Emanuela Matei, Idioreality or How Media presents the CJEU rulings and their fabulous impact on the Brexit debate

Emanuela Matei, Idioreality or How Media presents the CJEU rulings and their fabulous impact on the Brexit debate, linkedin, 14.06.2016

Idiocracy” is an American movie released in 2006. Two test subjects gifted with average intelligence had been left – by mistake – to hibernate until 2505, they woke up in a world, where stupidity prevailed and they become – unexpectedly and quite sadly – the most intelligent people on the planet.

I have read today a couple of articles supporting the idea that the CJEU upheld the UK restrictions on child benefits with a view on discouraging the votes pro Brexit. If EU law were a funny story maybe this could be a possible interpretation of the ruling in Case C-308/14. Even odder is the indication that next time, the CJEU may go against its own ruling and stop being so UK-friendly.

Reading all this moonshine stories I felt suddenly as a guinea pig for a secret hibernation programme wondering why I have spent so many years in school trying to make sense of legal meanings. In a sense my reading of this new ruling is much simpler than the one presented by media. In law, some words are meant to have a superior status, so they become CONCEPTS. Residence is such a word. The main key for a correct understanding of the ruling in Case C-308/14 is provided by the not-so-spectacular insight that the word „residence” used in the text of the Regulation No 883/2004 and the word „residence” used in the text of the Directive 2004/38/EC have different legal meanings.

The Regulation aims to eliminate the possibility of claiming child benefits from two different Member States, especially in cases where the children remain in the Member State and the parent moves and works in a different Member State. It also ensures that persons covered by it are not left without social security, because there is no legislation being applicable to them. Article 11 contains a number of „conflict rules”, meaning rules that do not clarify the content of social rights, but define in which case the law of a Member State is applicable.

The Directive aims on the other hand to define the right to residence trying to cover all situations: economically active, economically inactive, long term residents, short term residence, citizens and family members. The ruling in Danohas clarified that the scope of equal treatment in matters of social benefits is narrow and it only covers legal residents. In order to determine who is a legal resident for the case of a person remaining on the territory for more than three months, but less than five years, the rules of the Directive 2004/38 define what it is meant by „legal residence”, more or less requiring the capacity to subsist without becoming a burden for the social security system of the Host Member State.

Dano did not explain on the other hand what can happen with a citizen who has not acquired yet the right of residence in the host Member State and the law of the home Member State requires that the person resides habitually on its territory in order to qualify for benefits. One of the objectives of the Regulation no 883/2004 was to guarantee that persons covered by Regulation No 883/2004 were not left without social security protection. However, in the absence of common rules establishing a minimum standard, the parallel existence of divergent, sometimes contradictory systems continues to prevail.

The CJEU marks clearly that the measure of checking the right to residence of non-nationals in connection to an application for benefits is indirectly discriminatory and that the objective of protecting the finances of the host Member State is legitimate. This affirmation does not infer that the measure is justified. Concerning the proportionality, the CJEU affirmed that the Commission failed to  provide evidence or arguments showing that such checking does not satisfy the conditions required:

  • that it is not appropriate for securing the attainment of the objective of protecting public finances or
  • that it goes beyond what is necessary to attain that objective.

Therefore, it is obvious that the same measure in a preliminary ruling examination may lead to the conclusion that the measure is not appropriate or not proportionate, all depending on the factual background of the case and the arguments put forward by the parties.

The main ideas of the case are two:

1. Residence as conflict rule and residence as right should not be mixed-up.

2. The checking of the residence rights is not automatically considered to constitute an appropriate and proportionate measure for the fulfilment of the objective of protecting public finances; it is not per se legal under EU law.

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