Citizenship: A Balancing Exercise?

The previous two papers in this volume identified and commented upon a turn in case law towards narrowing down social rights for EU citizens while giving more attention to (nationalist) protective reflexes of Member States. Both papers criticize the type of solidarity that results from this case law; it marginalizes the weakest members of society, and excludes them from free movement rights. The case law raises doubts on the relevance of the citizenship provisions in the EU Treaties and the fundamental nature of the status of EU citizenship, and accordingly on the role of the Court of Justice of the European Union in the debate on welfare tourism.

This paper concentrates on the latter. It will rely on and refer to the previous two papers where relevant. The questions underlying this paper are: Is the Court sensitive to the political context of fear for benefit tourism?1 Is the Court giving up its role as an engine for further integration by following the lead of the EU legislator?2 The paper will take a closer look at the arguments of the Court in the cases Brey, Dano and Alimanovic3 with the purpose of finding out whether it is possible to detect arguments underscoring the Court’s sensitivity to the political climate.