The Court and the Legislators: Who Should
Define the Scope of Free Movement
in the EU?
Martijn van den Brink
Introduction
Floris de Witte makes the case for free movement as the core of EU citizenship and offers three reasons in support. I agree with these principles, at least
in the abstract. De Witte’s vision certainly is normatively more appealing
than the one of scholars who have pushed for a decoupling of EU citizenship
from free movement. In fact, it is hard to see how EU citizenship cannot
revolve to a very large extent around the right to move freely within the EU
and to choose the preferred Member State of settlement. But if that is the
case, de Witte seems to be asking the wrong question. What he seems to
address is not the question of whether free movement should be defended,
but how that should be done; through which procedures free movement is to
be given shape.
Free movement as the core of EU citizenship
De Witte is concerned about the Dano decision and sees it as an attack on
free movement. No doubt, the decision is a departure from earlier case law
and signifies a move away from the very extensive interpretation of the free
movement principles present in certain earlier decisions. Still, de Witte’s
opinion of the case as well as the way he uses the decision to support his
claim is remarkable and not fully persuasive.
First, let’s for a moment think about the difference EU citizenship has
made. If one would have claimed in the mid-1990s, shortly after the introduction of EU citizenship, that in 2016 many EU lawyers have serious misgivings about a decision that denies social assistance benefits to an
economically inactive EU citizen with very weak links to the Member State
of residence, many would have been quite surprised about such a claim. The
transformation brought about by EU citizenship has in that sense been
remarkable. But was free movement not the core of EU citizenship before
the Court started developing this concept in its case law? Of course it was.
In fact, that so many lawyers thought EU citizenship to be a meaningless
© The Author(s) 2019
R. Bauböck (ed.), Debating European Citizenship, IMISCOE Research
Series, https://doi.org/10.1007/978-3-319-89905-3_27
133
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