Comparaţie între hotărârea „Brey” 140/12 din 19.09.2013 şi hotărârea „Comisia/Marea Britanie” 308/14 din 14.06.2016 ale Curţii de Justiţie a Uniunii Europene, în materia liberei circulaţii a persoanelor (dreptul de acces la sistemul social al ...
Comparison between the Decision Brey 140/12 of 19.09.2013 and the Decision Commission/Great Britain 308/14 of 14.06.2016 of the Court of Justice or the European Union in the matter of the free movement of persons (the right of access at the social

Summary/Abstract: The present study aims to make a comparison between the two decisions pronounced in the matter of persons’ freedom of movement, more precisely concerning the right of access at the social system of the host Member State, pointing out the fact that, although the situations were similar and the applicable norms were the same (i.e. the Regulation 883/2004 and the Directive 38/2004), the solution of the Court was different, more precisely opposite. So, in the first case, relying only on the Directive, the Court has found out that the European citizens have the right of access at the social systems of the Member States, other than those of citizenship, on the territory of which they have the residence (even though the last is not legal), while in the second case, relying only on the Regulation, it decided that such a right does not exist. It is interesting that, in the second case, the Commission itself relied in its conclusions on the Decision Brey, so waiting for the same solution. Such a turn was not explained by the Court and cannot be explained but politically, by the desire of the Court to convince the Great Britain not to retreat from the European Union. It must be mentioned that the fact that the first decision was pronounced in a preliminary ruling procedure – one which involves a national jurisdiction which has to solve a litigation and, for this purpose, rises to the Union jurisdictions a question of Union law –, while the second in a direct action before the Union jurisdictions, more precisely a procedure against a Member State for failure to fulfil an obligation imposed by the Union law, is not relevant.

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