Benefit Tourism Yesteryear Eu Citizens: The Cjeu Only Says No

Professor Steve Peers, University of Essex

The CJEU has today delivered a pivotal judgment inwards the example of Dano, concerning access to social welfare benefits yesteryear European Union citizens who displace to to a greater extent than or less other Member State. The Court's approach to the issues inwards this example (and other judgments on European Union citizens amongst criminal convictions, decided before this year) is stricter than usual, so nosotros tin deduce from this that it is taking occupation organization human relationship of the broader political struggle on the costless possess of European Union citizens. However, to a greater extent than or less aspects of the issues stay to locomote clarified inwards subsequently example law.

The judgment

Mrs. Dano is a Romanaian citizen who applied for undertaking seekers benefits inwards Germany. She has non worked inwards Germany, in addition to is non looking for operate either.

The type of produce goodness she was applying for is a 'special non - contributory benefit' nether the European Union regulation on social safety regulation. Also, the European Union citizens' Directive provides that European Union citizens are entitled to equal handling regarding benefits on the territory of to a greater extent than or less other Member State, except during their showtime 3 months of entry, if they are job-seekers or if they are seeking pupil grants before 5 years residence.

The CJEU said that these exceptions to the equal handling dominion did non apply to Mrs. Dano. However, the Court so ruled that she could yet non invoke the equal handling rule, since she did non qualify to locomote covered yesteryear the citizens Directive inwards the showtime place.

The directive applies to workers, self employed persons, students in addition to others who possess got sufficient resources. While Article 8(4) of the Directive seems to furnish for to a greater extent than or less flexibility equally regards what mightiness locomote considered equally sufficient resources, the Court definitively rules that Mrs Dano doesn't possess got them. Indeed, the Court ruled firmly that the requirement inwards enquiry 'seeks to foreclose economically inactive Union citizens from using the host Member State's welfare organization to fund their agency of subsistence'.

While previous judgments had relied upon the equal handling rules inwards the Treaties to advise that impecunious European Union citizens mightiness soundless locomote entitled to benefits, today the Court ruled that unequal handling was an 'inevitable consequence' of the European Union rules.

Finally, the Court ruled that the EU's Charter of Fundamental Rights was non applicable, since the rules on access to special social safety benefits autumn exterior the range of the relevant regulation.

Comments

Earlier this year, the CJEU dominion inwards the cases of G in addition to Onuekwere that European Union citizens who were sentenced to prison theatre inwards a host Member State could non count the menses of imprisonment either towards the five-year menses needed to qualify for permanent residence inwards the host Member State or the 10 twelvemonth menses needed to qualify for farther enhanced protection against expulsion. The judgments were delivered soon after the transition menses on the costless possess of Romanians in addition to Bulgarians ended, at a fourth dimension of slap-up world struggle close the costless possess of European Union citizens inwards the UK.

That struggle has increased farther since. The Court judgment inwards Dano provides a clear rejection, equally compared to the prior case-law, of access to benefits yesteryear those who possess got never worked in addition to who are non looking for work. In particular, inwards this judgment the Court directly defers to the European Union legislature in addition to accepts the limits on access to benefits ready out inwards the European Union Directive, rather than insist (as it did before) that whatsoever legally resident European Union citizen tin inwards regulation claim equal handling equally regards access to benefits based on the Treaties (On this point, encounter farther the dissever blog post service on the historical context of the judgment).

Since the European Union legislature is directly inwards accuse of access to benefits yesteryear European Union citizens, it is to a greater extent than tardily to better the relevant rules to tighten them up, since amending the citizens' Directive would alone demand a Commission proposal in addition to a qualified bulk vote inwards the Council in addition to understanding of the European Parliament. If access to benefits were soundless defined yesteryear the Treaties, so alone a Treaty amendment could alter the relevant rules, requiring understanding of all Member United States of America in addition to ratification yesteryear national parliaments. The judgment has so facilitated a possible renegotiation of the European Union costless possess rules on this issue, in addition to to a greater extent than broadly a renegotiation of the UK's membership of the EU.

However, it leaves opened upward the enquiry of what restrictions mightiness locomote placed on job-seekers or onetime workers' access to benefits or students' access to grants. Nor does it impact upon the rigid obligation to range equal handling to those who are working. As latterly equally June, the CJEU insisted inwards the Saint-Prix example (see give-and-take here) that it (and non the European Union legislature) would soundless determine the pregnant of 'worker', including onetime workers (as good equally job-seekers, according to previous example law).

Furthermore, the judgment doesn't equally such address the possible expulsion of persons inwards Mrs Dano's situation, soundless less the prospect of denying her re-entry. As I possess got pointed out before, the citizens Directive places considerable constraints on the former, in addition to does non let the latter. (See now also my dissever blog post on the enquiry of whether this judgment affects expulsion of unemployed European Union citizens).

So it doesn't address to a greater extent than or less of the fundamental issues inwards the debate. Nor could it address the enquiry of whether a Member State could innovate quotas for workers coming from other Member States. That is clearly illegal nether European Union police equally it directly stands.

Having said that, the Court judgment sends a clear message that Member United States of America tin deed against at to the lowest degree the most blatant types of produce goodness tourism. The musical note of the judgment suggests that the CJEU's judges, equally Americans say, read the morning time papers.

Barnard in addition to Peers: chapter 13, chapter 16

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