scholarly journals Dano and Alimanovic: the recent evolution of CJEU caselaw on EU citizenship and cross-border access to social benefits

2017 ◽  
Vol 3 (1) ◽  
pp. 65-80
Author(s):  
Rui Lanceiro

Since its inception, the concept of EU citizenship, as well as the rights and duties deriving therefrom, has evolved considerably, particularly in the area of social rights. ECJ case law has played a central role in defining the right of EU citizens to access social benefits in the host Member States, which meant a decrease in their degree of discretion to restrict the access to national social securities systems. However, the recent Dano and Alimanovic judgments represent a significant change from previous case-law, setting limits on the right of EU citizens to social benefits in the host Member States. The right of residence in another Member State appears to be dependent on the status of a worker citizen in accordance with the new methodology in order to avoid being an excessive burden on the social system of the host Member State. However, the new approach still leaves several unanswered questions. Were these decisions an attempt to address the “social security tourism” debate? Is the CJEU falling behind with regard to the protection of social rights? What will remain of previous jurisprudence?

2017 ◽  
Vol 1 (100) ◽  
pp. 1209 ◽  
Author(s):  
Encarna Carmona Cuenca

Resumen:El Convenio Europeo de Derechos Humanos no reconoce expresamente los derechos sociales de prestación (a excepción del derecho a la educación). A pesar de ello, el Tribunal de Estrasburgo ha realizado una interpretación extensiva de los derechos civiles y políticos reconocidos para incluir, de diversas formas, la protección de aquellos derechos. Una de las técnicas utilizadas ha sido la doctrina de las obligaciones positivas del Estado. Aunque el Tribunal ha aplicado esta doctrina, fundamentalmente, a los derechos civiles y políticos, podemos encontrar algunas resoluciones en las que establece determinadas obligaciones positivas estatales para proteger derechos como la protección de la salud, la vivienda, la protección social o la protección de las personas con discapacidad. En general, se trata de reconocimientos generales y poco concretos pero, en algunos casos, ha detallado cuáles son estas obligaciones. Esto lo ha hecho, en primer lugar, en casos en que se habían producido daños cuya responsabilidad era directa o indirectamente del Estado. En segundo lugar, cuando se trataba de personas que se encontraban bajo la tutela del Estado, como las personas detenidas o internas en prisiones. Y, en tercer lugar, cuando los afectados eran personas especialmente vulnerables (discapacitados o pertenecientes a la minoría gitana). Aunque se trata de una interpretación incipiente y poco desarrollada, muestra un camino en el que se debería profundizar en el futuro. Es generalmente admitido que son los Estados quienes deben tener la iniciativa en el diseño y establecimiento de los derechos sociales de prestación pero, en caso de conductas y omisiones estatales manifiestamente contrarias a los estándares internacionales, el Tribunal Europeo debería obligar a los Estados mediante sus sentencias a dictar una legislación o establecer políticas que hagan efectivos estos derechos.El artículo consta de una introducción, cuatro epígrafes de contenido y una conclusión final. En el segundo epígrafe se aborda la cuestión de la problemática justiciabilidad de los derechos sociales de prestación. En el tercero se hace referencia a la doctrina de las obligaciones positivas del Estado en la jurisprudencia del TEDH. En el cuarto se apuntan las principales técnicas que ha utilizado el TEDH para proteger los derechos sociales de prestación y, en particular, la extensión del contenido de algunos derechos civiles y políticos. En el quinto epígrafe se analiza cómo se ha utilizado la técnica de las obligacionespositivas del Estado en la protección de los derechos sociales de prestación y, en concreto, del derecho a la protección de la salud y del derecho a la vivienda.Summary:1. Introduction. 2. The social rights of assistance and its problematic justiciability. 3. The positive obligations of the state in the case lawof the ECtHR. 4. The protection techniques of the social rights of assistance in the case law of the ECtHR. 4.1. General approach. 4.2. Application of the prohibition of discrimination of article 14 ECtHR to certain social benefits. 4.3. Extension of the content of several rights recognized in the Convention. 5. In particular: the protection of social rights of assistance through the doctrine of the positive obligations of the state. 5.1. The right to health protection. 5.2. Theright to housing. 6. By way of conclusion.Abstract:The European Convention on Human Rights does not expressly recognize any social rights of assistance (except the right to education). In spite of this, the Strasbourg Court has made a broad interpretation of recognized civil and political rights to include, in different ways, the protection of those rights. One of the techniques used by the Court has been the doctrine of the State's positive obligations under the ECHR. Although the Court has essentially applied this doctrine to the civil and political rights, we can find some resolutions in which it establishes certain positive state obligations to protect rights such as protection of health, housing, social benefits or protection of people with disabilities. Generally, these are general and not very specific recognitions, but in some cases, they have detailed what these obligations are.Firstly, this has been done in cases where there was damage which was directly or indirectly the responsibility of the State. Secondly, regarding people who were under the protection of the State, such as persons detained or interned in prisons. And, thirdly, when those affected were particularly vulnerable (disabled or belonging to the Roma minority). Although it is an incipient and underdeveloped interpretation, it shows a way in which should be further deepened. It is generally accepted that it is the States that must take the initiative in designing and establishing social rights of assistance but, inthe case of state conduct and omissions that are manifestly contrary to international standards, the European Court should oblige States with their judgements to enact legislation or develop policies to give effect to these rights.The article consists of an introduction, four content epigraphs and a final conclusion. The second section deals with the question of the problematic justiciability of social rights of assistance. The third refers to the doctrine of the positive obligations of the State in the Case Law of the ECtHR. The fourth section outlines the main techniques used by the ECtHR to protect the social rights of assistance and, in particular, expanding the scope of some civil and political rights. The fifth section analyzes the use of the technique of positive obligationsof the State in the protection of social rights of assistance and, in particular, the right to protection of health and the right to housing.


Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin

This chapter details the right of residence provided for in the citizens’ Directive. The citizens’ Directive regulates and gives detailed expression to the right of free movement and residence conferred by the Treaties on Union citizens. At its simplest, the Directive regulates residence on the basis of the intended duration of a stay in another Member State. The chapter then evaluates case law which concerns the relationship between the right to equal treatment, on the one hand, and the right of residence, on the other, and whether mobile Union citizens could rely on the principle of equality as a basis for claiming a right to access social benefits and maintaining a right to reside in a host Member State.


Author(s):  
Andrew Yu. KLYUCHNIKOV

The 1950 Convention for the Protection of Human Rights and Fundamental Freedoms is an instrument for the dynamic development of the human rights system in the member states of the European Council. Such an active formation of the latter is due to the activities of the European Court of Human Rights. However, the case-law of the court is not always accepted in national jurisdictions, especially when it comes to the most sensitive areas of life in modern societies. As the goal of the research, the author sets out the identification of the current approach of this international court to the problem of social rights of convicts, especially in the context of ensuring their social rights. The material for the research was the case-law of the ECHR on the social rights of citizens - with special attention to the rights of persons in places of isolation from society, the legal positions of domestic researchers on the problem posed. The author uses traditional research methods - general scientific and special, with an emphasis on historical, social and legal methods. The paper describes the stages of the international soft law sources formation on penitentiary rules and the impact on this of the ECHR practice in the context of the discrimination standarts prohibition regarding the right of ownership and violation of the forced (compulsory) labor prohibition. A common European standard “the right of a convicted person to retire” has not yet been developed, which has been confirmed in the practice of the ECHR. This decision is due to the need to maintain the effectiveness of the entire convention system, the policy of compromises with states. Through the dynamic interpretation of the ECHR, this right is recognized as an element of the convention rights protection, the convict should be granted an increasing amount of social rights.


Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin

This chapter discusses the general provisions of the citizens’ Directive (Articles 1–3), which state its purpose and define its territorial and personal scope. Essentially, the Directive applies to EU citizens and their family members who move to another Member State. While the basic tenets of the Directive can be described quite simply—EU citizens have the right to move to another Member State and to bring their family members with them—the detailed interpretation of the key rules defining the scope of that simple tenet has proven increasingly complex and controversial. The chapter then addresses three issues—the definition of EU citizens, the requirement of movement between Member States, and the position of family members—that determine the application of the rest of the Directive, and so delineate exactly which persons have the right to enter and reside, enter the labour market, resist expulsion, claim social benefits, and obtain permanent residence status.


2020 ◽  
Vol 27 (4) ◽  
pp. 484-502 ◽  
Author(s):  
Herwig Verschueren

The posting of workers between Member States of the EU has increased dramatically over the past decade. It has led to political and legal discussions on the employment and social rights of these workers during their temporary employment in the host Member State. As far as social security is concerned, these workers remain subject to the social security system of the sending Member State, provided that a number of conditions are fulfilled. Still, the application of these conditions and control of their observance did not turn out to be efficient and was even rendered problematic by the case law of the CJEU on the meaning of the so-called posting certificates. This article takes a closer look at the role of these certificates. It the analyses and discusses the case law on this and formulates some critical comments on it.


2019 ◽  
Vol 21 (4) ◽  
pp. 509-539
Author(s):  
Ane Aranguiz ◽  
Miriam Quené

Abstract European citizenship has often served as a proxy for political visions of far-reaching social integration within the EU. Over the last years, this has been challenged by a number of judgments of the CJEU, which appear to increasingly restrict the access of economically inactive mobile EU citizens to social benefits under the Citizens Directive. By contrast, the more recent European Pillar of Social Rights enshrines the right to a minimum income for all citizens of the Union, regardless of their economic status or the legality of their residence. This article aims to address the resulting asymmetry between the Pillar and the CJEU’s current interpretation of the Citizens Directive, examining whether and to what extent the former could influence the latter. In doing so, it will discuss the background, objectives and interpretation of the Citizens Directive’s right to equal treatment, examine the scope of the minimum income principle contained in the Pillar, and highlight the key differences between the two.


Author(s):  
J S LIPTRAP

Abstract This article explores the European Parliament's July 2018 non-legislative resolution proposing to the European Commission a directive for facilitating social enterprise companies’ cross-border activities. The proposal is first situated within the context of the social economy and how the sector has grown in importance to European integration. The proposal and the European Commission's response are then examined. Although the European Commission was not convinced that Member States would be amenable to the proposal, a consensus may already exist that is sufficient to garner their support. Even if this prediction is wrong, however, it is argued that there are reasons to surmise that the proposal will likely be reassessed and ultimately successful at some future point. Finally, the proposal is viewed with a reflexive harmonisation lens. Through the analysis, regulatory issues are identified, and a solution is then suggested.


2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.


2021 ◽  
Vol 37 (1) ◽  
pp. 75-115
Author(s):  
Soo Jung Jang ◽  
Kyungheun Baek ◽  
Byoung-Inn Kim ◽  
Hyejung Lee ◽  
Jin Bhang Oh

2021 ◽  
Vol 2021 (2021) ◽  
pp. 164-179
Author(s):  
Flavius Antoniu BAIAS ◽  
◽  
Stela STOICESCU ◽  

This study aims to describe the legal regime of the compensatory payment, with reference to the legislative framework, the sources of inspiration of the regulation, as well as to the current national case-law in this matter, which confirms, by the large number of cases solved after the entry into force of the Civil Code, the social utility of this legal institution. On the basis of the case law examples provided, the authors analyze the legal nature of the compensatory allowance by distinguishing it from similar institutions – the maintenance obligation between ex-spouses or the right to compensation – the conditions to be fulfilled when granting compensatory payment, the criteria used to impose, modify or terminate the obligation, and the substantive and procedural law difficulties of these disputes.


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