63. Unfortunately, it does not seem entirely clear on which step of the proportionality test did this requirement fall. What seems to emerge from the Court's reasoning is that the measure has fallen because it is too narrowly tailored (since it excluded from access to the benefit already integrated foreign students) and is, thus, incapable of achieving the legitimate aim in question.Google Scholar

55 Förster, supra note 30; see also Anne Pieter Van der Mei, Union Citizenship and the Legality of Durational Residence Requirements for Entitlement to Student Financial Aid, 16 Maastricht J. of Eur. & Comp. L. 494 (2009); and O'Leary, Síofra, Equal treatment and EU citizens: A new chapter on cross-border educational mobility and access to student financial assistance, 34(4) E.L. Rev. 612, 621–622 (2009). However, AG Sharpston does not seem to share that opinion. See Case C-73/08, Bressol, 2010 E.C.R. 00000, at paras 128– 129; see also Case C-542/09, Commission v Netherlands, 2012 E.C.R. 00000, at para 83. Neither the Court's judgment in the case Bressol, nor the one in Commission v Netherlands seem to provide any clarification in that respect.Google Scholar

56 Id. at paras 48, 49. Contrary to the Court's reasoning in Bidar and Cases C-11 and 12/06 Morgan and Bucher [2007] E.C.R. I-8507 (para 43), these paragraphs in Förster seem to suggest that ensuring integration of the student is not merely a means of avoiding the collapse of the social scheme due to its financial cost, but a legitimate objective of its own. They thus raise some doubt as to what are the means and what are the ends. See Van der Mei, supra note 53, and the Opinion of AG Sharpston in Case C-542/09 Commission v Netherlands, para 85. The Court's subsequent Stewart judgment is also somewhat ambiguous it this regard, though it eventually seems to confirm that establishing a degree of connection with the host Member State society should be treated as a means to pursue the legitimate objective of averting an unreasonable financial burden. See Case C-503/09, Stewart, 2011 E.C.R. I-0000, at paras 89, 90, 103, 108. The same conclusion seems to derive from the judgment in Case C-542/09, Commission v Netherlands, 2012 E.C.R. 00000, at paras 59, 60 and Case C-75/11, Commission v Austria, 2012 E.C.R. 00000, at paras 60, 61.Google Scholar

57 Förster, supra note 30, at para 50.Google Scholar

58 Id. at paras 52–53.Google Scholar

59 Id. at paras 53, 56.Google Scholar

60 Id. at para 52.Google Scholar

61 Id., at para 56.Google Scholar

62 Id. at para 54.Google Scholar

63 Id. at para 55.Google Scholar

64 This conclusion also seems to be deriven from the Court's reasoning in: Case C-542/09, Commission v Netherlands, 2012 E.C.R. 00000, at paras 63, 64. See also Koen Lenaerts, European Union Citizenship, National Welfare Systems and Social Solidarity, 18(2) Jurisprudence 397, 401 (2011).Google Scholar

65 Given the fact that the Court has drawn inspiration from the cases concerning jobseekers to introduce the genuine link requirement as a permissible justification of unequal treatment in the cases concerning students’ access to maintenance assistance, it appeared that the same conclusion can be reached in relation to the genuine link requirement applicable to jobseekers and the derogation to equal treatment of jobseekers prescribed in Article 24(2). However, the joined Cases C-22/08 & C-23/08, Vatsouras and Koupatantze, 2009 E.C.R. 00000 seem to suggest that the genuine link requirement applied in the cases concerning the jobseekers’ right to access social benefits intended to facilitate employment and the Article 24(2) derogation to equal treatment of jobseekers covered by Article 14(4)(b) of Directive 2004/38 are not a reflection of one another. This follows from the Court's interpretation of Article 24(2), whereby it concluded that “benefits of a financial nature which […] are intended to facilitate access to the labour market cannot be regarded as constituting ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38” (see Vatsouras and Koupatantze, supra note 65, at para 39). While it is yet to be seen exactly what kinds of benefits are covered by this Article, it seems quite clear that after this case we cannot refer to the part of Article 24(2) concerning jobseekers as a codification of the genuine link requirement developed by the Court in D'Hoop, Collins and Ioannidis in relation to access to jobseekers’ allowances. Also see Lenaerts, supra note 64, at 404.Google Scholar

66 See Van der Mei, supra note 55, at 489– 490; O'Leary, supra note 55, at 622–623; and Lenaerts, supra note 64, at 407.Google Scholar

67 See also Van der Mei, supra note 55.Google Scholar

68 This terminology is borrowed from Dougan & Spaventa, supra note 6, at 699, 704.Google Scholar

69 At least when it comes to students’ rights. See, supra, note 65.Google Scholar

70 For an additional argument regarding the application of the principle of proportionality to the Member State's action when relying on the explicit derogations in Article 24(2) of Directive 2004/38, see Michael Dougan, The constitutional dimension to the case law on Union citizenship 31(5) Eur. L. Rev. 613 (2006).Google Scholar

71 See Koen Lenaerts & Tinne Heremans, Contours of a European Social Union in the Case-Law of the European Court of Justice, 2 Eu Const 101, 107 (2006); and Lenaerts, , supra note 64, at 418.Google Scholar

72 Case C-138/02, Collins, 2003 E.C.R. I-2703, at para 70. Also see joined cases C-22/08 & C-23/08, Vatsouras and Koupatantze, 2009 E.C.R. 00000, at para 39.Google Scholar

73 Case C-503/09, Stewart, 2011 E.C.R. I-0000.Google Scholar

74 Case C-367/11, Prete, 2012 E.C.R. 00000. More specifically, the Court declared that “the existence of close ties, in particular of a personal nature, with the host Member State where the claimant has, following her marriage with a national of that Member state, settled and now habitually resides are such as to contribute to the appearance of a lasting connection between the claimant and the Member State in which she has newly established herself, including with the labor market of the latter”. See para 50.Google Scholar

75 See id. Google Scholar

76 Case C-75/11, Commission v Austria, 2012, E.C.R. 00000, at para 63.Google Scholar

77 Id. at para 64.Google Scholar

78 Id. at paras 65, 66.Google Scholar

79 Id. at para 62.Google Scholar

80 Id. Google Scholar

81 Id. at para 63.Google Scholar

82 See Opinion of Advocate General Kokott in the Case C-75/11, Commission v Austria, 2012 E.C.R. 00000, at paras 75–77.Google Scholar

83 The term is borrowed from Shaw, supra note 9.Google Scholar

84 See Miguel Poiares Maduro, Striking the Elusive Balance Between Economic Freedom and Social Rights in the EU, in The EU and Human Rights 466 (Philip Alston ed., 2000).Google Scholar

85 Dragana Damjanovic & Bruno de Witte, Welfare Integration through EU Law: The Overall Picture in the Light of the Lisbon Treaty (EUI Working Paper LAW No. 2008/34, 25).Google Scholar

86 In particular, this is reflected in the results of one of the recent surveys showing that the idea of solidarity, according to EU citizens, takes precedence over all other values and that “a unified social protection system between Member States would be the main factor in reinforcing the sense of being a European citizen”. See the European Parliament Eurobarometer (EB Standard 70) - Autumn 2008 analysis, European Elections 2009, available at: http://ec.europa.eu/public_opinion/archives/ebs/ebs_303_synt_en.pdf (last accessed: 27 June 2013). Also see the European Parliament Eurobarometer (EB/EP 77.4) from 20 August 2012, titled ‘Two years to go to the 2014 European elections', available at: http://www.europarl.europa.eu/aboutparliament/en/00191b53ff/Eurobarometer.html?tab=2012_4 (last accessed: 27 June 2013). The later survey also confirms that that tackling poverty and social exclusion is considered to be the first among the priority policies that Europeans want to see promoted by the European Parliament. Also see European Parliament Eurobarometer (EB/PE 76.3), Parlemeter - November 2011, available at: http://www.europarl.europa.eu/pdf/eurobarometre/2012/76_3/eb76_3_synthese_analytique_en.pdf (last accessed: 27 June 2013). Other indicative surveys, in this regard, are those on EU citizens’ perception of the Europe 2020 strategy, which show that social measures continue to lead the ranking of initiatives, which are perceived as the most important. See the Standard Eurobarometer 75 - Spring 2011 analysis, Europe 2020 Report, available at: http://ec.europa.eu/public_opinion/archives/eb/eb75/eb75_eu20_en.pdf (last accessed: 27 June 2013) and the Standard Eurobarometer 76 - Autumn 2011 analysis, Europe 2020 Report, available at: http://ec.europa.eu/public_opinion/archives/eb/eb76/eb76_en.htm (last accessed: 27 June 2013). All of this seems to affirm the continuing desire of EU citizens to witness the expansion of solidarity and social rights at the EU level.Google Scholar

87 See Maduro, supra note 8, at 337, 340, 342.Google Scholar

88 This term is borrowed from Maduro (Id.) Emphasis added.Google Scholar

89 Maduro has in that regard rightly argued that the European Union should no longer avoid dealing with this issue in a coherent manner and, in that sense, defining its “social self”. See Id. For a similar argument, see Kay Hailbronner, Union Citizenship and Access to Social Benefits, 42 Common Market L. Rev. 1245, 1267 (2005). Besides the fact that this is needed in order to complete the construction of the concept of Union citizenship, this requirement is also justified by the concern that the expansion of social rights “without an appropriate framework of legitimacy identifying their status and overall placing in the European political project will raise potential conflicts of rights without appropriate criteria to regulate them”. Maduro, supra note 8, at 339.Google Scholar