When Union citizens turn into illegal migrants : the Dano Case

Abstract

Free movement law is in the political limelight again. It is discussed controversially across Europe, not only in the UK. Against this background, the Grand Chamber judgment in the Dano case was much more than an exercise of doctrinal interpretation. Judges in Luxembourg had to decide about the constitutional potential of Union citizenship at the outer limits of free movement law. They opted for a surprisingly clear-cut answer, which exhibited an interpretative conservatism and hid, nevertheless, important argumentative ambiguities. By denying an application of the non-discrimination guarantees to citizens without residence rights, the Court effectively established a class of "illegal migrants" living unlawfully in other Member States without equal treatment guarantees; citizens who are economically inactive automatically lose their residence rights. This contribution explores the legal foundations, the constitutional implications and the practical effects of the Dano judgment.