Alright, so in the last video we talked about the development of equal treatment rights for European citizenship that has now been codified in Directive 2004-38. Looking at that development, what you could say the outcome of that development was, is that the court basically started from the premise if you are resident in another member state no matter what the grant of that residence is you will receive equal treatment if you are a European citizen so what that basically meant and we don't have to deal at least not in these clips we don't have to deal with all those individual cases but even in cases where the residence could no longer be guaranteed on the basis of EU law as it stood at that point in time when member states would choose to let these people stay, well, actually, Martina Sala serves as a good example. Martina Sala was no longer a worker.
And as EU law stood at that time, there was a possibility for Germany to say, well, actually, you don't have a right to be here anymore. That would have been very harsh after working for 25 years, hence the development of permanent residence under the directive. But the directive wasn't there at that time. They could have said, Miss Martina Sala, you have no status anymore under EU law, so you will have to leave. But they let her stay, kind as they were.
They said, you can stay. But the consequence of that national decision to stay, to let her stay, was then you'd give her equal treatment because she's a European citizen. So basically what the court said was... Residents, no matter what the heading of that residence was, whether that was European law, whether that was national law, whether that was other international law, whether that was just being nice, doesn't matter. If a member state allowed a European citizen to stay on its territory, that European citizen would receive equal treatment.
Caused potential problems for the situation that I've in the very beginning when we start to talk about free movement of persons, I illustrated this idea of the social tourists. This dreadful nightmarish image that these member states have of somebody who knows where they can get the most money out of social benefits with doing the least possible amount of effort. And then move to that member state to start basically... living off, mooching off that social benefit system.
And that was a nightmarish image until it became true a couple of years ago. There was this case in front of the CJEU about a Romanian national who was resident in Germany, a Miss Dano. And Miss Dano...
did not have a nice life up until that point. She never finished. I don't think she even finished high school. So she didn't finish secondary education. She was basically unemployable.
Even in Romania, she was unemployable. She didn't have the diploma she would need to have. She had never worked in Romania. And she probably wouldn't be able to... to be employable in Romania.
She was certainly unemployable in Germany. She didn't speak a word of German. She lived with her sister who had a job in Germany, who was a worker, but she didn't qualify as a family member. She had a kid as well. The father of that kid was out of the picture, but she received child care benefits from the German authorities.
She didn't have a job in Germany whatsoever. She didn't qualify as a person of independent means because she didn't have any money. She was basically living with her kid on her sister's couch up until the point that her sister said, I've had enough.
You try your luck elsewhere, but you can't live here anymore. And then Ms. Dano applied for social assistance. So minimum sustenance allowance, the bare minimum, if you know the system in Germany, a Hartz IV benefit. That is what she wanted. So the lowest of the lowest, the last resort of the last resort.
It comes to social assistance. And the Germans said no, even though a German national in that situation would get that social assistance. And when that case came to the Court of Justice, it more or less looked like like as the case law stood at that point in time, that the court was going to say, no, residence equals equal treatment, so you would have to treat her equally.
Germany wasn't going to kick her out, even though on the basis of Directive 2438, Article 14, they could give her social assistance for some time and then they could say, well, you have to leave because you become an unreasonable burden on the social security system. They didn't do that. They just said, we're not going to give you the social assistance.
That the court went along in that and the court sets a significant step back in that development of equal treatment of European citizens. Because what they say is that you can only... You can only rely on equal treatment when it comes to social assistance. So they limit it to social assistance. That's an important thing to know.
They limit. So it's that same social assistance we talked about earlier as defined in the Brey case. You can only get that social assistance if you have legal residence under the directive. So they very much limit the heading of residence that qualifies you for equal treatment when it comes to social assistance to residing under the directive, which means that you can't have social assistance during the first three months, Article 24.2 of the directive.
So you'd have to fall under a heading of Article 7 or Article 16. That's a significant step back. So in all the other situations where you don't have a right of residence on the directive and therewith. on the basis of European law as an EU citizen, the member state is no longer obliged to treat you equally to its own nationals when it comes to social assistance. The full impact of this case is not yet clear.
There has been follow-up with some other cases, most notably Alimanovic, Garcia Nieto and Gussa. That basically applied the system of the directive. So Alimanovich and Garcia Nieto were job seekers who applied for social assistance, who were denied. And then the court in need says, yeah, well, on the basis of Article 24.2, you are denied.
That falls perfectly within the system of the directive. Danu did not fall within the system of the directive because the directive didn't answer Danu's situation. And actually, the literal reading of the directive says, would lead you to believe that Article 24 would apply, which means that there would be equal treatment, because it was longer than three months, she wasn't a job seeker, and it wasn't about study assistance.
So the literal wording of the directive would lead you to believe that indeed you would get that equal treatment. The GUSA case is interesting because that is about somebody who is self-employed and then loses that self-employment because basically runs out of customers. So this was somebody who had a who worked as a builder, a self-employed builder, a contractor and ran out of jobs to contract and then applied for.
social assistance and got it because the court ruled that Mr. Goussac could indeed retain his status as a person of self-employment under Article 12 of the directive. So you see that the court applies the directive in the light, but we haven't seen any good follow-up of O'Donoghue to know exactly what the impact of that case is. For all we know, it's limited to social assistance.
There is an ominous case, but that has been classified as being a political case and Brexit-related, because it was ruled very shortly before the Brexit referendum in the United Kingdom. That is a Commission versus UK case about child benefits, where the court says in an obiter dictum, so not answering the question per se, but just on the side, They mention that any social benefits can be withheld if there is no legal residence under the directive. That is not what they said, and they refer to Dano. But that is not what they said in Dano, and this hasn't been followed up since. And we know from other situations, we've seen that from residence situations, entry and residence situations, or rights of family members when it comes to entry and residence, that the court...
does rely on residual rights of the treaty, so that you fall outside the scope of the directive, per se, the right to return, for example. We talked about that. And even the rights you have as an EU citizen, if you naturalize into the nationality of your host member state, the LUNES situation, that you there can still rely on the treaty as an independent heading for equal...
rights when it comes to the rights of your spouse in those cases. But for equal treatment, we are at a situation where at least social assistance can be denied. So the court is actually setting steps back in that development. There's a couple of other atypical cases that we have to deal with, and I will deal with those in the next video. So see you in the next video.