EU Citizenship, Access to “Social Benefits” and Third-Country National Family Members: Reflecting on the Relationship between Primary and Secondary Rights in Times of Brexit

Abstract

In a series of recent cases on the rights of mobile EU citizens who do not perform an economic activity, the Court of Justice of the EU “deconstitutionalised” its understanding of key aspects of the free movement of EU citizens. The Court moved the discussion to the secondary law level, having kept it at the primary law level for many years. This line of cases sheds light on the ability of the Court to reframe the interplay between primary and secondary law as well as between the judicial and political guidance. The post-Brey case law provides a remarkable, if not unique, example of deconstitutionalisation following a period of intense constitutionalisation. The practical implications of this process are well illustrated in the context of the debate on Brexit that tests the relationship between treaty and legislative rights. This Article makes an enquiry into whether the trend towards a broader deference to political guidance in EU citizenship case law has been mirrored in other areas of citizens’ rights having been subject to controversy in the context of Brexit, such as the status of third-country national family members.