Free movement orthodoxy teaches us that Member States cannot rely on economic justifications in relation to rules that are directly discriminatory; and that economic reasons can be taken into account in order to justify rules that are not directly discriminatory provided that the aim pursued by the measure is not solely economic. This approach is entirely consistent with the premises of an internal market where protectionism should be eradicated, but where Member States should still be allowed to pursue public policy aims which, quite naturally, might carry budgetary constraints. In this respect, the greatest challenge for the interpreter concerns rules that are both economic and inherently territorial, such as tax rules: in those cases, eliminating discrimination without impinging on the integrity of the tax system has not always been easy to achieve. Similarly, the application of internal market rules to fields, such as healthcare, that are particularly resource-sensitive has not been entirely straightforward. Jukka Snell, in another chapter of this collection, analyses the extent to which the ‘no economic justification’ rule is actually supported by a more careful reading of the case law on the free movement provisions. In this contribution, on the other hand, I want to explore how far those hermeneutic guidelines can be transposed to one particular area of free movement, that of citizens. In particular, my contention is that in the field of Union citizenship, the migration of citizens with no connection to the internal market can be limited on economic grounds; and, further, that this tells us something important about what Union citizenship is (or, more precisely, what Union citizenship is not). I will start by analysing the case law on incoming migration of non-economically active Union citizens. I will then turn to the Court’s approach to outward movement; and to citizens that, whilst not economically active, have some internal market ‘credentials’. I will conclude that the Court’s approach to justifications shapes Union citizenship to reinforce the allocation of welfare responsibilities along traditional lines, so that Union citizens are primarily the economic and social responsibility of their State of nationality, regardless of the actual links existing between citizen and state of residence and state of nationality.

Citizenship: reallocating welfare responsibilities to the state of origin

Eleanor Spaventa
2016

Abstract

Free movement orthodoxy teaches us that Member States cannot rely on economic justifications in relation to rules that are directly discriminatory; and that economic reasons can be taken into account in order to justify rules that are not directly discriminatory provided that the aim pursued by the measure is not solely economic. This approach is entirely consistent with the premises of an internal market where protectionism should be eradicated, but where Member States should still be allowed to pursue public policy aims which, quite naturally, might carry budgetary constraints. In this respect, the greatest challenge for the interpreter concerns rules that are both economic and inherently territorial, such as tax rules: in those cases, eliminating discrimination without impinging on the integrity of the tax system has not always been easy to achieve. Similarly, the application of internal market rules to fields, such as healthcare, that are particularly resource-sensitive has not been entirely straightforward. Jukka Snell, in another chapter of this collection, analyses the extent to which the ‘no economic justification’ rule is actually supported by a more careful reading of the case law on the free movement provisions. In this contribution, on the other hand, I want to explore how far those hermeneutic guidelines can be transposed to one particular area of free movement, that of citizens. In particular, my contention is that in the field of Union citizenship, the migration of citizens with no connection to the internal market can be limited on economic grounds; and, further, that this tells us something important about what Union citizenship is (or, more precisely, what Union citizenship is not). I will start by analysing the case law on incoming migration of non-economically active Union citizens. I will then turn to the Court’s approach to outward movement; and to citizens that, whilst not economically active, have some internal market ‘credentials’. I will conclude that the Court’s approach to justifications shapes Union citizenship to reinforce the allocation of welfare responsibilities along traditional lines, so that Union citizens are primarily the economic and social responsibility of their State of nationality, regardless of the actual links existing between citizen and state of residence and state of nationality.
2016
9781849466202
Koutrakos, Panos; Syrpis, Phil; Nic Shuibhne, Niamh
Exceptions from EU free movement law : derogation, justification and proportionality
Spaventa, Eleanor
File in questo prodotto:
File Dimensione Formato  
Spaventa_Exceptions from EU Free Movement Law, 03.pdf

non disponibili

Descrizione: Capitolo in Volume Colletaneo (versione bozza corretta)
Tipologia: Documento in Pre-print (Pre-print document)
Licenza: NON PUBBLICO - Accesso privato/ristretto
Dimensione 182.06 kB
Formato Adobe PDF
182.06 kB Adobe PDF   Visualizza/Apri

I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.

Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11565/4025855
Citazioni
  • ???jsp.display-item.citation.pmc??? ND
  • Scopus ND
  • ???jsp.display-item.citation.isi??? 10
social impact