European Union (EU) citizens have become increasingly mobile within the Union. For a long time, free movement as well as cross-border social rights of EU migrants have been extended, especially by the European Court of Justice (ECJ). In principle, economically inactive EU migrants, i.e. EU migrants who do not work, have also acquired significant transnational welfare rights. But what are these rights in practice? How do EU Member State administrations apply relevant EU law and handle EU citizens’ access to social assistance? Which impact does the ECJ finally have? Is there “social tourism” (possible) – as often claimed by certain political parties? This blogpost deals with all these questions by presenting the key findings of my article, which analyses local authorities’ practices and the consequences for EU citizens.
I argue that Member States’ local authorities tend to restrict the access to social assistance benefits for economically inactive EU migrants given that they have an incentive to keep both administrative and financial costs low. Still, there may be variation on the ground. As shown in my article, varying application between local authorities cannot, surprisingly, be explained by the party-political environment. Rather, it depends on whether local authorities face a high amount of (similar) requests and resulting professionalization.
Under EU law, economically inactive EU migrants generally enjoy the right to equal treatment after a residence of three months in another Member State. However, in order to be allowed to reside for more than three months, EU citizens need to have “sufficient resources” and a health insurance so that they do not become a “burden” on the social assistance system of the Member State of destination (Article 7 Directive 2004/38). As mentioned above, this field of EU law is highly shaped by the European Court of Justice. The latter ruled in an expansive direction for quite some time and urged Member States to undertake individual assessments of the benefit requests of economically inactive EU citizens. Yet, a characteristic of ECJ judgments is that they are case specific and characterized by underspecified core concepts. Consequently, the implications for the specific case at issue are clear but not its broader implications. Lawful residence seems to be decisive in every case in order to enjoy equal treatment, but apart from that, different factors can be required. For instance, in Bidar (C-209/03), it is decisive that the person has a certain degree of integration into society; in Grzelczyk (C-184/99), the crucial factor is that the financial problems of the applicant are only temporary. Yet, Member States are not provided with a clear, general definition of for instance “burden” or “certain degree of integration”. They do hence not know about the exact limits of equal treatment.
In practice, Member States authorities could make an individual assessment and interpret the numerous and vague factors mentioned in the diverse ECJ rulings – such as “certain degree of integration” – in an expansive direction. This can probably be described as the preferred response by the ECJ. Such a response is, however, unlikely. Namely, in general, authorities need to economize both their administrative and financial costs. An individual assessment implies high administrative costs and the expansive direction of ECJ rulings would lead to increased welfare expenditure. Local authorities therefore rather opt for diverging responses which entail less administrative or/and financial costs: they abandon the individual assessment and generally deny social assistance to economically inactive EU migrants, or they clearly specify the criteria of the individual assessment, such as “burden”. They are, hence, becoming more restrictive and limit the impact of the ECJ.
Local authorities think it is all the more necessary to economize costs if they face many requests of (EU) citizens – as empirical evidence from Austrian welfare authorities’ practices with regard to social assistance claims demonstrates. Local authorities have become routinized and increasingly see the need to tighten the rules and keep financial costs low. As a consequence, they have made the access to benefits more difficult.
Welfare authorities in rural areas are not confronted with many social assistance requests of (EU) citizens. Such less exposed welfare authorities typically apply simplifying strategies: when assessing whether an EU migrant is eligible for social assistance, they only rely upon the (non-)presence of a certain document, the registration certificate. The registration certificate is a purely declaratory certificate documenting legal residence that EU citizens have to apply for with migration authorities when staying longer than four months in Austria. Migration authorities, for their part, have made the access to the registration certificate more difficult over time, interpreting ECJ case law in a more restrictive way. Hence, since economically inactive EU migrants often no longer obtain the registration certificate in the first place, they do not have access to social assistance benefits in the second place.
Still, the division of competences between migration authorities and welfare authorities partly leads to unintended generosity, meaning that economically inactive EU citizens can be granted benefits in some instances: EU citizens can fulfil the conditions for the registration certificate while being economically active and be issued the document. With this certificate, which is rarely revoked, they can draw minimum benefits afterwards when no longer working.
Therefore, welfare authorities in larger cities facing many similar benefit requests finally no longer rely upon the registration certificate. They rather opt for a categorical exclusion of economically inactive EU citizens from social assistance. Hence, they interpret ECJ case law in a more restrictive way. The empirical evidence from Austria thus confirms that exposedness and resulting professionalization matters. At the same time, it finds that, surprisingly, the respective party-political environment cannot account for the application of ECJ case law on “social citizenship”: I identify numerous restrictive practices that occur independently from the party-political context.
The underlying research demonstrates that it is difficult for local authorities to undertake individual assessments without fixed criteria or definitions. It illustrates case workers’ demand for clear rules and confirms that vague ECJ case law is a burden for authorities. Recent case law since Dano (C-333/13) has lightened the burden for administrations: it confirms the restrictive practices and general benefit denials to economically inactive EU migrants. For poor EU migrants, the restrictive practices and recent case law mean that they find themselves in a precarious situation, excluded from the last safety net of social assistance. The findings of the article hence also stand in stark contrast to alleged “social tourism”.
This blog draws on the JCMS article ‘‘Social Citizenship’ at the Street Level? EU Member State Administrations Setting a Firewall’.
Anita Heindlmaier is a postdoctoral researcher at the University of Salzburg. She is part of the D-A-CH project “Rebalancing the Enlarged Single Market”, which is funded by the Austrian Science Fund (FWF) and the German Research Foundation (DFG) and which deals with atypical labour migration in the European Union. Her research interests include EU free movement of persons, social rights and working conditions – and in particular the implementation of related EU law and policies.
Twitter handles: @heindlmaier @SCEUS_Salzburg