All right, so let's talk about the standard situation first. And that is the situation where people enter and reside in the member states, in their host member state, on the basis of Directive 2004-38. The biggest part of Directives 2004-38 is basically devoted to entry and residence and to all kinds of rules with regards to effectuating those rights of entry and residence and also rules with regards to how a member state can stop that and all the procedural surroundings around that.
With regards to equal treatment, so how are people treated when they are actually residing in a member state, you need to look at Article 24 of the Directive most notably, and also for TCN family members, Article 23 is important. But let's have a look at Article 24 first. It says in paragraph 1, subject to such specific provisions as are expressly provided for in the Treaty and Secondary Law, All union citizens residing on the basis of this directive in the territory of the host member state shall enjoy equal treatments with the nationals of that member state within the scope of the treaty.
The benefit of this right shall be extended to family members who are not nationals of a member state and who have the right of permanent residence. So you see here a blanket non-discrimination provision. So you see a blanket rule that says... You should be treated equally.
Well, what does that mean in reality? We've seen very early on when we talked about the introduction to the course, we also talked about the different forms of discrimination that you can run into. And also with regards to free movement of goods, we talked about direct discrimination, we talked about forms of indirect discrimination, and maybe even non-discriminatory barriers that lead to hindrance. What we shall see in the other videos when we talk about the development of the specific rules even pre-citizens rights directive, pre-directive 2004-38 and sometimes even pre-citizenship altogether, how these rules developed and what is encompassed.
At this point in time it's safe to say that basically this covers at least all forms of discrimination, so direct discrimination. That means that you would make a direct distinction based on the nationality of a European citizen that moves to a certain member state and also indirect discrimination. And depending on the different areas that you talk about, but I'll go into that into other videos, it also covers the purely non-discriminatory barriers. So those barriers that are likely to hinder or make less attractive.
the exercise of the freedoms, in this case the free movement of persons. It subjects itself to specific provisions in the treaty or other secondary legislation, so that means that it acts as a general prohibition on discrimination. And you also see that there are no justification possibilities given. And that is where you would need the treaty and where you would also need the case law interpreting the treaty in order to decide in what elements there can be justifications for non-equal treatment.
Don't be deceived by the wording of Article 24 not mentioning justifications. In the practice, you still see that member states have a possibility to justify these type of measures. Basically, in the same system, in the general system as we've described it early on, that means to say that direct discriminations can only be justified on grounds that are expressly mentioned in the treaty, and indirectly discriminatory barriers and non-discriminatory barriers should... be justified either on the basis of the treaty or on the basis of a rule of reason that flows forth from the case law and that is earingly similar to the rule of reason that you see in free movement of goods stemming from the cassis de dijon case other mandatory requirements in the public interest. So that is still a possibility.
An interesting thing to look at with regards to Article 24 is also subsection 2, because subsection 2 limits that right of equal treatment already for some particular persons or particular categories of persons. By way of derogation from paragraph 1, the host member state shall not be obliged to confer entitlements to social assistance during the first three months of residence or where appropriate, the longer period provided for in Article 14.4b. Nor shall it be obliged prior to acquisition of the right of permanent residents to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status, and members of their families.
What this does is to... more or less interplay with these different categories. As you will see if we go through the other videos and through specific categories of people, you see that equal treatment or full equal treatment or nearly full equal treatment was achieved for everybody who is economically active in a member state.
That means that if you actually contribute to the economy of the member state that you are going to, so you work... or you are self-employed, you pay taxes, you pay your social premiums, and you are a full participating member of the economy of the host member state, there is very little protest against you being given complete equal treatment as compared to a national. So that means that every social benefit that a national has access to, you have access to as well if you are a worker and if you contribute to that economy.
So that's... is not the case with people who are economically inactive. We've seen those three categories. We've seen those coming back in two categories in Article 7 of Directive 2004-38 of people who are not economically active and who have to fulfill the condition that they have enough financial means to provide for themselves and to have a health insurance that covers their stay in that particular member state.
So you see that 24-2 tries to cover that. Doesn't completely do that, but it gives some blanket exceptions. And it says, well, the host member state is not obliged to pay social assistance during the first three months of residence.
And social assistance has a very specific meaning in this situation. We know that from case law, from the Breit case, we know, and I'll try to explain it in colloquial words, it is basically the amount of money that you get from the government, if there's nothing else, that prevents you from actually starving to death and not being able to buy food. That is what social assistance is. And the directive says there's no entitlement to social assistance during the first three months of residence.
So in that first free period where every European citizen can move to another member state, you are not entitled to social assistance. The other blanket exception that. Note, the first blanket exception, the social assistance, is also extended for another category of people because it says, or the longer period provided for in Article 14.4b of the directive. And if you look at Article 14.4b, you will see that that covers people who are trying to find a job. So there is a possibility, we haven't talked about this before, but there is a possibility in the directive.
that if you come to another member state, if you spend three months there looking for a job in the time period of Article 6, you still don't fulfill any of the criteria of Article 7. There is a possibility to stay longer and to look for a job, and that is provided for in Article 14.4b. The exception in Article 24.2 also says that you are not entitled to social assistance during those... those that longer period.
The other blanket exception in 24-2 is that the member states prior to the acquisition of the right of permanent residence to people who are not workers or self-employed not economically active, the host member state is not obliged to provide these people with study grants or maintenance aid for studies, so basically money that helps you sustain yourself while studying in the form of loans or grants in the host member state. And that is something that the member states... made sure that was in the directive because if that was not there, that would be a very expensive thing for member states if they had to provide maintenance, if they provide maintenance aid for their own students, if they would have to provide that as well for foreign students as well.
That would very quickly lead to a disbalance in financing higher education. So those are the two blankets. the two blanket elements in article 24.2 so no social assistance within that specific meaning during the first three months or if you are looking for work and no maintenance aid for students before they have gained permanent residence after they have gained permanent residence they are entitled if nationals are entitled or if they are not workers or self-employed, if they become economically active, if they start working or if they become self-employed, then they are economically active and they have a right to full enjoyment of equal treatment.
With regards to the economically inactive people, you should understand that there is a discrepancy between the criteria that are needed to be able to reside, Article 7, And the entitlement to equal treatment. The article only exempts social assistance during the first three months. That means that if you are an economically inactive person, and if you run out of money, say that you were registered as a student, and you run out of money, and you have to...
apply for social assistance, if you are legally resident under the Directive, if you have that registration under Article 8, that you are registered under Article 7.1c, you will get that social assistance, even though there is a requirement in Article 7.1c saying that you should have enough financial means. So these are at odds with each other. And there's a large grey area between where you have a right to equal treatment based on Article 24, if you are registered under the directive, but you don't necessarily fulfill the conditions of Article 7 anymore. And there is a turnaround point there.
And that turnaround point is also visible in Article 14 of the directive, where the... The directive talks about the fact that a member state shall not expel or shall not automatically expel a union citizen if they resort to the social assistance system of the host member state. And that's actually quite ominous because that seems to imply that. outside of the system of Article 27, 28 that we talked about, there is a possibility in a directive, albeit hidden, that you can be expelled for not fulfilling the conditions of Article 7, for example, or not falling under any of the residence requirements under Article 7. And that is still largely uncharted territory. There's not wide arranging policies in member states to follow this up and to harshly kick everybody out who doesn't fulfill the criteria of Article 7. But you enter a grey area if you have to resort to social assistance that you may have a right to on the basis of Article 24. If you are not supposed to be a member of the House of Representatives, you are not supposed to be a member of the House of to need the social assistance system in order to fulfill the conditions of Article 7. If you become an unreasonable burden on the social security system or the social assistance system of the member state, then a member state theoretically should be able to at least ask you and if we read the directive correctly even make you leave that member state so if you resort to social assistance even though you have a right to it on the basis of article 24 if you are in a situation where under article 7 you should not be resorting to social assistance because one of the requirements is that you need enough financial means, so if you fall under one of the conditions of non-economically active people, then you start eating your right of residence.
The social assistance you get in order to buy food sort of corrodes your right of residence and then at one point in time the member state should be able to say okay that's enough and now we're going to ask you kindly, but if not not kindly, to leave the member state. So that's basically the system of the directive is pretty much straightforward. That is it. But we can't suffice with that. We have to look into the different modalities.
So we have to look into the different modalities of persons in the situation prior to the Citizens'Rights Directive in order to grasp the full meaning of Directive 24, Directive 2004-38. Sorry, an Article 24 within it. So we'll do that in the next videos.
So see you in the next video.