The Court of Justice’s shift in interpreting Directive 2004/38 and Union citizenship: An illusion of legislative intention and legal certainty

The European Court of Justice has famously shifted away from an expansive interpretation of the mobile Union citizen’s primary rights towards a strict reading of the limits of those rights established in secondary law. The Court now seemingly sticks to a textual and purposive interpretation of the provisions in Directive 2004/38. Given this shift in judicial approach, the article examines the critical question: what happens if a legislative text – like Directive 2004/38 – that is fundamentally ambiguous, is treated as definitive? Recent case law concerning the equal access to social advantages of non-economically active citizens (CG, A (public health care) and Familienkasse Niedersachsen-Bremen) reveals that the Court's findings go beyond a mere literal interpretation – at times, even against the wording of the provisions – which are nevertheless presented as answers found within Directive 2004/38. Instead of developing a coherent approach based strictly on the legislative text, the Court has (re-)established its own conception of the balance between the principle of equality of Union citizens and the host Member State's interest in protecting its welfare system. In this new balance, the citizen's right to equal treatment is no longer fundamental and instead conditioned on fulfilling the residence requirements under Directive 2004/38.