Exploring the Links between Residence and Social Rights for Economically Inactive EU Citizens

Abstract

This article examines the links between residence and social rights in the context of EU citizens’ mobility. It builds on national replies to a questionnaire concerning the implementation and application of Directive 2004/38 at the national level. Our focus is on how the EU28 are implementing the provisions on social assistance for economically inactive EU citizens, including five relevant European Court of Justice (ECJ) judgments in this area (Brey, Dano, Alimanovic, Garcia-Nieto and Commission v UK) and the provisions on permanent residence status. Based on the national replies we argue that asking for social benefits becomes a first step towards being considered by the administration as an unreasonable burden, which leads to the termination of EU residence rights. Our analysis shows that asserting and maintaining residence rights under Articles 7 and 16 of Directive 2004/38 is becoming problematic for certain categories of EU citizens and linked with the more restrictive position taken by some Member States in relation to accessing their national social assistance systems.

Struggles over social rights: Restricting access to social assistance for EU citizens

“…For the current analysis, we decided to focus on EU states that referred preliminary questions linked to EU citizens’ right to reside and access social rights (Austria, Belgium, Germany) and on states where EU mobility was a salient issue based on existing research, including our own previous project. There we concluded that ‘asking for social benefits becomes a first step towards being considered by the administration as an unreasonable burden, which leads to the termination of EU residence rights’ and that ‘asserting and maintaining residence rights under Articles 7 and 16 of Directive 2004/38 is becoming problematic for certain categories of EU citizens and linked with the more restrictive position taken by some Member States in relation to accessing their national social assistance systems’ (Mantu and Minderhoud, 2019: 313–314). The comparative legal analysis in this article allows us to take a longitudinal perspective on the widening and contracting of EU social citizenship and to highlight its effects for economically inactive EU citizens.…”

“…On the other hand, the Directive does not clearly spell out the legal consequences of a request for social assistance by an economically inactive EU citizen prior to the acquisition of the right of permanent residence (after five years). Nor does it provide a clear definition of what sufficient resources are or when an EU citizen is an unreasonable burden for the host state (Mantu and Minderhoud, 2019; Minderhoud, 2016; Verschueren, 2015). Moreover, the preamble of the Directive lists contradictory aims: some speak of the fundamental status of EU citizenship and the need to examine requests for social assistance individually (recitals 3 and 16) while others emphasise welfare sovereignty and the host state's right to ensure that EU citizens do not constitute an unreasonable burden for their social assistance systems (recitals 10 and 21).…”

“…The local level is usually where the delivery of welfare takes place, at the level of municipalities. In past work we have shown that the transposition of Directive 2004/38 was used by several EU states to restrict the access of certain categories of EU migrant citizens to social assistance and jobseeking allowances with a view to limiting social rights to national citizens who are constitutionally entitled to them and to EU workers and self-employed whose entitlement stems from contribution via taxation on work or economic activity (Mantu and Minderhoud, 2019). Empirical research into how EU citizens experience their EU rights at the local level suggests that there is a lot of confusion as to what entitlements such citizens have in relation to social rights.…”

“…The national practices we discuss in this article fit within an understanding of Europeanisation as a ‘two-way-process’ where the Member States do not passively adapt to EU law, but rather use the integration process to pursue national interests (Börzel 2002; Radaelli 2003) with varying degrees of success. As such, legal uncertainty creates opportunity structures for the Member States to – sometimes successfully – pursue their own national interests via CJEU litigation and modify the interpretation of EU law to match national preferences (Mantu and Minderhoud 2017, 2019).…”

Administering the Union citizen in need: Between welfare state bureaucracy and migration control

“…But while Union citizenship, as introduced by the Treaty of Maastricht, might once have held the promise of a truly post-national social membership ( Soysal, 1994 ), scholars have more recently observed the formation of a stratification of social rights for mobile Union citizens in practice (among others Bruzelius and Seeleib-Kaiser, 2017 ; Carmel and Paul, 2013 ). Especially during the past 10 years, against the background of increasing politicization of alleged ‘social tourism’, Western European MS have made efforts to restrict Union citizens’ access to their welfare states ( Barbulescu and Favell, 2020 ; Mantu and Minderhoud, 2019 ; Roos, 2016 ).…”