The Court and the Legislators: Who Should Define the Scope of Free… 135 lying the social assistance case law. They did so when the Citizenship Directive was adopted, in which the eligibility criteria for social assistance benefits for the economically inactive are laid down. The basic rule is that the economically inactive, such as students and jobseekers, are not entitled under EU law to benefits before they have acquired permanent residence. In Dano, but also a number of subsequent decisions, the Court deferred to these criteria. I am uncertain on the basis of which grounds precisely de Witte objects to Dano, but it appears as if he suggests that the Court should have ignored the Citizenship Directive. After all, would Member States be obliged to give EU citizens like those in the position of Ms Dano social assistance benefits, it becomes increasingly difficult to see in what situations benefits can be denied to mobile Union citizens. Of course, de Witte might think this is what principles of justice require, but why the Court is the preferred institution to settle these issues, in particular when the legislator has spoken, he does not address. It simply does not suffice to claim that Dano is unjust, because it is precisely because there is disagreement about principles of justice that we need to decide who is to be given the authority to decide on these matters. The argument, which one often finds in the literature, that the Court should ensure that secondary law complies with primary law is not persuasive either.3 After all, the Treaty provisions are indeterminate, which raises the question why the Court’s interpretation of them should be preferred over that of the legislator (also the Citizenship Directive is an interpretation of the relevant Treaty provisions). For de Witte’s argument to work he would thus need to explain on what grounds he would want to leave those matters to the Court and not the legislator. In other words, if there is no obviously correct answer to the question of substance, to how the free movement provisions are to be interpreted, why should we, if we care about the law’s democratic legitimacy, not answer the question of authority in favour of the legislator? To put it differently, I am struggling to see how de Witte’s Court-oriented perspective is compatible with his emphasis on the need ‘to calibrate questions of justice and democracy in a more appropriate manner’, because what he seems to suggest is that his preferred conception of justice is to be adopted by the Court against the wishes of the EU’s legislator. 3 O’Leary, S. (2009), ‘Equal Treatment and EU Citizens: A New Chapter on Cross-Border Educational Mobility and Access to Student Financial Assistance’, European Law Review 34 (4): 612, 622.