CYIL 2015

HARALD CHRISTIAN SCHEU CYIL 6 ȍ2015Ȏ administrative authorities and courts. Germany also highlighted the disproportionate burden to the welfare system, which would occur in the case that EU citizens like Mrs. Dano were entitled to benefits under SGB II. According to news reports, these arguments of the German government were supported by Denmark, Ireland and the United Kingdom. The British government added that it would be hardly possible to find a more obvious case of benefit tourism than is the case of Ms. Dano. In the oral proceedings, the judges of the CJEU raised questions concerning the link between the residence permit which had been issued by the competent German authority and the rejection of social benefits for a Union citizen legally residing in Germany. Thus they re-opened an issue which had already been dealt with in the Brey case: what is the connection between the right of residence under Directive 2004/38 and the payment of social benefits falling under regulation 883/2004? Advocate General Melchior Wathelet delivered his opinion on the case on 20 May 2014. The opinion contains some very interesting considerations which differ, in certain respects, from the CJEU verdict in the Brey case. The Advocate General took issue with the idea of individual assessment, which had become one of the leitmotifs of CJEU case-law. According to the Advocate General, the application of this rule “could lead to an impasse”. He argued that under Directive 2004/38 there were only two possibilities: either economically inactive Union citizens have sufficient resources and therefore they have a right of residence in the host country, or they do not have sufficient resources. In the second case, the Union citizen might qualify for social assistance within the meaning of Directive2004/38, but only in his home state. Advocate GeneralWathelet interpreted Article 24, paragraph 2 of Directive 2004/38, under which the host Member State is not obliged to confer entitlement to social assistance during the first three months of residence or for a longer period of job search, as a valid legal basis for general measures by the Member State which do not call for the assessment of individual circumstances. If the situation of inactive EU citizens not intending to integrate themselves into the labour market of the host Member State had to be assessed individually, they would be in a more favourable situation than those who truly seek a job. According to Wathelet, such a situation would be paradoxical. Based on these arguments, Wathelet found that the relevant German regulation was compatible with EU law. In paragraph 131 of his opinion, the Advocate General concluded that “by refusing basic provision benefits to persons who come to Germany solely in order to benefit from the social assistance system of that Member State and who do not seek in any way to integrate themselves into the labour market the national legislation is consistent (…) with the EU legislature’s intention.” The Advocate General also stressed the need to prevent “persons exercising their right to

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