Union Citizenship and Access to Welfare
For the purposes of this text, the most relevant aspect of the case law on EU citizenship is that it gave access to public benefits, stressing the determination of the ECJ to move from a model of economically active residents to a more general entitlement to free movement and residence.
The realization of this ambitious goal could be the result of the perception that EU citizenship derives from the recognition of human rights, independently from the enjoyment of the nationality of a Member State.28 The possession of the resources required by the Directives concerning economically inactive individuals, reproduced in the Citizens’ Directive, are essential but no relevance is assigned to the origin of those means.29 When the individual lacks adequate income, the Court, through Art. 18 TEC (now Art. 21 TFEU), in combination with Art. 12 TEC (now Art. 18 TFEU), nevertheless grants access to social benefits.30 The need to combine citizenship with non discrimination derives from the respect of fundamental rights31; a connection which the ECJ has recently strengthened by allowing access to benefits falling outside the material scope of Communitylaw on the sole basis of Art. 18 TEC (now Art. 21 TFEU).32 By doing so, the Court has undoubtedly signalled a move towards the affirmation of an autonomous dignity of EU citizenship.
Nonetheless, it could be argued that the latter still plays a residual role with respect to national citizenship.33 It seems that EU citizenship does not actually confer new rights; rather, it offers a new legal dimension in which to collocate the existing community rights34 (which, on the other hand, does not prescribe any restriction of rights and duties connected to nationality). Hailbronner has reacted to the approach endorsed by the ECJ considering that it entailed a circumvention of the limits contained in the relevant Directives35 and ultimately marked the end of rational jurisprudence. 36 Although it cannot be denied that a formal approach could have some advantages – a narrow interpretation would ensure more legal certainty and avoid unpalatable interferences into the competences of the Member States37 – the substantial approach followed by the ECJ, despite the risk of ‘unexpected’ balancing exercises, seems more in line with the central role of EU citizenship. By doing so, the Court influenced the traditional model of national solidarity,38 clarifying the need for a certain degree of financial support among the Member States and Union citizens.39 It is not by chance that Title IV of the Charter protects welfare and social rights. Solidarity is an important social force which builds on the conceptof ‘membership’. In relation to economic migrants this solidarity was less problematic, due to the fact that this category of persons contributed to the welfare of the host State. In these cases denying access to welfare benefits would be tantamount to an unlawful expropriation.40 But an individual in need of help cannot play a part in the development of the economic wellbeing of the ‘family’, although he/she is entitled to enjoy the solidarity of the group.
The ECJ offered constructive interpretations in order to grant free movement and residence rights to economically inactive citizens on the basis of an inclusive paradigm of EU citizenship which reduces the impact of the limits allowed by the free movement Directives.41 Since Grzelczyk and Baumbast, the ECJ made it clear that in assessing the compatibility of domestic law with Community law, the proportionality test would be strictly applied so to limit the economic and insurance justifications adduced by the States to restrain free movement. With this substantial reasoning, the Court seems determined to develop citizens’ rights fostering its role of interpreter of the fundamental rights inherent in Community law. Some commentators concluded that this interpretation allows non economically active citizens to circulate without discrimination as to their nationality even though they do not own sufficient resources to avoid claiming the social benefits of the host State.42 However, it appears that a lot needs to be done before affirming a general entitlement to free movement without any economic restraints. The case law is somewhat ‘incremental’, based on the level of integration of the citizen within the host State43: the longer the citizens reside in a host State, the more benefits they can receive on the same grounds as the nationals of that country.44As a consequence, long-term residents are assimilated to nationals of the host State,45 while medium-term inactive citizens receive almost the same treatment and they can invoke the principle of transnational solidarity in order to have their situation carefully examined on the basis of the principle of proportionality when they have temporary difficulties.46 Therefore, the request of social assistance cannot give rise to the withdrawal of their residence rights.
On the contrary, European citizens who are not integrated in the host society have currently no right to access social benefits.47 This emerges from the Collins48 case, where the Court appeased the Member States’ concerns on social tourism49: provided the necessity and proportionality criteria are satisfied, it is possible to condition a jobseeker’s entitlement to pay to a residence requirement, the latter being able to ensure that a genuine link exists between the beneficiary and the employment market in question.50 More recently, in Förster the ECJ considered a 5 years residence condition proportionate for the purpose of establishing this effective link,51 narrowing the distinction between short-term and medium-term residents.
To be honest, the impact of Förster is yet to be clarified with the consequence that the notion of citizenship can still be viewed as part of an irreversible dynamic process “capable of being added to or strengthened, but not diminished”.52 However, the evolution is not complete and the widening of the scope of free movement of citizens - which has attained the dignity of an autonomous fifth freedom53 - meets the resistance of the Member States worried of becoming ‘welfare magnets’, to the detriment of their financial resources. Thus, the right of free movement and residence continues to be conditional upon a certain level of economicself-sufficiency54 in spite of the changes in the original normative framework and the described judicial activism of the ECJ. By virtue of economic considerations, the ‘needy’ EU citizens without an effective link with the host State are today excluded from this right.
Therefore, regardless of the high consideration for fundamental rights, EU citizenship is at present far from favouring the development of the rights of residence of the indigent. Could the Lisbon Treaty and the legal binding value of the Charter reverse the situation? And if so, to what extent?
28. ‘Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for its legitimacy. [. . .] The Charter should also include the fundamental rights that pertain only to the Union’s citizens’, Annex IV of the Conclusions of the Presidency of the Cologne European Council, 3-4 June 1999, European Council Decision on the drawing up of a Charter of Fundamental Rights of the European Union (Bulletin EU 6-1999, para I.64).
29. See Directive 38/2004/EC, n. 8 above, Art. 7(1), Case C-200/02 Chen, n. 24 above, para 30 and Case C-408/03 Commission v Belgium  ECR I-2647, para 51.
30. Case C-85/96 Martínez Sala  ECR I-2691, paras 62–65.
31. K. Lenaerts and E. de Smijter, ‘A “Bill of Rights” for the European Union’, (2001) 38 Common Market Law Review 275.
32. Case C-192/05 Tas-Hagen  ECR I-10451, para 29; Case C-499/06 Nerkowska  ECR I-3993, para 30.
33. Cf. A. Ianniello-Saliceti, ‘Cittadinanza dell’Unione’, in P. De Cesari (ed.), Persona e famiglia (Giappichelli, 2008) 106, note 42, where the right currently stated in Art. 21 TFEU is considered residual as regards the rights of free movement of the economically active persons.
34. M. Poiares Maduro, ‘Interpreting European law: Judicial adjudication in a context of Constitutional pluralism’, (2007) 1 European Journal of Legal Studies 12.
35. K. Hailbronner, ‘Union citizenship and access to public benefits’, n. 4 above, 1247.
36. K. Hailbronner, ‘Die Unionsbürgerschaft und das Ende rationaler Jurisprudenz durch den EuGH?’, (2004) 57 Neue Juristische Wochenschrift 2185–2189.
37. J. Snell, ‘And then there were two: Products and citizens in Community law’, in T. Tridimas and P. Nebbia (eds.), European Union law for the twenty-first century. Rethinking the new legal order, Vol. 2: Internal market and free movement policies (Hart Publishing, 2004) 69.
38. See, for instance, M. Dougan and E. Spaventa ‘“Wish You Weren’t Here. . .” New models’ of social solidarity in the European Union’, in M. Dougan and E. Spaventa (eds.), Social welfare and EU law (Hart Publishing, 2005) 181–218; M. Ferrera, ‘Towards an “open” social citizenship? The new boundaries of welfare in the European Union’, in G. De Búrca (ed.), EU law and the welfare state. In search of solidarity (Oxford University Press, 2005) 11–38; R.W. Davies, ‘Citizenship of the Union. . . rights for all?’, (2002) 27 European Law Review 121–137.
39. Case C-184/99 Grzelczyk, n. 24 above, para 44. See also N. Reich, ‘The Constitutional relevance of citizenship and free movement in an enlarged Union’, (2005) 11 European Law Journal 680.
40. C. Tomuschat, ‘Case C-85/96, María Martínez Sala v Freistaat Bayern, with annotation’, (2000) 37 Common Market Law Review 453.
41. S. Giubboni, ‘Free movement of persons and European solidarity’, (2007) 13 European Law Journal 367. In this regard, it should be recalled that these economic restrictions were foreseen in a legal context which did not include EU citizenship and in which the legislator enjoyed more ample discretion. J.-P. Jacqué, ‘Article II-105’, in A. Levade, L. Burgorgue-Larsen and F. Picod (eds.), Traité établissant une Constitution pour l’Europe, Tome 2: La Charte des droits fondamentaux de l’Union (Bruylant, 2005) 575.
42. This is called the ‘perfect assimilation’ approach. See, for instance, A. Iliopoulou and H. Toner, ‘Case C-184/99, Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve, with annotation’, (2002) 39 Common Market Law Review 616; D.H. Scheuing, ‘Freizügigkeit als Unionsbürgerrecht’, (2003) 38 Europarecht 785; S. Friess and J. Shaw, ‘Citizenship of the Union: First steps in the European Court of Justice’, (1998) 4 European Public Law 533.
43. C. Barnard, ‘EU citizenship and the principle of solidarity’, in E. Spaventa and M. Dougan (eds.), Social welfare and EU law, n. 38 above, 168–175.
44. A.P. van der Mei, ‘Residence and the evolving notion of EU citizenship’, (2003) 5 European Journal of Migration and Law 431.
45. Case C-85/96 Martínez Sala, n. 30 above. Cf. Art. 16 Directive 38/2004/EC, n. 8 above.
46. Case C-184/99 Grzelczyk, n. 24 above, para 43; Case C-413/99 Baumbast, n. 21 above. See also A.P. van der Mei, Free movement of persons within the European Community. Cross-border access to public benefits (Hart publishing, 2003) 147–150.
47. An exception is represented by the grant of social benefits to the recipients of services through the extension of the principle of non-discrimination based on nationality. Cf. Case 186/87 Cowan  ECR 195.
48. Case C-138/02 Collins  ECR I-2703.
49. S. Giubboni, ‘Free movement of persons and European solidarity’, n. 41 above, 372.
50. Case C-138/02 Collins, n. 48 above, para 67. See also Case C-209/03 Bidar, n. 24 above, para 61.
51. Case C-158/07 Förster  ECR I-8507, para 60.
52. D. O’Keefe, ‘Union citizenship’, in D. O’Keefe and P. Twomey (eds.), Legal issues of the Maastricht Treaty (Wiley, 1994) 106.
53. J. Kokott, ‘Die Freizügigkeit der Unionsbürger als neue Grundfreiheit’, in P.-M. Dupuy, B. Fassbender, M.N. Shaw and K.-P. Sommermann (eds.), Völkerrecht als Wertordnung – ommon values in international law, Festschrift für/Essays in honour of Christian Tomuschat (N.P. Engel Verlag, 2006) 207; Editorial Comments, ‘Two-speed European citizenship? Can the Lisbon Treaty help close the gap?’, (2008) 45 Common Market Law Review 1.
54. S. Carrera, ‘What does free movement mean in theory and practice in an enlarged EU?’, n. 9 above, 701.