An EU Fundamental Right to Social Assistance in the Host Member State? The CJEU’s Ambivalent Approach to the Free Movement of Economically Inactive Union Citizens Post Dano

Abstract

The right of residence of economically inactive Union citizens, as well as their claim to access to social benefits in other EU Member States, constitutes a complex and politically sensitive issue which has been debated controversially in EU law for decades. After some initially dynamic case-law, the CJEU followed a more reserved approach in its Dano judgment that was handed down on 11 November 2014. Its interpretation has however remained controversial, notably in view of the specific facts, the selective discussion of EU secondary law, and the unclear relationship to established as well as to subsequent case-law. Thus, the first follow-up judgment has been awaited with interest. It is the judgment in the CG case handed down on 15 July 2021 and discussed here; it however proves ambivalent. On the one hand, the CJEU has continued its restrictive reading of Free Movement Directive 2004/38/EC, whilst on the other hand the CJEU has activated for the first time, moreover contrary to Dano and with potentially far-reaching consequences, EU fundamental rights as a basis for a claim to social assistance in the host Member State.