No abstract

As the result of the case law of the Court of Justice of the European Union on EU citizenship provisions, even citizens who are not economically active have access to social benefits in a country other than that of origin. Is it justified to connect such effects to EU citizenship, even though EU citizenship does not yet have an identity of its own? In this contribution the case law is analysed and it is argued that because of the objective justification that Member States can still offer for limiting access to their systems, more precisely by the link they may require between the claimant and their community, the case law fits well in the system for achieving the free movement of persons. This 'link approach' is a better explanation for the consistency of the case law than an explanation based on cross-border solidarity or a special identity relating to EU citizenship.

As a general rule, persons (both EU citizens and third-country nationals) working in the Netherlands are treated in the same way for social security as resident Dutch nationals (however, for certain categories such as posted workers, different rules apply). Migrants who are not working, but live in the Netherlands have restricted access to social assistance benefits, although after five years of residence they are treated the same as Dutch nationals. Export of benefits within the EU is regulated by the EU coordination rules on social security. Export of benefits outside the EU is governed by bilateral agreements.

Marshall (1950) conceptualizes citizenship as a status of membership in a community; social rights are defined as core for the ability of all citizens, irrespective of class, to more fully enjoy political and civil rights. According to Marshall, social rights encompass everything from the right to a modicum of economic welfare to the right to live the life of a civilized being according to the standards prevailing in the society. The evolution of social rights, and of the welfare state more generally, was closely linked to the establishment of the nation state. Moreover, the nation state was sovereign to limit the provision of social rights and benefits to its citizens. However, the process of European integration has gradually eroded the sovereignty of EU Member States to limit service provision and granting of benefits to their citizens and territory. Nevertheless, Member States remain the primary institutions responsible for determining the overall design of social policies in a multi-tiered polity guided by the principle of subsidiarity (Leibfried and Pierson 1995). Therefore, it is not surprising that the institutional design of social policy varies significantly within the European Union since some welfare states are built on the principle of universalism, others on promoting social stability, and others still on mitigating poverty. Moreover, concepts of social rights or social citizenship do not have a uniform meaning and applicability across the EU and the real worlds of EU citizens' social rights differ greatly among Member States (cf. Ferragina and Seeleib-Kaiser 2011; Ferragina et al. 2015). EU citizenship is a recent concept introduced by the Treaty of Maastricht (1992). It is of particular importance as previously the rights ensured by the Treaties and the right to free movement had been largely limited to workers and self-employed persons. Since Maastricht, they can be enjoyed also by economically inactive persons. EU citizens have the right to reside on the territory of another Member State for a period longer than three months, if they are 'workers' or 'self-employed

Unemployment benefits are a special type of benefit for coordination purposes since Member States exporting benefits tend to fear that supervision of their benefit recipients in the host State will not be satisfactory. For this reason, several complicated rules have been made, which are disadvantageous for the benefit recipients living in a country with low unemployment benefits who last worked in a country with higher benefits. The rules are also disadvantageous for countries with many outgoing frontier workers. Although the proposal for revising the Regulation includes new rules to address these problems, the large differences in interests between Member States make it difficult to reach a compromise.