The Foster case underscores the CJEU's adaptability and its readiness to draw from EU legislation to find precise solutions to eligibility issues, even if they had been resolved differently in prior cases.¹ This case exemplifies the CJEU's intention to draw from EU legislation to find precise solutions to eligibility issues, even if they had been decided differently in prior cases.² It illustrates the CJEU's willingness to defer to the EU legislator in resolving such matters, showcasing its adaptability to changing legal contexts. For example, in the Trojani case,³ predating Directive 2004/38, the CJEU held that an EU citizen had the right of residence under Article 18(1) EC,⁴ and once granted residence, they were entitled to social assistance benefits.

However, a different decision was applied in the Dano case.⁵ A Romanian national, Ms. Dano, residing in Germany, was seeking social assistance benefits. It was disputed whether EU law permitted the exclusion of nationals of other member states from entitlement to a special non-contributory cash benefit if they entered a host member state solely to benefit from its social assistance without seeking to integrate into the labour market. The CJEU began by emphasising that EU citizens' rights to reside were subject to specific limitations and conditions set forth in the Treaties and relevant measures.⁶ It then determined that Ms. Dano's residence did not meet the conditions outlined in Directive 2004/38.

The CJEU underlined that allowing those without a right of residence under Directive 2004/38 to claim social benefits under the same conditions as host Member State nationals would contradict the directive's objective of preventing EU citizens from becoming an unreasonable burden on the host Member State's social assistance system.⁷ This unequal treatment was a direct consequence of the directive's provisions, specifically the link between resource sufficiency and not burdening the social assistance system.

In conclusion, the CJEU's approach to cases involving the entitlement of EU citizens to social benefits is context-dependent, and its decisions often reflect the evolving legal framework established by EU directives. This adaptability highlights the nature of EU law, formed by both CJEU jurisprudence and evolving legislative frameworks.

References

1. Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep (Case 158/07) [2008] ECR I-8507
2. Christopher Vajda, “Democracy in the European Union: what has the Court of Justice to say?” (2015) C.J.I.C.L. 4(2), 226-241 <https://uk.westlaw.com/Document/IFF6FAA30239B11E6B28DFFF455EE2E20> accessed 16 October
3. Michel Trojani v Centre public d'aide sociale de Bruxelles (CPAS) (Case 456/02) [2004] ECR I-7573
4. European Communities Treaty (EC), art.18(1)
5. Elisabeta Dano and Florin Dano v Jobcenter Leipzig (Case 333/13) [2014] EU:C:2014:2358
6. Ibid
7. Ibid