Abstract
The European Court of Justice has famously shifted away from an expansive interpretation of the mobile Union citizen’s primary rights towards a strict reading of the limits of those rights established in secondary law. The Court now seemingly sticks to a textual and purposive interpretation of the provisions in Directive 2004/38. Given this shift in judicial approach, the article examines the critical question: what happens if a legislative text – like Directive 2004/38 – that is fundamentally ambiguous, is treated as definitive? Recent case law concerning the equal access to social advantages of non-economically active citizens (CG, A (public health care) and Familienkasse Niedersachsen-Bremen) reveals that the Court's findings go beyond a mere literal interpretation – at times, even against the wording of the provisions – which are nevertheless presented as answers found within Directive 2004/38. Instead of developing a coherent approach based strictly on the legislative text, the Court has (re-)established its own conception of the balance between the principle of equality of Union citizens and the host Member State's interest in protecting its welfare system. In this new balance, the citizen's right to equal treatment is no longer fundamental and instead conditioned on fulfilling the residence requirements under Directive 2004/38.
Keywords
Introduction
It is an oft-told tale that, in the past decade, the European Court of Justice (ECJ or ‘Court’) has notably changed its approach in the field of Union citizenship, particularly when it comes to non-economically active Union citizens. In Dano, Alimanovic and García-Nieto and Others, 1 the Court signalled that it would take the will of the European Union (EU) legislature seriously, 2 take itself out of the political firing line, 3 and sidestep thorny concepts such as genuine links, reasonable and unreasonable burdens, and certain degrees of integration. 4 The Court moved from an expansive interpretation of the primary rights enjoyed by Union citizens in judgments in the late 1990s and early 2000s, 5 to a strict reading of the limits of those rights enshrined in secondary law, specifically now in Directive 2004/38. 6 In the words of the Grand Chamber in Alimanovic, stringently following the provisions of Directive 2004/38 enables ‘those concerned to know, without any ambiguity, what their rights and obligations are’ and consequently guarantees ‘a significant level of legal certainty and transparency in the context of the award of social assistance (…), while complying with the principle of proportionality.’ 7 Where national rules strictly implement the provisions of Directive 2004/38, the Court will not second-guess the compatibility of such rules with primary EU law. Rather than continuing to build an interpretation based on the individual circumstances of the specific cases before it, it has been argued that instead the Court is now ‘building a coherent and simplified approach to rights enjoyed by Union citizens based on a strict interpretation of Directive 2004/38’. 8
The Court's judgments in Dano, Alimanovic and García-Nieto and Others presuppose that examining the legislative text, specifically Directive 2004/38, will reveal a ‘definitive’ 9 answer to the legal question at issue. This presumption is also confirmed in its more recent judgments, CG, A (public health care), and Familienkasse Niedersachsen-Bremen, which all concern, inter alia, the right to equal treatment of non-economically active citizens resident in a host Member State with regard to social advantages. 10 However, what happens when that legislative text is riddled with ‘deliberate ambiguity’? 11 These recent judgments bring to the fore the shortcomings of narrowly interpreting a legislative text (of secondary law), particularly when such a text leaves the specific legal issue at hand unresolved or subject to varying interpretations.
The newest judgments in this line of case law, while vastly different in tone from earlier decisions like Martínez Sala and Grzelczyk, thus ultimately reveal that the Court continues to employ similarly ‘creative’ legal solutions it had once been criticized for using to expand the right to equal treatment for Union citizens. 12 The more recent case law, though seemingly heavily rooted in the text of secondary legislation, reveals its own, separate vision of the right balance between, on the one hand, limiting the access to social assistance of non-economically active Union citizens and, on the other, their ‘constitutional’ 13 right to equal treatment regardless of nationality that is not necessarily deducible from the legislative text of Directive 2004/38. The Court's older, more expansive approach was undeniably guided by a particular ideal of equal Union citizenship. 14 Its new restrictive approach, in which the Court confines itself to secondary law (and predominantly Directive 2004/38), appears to be quite uninspired in comparison: it neither strictly favours the will of the EU legislator and administrative ease of the Member States, nor does it adequately protect the rights of individuals. The judgments confirm a new judicial conception of the status of Union citizens in a host Member State. In this new conception, the Union citizen's right to equal treatment is no longer fundamental and instead strictly conditioned on fulfilling the residence requirements set out in Directive 2004/38.
The article is structured as follows: after a brief summary of the key characteristics of the Court's exclusive focus on secondary law in the initial case law (Dano, Alimanovic and García-Nieto and Others) (section 2), I take a closer look at both the travaux préparatoires and the final text of Directive 2004/38 to show a fundamental tension in this legislative act between limiting the access to social assistance for non-economically active mobile Union citizens and simultaneously upholding their right to equal treatment more generally (section 3). Then, I examine how the Court's exclusive focus on secondary law has unfolded further in the more recent judgments in the same line of case law (CG, A (public health care), and Familienkasse Niedersachsen-Bremen) (section 4). This is followed by a discussion of some of the consequences of this approach for the status of Union citizenship in EU law more broadly (section 5), before I then come to a conclusion (section 6).
Strictly focusing on Directive 2004/38: The Court's initial shift in its case law
There is no shortage of commentary on the Dano, Alimanovic and García-Nieto and Others ‘saga’. 15 I will therefore only provide a brief reminder of the Court's famous holdings here: in Dano, the Court established that a non-economically active Union citizen without sufficient resources enjoys no right to equal access to social assistance benefits under Article 24(1) Directive 2004/38. 16 In Alimanovic, the Court further held that a jobseeker who has worked in a host state for less than a year also does not enjoy the right to equal access to social assistance beyond six months of unemployment. 17 Finally, in García-Nieto and Others, the Court, along similar lines, confirmed that non-economically active citizens during the first three months of residence in a host Member State can be excluded from the right to equal treatment with regard to social assistance. 18
Despite these judgments being highly debated, most will likely agree that the three cases produce ‘an outcome compatible with the relevant legislative rules’ 19 under Directive 2004/38. The Court reached such an outcome by using a textual reading of the derogations under Article 24(2) Directive 2004/38 in Alimanovic and García-Nieto and Others, and a more purposive reading of the residence conditions under Article 7(1)(b) in combination with Article 24(1) in Dano. 20 I will briefly explain.
According to the text of Article 24(2) Directive 2004/38, Member States are not obliged ‘to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b)’. Using a literal interpretation of this provision, the Court thus determined in Alimanovic that a Union citizen jobseeker with a residence right under Article 14(4)(b) may be excluded from the right to equal treatment with regard to social assistance. 21 Similarly, in García-Nieto and Others, it held that the text of Article 24(2) provides that Union citizens resident based on Article 6 – the right of residence for less than three months – may also be denied social assistance. 22 Both decisions thus can be said to ‘make sense’ 23 when considering the text of Directive 2004/38. 24
The Dano judgment followed more than a purely textual interpretation of the Directive. This is mainly due to the fact that the text of the provisions of Directive 2004/38 does not immediately provide a straightforward answer for whether an applicant like Ms. Dano is able to have equal access to social assistance: 25 the express derogations listed in Article 24(2) do not address the circumstances of a non-economically active Union citizen who does not fulfil the residence conditions under Article 7(1)(b). 26 Instead, the Court of Justice looked at the purpose of the residence conditions. It argued that it follows from Article 24(1) that, ‘so far as concerns access to social benefits, a Union citizen can claim equal treatment with nationals of the host Member State only if his residence (…) complies with the conditions of Directive 2004/38.’ 27 The Court explained that, for periods longer than three months, Union citizens must fulfil the conditions set out in Article 7(1), and further that, basing itself here on recital 10 of the preamble to the Directive, ‘those conditions are intended, inter alia, to prevent such persons from becoming an unreasonable burden on the social assistance system of the host Member State’. 28 If persons who do not fulfil those conditions were able to claim equal entitlement to social benefits, this ‘would run counter to [the aforementioned] objective of the directive’. 29 The resulting unequal treatment ‘is an inevitable consequence of Directive 2004/38’. 30
In these three cases, the Court's method of laying out the meaning of the provisions of Directive 2004/38 can thus be said to be ‘merely following its traditional approach to legal reasoning, based on the “classic” textual, contextual, and purposive approach’. 31 The argument has been put forward thus, that the Court's new interpretative approach, first, respects and defers to the will of the legislator, and, second, favours legal predictability and takes into consideration the systemic effects of its judgments.
The Court's previous case law from Martínez Sala to Bidar on the non-economically active Union citizen's equal access to social advantages was strongly criticized by authors like Hailbronner for its ‘tendency to interpret secondary Community law against its wording and purpose’. By largely ignoring the residence conditions set by the applicable secondary law at the time, 32 the Court had in these cases ‘little scruple in attributing to Community law quite a different meaning from what would follow from an unbiased interpretation on the basis of the objective wording’ of those provisions. 33 The development of a social citizenship in the EU should be ‘a legislative matter rather than a judicial competence’. 34 In adopting Directive 2004/38, the EU legislature indeed maintained a distinction between economically and non-economically active Union citizens, 35 reinforcing the idea that the free movement of non-economically active persons should be more limited. Thus, by changing its approach in its judgments in Dano to García-Nieto and Others, the Court ‘simply’ deferred to the Directive's written rules. 36 As argued by van den Brink, the Court rightly followed the authority of the EU legislature, which has both the political legitimacy and institutional ability to find the appropriate balance of interests. 37
A further argument brought in favour of the change in the Court's interpretative method is that it, in principle, removes or reduces the considerable administrative burden that was imposed by the Court's previous case law. 38 After Dano, Alimanovic and García-Nieto and Others, it is clear that national authorities are no longer required to make individual assessments of applications for social assistance in cases in which the Union citizen does not comply with the residence conditions of Directive 2004/38, or where one of the derogations to the right to equal treatment apply. 39 In principle, this could make way for ‘an administratively easier, collectively fairer, generalised approach’ 40 that provides clarity, predictability and legal certainty for both Union citizens and national authorities. It removes issues raised by the Court's earlier case law, which required the consideration of applicants’ personal circumstances. 41 As pointed out by Carter and Jesse, it also indicates to Member States that if they implement the Directive in a manner that is true to its wording, the Court will not strike down such rules or decisions on the basis of primary EU law 42 or impose further (far-reaching and potentially unpredictable) proportionality requirements. 43 The Court's new approach thus can be said to ensure legal predictability for national authorities and individual applicants.
On the face of it, these are two reasonable arguments for the shift in the Court's case law that both highlight the improvement rung in by this new judicial approach. However, can this change be summarized as easily as that? These judgments ultimately not only caused an ‘unusual stir (…) in the European media’ 44 due to the politically sensitive nature of the cases but also significant disagreement when it comes to the Court's methodology of interpreting the relevant provisions on Union citizenship. The Court's revised approach not only explicitly sidesteps primary law, 45 a move that has rightly been strongly criticized, 46 but it also relies on the text of a legal act – Directive 2004/38 – that is fundamentally ambiguous and might not reveal the will of the legislator as clearly as is presumed by the ‘political legitimacy’ argument outlined above. This latter point is explained further in the following section.
Looking for legislative intention in an ambiguous legislative text: An examination of the travaux préparatoires of Directive 2004/38
The Court's revised approach presupposes that the applicable secondary law contains clear standards or that a look into the legislation reveals the answer to the legal question at issue. However, Directive 2004/38 is riddled with ‘deliberate ambiguity’ – deliberate, as Thym suggests, because ‘the EU legislature had failed to establish clear standards, which may be explained by the diplomatic tradition of open compromise formulae in politically sensitive terrain’. 47 This idea of vaguely worded, 48 ambiguous legal provisions that turn political questions into questions of law is not uncommon for EU legal acts. 49 The question arises here whether a strict reading of a legislative text that does not clearly reveal the will of the legislator is even possible. Specifically, is it possible to say definitively what the legislative intention was behind Article 24 Directive 2004/38 and the issue of equal access to social assistance and social security benefits of non-economically active citizens?
The first paragraph of Article 24 is prima facie a restatement of the principle of equal treatment also provided for in Article 18 TFEU. The original provision in the Commission's 2001 proposal was based on the Court of Justice's judgment in Martínez Sala, which ‘establishes a direct link between the principle of non-discrimination and the right of residence’. 50 The Parliament left the proposed provision unchanged. The Council later included the following: ‘in paragraph 1 it was added that the equal treatment is subject to such specific provisions as are expressly provided for in the Treaty and secondary law.’ 51 The Commission explained this addition as follows: ‘a provision has been added to the first paragraph stating that equal treatment applies, subject to other provisions of the Treaty and of the secondary legislation, in line with what is contained in Article 12 of the EC Treaty [now Article 18 TFEU]’. 52 There is thus no clear indication that the legislator had intended to limit the scope of equal treatment in Article 24(1), other than to reproduce Article 18 TFEU and the case law that existed at the time. In Dano, the Court, however, used the exact wording of Article 24(1) – ‘residing on the basis of this Directive’ – to exclude Union citizens who are non-economically active from the right to equal treatment when it comes to access to social assistance. 53
Regarding the derogations to the right to equal treatment under Article 24(2), the Commission had, in its original proposal for the Directive in 2001, suggested an explicit exclusion of non-economically active Union citizens from equal access to social assistance before becoming permanently resident. 54 The Parliament rejected this suggestion in the first reading of the Commission's proposal. 55 In its revised proposal presented in 2003, the Commission had then removed this exclusion with the explanation that it would be ‘retrogressive in relation to the current acquis’, in light of the Grzelczyk judgment 56 that had been handed down a few months after its original proposal. 57 This deletion was accepted by the Council 58 who instead inserted the derogation we now find in Article 24(2) Directive 2004/38: Member States are not obliged to grant social assistance during the first three months of residence or for jobseekers who can reside for a longer period under Article 14(4)(b). 59 Furthermore, the Council inserted the concept of ‘unreasonable burden’ in recitals 10 and 16 of the preamble and Article 14(1) of the Directive, specifying when a Union citizen can be considered an unreasonable burden and thus be expelled from a host Member State. 60 The Council here also explained that it wished to codify the Grzelczyk ruling that an expulsion measure cannot be the automatic consequence of recourse to the social assistance system. 61 These amendments were later adopted in the final text.
In his institutional report for the 2014 FIDE Congress on Union Citizenship, Michal Meduna concluded regarding the legislative negotiations for Article 24 Directive 2004/38: ‘the principle of non-discrimination on the grounds of nationality is safe as such’. 62 Dougan also argued that, whilst the exclusion of jobseekers from the right to equal access to social assistance in Article 24(2) was maybe ‘the most radical departure’ from the standing case law, 63 it would also likely ‘be accepted as a valid limitation or condition pursuant to [Article 21 TFEU]’. 64 Seemingly, neither the legislator intended a dramatic change in the status quo, nor did commentators perceive the adoption of Directive 2004/38 as such. There is no doubt that the legislator, particularly the Council, as co-legislator, insisted on the distinction between economically and non-economically active citizens, and wanted to limit the access to social assistance of the latter, specifically for jobseekers. However, there is no clear indication that the EU legislator intended to exclude categorically all non-economically active citizens from the right to equal access to social assistance, as is now the consequence of Dano. 65 Instead, both the final text of the Directive and even the travaux préparatoires reveal a fundamental tension between limiting the access to social assistance for non-economically active citizens and simultaneously upholding a right to equal treatment of all citizens. It is thus much less clear if the legislator aimed to exclude all non-economically active citizens without sufficient resources from the right to equal treatment under Article 24 Directive 2004/38 than the Court's case law since Dano might suggest.
Taking the Court's new approach further in CG, A (public health care), and Familienkasse Niedersachsen-Bremen
In its three most recent cases on the right of non-economically active Union citizens to equal access to social assistance and social security benefits, the Court has continued its new approach of focusing exclusively on Directive 2004/38. In CG, A (public health care), and Familienkasse Niedersachsen-Bremen, the Court situates its interpretation of the rules on equal treatment within the text of the Directive. The limits of Union citizenship are now exclusively defined by the residence conditions provided by Directive 2004/38. The cases also show that the Court goes beyond a mere literal interpretation – at times, even against the wording of the provisions – which are nevertheless presented as answers found within Directive 2004/38. These judgments therefore further highlight that the arguments in favour of the Court's turn in its case law – following the intention of the legislature, providing legal certainty and thus decreasing the administrative burden of national authorities – are not necessarily achieved in its later judgments.
A. All answers found within the text of Directive 2004/38
The most striking example of the Court's new Directive-focused approach is found in CG. Here, the Court redrew the scope of Directive 2004/38 seemingly under the guise of following the text of the legislative act. The applicant in this case was a Union citizen who was granted – for the purposes of EU law – a lawful right to reside in a host Member State under domestic law. It was clear from the outset that she, the applicant, did not have sufficient resources, in accordance with Article 7(1)(b) Directive 2004/38. 66 She was resident in the host Member State, not based on EU law (or, more specifically, the national implementation of the rules set out in Directive 2004/38) but instead relying solely on domestic law. The Court held that she may be excluded from the right to equal treatment with regard to access to social assistance under Article 24(1), as she did not fulfil the residence requirements under Directive 2004/38. 67 One could argue that this is simply a confirmation of the Dano ruling: as a Union citizen without sufficient resources, CG is excluded from the right to equal treatment enshrined in Article 24(1) Directive 2004/38 as she is not, according to the text of the provision, lawfully ‘residing on the basis of this Directive’. However, in contrast to Ms Dano, CG had a lawful right to reside in the host Member State under domestic law, 68 and decidedly did not reside in the host Member State on the basis of Directive 2004/38. 69 The Court therefore, in reality, does not follow a textual interpretation of Article 24(1) of the Directive in CG but instead expands the scope of Article 24(1) (and Directive 2004/38) to apply categorically to all Union citizens in a host Member State, regardless of whether they have a right to reside based on the Directive or any other legal basis. 70
The Court took its unyielding application of Article 24(1) in CG to an extreme, looking for an answer within the Directive even in a situation which does not strictly fall within its scope. 71 This might make sense if Article 24(1) were the only expression of the right to equal treatment of Union citizens. However, all Union citizens enjoy such a right under primary law, specifically Articles 18 TFEU and 21 CFREU. 72 The result of this revised interpretation is that the Union citizen is denied her right to equal treatment, even though she falls within the scope of EU law. 73
Another strand of case law highlighting the Court’s unwavering reliance on Directive 2004/38 relates to ‘social security benefits’, such as family benefits not intended to cover the beneficiary's subsistence needs. In Familienkasse Niedersachsen-Bremen, the Court clarified that a non-economically active citizen may rely on the right to equal treatment under Article 24(1) with regard to access to family benefits during the first three months of their residence in a host state. 74 In contrast with the circumstances in García-Nieto and Others, where the explicit derogation under Article 24(2) regarding equal access to social assistance applied, the Court, in Familienkasse, upheld the right to equal access to social security benefits of non-economically active citizens. In inspecting the text of the recitals and provisions of Directive 2004/38, the Court of Justice asserted that the legislative act only makes references to ‘social assistance’ and thus cannot apply to ‘social security benefits’, such as the family benefits at issue in the case. 75 Union citizens should not become ‘an unreasonable burden on the social assistance system of the host Member State’ during the first three months of residence. 76 The Directive is silent on the social security benefits, and thus the Court concluded: ‘it concerns only social assistance’. 77 Indeed, the text of Directive 2004/38 makes no explicit reference to ‘social security benefits’ or ‘benefits’ more generally. 78
The reason why the Court ultimately upheld the right to equal treatment in Familienkasse is, however, not the lack of references to ‘social security benefits’ in Directive 2004/38. Instead, it was based on the applicants’ lawful residence in the host state during the first three months without having to fulfil any conditions other than providing an identification document pursuant to Article 6(1) Directive 2004/38. 79 It thus explicitly confirmed the link it had originally made in Commission v. United Kingdom (concerning the equal access to social security benefits of Union citizen resident based on Article 7(1)(b)) 80 that ‘there is nothing to prevent the granting of benefits falling within the scope of Regulation No 883/2004 to economically inactive Union citizens being made subject to the requirement that those citizens fulfil the conditions for possessing a right to reside lawfully under Directive 2004/38’. 81
Though the Court situated this link between the access to social security benefits and the residence conditions under Article 7(1)(b) within the text of the Directive, that link is not actually made within either of the acts mentioned (Directive 2004/38 and Regulation No 883/2004), and thus also not – at least, not beyond any doubt – identifiable as the will of the legislator. 82 In Commission v. United Kingdom, the Court explained that a lawful residence test for the access to social security benefits, though indirectly discriminatory, 83 was proportionate because such a ‘verification’ of lawful residence of the applicant is permitted under Article 14(2) Directive 2004/38. 84 It relied on the wording – ‘verification’ – which is indeed used in the second sentence of sub-paragraph 2 of Article 14(2), whilst overlooking the context of this provision entirely. The title of Article 14 Directive 2004/38 refers to the ‘Retention of right of residence’, and thus does not technically cover applications for equal access to social benefits. The link made here, though framed as inherent in the text of the Directive, 85 is not evident from the text (alone). Adding a lawful residence requirement to equal access to family benefits is not the same as a non-systematic check of whether a Union citizen continues to be lawfully resident. 86
In the judgments discussed above, the Court clearly went beyond the wording of the Directive, whilst simultaneously basing its reasoning on the text of the Directive. This is most evident both in CG and Commission v. United Kingdom. In Familienkasse Niedersachsen-Bremen, the Court invoked its previous reasoning in Commission v. United Kingdom. Where the Court exceeds the text of the Directive, it becomes difficult to defend the argument that the Court is simply following the will of the legislature, however difficult that may be to determine itself. The rulings are based on the text of the Directive, but then apply that text to circumstances falling outside of its personal or material scope. The Court strictly confines its interpretation of the law within the provisions of the Directive but simultaneously resets its own conception of the right balance between the equal status of all Union citizens in EU law and the Member States’ interest in safeguarding their national welfare systems.
A reset of the balance between equality and protection of the national welfare system
It is a fallacy to assume that any given issue before a court can be gleaned from the text of the applicable legislation alone. Particularly given the context of the majority of legal cases before the Court of Justice within the preliminary reference procedure under Article 267 TFEU, cases land before it precisely because the legislative rules are in need of further judicial interpretation. The Court fills in the gaps – namely, where the text does not provide the answer, or is not sufficiently clear or precise – and has the important role of laying out the meaning of that text, also within the context of primary law.
An example of where secondary law does not provide a clear answer are the circumstances in A (public health care). The case concerned, inter alia, the issue of whether a non-economically active citizen can rely on the right to equal treatment in accessing the host state’s free-of-charge public health insurance system scheme. Here, the Italian applicant, Mr. A, residing in Latvia fell within the scope of Directive 2004/38 when he moved to a host Member State to join his family, who were Latvian nationals. While searching for a job in Latvia, he was resident as a non-economically active citizen, fulfilling the self-sufficiency and comprehensive health insurance requirements as prescribed by Article 7(1)(b). Following the strict, purposive interpretation of the Court of Justice in Dano,
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he thus also fell within the scope of the right to equal treatment of Article 24(1). In its own words, the Grand Chamber explained in A: Admittedly, a Union citizen who meets both the conditions laid down in Article 7(1)(b) of Directive 2004/38 has the right to equal treatment referred to in Article 24(1) thereof. In so far as that Union citizen falls within the scope of Regulation No 883/2004, he or she also has the right to equal treatment provided for in Article 4 of that Regulation.
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Quite remarkably, the Court here ‘admitted’ that A enjoyed a right to equal treatment. Nonetheless, it upheld the refusal by Latvian authorities to register him for free public healthcare that is made available to Latvian nationals and economically active Union citizens resident in Latvia, based on the fact that A was non-economically active. According to the Court, such a directly discriminatory rule is compatible with the Directive. It established that, following Article 7(1)(b), non-economically active Union citizens must provide comprehensive sickness insurance for themselves during the first five years of residence ‘so as not to become an unreasonable burden on the public finances’ of the host Member State. 89 Member States may therefore exclude non-economically active citizens from free-of-charge access to public healthcare during this period, as the conditions for residence would otherwise ‘be rendered redundant’. 90 This meant that the non-economically active ‘Union citizen cannot rely on the right to equal treatment in order to claim access free of charge to the public sickness insurance system’, and further that ‘any unequal treatment which might result, to the detriment of such a Union citizen (…) would be the inevitable consequence of the requirement, laid down in Article 7(1)(b) of that directive, that that citizen must have comprehensive sickness insurance cover.’ 91 The Court, by denying the right to equal treatment to a Union citizen in A's situation, thereby also forewent a proportionality analysis, unlike the national referring court in its reference and Advocate General Saugmandsgaard Øe in his Opinion. 92 The judgment is another example of the Court's new strict interpretation of Article 7(1)(b) Directive 2004/38, in which general principles of EU law cannot be considered.
I do not wish to argue here that the Court's holding to exclude non-economically active citizens from equal free-of-charge public healthcare is completely incomprehensible. Had the Court ruled differently, more along the lines of the Advocate General in the same case, 93 its ruling would have indeed, in certain circumstances, made the residence condition of having comprehensive health insurance in Article 7(1)(b) less stringent. Non-economically active Union citizens compliant with the residence conditions under Article 7(1)(b) would only have been able to be excluded from the equal free-of-charge access to public healthcare provided that such an exclusion were justified and proportionate. 94 It would have likely meant that Member States needed to grant equal access to their free public healthcare for certain Union citizen residents, despite them being non-economically active but nonetheless self-sufficient (if the same is offered to their nationals).
The case demonstrates, however, that the legislator, in adopting the Directive, did not fully consider these specific circumstances, namely: may Union citizens, who are compliant with Article 7(1)(b), benefit from equal free-of-charge access to public healthcare? Or, conversely, may they be excluded from equal access to free public healthcare, as ‘comprehensive health insurance’ is one of the residence conditions under Article 7(1)(b) for the non-economically active? The Court had two options: either to uphold the Union citizen's right to equal treatment or uphold the residence conditions set by Directive 2004/38. This is the ‘creative moment of interpretation (…) which ensues from “legal indeterminacy”’. 95 The text of the Directive itself is not clear which of the two interests should prevail. It is the Court here that expressly opted to uphold the residence conditions over the right to equal treatment of the Union citizen, which is also enshrined in primary law (Article 18 TFEU).
One could argue that following Dano, the ruling in A (public health care) was inevitable. However, this is not immediately obvious. The Court ruled in Dano that the Union citizen, in applying for subsistence benefits, categorically does not fulfil the residence conditions under Article 7(1)(b) and thus also does not benefit from Article 24(1), meaning that such citizens can be excluded from the right to equal treatment (and therefore also the right to equal access to social assistance). This interpretation can be taken from the text of the Directive. The applicant in Dano ultimately wished to invoke the right to equal treatment whilst not complying with the residence conditions, and thus also not lawfully resident as provided for in Article 24(1). Mr. A, however, is lawfully resident in Latvia – even under the Directive – at the time of invoking the right to equal treatment. Based on a textual interpretation of Article 24(1), the applicant falls within the scope of the right to equal treatment, as provided in the Directive. None of the possible derogations under Article 24(2) apply to his case, 96 and yet he is excluded from the right to equal treatment.
The Court here decidedly did not uphold the right to equal treatment and thereby clearly confirmed that it has reset its own conception of the right balance of interests within EU law away from one of equal citizenship. According to its new conception, Union citizens should have the right to move within the EU Member States, also for non-economic reasons, but in that case, only if they are able to fund themselves for the first five years of residence. The host Member States should not be obliged to pay for, should not have to contribute to, under any circumstances, the non-economically active citizens’ ability to fulfil the requirements and conditions imposed on them by Directive 2004/38. This creates an entirely different way of viewing Union citizenship, as compared to the conception of Union citizenship put forward by the Court in its early case law, such as in Grzelczyk, in which the equality of the nationals of the Member States was once considered the fundamental status of all Union citizens. 97 Mobile Union citizens then could rely on a presumption of equal treatment, even where the strict fulfilment of the conditions of their residence were in question, allowing them, in principle, to challenge any (directly or indirectly) discriminatory measure imposed on them based on their non-national status by the authorities of a host Member State. 98 It is clear that non-economically active citizens now are denied this ability to challenge exclusions based on nationality in the host state, where such are put in place regarding the access to social assistance, social security benefits and free-of-charge public healthcare. The emphasis is rather on the obligations that the Union citizen must fulfil to prove his or her lawful right of residence within the host Member State. In the context of proving that right, there is no equal treatment.
While the Court's new approach to interpreting the rights of the Union citizen in a host Member State is framed as a shift to textualism 99 that respects the limits set by secondary law, 100 the maybe more subtle judgment in A (public health care) demonstrates once and for all that the Court has changed the conception of the equal status of the citizen in EU law. The Court now relies on the wording of Directive 2004/38, rather than its previous approach of doing the same with the provisions of primary rights (Articles 18 and 21 TFEU and their equivalents in earlier Treaties). There is, however, no clear evidence that the removal of this fundamental right to equal treatment was intended by the legislature in adopting Directive 2004/38; indeed, the EU institutions’ references to codifying Grzelczyk in the travaux préparatoires indicate something quite different. 101
5. Implications of confining itself to Directive 2004/38: A visionless Court?
It is striking to consider the reference made by the Latvian Supreme Court in A (public health care) and the Court of Justice's response to it. Earlier in the national proceedings in A, before the case reached the referring court, the Regional Administrative Court had ruled (as summarized by the referring court in its reference to the Court of Justice): ‘[t]he appellant's status as a Union citizen is not comparable to that of a Latvian national, and as a result the appellant does not have the same rights as Latvian nationals. The freedom of movement of persons is not absolute.’ 102 The Latvian Supreme Court confirmed the residence conditions under Article 7(1)(b) Directive 2004/38 but had doubts about the proportionality of the exclusion by Latvian law of Union citizens in the same situation as Mr. A, especially also considering his family situation. 103
The national reference indeed further reveals that Mr. A's Latvian wife was working in Latvia but had herself not exercised the right to free movement. The Regional Administrative Court had argued that there was no cross-border link in the situation where a non-national Union citizen joins a Latvian national worker in Latvia. It had held (as summarized by the referring court) that ‘[a] family member of a Union citizen who is working in Latvia (who has the right to receive health care financed by the State (…) cannot be compared to a family member of a Latvian national who is working in Latvia (who has no right to receive healthcare financed by the State).’ 104 The Latvian Supreme Court explained that Mr. A's wife could not be considered a ‘beneficiary’ of Directive 2004/38 if she had never left her home state. 105 Nonetheless, it rightfully questioned whether the present circumstances really reveal no cross-border link, relying on the Court of Justice's ruling in Schempp. 106 Indeed, in Schempp, the Court of Justice held that whilst the applicant himself had not exercised his right to free movement – as a German national residing in Germany –, his former spouse, by moving to Austria, had done so, with the effect that ‘such a situation cannot be regarded as an internal situation with no connection with Community law.’ 107 His capacity to deduct the maintenance paid out to her from his taxable income in Germany thus fell within the scope of application of EU law. 108 The Latvian Supreme Court noted a difference between the Schempp and A (public health care) cases: in the latter, the applicant, and not his spouse, had exercised the right to free movement. However, this does not detract from the fact, considering the Court's expansive interpretation of the cross-border link, 109 that the situation of Mr. A's wife could not ‘be regarded as a purely internal situation with no link to EU law.’ 110 In its reference, the Latvian Supreme Court proposed that a Union citizen ‘as the spouse of a Latvian national, should have the possibility of benefiting from the same advantages as a family member of a Union citizen who moves to Latvia for employment purposes.’ 111 This point unfortunately remains entirely unaddressed by the Court of Justice's judgment.
In its response to the Supreme Court, the Court of Justice did not quite use the reductive language of the Regional Administrative Court, but its judgment has the same effect. Following the judgment, Mr. A's status as a Union citizen indeed does not put him in a comparable situation to that of a Latvian national. His right to equal treatment in Latvia remains contingent on fulfilling the residence conditions and is entirely denied where such equal treatment could contribute to him fulfilling those conditions. And, as such, the Latvian authorities may lawfully apply different rules to non-national Union citizens and its own nationals. In A, the Court highlighted the limits to the Union citizenship status over Mr. A's right to equal treatment. 112 The preliminary reference made by the Latvian Supreme Court thus strikingly reveals a more rights-affirming understanding of the applicable EU rules than the judgment of the Court of Justice, a court once heralded for handing down judgments ‘in the name of the Citizens of the Union’. 113 It was the national judges here who had proposed an more expansive interpretation of the cross-border link.
The question thus arises: what is the Court of Justice's vision behind this new interpretation, this shift away from its previous interpretation? And, more importantly, can the case law on Union citizenship be built on the limits rather than the individual rights linked to it? What is citizenship law if it does not uphold individual rights – ‘uphold’ in the sense of balancing restrictions imposed by the Member States against the core of the individual rights enshrined in the Treaties?
Let us revisit the arguments brought in favour of the Court's interpretative shift brought about by Dano: following the legislative intention and creating legal certainty and thus lessening the administrative burden. 114 As suggested above, the case law follows a new conception of the fundamental status of citizens in EU law: the right to equal treatment is no longer a guarantee for all citizens exercising their free movement but rather contingent on fulfilling the lawful residence conditions set out in Directive 2004/38. This means that, in certain circumstances, the mobile citizen is automatically excluded from equal treatment with the nationals of the host state. This change cannot unquestionably be gleaned from the text of the legislative act in question. As shown, the text of Article 24 Directive 2004/38 is not relevant for someone like CG who is resident on the basis of domestic law; Directive 2004/38 does not make a link between the rules on lawful residence and access to social security benefits covered by Regulation No 883/2004; and there is a legislative gap regarding the question of equal access to free public healthcare for lawfully resident non-economically active Union citizens. Furthermore, as seen in section 3 above, there is not enough evidence to suggest that it was the legislator's common intention in adopting Directive 2004/38 to weaken the status quo of the right to equal treatment of mobile Union citizens. Instead, for example, the Commission found it important for the Directive not to establish a regression of the rules that were already in place, 115 and removed, upon the changes made by the Parliament, the explicit blanket exclusion of all non-economically active Union citizens from equal access to social assistance. With the Court's new approach in its judgments in CG and A (public health care), it is fairly certain that its old case law in Martínez Sala, Trojani, 116 and Baumbast, 117 has been overturned, not by the legislator in adopting Directive 2004/38 but rather by the judiciary. It is therefore, at the very least, an oversimplification to say that the Court is only following the legislative intention behind Directive 2004/38.
The second argument brought in favour of the Court's interpretative shift – that the new case law provides legal certainty and lessens the administrative burden of the national authorities – also cannot be the new guiding principle for the Court's case law. The Dano judgment establishes Union citizens ‘in limbo’, in an EU law grey area, 118 who are confirmed to be unlawfully resident, but potentially not able to be expelled based on Article 14 Directive 2004/38. 119 How desirable that is from a perspective of legal certainty and administrative burden is very questionable. The CG judgment further introduces a new administrative procedure for Member States to check the compliance of exclusions from social assistance with the Charter for any Union citizen resident based on domestic law. The Court here moves the check away from the right to equal treatment over to the fundamental right to human dignity, protection of private and family life, and the best interests of the child. 120 It follows that the guiding principle is again not necessarily one of administrative ease and legal predictability on the side of the Member States. The CG judgment also fundamentally reveals that the Court's new approach is too narrow when it comes to considering the basic rights of Union citizens (here, the right to live in dignity). Such a balance was once part of the considerations to be taken by the national authorities (and the Court of Justice) as part of the proportionality analysis. 121 As this has now been removed, the Court in CG reintroduces this consideration for a very select few 122 Unions citizens (as in, for those resident on a domestic residence permit). Finally, in Familienkasse Niedersachsen-Bremen, the Court makes clear that Member States must give equal access to social security benefits (nota bene, not social assistance) to newcomers, during the first three months of residence. 123 After the initial three months, following Commission v. United Kingdom, Member States may make continued access once again contingent on fulfilling the residence conditions under Article 7(1)(b) Directive 2004/38. 124
The above thus demonstrates that the Court in its new interpretative approach is not necessarily either respecting legislative intention or creating a case of law of legal certainty that aims to lower the administrative workload of national authorities. Instead, the Court is prioritizing an ambiguous legal text of secondary law, which leads to stripping Union citizens of a status of equal treatment, that was once not necessarily absolute but irrefutable; in other words, it was, in principle, invokable whenever Union citizens had made use of their free movement rights and then balanced against legitimate limitations imposed by the Member States. 125
One could argue that the question of equal access to social assistance and social security benefits is just one aspect of the broader right to free movement enjoyed by Union citizens. However, these cases have always been a testing ground for (the limits of) the equal status of Union citizenship in a host Member State. Whilst we have not seen cases with questions about the right to equal treatment beyond social assistance and social security benefits in relation to Directive 2004/38 since the Court's initial shift in Dano, there is no guarantee that non-economically active citizens without sufficient resources would be able to rely on it. Note here, for example, a subtle addition in the Petruhhin line of case law, indicating that the insistence on the lawful right of residence might also creep into other questions of equal treatment. The Court's judgment in Petruhhin 126 on the right to equal treatment when it comes to protection against extradition to third countries, made no reference to the individual's lawful residence in the host state to benefit from that right. In paragraph 31, the Court simply stated: ‘Mr Petruhhin, an Estonian national, made use, in his capacity as a Union citizen, of his right to move freely within the European Union (…), so that the situation at issue (…) falls within the scope of application of the Treaties, within the meaning of Article 18 TFEU’.
The following case, Raugevicius, also contained no reference to a ‘lawful’ residence.
127
In 2020, in Generalstaatsanwaltschaft Berlin, the Court then added: ‘a national of a Member State, who thereby has Union citizenship, and who is lawfully resident in the territory of another Member State, falls within the scope of EU law.’
128
The holding of Petruhhin is thus reformulated in the 2022 judgment in Generalanwaltschaft München as: [b]y virtue of having Union citizenship, a national of a Member State who is lawfully resident in the territory of another Member State is entitled to rely on Article 21(1) TFEU and falls within the scope of the Treaties, within the meaning of Article 18 TFEU (…).
129
Read carefully, the citizen does not fall within the personal scope of EU law based on the movement to another Member State and cannot rely on Article 21 TFEU because of that movement to another Member State but instead because of the lawfulness of his or her residence there. These cases do not concern the residence conditions themselves, but nonetheless implicitly emphasize and reinforce them. This subtle insertion also confirms what the Court indicated in a different line of case law on the Union citizens’ right to be accompanied by their family members when returning to their Member State of nationality based on Article 21(1) TFEU. In O. and B., and confirmed later in Coman, the Court conditioned this right on the previous ‘genuine residence’ in the host Member State that must be ‘pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38 respectively’. 130 Read in reverse, a citizen who is not lawfully resident does not fall within the scope of EU law (and cannot rely on Article 21 TFEU?) and certainly does not enjoy the right to equal treatment. Although these judgments build on the primary rights of Union citizens, they ultimately also hint at a dangerous dismantling of those rights of Union citizens in host states, all in the name of sticking to a close reading of Directive 2004/38, which ultimately reshapes the legislative text beyond what can be definitively determined to have been the intention of the legislator.
Conclusion
The Court of Justice has played a key role in developing the rights attached to Union citizenship, most importantly, for the purposes of this article, the right to equal treatment, and providing ‘a constitutional basis for regarding Union citizens as key elements in giving legitimacy to the Union’. 131 It continues to do so in other fields of Union citizenship law, regarding the protection via Article 20 TFEU, for example. 132 When it comes to the question of the right to equal treatment in the context of Directive 2004/38, the Court of Justice's case law is marked by an interpretative change, in which answers are looked for and found exclusively within the text of an act of secondary law.
The judgments in Dano to García-Nieto and Others, which rang in this shift, can be said to follow the legislative rules under Directive 2004/38. This promised two key benefits: following the will of the legislature and ensuring legal certainty. A closer look into the Court's approach as it has continued to develop its new case law on the right to equal treatment (or lack thereof) of non-economically active Union citizens, however, demonstrates that these benefits are not necessarily guaranteed. The Court has applied the Directive to circumstances falling outside of its scope, overstretching the secondary law rules to provide answers for all circumstances where a Union citizen is resident in a host Member State (CG and, to some extent, also Familienkasse Niedersachsen-Bremen in combination with Commission v. United Kingdom).
Directive 2004/38 contains a fundamental tension between wanting, on the one hand, to facilitate the right to free movement and uphold the right to equal treatment 133 and, on the other hand, to enforce conditions of the right to reside for Union citizens who are not economically active, thereby unavoidably also discriminating on the basis of nationality. Treating such an ambivalent legislative act – one that does not categorically reveal one legislative intention – as definitive does not lead to the ‘legal certainty and transparency’ 134 the Court purports it does. Instead of establishing a coherent and simplified approach, 135 the Court has put in place a new conception of the status of mobile Union citizens: Union citizens must be lawfully resident, and those who are not economically active must also be self-reliant until the status of permanent residence is reached in the host Member State. Only then can they benefit from a fundamental right to equal treatment. For the Union citizen who cannot show an economic activity within the host Member State, the right to equal treatment is either negated (CG) or disregarded (A (public health care)). 136
