EU Citizenship, Access to “Social Benefits” and Third-Country National Family Members: Reflecting on the Relationship Between Primary and Secondary Rights in Times of Brexit

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Table of Contents: I. Introduction. – I.1. Mapping out the constitutional and legislative framework for EU citizenship law. – I.2. The multiple constitutional functions of Art. 21 TFEU. – I.3. Tensions between primary and secondary law: the UK Settlement as an illustration. – II. Deconstitutionalising the perimeters of EU citizenship law: from Martínez Sala v. Freistaat Bayern to Brey as reflected in the UK Settlement. – II.1. Enshrining EU citizens’ rights in EU primary law: “constitutional engineering”. – II.2. The adoption of new legislation: fresh political guidance. – II.3. Legislation acting as a gateway to EU citizenship rights. – II.4. Interim conclusion: deconstitutionalisation. – III. Constitutionalising the perimeters of EU citizenship law: from Metock to Lounes, via the UK Settlement. – III.1. EU legislation and the rights attached to EU citizenship: from Singh to Akrich. – III.2. Ambiguities on the sources of rights: the adoption of a new legislative framework & revirement in Metock. – III.3. Shifting to Art. 21, para. 1, TFEU: from the UK Settlement to Lounes. – III.4. Interim conclusion: constitutional protection? – IV. Soul searching: acknowledging the political dimension of EU citizenship law and locating the debate at legislative level. – IV.1. Art. 21, para. 1, TFEU and Directive 2004/38: the Directive as a gateway to EU primary rights? – IV.2. Concluding remarks on the relationship between primary and secondary rights.

Abstract: In a series of recent cases on the rights of mobile EU citizens who do not perform an economic activity, the Court of Justice of the EU “deconstitutionalised” its understanding of key aspects of the free movement of EU citizens. The Court moved the discussion to the secondary law level, having kept it at the primary law level for many years. This line of cases sheds light on the ability of the Court to reframe the interplay between primary and secondary law as well as between the judicial and political guidance. The post-Brey case law provides a remarkable, if not unique, example of deconstitutionalisation following a period of intense constitutionalisation. The practical implications of this process are well illustrated in the context of the debate on Brexit that tests the relationship between treaty and legislative rights. This Article makes an enquiry into whether the trend towards a broader deference to political guidance in EU citizenship case law has been mirrored in other areas of citizens’ rights having been subject to controversy in the context of Brexit, such as the status of third-country national family members.

Keywords: EU citizenship – constitutionalisation – settlement for the UK – Brexit – MetockBrey.

European Papers, Vol. 3, 2018, No 3, pp. 1353-1378
2499-8249 - doi: 10.15166/2499-8249/274

* Head of the Institute for European Law, KU Leuven, and Visiting Professor, College of Europe,


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