The entitlement of migrant Union citizens to social assistance in the host Member State: which kind of solidarity?

Social assistance is a very European concept. It was created and implemented in Europe and still nowadays Europe is, generally speaking, probably the region of the world with the best social assistance systems. The idea of social assistance is strictly connected to the idea of solidarity and the entitlement of an individual to welfare support depends basically from his right to claim membership of a specific solidaristic community. This right is determined using precise parameters and the first and most important among them is citizenship, albeit in its classic sense of being a national of a specific country. Although in the last sixty-five years integration among European countries has gradually become a reality – including the establishment of an European citizenship which, according to the Court of Justice of the European Union, "is destined to be the fundamental status of nationals of the Member States"- there are still areas of sovereignty left to Member States and one of them is actually the primary responsibility for welfare provision. The impact of EU law, though, in this field (as in many others) hasn’t been negligible. Accordingly, this chapter is focused on one specific aspect of solidarity in the European Union, namely which kind of entitlement to social assistance in the host Member State is provided for by EU law for migrant Union citizens and its impact upon the Member States’ systems of social protection. In the light of what has happened, from the establishment of the European Communities up to now, in the field of social rights that citizens of a Member State enjoy in another Member State it seems possible to conclude that, in general, the evolution of solidarity among Europeans has been outstanding. While at the very beginning there was no explicit obligation for host Member States to confer entitlement to social assistance to nationals of other Member States, little by little the number of migrant Union citizens who have the right to social support from the host Member States has constantly improved. This is mainly thanks to the case law of the Court of Justice of the European Union, which has often been anticipating EU legislation. Temporally, the first kind of solidarity implemented by EU law is the one defined by some scholars “mechanical”, namely solidarity towards economically active citizens of other Member States. This solidarity is, generally speaking, easier to achieve since these economically active persons can claim membership of the solidaristic community if not on the basis of their nationality, at least on the basis of their economic contribution. And there seems to be no doubt that, today, economically active migrant Union citizens are entitled to social assistance in the host Member State. The matter is more complicated for the other category of migrant EU citizens, those economically inactive. In theory they might enjoy “organic” solidarity, i.e. a solidarity normally based on nationality and, in the specific case, on citizenship instead, namely Union citizenship. And actually, until the most recent rulings (from Dano on) the case law of the Court seemed to go in that direction, with the approval of many scholars. But, after reaching its climax with Brey (which, to tell the truth, has anyway been criticized by more than one commentator), the case law of the Court has become more conservative. Although the approach of the case law from Dano onwards is politically understandable, it is not fully convincing from a strictly legal point of view. The Court could, and probably should, have considered challenging the legality of some dispositions of Directive 2004/38 – and in particular its articles 6, 7, 14 and 24 – for infringement of the Treaties. Actually, challenging the legality of articles 7(1) and 24(2) of Directive 2004/38 for infringement of the Treaties seems to be a possible solution in the light of the black-letter terms of article 18(1) and even more considering the extensive interpretation of this provision given by the same CJEU. The Court, though, has never done so. Actually, when referred with the question it seems to have refused to face it. Sometimes, as in the recent case García Nieto, simply not approaching the question from this angle. In other occasions, as in the less recent joined cases Vatsouras and Koupatantze, bypassing the core of the problem (i.e. is article 24(2) of Directive 2004/38 illegal for infringement of Treaties, and in particular article 18 of the TFEU?) with an elaborate reasoning which, albeit not excluding a possible compatibility of article 24(2) of Directive 2004/38 with the principles of non-discrimination enshrined in primary law, does not give a direct answer to the main question. The matter with the solution proposed (i.e. a judicial review of the content of Directive 2004/38) is that this solution – which indeed is maybe radical from a political point of view, but not from a strictly legal one- poses a twofold problem. The first (comparatively minor) consequence is that the solidarity between migrant Union citizens and domestic contributors resulting from the suggested solution penalizes more generous Member States. The second, major, consequence of the solution proposed is that the kind of solidarity it promotes risks to give rise to tensions in the national (or local) community, precisely because the migrant is not a member of the community neither on the basis of nationality stricto sensu nor of economic contribution. In the light of what is at stake, the solution to the open question of the extension ratione personae, ratione materiae and ratione temporis of migrant Union citizens’ right to social assistance in the host Member State can hardly be just a strictly legal one. A political one is needed. In other words the final solution should be found de lege ferenda rather than de lege lata. In this historical moment it seems wrong – and to a certain extent also unfair- to put all the weight of such decisive choices for the future of the European integration on the shoulders of the Court which, in the aftermath of Brey, had already been accused by a critical commentator to have “completely ignored the political compromise of 1992, which as a response to the Court’s case law of the 1970s and 1980s, had introduced a special residence-based coordination for these benefits”. Moreover the same Court seems no longer to have the strength, or the will, or maybe simply the courage, that allowed its rulings to play a fundamental role in promoting European integration in the past decades