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HARALD CHRISTIAN SCHEU
CYIL 6 ȍ2015Ȏ
The Supreme Court asked the CJEU whether the compensatory supplement should
be considered as social assistance within the meaning of Article 7, paragraph 1 lit. b)
of Directive 2004/38. So the CJEU returned to the issue of whether the term “social
assistance” in Regulation 338/2004 has the same meaning as in Directive 2004/38.
3.2 Free movement of Union citizens and access to social assistance
The CJEU found the question of the Austrian Supreme Court to be not sufficiently
precise and reformulated it in the sense that the question is whether the Austrian
legislation excluding the payment of a compensatory supplement to inactive EU citizen
is compatible with Directive 2004/38 and its sufficient resources rule. Furthermore,
the CJEU noted the problem that Austria, on the one hand, provided a migrant
pensioner with a valid certificate on the right of residence, and, on the other hand,
this person did not meet the conditions for the right of legal residence for more than
three months.
In the proceedings before the CJEU the European Commission presented the
communitarian view and argued that, if the compensatory supplement is a special
non-contributory cash benefit within the meaning of Article 70 of Regulation
883/2004, it cannot be regarded as “social assistance” within the meaning of Article 7,
paragraph 1 of Directive 2004/38. According to the EC, it follows that a migrant EU
citizen who draws a special non-contributory benefit does not represent a burden to
the system of social assistance of the host Member State. Thus the EC arrived at the
absurd conclusion that an inactive EU citizen who has a long-term residence within
the meaning of Article 7 of Directive 2004/38 may prove his sufficient resources by
drawing special non-contributory cash benefits in the host Member State.
No wonder that this bizarre argument of the EC was rejected by all Member
States which intervened in the proceedings, i.e. besides the Austrian government
also the German, Irish, Greek, Dutch, Swedish and British governments. Before the
CJEU they argued that the concept of “social assistance” had different meanings in
Regulation 883/2004 and in Directive 2004/38, because the two relevant provisions
pursue completely different goals. This interpretation was eventually joined by the
CJEU, which concluded that the aim of Regulation 883/2004 is to coordinate
the national social systems and not to establish new social rights of EU citizens.
The major purpose of the Regulation is to guarantee the principle of portability of
benefits across Member States. In contrast, Directive 2004/38 aims to facilitate and
strengthen the right of EU citizens to free movement and simultaneously to prevent
migrant EU citizens from becoming an unreasonable burden on the social assistance
system of the host Member State.
and applied for the compensatory supplement in Austria. Given that the compensatory supplement
is a hybrid benefit within the meaning of today’s Art. 70 of Regulation 883/2004, it is linked to the
condition of ordinary residence in Austria and not transferable in the case of migration to another
Member State. Cf. Article 70, paragraph 4 of Regulation 883/2004.