CYIL 2015

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THE LIMITS OF SOǧCALLED BENEFIT TOURISM AND THE FREE MOVEMENT OF EU CITIZENS

was compatible with the requirements of EU law. The Social Court noted that, in

light of Regulation 883/2004, the German rules appeared to be discriminatory,

according to Directive 2004/38 they did not. Article 4 of Regulation 883/2004

precludes a distinction between EU citizens on the basis of a specific residence

regime. On the contrary, Article 24, paragraph 2 of Directive 2004/38 provides that

the host Member State is not obliged to grant social assistance during the first three

months of residence or for a longer period if an EU citizen entered its territory in

search of employment.

In this situation, the Social Court of Berlin-Brandenburg perceived a relationship

between the Regulation and the Directive as a classic conflict of laws which has to be

solved in accordance with general principles of law. Due to the fact that Regulation

883/2004 and Directive 2004/38 were adopted on the same day, the principle of

lex

posterior derogat priori

was not applicable. So, the Social Court made reference to the

principle of

lex specialis derogat generali

and noted that Directive 2004/38 is supposed

to be a special standard in relation to Regulation 883/2004.

In this sense, the Court

concluded that the exclusion of Polish single mothers on welfare benefits was in line

with EU law.

In this study we are not going to deal with very interesting questions concerning

the hierarchy of norms within the system of secondary EU law, but already at first

glance it is obviously very doubtful whether an EU directive, which is binding under

Article 288 TFEU only in relation to the result to be achieved and leaves the choice

of forms and methods to the Member States, takes precedence over an EU regulation,

which, by its nature, shall have general application and shall be binding in its entirety.

Also, it is questionable why a directive that does not have direct effect shall prevail

over a directly applicable regulation.

An even more funny interpretation of the relevant EU norms was provided by

the same court a month earlier.

When the Social Court of Berlin-Brandenburg

dealt with issues concerning the social rights of some Romanian citizens in Germany,

it pointed at the fact that Directive 2004/38 and Regulation 883/2004 had been

adopted on the same day. According to the Social Court this shall mean that the EU

legislative bodies did not want to establish legal standards that contradict each other,

and, therefore, the Social Court concluded that Regulation 883/2004 certainly does

not aim to undermine Article 24, paragraph 2 of Directive 2004/38.

One can hardly resist the impression that the German court greatly overestimated

the logical consistency of EU norms in general and particularly of the rules that

Regarding the relationship between Regulation 883/2004 and Regulation 492/2011 on free movement

of workers within the European Union, Martin Štefko and Kristina Koldinská argue in favor of the

lex

specialis

principle (

op. cit.,

87). As Regulation 492/2011 does not apply to non-active EU citizens, we

will not consider the norm in this contribution.

L 29 AS 414/12 B ER (decision of 5 March 2012).