The Future of EU Citizenship - A Retreat by the Court?

Rebecca Zahn, Nicole Busby

The European Court of Justice (CJEU) has recently had to determine whether EU Member States may restrict access to social benefits for economically inactive EU citizens. The cases come at a time of intense public debates taking place in a number of Member States over possible ways to limit the free movement of EU citizens. National politicians have started questioning the very concept of freedom of movement for EU citizens and legislative proposals have been implemented which restrict EU citizens' rights to certain benefits. While EU law provides various legal tools for Member States to react to problems related to the freedom of movement, there is some uncertainty over their scope. In its recent decisions, the CJEU has taken the approach that economically inactive EU citizens who do not have sufficient resources to support themselves do not fulfil EU law requirements for lawful residence. As a result, they are not entitled to equal treatment with nationals of the host Member State and may be denied access to social benefits. Such decisions raise a number of issues concerning the scope of EU citizenship. This paper uses these judgments as a starting point to explore the scope of EU citizenship. It then considers the alternative approach exemplified in the case law of the European Court of Human Rights - which has recognised that a State may have to provide support to an individual in situations of serious deprivation or want incompatible with human dignity - before discussing how these different approaches may be reconciled.

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