Formalizing Formulas - the EU Court's Move Back to the Market Roots in Difficult Times?

The CJEU judgments, which allegedly limited the rights of European Citizens, such as Dano, or Alimanovic, were not as revolutionary as portrayed. In fact, the Court merely continued a project of formalization, which puts the formal conditions for residence provided for in Directive 2004/38, i.e. the Citizen’s Directive, in the centre of its decision making. As this paper will show, this development of formalization, did not start with Dano. In fact, the paper traces it back to the Förster, but also the Ziolkowski and Metock decisions to prove that the latest developments are a direct result of the (re-)focus on Directive 2004/38. The paper will argue that there is strictly speaking neither a return to ‘market citizenship’ nor an abandoning of EU Citizenship as the most fundamental status. Rather, the Court is sticking to the application of the never-abandoned differentiation between economically active and economically non-active EU Citizens which is (and always has been) underlying Directive 2004/38. Such approach allows for a more effective and efficient system of enforcement by Member State administrative authorities in order to protect their (economic) interests. By following the letter of the law, it creates a much more legally certain framework. In times, where immigration and free movement are so heatedly discussed, the Court in effect has put the onus on the European legislator to improve the legal situation of EU Citizens. It is a misconception that this role is traditionally reserved for the Court of Justice of the EU.