CYIL 2015

194

HARALD CHRISTIAN SCHEU

CYIL 6 ȍ2015Ȏ

a disproportionate burden on this system in the host Member State. If we start

from a very narrow concept of social assistance in the sense of those benefits, to

which Regulation 883/2004 does not apply, the Member States should provide all

other social benefits, especially hybrid “special non-contributory cash benefits” to all

migrating Union citizens, including those who are inactive.

It is obvious that such an interpretation would totally undermine the protection

of the social systems of Member States against unreasonable burden, which is

regulated in Directive 2004/38. The condition of “sufficient resources”, which is laid

down e.g. in Article 7 of Directive 2004/38, would become absurd, since the host

Member State could not terminate the stay of a Union citizen who does not have

sufficient means, but it would have to provide him such sufficient resources in the

form of social benefits.

What further contributes to the problem is the fact that, although Regulation

883/2004 and Directive 2004/38 were adopted on the same day (29 April 2004)

and, therefore, had to be drafted around the same time, we do not find a single cross-

reference in the texts of both legal acts or at least an attempt to harmonize the concepts

and terms used. This regards not only the concept of social assistance but also the

principle of equal treatment. Article 24, paragraph 2 of Directive 2004/38 contains

an exemption from the prohibition of discrimination on grounds of nationality to

the extent that the host State is not obliged to grant social assistance during the first

three months of residence or a longer period of job search.

Such an exemption,

however, is not contained in Article 4 of Regulation 883/2004, under which all

persons to whom the Regulation applies shall have the same access to hybrid benefits

as is provided for nationals of the Member State. It is very difficult to solve the

conflict between the two different standards in both legal acts.

The practical dimension of this problem is beautifully illustrated by a desperate

attempt by which the Social Court of Berlin-Brandenburg tried to address the

relationship between Regulation 883/2004 and Directive 2004/38.

The Social

Court dealt with a case concerning a disputed legal claim to a job-seeker’s benefit.

The legal claim was made by a Polish single mother with two dependent children

living in Germany. The relevant statutory provisions

, however, did not provide an

entitlement to those EU citizens who had not yet been employed. The Social Court

had to solve the question of whether the distinction between EU nationals who had

already been employed and EU citizens who were still looking for work in Germany

Regarding the genesis of Regulation 883/2004, cf. ŠTEFKO, M., KOLDINSKÁ, K.

Sociální práva

cizinců

, Praha: C.H. Beck, 2013, 83-84.

See Article 14, paragraph 4 lit.. b) of Directive 2004/38.

Hauschild, M. Art. 4 VO (EG) 883/2004. In: SCHLEGEL, R., VOELZKE, T.

Juris Praxiskommentar-

SGB I

(second edition), Saarbrücken, 2011.

L 5 AS 2157/11 B ER (decision of 3 April 2012).

Sozialgesetzbuch (SGB II).