AbstractsLaw & Legal Studies

From being rules only coordinating the access to social security benefits and social advantages for workers moving within the Union, the legal framework on social benefit has been widened and deepened to also cover practically all EU citizens legally residing in another member states for more than three months in their access to social assistance and some social advantages and social security benefits. Today the member states can only legitimately limit the equal treatment on ground of nationality in regard to the rules in order to ensure a certain degree of integration for the applicant for social benefits or to avoid that EU nationals move only to claim benefits - and such limits can only be justified, if they are proportionate. With the pending Finnish case on unemployment benefits, the rules on one more benefit are likely to be expanded and the member states’ possibilities for putting up limitations to them narrowed down. That development has brought the member states in a situation where the scope of the legislation, they have been enacting themselves, is being expanded more than some member states agree with. That situation can with Falkner’s concept be seen as a court decision trap because the changes is a result of the ECJ’s interpretation of general principles in secondary and primary legislation, and they are difficult to act against. To profoundly roll back or change the development of the rules which today entails that more and more EU nationals have the right to claim social benefits in another member state than their own, the Treaty provisions on the free movement of person or the citizenship of the Union would have to be changed. Since they have both come to be fundamental principles in the Union which the Commission, the ECJ, the EP and most of the member state find very important to protect, it is not very likely that they will be willing to act so drastically as changing the Treaties to roll back the expansion of the rules on social benefits. The big part of the expansions of the rules in the case law which do not rely on the Treaties would be able to roll back or to change by amending or adopting new secondary legislation. Could a group of the member states agree on proposing changes and would the Commission submit the proposal, the negotiations of the relevant secondary legislation could be reopened. The member states have both before and now expressed very different positions regarding the rules on social benefits, so it is unlikely that such negotiations would lead to very profound changes, but could enough member states agree on changes, they could be adopted by a qualified majority in the Council - if the EP approves the proposal as well. If we should come to see changes of the rules as a result of some of the member states dissatisfaction with the current scope of the rules, it will therefore most likely be in form of adding more or less comprehensive restrictions in the secondary legislation. Since the ECJ will still be able to interpret the secondary legislation after its objectives…