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HARALD CHRISTIAN SCHEU
CYIL 6 ȍ2015Ȏ
Banská Bystrica in Slovakia. From 2005 to 2006 he served as Attaché for European
Affairs at the Austrian Embassy in Prague. He teaches and conducts research in the
fields of International and European Law and International Human Rights Law.
1. Introduction
In this contribution we will examine the problem of so-called benefit tourism in
the light of free movement of EU citizens, which has become one of the key principles
of European integration and, in certain aspects, exceeds the frame of the EU internal
market. Practice shows that the migration of economically inactive Union citizens may
burden the social assistance systems of host Member States. In this context the term
“benefit tourism” has become part of a general political and legal discourse in Europe.
We use the political term as a point of reference of our study, but at the same
time we are aware of the problematic associations evoked by this term. First, free
movement of EU citizens from poorer Member States to the social systems of richer
Member States does not mean a short-term phenomenon similar to a tourist stay, but
is linked to long-term migration. Secondly, we also reject the pejorative meaning of
the term benefit tourism, as the vast majority of migrant EU citizens do not abuse
the legal system of the EU Member States in a legal sense, but, as we will show in
this paper, they simply make claims which they are entitled to. Therefore we will also
analyse to which degree migration into the welfare system of Member States is favoured
by insufficient national legislation and a very benevolent jurisprudence of the Court of
Justice of the EU (CJEU), rather than by the bad intentions of migrating EU citizens.
As far as the legal dimension of so-called benefit tourism is concerned, we have
to focus on both the legal regulation of free movement of EU citizens and the rules
on the coordination of social systems of the EU Member States. After a brief outline
of the legal framework for EU citizens’ migration we will consider the issue of access
to social benefits in the context of cases from Austria and Germany which have been
decided by the CJEU.
2. The general framework for free movement of EU citizens
The fundaments of EU citizenship are laid down in Article 20 of the Treaty
on the Functioning of the European Union (TFEU). While EU citizenship is
not meant to replace national citizenship, every person holding the nationality
of a Member State is regarded as a citizen of the Union. From a theoretical and
practical perspective, the most important right of EU citizens is the right to move
and reside freely within the territory of the Member States. Article 21 TFEU
provides this crucial right, in principle, to all EU citizens without distinction.
However, EU secondary legislation and CJEU jurisprudence distinguish between
different categories of EU citizens who are subject to different legal regimes. Detailed
conditions and restrictions of free movement are contained in Directive 2004/38 EC