Table of Contents: I. Introduction. – II. A five-step evolution: integration, lawful residence and social benefits. – II.1. Step 1: the early cases. – II.2. Step 2: the reign of vague legal formulas. – II.3. Step 3: the Förster judgment as a turning point. – II.4. Step 4: Ziółkowski & Szeja and the (new) dominance of Directive 2004/38. – II.5. Step 5: Dano, Alimanovic and beyond: the inevitable and logical next step? – II.6. The relationship between primary and secondary law. – II.7. Evolution, not revolution. – III. Beyond step no. 5 – the consequences of the Court’s case law. – III.1. The marginalization of the precariat and the Janus-faced approach of the Court. – III.2. Automatic findings of illegality and the demise of individual proportionality assessments. – III.3. The ever increasing scope of “social assistance” under Directive 2004/38. – IV. Conclusion.
Abstract: Much attention has been given to recent decisions in the field of EU citizenship, such as Dano and Alimanovic (Court of Justice: judgment of 11 November 2014, case C-333/13, Elisabeta Dano and Florin Dano v. Jobcenter Leipzig; judgment of 15 September 2015, case C-67/14, Jobcenter Berlin Neukölln v. Nazifa Alimanovic and Others). It is often claimed that the Court of Justice has undermined the value of Union citizenship in order to quell the rising tide against immigration and the free movement of persons within the EU. This Article will depart from this commonly held view, by claiming that rather than being a revolutionary act, the Court’s decision in Dano is merely the logical evolution of the case law on Union citizenship after the adoption of Directive 2004/38. The Court treats Directive 2004/38 as a closed system and will only accept residence fulfilling the conditions mentioned in the Directive as legal residence. The consequences of this evolution are Janus-faced: whilst some Union citizens lose out from the current approach, a strict reliance is beneficial to other categories of Union citizens. An exclusive focus on the Directive can be problematic due to the lack of individualised proportionality assessments, as well as an increasing range of social benefits that can be subjected to residence tests. However, the Court is merely accepting the political choices made by the EU legislature, and thus any criticism of the legal situation of EU citizens under Directive 2004/38 may be better placed against the EU legislature, rather than the judiciary.
Keywords: EU citizenship – legal residence – social assistance – integration – Dano – Directive 2004/38.