Tag: social tourism

European citizenship in the recent JD judgment: on the public reason of the “Union based on the rule of law”

On By officialblogunioIn EssaysLeave a comment 
by Alessandra Silveira (Editor) and Nataly Machado (Master's student in EU Law, UMinho)

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“This is a time to take part
Time of parted humans (…)
The laws are not enough
The lilies do not arise from the law”[i]
(“Our time”, Carlos Drummond de Andrade, 1902-1987)

In a poem written during the horrors of the Second World War, the Brazilian poet Carlos Drummond de Andrade depicted one of those historic moments in which people and institutions must take up a political position, to take sides[ii]. At a time when the European Union “is going through an unprecedented public health crisis, to which the Member States must answer by demonstrating equally unprecedented solidarity”[iii], in the JD case, the Court of Justice of the European Union (CJEU) was asked about the extent of the social assistance which a host Member State must provide to a former migrant worker seeking employment who is the primary carer of his two children attending school in that State.

This judgment helps us to unravel the public reason of the European Union, i.e., the criteria/standards by which we can seek the legitimacy of the exercise of power. As John Rawls explained, “[t]he idea of public reason specifies at the deepest level the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another. In short, it concerns how the political relation is to be understood”[iv].

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On the CJEU’s case-law concerning the “social tourism” that preceded the Brexit referendum – between forces of cohesion and fragmentation

On By officialblogunioIn Essays1 Comment

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by Professor Alessandra Silveira, Editor
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One week prior to the scheduled date of the referendum about the UK leaving the EU a ruling of the Court of Justice of the European Union was published. The decision was to dismiss an action for failure to fulfil an obligation (article 258, TFEU) which had been filed by the European Commission against the UK seeking the conviction of such Member State for violating the prohibition of non-discrimination on ground of nationality[i]. Throughout the year of 2008, the European Commission received several complaints by citizens from other Member States living in the UK with objections about the refusal of British authorities to provide them social benefits due to the absence of proof of the right to reside. Following that, the EC accused the UK of not fulfilling the Regulation 883/2004 (on the coordination of social security systems) because it subjected the applicants of certain social benefits – namely the dependent child allowance or the child tax credit – to the so-called test of right to reside. The Commission considered that requirement incompatible with the meaning of the mentioned Regulation – once it makes reference to a habitual residence and not a legal residence – and, simultaneously, discriminatory towards the nationals from other Member States as such requirement is automatically fulfilled by the British nationals living in the UK.

The core of the case was to evaluate if a Member State’s permission to attribute certain social benefits only to the people who legally reside in its territory is in itself discriminatory under the terms of article 4 of the Regulation 883/2004. Under the title “equality of treatment”, the article states that, unless otherwise provided for by the own Regulation, persons to whom it applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof. All in all, in every situation comprised by the ratione materiae domain of application of the EU Law, any European citizen may invoke the prohibition of discrimination on ground of nationality which shows in article 18, TFEU and it is materialised in article 4 of the Regulation 883/2004. Those situations include the ones deriving from the exercise of the freedom to move and to reside in the territory of the Member States, which are laid in articles 20 (2), 1º§, a) and 21, TFEU.

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