Free Campaign As Well As Social Benefits For Economically Inactive Eu Citizens: The Dano Judgment Inward Historical Context

 

Géraldine Renaudière, Trainee at the CJEU, inside the cabinet of the Court Vice-President, Koen Lenaerts. (This postal service reflects the author's sentiment only). 

In yesterday’s judgment inwards Elisabeta Dano and Florin Dano v Jobcenter Leipzig, the CJEU in i lawsuit once to a greater extent than addresses the highly sensitive number of the exclusion yesteryear national legislation of economically inactive Union citizens, from special non-contributory cash benefits, although these are provided to nationals of the respective Member States who are inwards the same situation. One twelvemonth subsequently its controversial Brey decision, the Court attempts to redefine the human relationship betwixt 2 primordial European Union constabulary instruments: Directive 2004/38 on the correct of citizens of the Union to displace together with reside freely inside the territory of the Member States (the citizens’ Directive) together with Regulation 883/2004 on the coordination of social safety systems. The broader political context of the judgment has been discussed inwards the separate post yesteryear Steve Peers, but it is also of import to examine the judgment inwards the historical context of the evolution of the case-law on European Union citizens' access to benefits.

Background

In this regard, it mightiness live noted that although the Maastricht Treaty marked an of import milestone inwards the champaign of gratuitous displace of persons yesteryear expanding the correct to displace together with reside freely inside the European Union (formerly the exclusive save of people exercising an economical activity) to all Union citizens, the traditional “economically-oriented” approach has never solely disappeared from the European Union legal landscape. So the correct of gratuitous displace remains dependent champaign to limitations together with conditions, equally set downward inwards Articles 20, (2) together with 21 TFEU. On several occasions, the CJEU was called upon to clarify those weather condition (now specifically provided yesteryear Directive 2004/38) spell at the same fourth dimension it had to bargain alongside the closely related number of the (equal) access for European Union citizens to social assistance together with minimum subsistence benefits inwards the State of residence.

The to the lowest degree i tin state is that, then far, the Court hardly achieved the correct residual betwixt the rights of economically inactive migrants together with the legitimate involvement of Member States to protect their welfare systems from so-called produce goodness tourism. Even more, it has caused farther confusion regarding the real existence of a “right” to social benefits for European students, retired people or inwards a detail nation of need. The interrogation similar a shot is whether the Dano judgment departs from the previous logic together with to what extent it ensures greater legal certainty together with a fairer residual of the interests at stake.

Judgment

In the illustration at hand, the Sozialgericht Leipzig of Federal Republic of Federal Republic of Germany requested a preliminary ruling inwards a illustration concerning the refusal from the German linguistic communication government to grant Mrs. Dano together with her son, Romanaian nationals together with non-economically active, subsistence benefits, social allowance equally good equally contribution to accommodation together with heating costs. In respond to questions raised yesteryear the national judge, the Court starts to retrieve that such “special non-contributory cash benefits” autumn inside the compass Article iv of Regulation 883/2004. This provision, corresponding to the specific appear of the regulation of non-discrimination embodied inwards Article eighteen TFEU (applying to Union citizens who invoke inwards the host Member State such category of social benefits) must yet inwards the introduce illustration live interpreted inwards the lite of Article 24 of Directive 2004/38 which sets out an equal handling dominion for Union citizens exercising their correct to displace together with reside freely inside the European Union territory.

Essentially next the Advocate General’s observations, the Court admits for the starting fourth dimension time that when it is apparent that the applicant does non run across the weather condition fix out inwards Article 7(1) of Directive 2004/38 (i.e. does non have got sufficient resources to run across his ain basic needs together with the needs of his family) he does non autumn inside the compass ratione personae of Article 24(1) together with (2) of the Directive. Therefore, equally far equally social benefits are concerned, a Union citizen is non entitled to claim equal handling alongside nationals of the host Member State in i lawsuit it is established that his correct of residence inwards the territory of that State does non comply alongside the weather condition of the Directive 2004/38.

Comments

In a serial of judgments rendered prior to the entry into forcefulness of Directive 2004/38, the commons approach adopted yesteryear the CJEU was to consider the correct to equal handling together with non-discrimination on grounds of nationality inwards the host State equally the corollary of the status of citizen of the Union, both principles existence consecrated yesteryear the TFEU (see the Martinez Sala judgment). In that sense, it enabled those who found themselves inwards the same province of affairs to relish the same handling inwards law, irrespective of their nationality, together with hence to live granted social assistance benefits (minimex or household unit of measurement benefits) independently of a correct to reside together with to displace freely inside the territory of the Member States inwards the pregnant of European Union Law (see the Grzelczyk together with Trojani judgments). Regarded equally a cornerstone of Union citizenship, only restrictive together with proportionate differential treatments were deemed acceptable whilst forgetting that Article eighteen TFEU additionally requires a province of affairs to autumn “within the compass of application of the Treaties”.

Having been criticised for this “too generous” approach, the Court progressively allowed to a greater extent than flexibility to Member States which, depending on the case, could homecoming the access to social benefits for economically inactive European Union migrants conditional upon the demonstration of a genuine link to the work marketplace position (Collins together with Vatsouras), a certainly flat of integration into the host guild yesteryear the soul concerned (Bidar together with Forster) or temporary fiscal difficulties unlikely to house an unreasonable burden on the State’s world finances (Grzelczyk again).

While this balanced together with private approach is to live welcomed, this case-law, silent referring to vague together with full general concepts together with leaving a broad margin of appreciation to national authorities, somewhat undermined the legal certainty together with predictability of the Court’s decisions. Yet the Court adopted the same logic inwards Brey, albeit the number at stake was a chip to a greater extent than complex. In that case, a compensatory supplement was refused to a retired German linguistic communication national on the Earth that he didn’t have got sufficient resources to works life his lawful residence inwards Republic of Austria inwards the pregnant of Article vii (1) (b) of Directive 2004/38 spell the produce goodness requested was listed amid the “special non-contributory benefits” provided yesteryear Regulation 883/2004.  

According to the Court inwards its Brey judgment, Member States rest gratuitous to determine the weather condition to live met inwards monastic state for inactive European Union migrants to have such benefits, notably having a legal correct to reside for to a greater extent than than 3 months inside the pregnant of European Union law. But paradoxically, when assessing whether such weather condition have got been fulfilled, national government must bring into concern human relationship additional elements, peculiarly the social produce goodness requested (in this case, intended to ensure minimum way of subsistence of the soul concerned: catch Skalka) together with assess whether existence eligible for such produce goodness could jeopardize the correct of residence of the migrant together with house an unreasonable burden on the national social assistance organization equally a whole.

 

In such circumstances, it appeared well-nigh impossible to clearly define the beneficiaries of those special non-contributory benefits. On the contrary, the judgment inwards Dano (also dealing alongside the human relationship betwixt the Directive together with the Regulation, peculiarly inwards damage of equality of treatment) is much less confusing on that point: Member States tin create upwardly one's hear to exclude inactive European Union citizens from accessing non-contributory benefits when they produce non have got a proper correct of residence pursuant to Article 7(1) of Directive 2004/38. More importantly, the status of having sufficient resources non to instruct an “unreasonable” burden on the social assistance organization of the host Member State, is to live appreciated inwards the lite of private circumstances but without taking into concern human relationship of the social benefits claimed.

 

By proceeding inwards this way, the Court clearly distinguishes people who have got acquired a legal correct of residence of to a greater extent than than 3 months, but who, owing to circumstances, are temporarily unable to fulfill the necessary conditions, from people who have got arrived inwards a Member State without fulfilling such weather condition together with are hence non entitled to rely on equality of handling to instruct (unconditional) access to such benefits. Any other interpretation would, inwards the Court’s view, defeat the object together with usage of the Directive 2004/38 seeking to forestall economically inactive citizens from using the host Member State’s welfare organization to fund their way of subsistence.

 

It remains similar a shot to live seen whether this lastly case, beyond the legal clarification, volition seat an cease to the practical difficulties which mightiness result from the interpretation of concepts such equally “sufficient resources” or “unreasonable burden” (when the real correct of residence inside European Union constabulary is contested or when fiscal issues of the inactive migrant are no longer “temporary”…) together with whether, inwards practical terms, a fair together with reasonable residual betwixt European Union inactive migrants’ rights together with Member States’ legitimate interests has finally been achieved…

 

Barnard & Peers: chapter 13, chapter 16

 

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