Free Movement of Persons and Transnational Solidarity. The Legacy of Market Citizenship

The article starts from retracing the expansive phase of the CJEU case-law on EU citizenship, which tried to infuse a constitutional tone in the application of the principle of equal treatment in favour of economically-inactive EU citizens acceding national social assistance systems. However, this expansionary move was short-lived, since the great crisis spurred the counter-movement and the shift toward a restrictive phase. The article offers an in-depth analysis of this regression, focusing, in particular, on the tendency by the Court to push the restrictive approach beyond what is known as social tourisms, venturing into fields traditionally covered by free movement of workers’ rules. Such a highly problematic development is premised upon the expansion of the material and subjective scope of application of Directive 2004/38/EC and of the limits to the principle of equal treatment contained therein. Recently, the Court seemed to have recognized the risks of such an expansion and put some checks on it. The last part of the article engages with recent judicial developments, focusing, in particular, on the role that free movement of workers’ rules can play in rescuing transnational solidarity at a time in which European citizenship seem to have lost its traction.