by Alessandra Silveira, Editor
and Sophie Perez Fernandes, Junior Editor
The European citizenship as the “the fundamental status of nationals of the Member States” has been shaping the process of integration itself. Unquestionably linked to the protection of fundamental rights, European citizenship has always been focused on the approximation of the legal status of the nationals of Member States, providing the legal base to the eradication of legal gaps of protection and, therefore, contributing to the further development of the integration process. However, recent case law of the ECJ seems to be influenced by the current political-economic dynamics that characterise the current crucial momentum that we are facing, raising perplexity and concern when compared to past rulings which compose the jurisprudential acquis in matters of citizenship and fundamental rights – mainly in what concerns citizens that move in the Union seeking jobs and the maintenance of the status of migrant worker.
The Dano ruling of 2014 represents a setback in regard to the previous case law of the ECJ regarding the granting of special non-contributory cash benefits to citizens who are not economically active. Despite the fact that, in this concrete case, a residence certificate of unlimited duration was previously granted to the applicant – a fact apparently disregard by this ruling – the national court considered that the main proceedings concerned persons who could not claim a right of residence in the host State by virtue of Directive 2004/38/CE. The ECJ accompanied the reasoning of the national court stating that the access to social benefits is dependent on the residence in the host Member State as set out by Article 7 of the mentioned Directive – i.e. sufficient economic resources and health insurance. The goal would be to prevent economically inactive citizens from becoming an unreasonable burden on the social assistance system of the host Member State, or from using the host Member State’s welfare system to fund their means of subsistence. Admitting otherwise, according to the Court, would go against the objectives of the Directive.
By using this restrictive approach of the legal provisions at stake, the ECJ considered that “any unequal treatment between Union citizens who have made use of their freedom of movement and residence and nationals of the host Member State with regard to the grant of social benefits is an inevitable consequence of Directive 2004/38”. However, the argument of the insufficient resources acknowledged by the ECJ, in only literal terms, brings us to the concern of the national court in Trojani. In this ruling, the national judge asked the ECJ if the requirement of having sufficient economic resources, applied automatically in the host Member State, would not result in a violation of the right of residence, since it would void its substance.
Well, in Trojani, the ECJ was confronted with the question of whether European citizens who are not economically active would benefit from the right of residence within the scope of Article 21/1 TFEU. The ECJ decided that, although Member States may impose some conditions on the right of residence of citizens who are not economically active, namely by demanding sufficient resources, if the citizen has the right of residence, then he would be protected by the right to equal treatment (Article 18 TFEU) and he could not be denied social benefits. Moreover, in the Comission v. Belgium ruling, the ECJ declared that Belgium was in violation of EU law for subjecting the right of residence of Union citizens to the condition of having his or her “own” sufficient resources and thus considered that EU law does not require, in any way, that an Union citizen has financial resources of his own to support him or his family. The ECJ adopted the reasoning of the irrelevance of the source of the sufficient resources and added that their loss is always an underlying risk, whether those resources are personal or come from a third party.
Dano’s case law had ramifications on the 2015 Alimanovic ruling. The questions at stake concerned a national provision that excludes nationals of other Member States (in casu, Sweden), whose right of residence arises solely out of the status of jobseeker, from benefiting from certain social benefits, when those benefits are granted to nationals of that Member State (Germany) who are in the same situation. It was thus questioned the compatibility of such a measure with Article 24 Directive 2004/38, as well as the right to equal treatment within the meaning of Article 4 Regulation 883/2004. Under the first legal provision – which entails a derogation from the principle of equal treatment –, the host Member State is not obliged to confer entitlement to social assistance for the longer period set out by Article 14/a/b), that is, as long as the Union citizen can provide evidence that he or she is continuing to seek employment and has a genuine chance of being engaged.
Notwithstanding, the ECJ had already decided, in the Vatsouras ruling, that non-contributory cash benefits that are aimed at making the job market more accessible could not be considered as social benefits for the purposes of Article 24/2 Directive 2004/38 – and this irrespective of whichever denomination they have in national legislation – in order to prevent Member States from considering job seeking incentives as social benefits and use the opportunity to derogate from its obligations. Well, nationals of a certain Member State looking for a job in another Member State benefit from the right to be treated equally within the scope of Article 45/2 TFEU. European citizenship (and the equal treatment enjoyed by Union citizens) already prevents Member States from excluding job seeking financial incentives from the scope of Article 45/2 TFEU. Consequently, the derogation entailed in Article 24/2 Directive 2004/38 shall be interpreted in accordance with Article 45/2 TFEU.
It was unquestionably a different momentum… In Alimanovic the ECJ retreated, when compared to Vatsouras, and decided that the benefits at issue in the main proceedings could not be characterised as benefits of financial nature intended to facilitate access to the job market of a Member State. The benefits at stake, of a non-contributory nature, have as predominant function to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity, and should, therefore, be classified as “social assistance benefits” within the meaning of Article 24/2 Directive 2004/38.
Accordingly, the ECJ closed the door that was opened, via Directive 2004/38, for the applicants, former migrant workers, to continue to have their right of residence as EU citizens seeking work (Article 14/4/b). With the restrictive interpretation of Article 24/2 of this Directive now made by the ECJ, the host Member States may refuse to grant social assistance benefits to jobseekers – and, therefore, the right of residence of the applicants in the main proceedings may be jeopardised. Conclusion of the ECJ in Alimanovic: it results from the reference made by Article 24/2 Directive 2004/38 to Article 14/4/b) that the host Member State may refuse, merely on the basis of the latter provision, a social benefit to a Union citizen that benefits from the right of residence.
Perhaps, the ECJ wanted to make clear that it is no longer possible to go further within the rules set by Member States. Perhaps this setback is an articulated strategy of the ECJ to draw attention from a negative standpoint –which undoubtedly is producing results. In any event, in a moment when all the moves are made in the integration’s chessboard, it is rather important to rescue and accept the challenge proposed by the former ECJ’s Judge J. Cunha Rodrigues: it is up to the jurists, parting from the notion of the European Union as a Community of law, to find the appropriate answers to the situations that call for an idea for the defense and reconstruction of the social model and, consequently, and the capacity, institute by institute, to launch a new look the legal order. To a certain extent, it resumes to not leaving the politicians alone on the road of integration, mulling over feelings of operative enmity towards law.
 ECJ 20 September 2001, Grzelczyk, Case C-184/99, para 31.
 ECJ 11 November 2014, Dano, Case C-333/13.
 See Dano, cit., para 69.
 See Dano, cit., para 71.
 See Dano, cit., para 76.
 See Dano, cit., para 74.
 See Dano, cit., para 77.
 ECJ 7 September 2004, Trojani, Case C-456/02, para 12, final part.
 ECJ 23 March 2006, Commission v. Belgium, Case C-408/03.
 See Commission v. Belgium, cit., para 47.
 ECJ 15 September 2015, Alimanovic, Case C-67/14.
 ECJ 4 June 2009, Vatsouras, Joined Cases C-22/08 and C-23/08.
 See Vatsouras, cit., para 37.
 See J. Cunha Rodrigues, “Sobre a abundância de direitos em tempo de crise”, in Revista de Finanças Públicas e Direito Fiscal, year 5, n.º 3, 2012, p. 23.