CYIL 2015

199

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

The CJEU therefore concluded that the system of “social assistance” within the

meaning of Article 7, paragraph 1 of Directive 2004/38 cannot be limited to the

very narrow concept of social assistance within the meaning of Article 3, paragraph 5

of Regulation 883/2004. In this broader sense, compensatory supplements under

Austrian law clearly belong to the category of “social assistance” in accordance with

Directive 2004/38. To the delight of the intervening national governments, the

CJEU in paragraph 63 of its judgment further admitted that the mere application

of an inactive EU citizen for the compensatory supplement may be evidence that

the person concerned does not have sufficient resources and, therefore, represents an

unreasonable burden on the social assistance system of the host Member State.

However, in the very next paragraph of its judgment the CJEU significantly

relativized this conclusion, when it stated that the decision on whether the migrating

EU citizen represents a disproportionate burden on the Member State cannot be

made without considering the specific circumstances of his case. In its verdict the

CJEU explained that the Member State has to take into account the “specific burden

which granting that benefit would place on the national social assistance system as

a whole”. What shall this combination of an individual assessment of the particular

case and an overall assessment of the burden on the social welfare system mean in

practice? In this context, it should be pointed out that Recitals 10 and 16 of the

Preamble to Directive 2004/38, unlike Article 7, paragraph 1 of the Directive, do

not use the term “burden on the social assistance system”, but the term “unreasonable

burden on the social assistance system”.

Recital 16 of the Preamble mentions the following criteria of evaluation: the

temporariness of difficulties, the length of stay, the personal circumstances of the

Union citizen and the amount of aid granted. The principle of individual assessment

corresponds to Article 8, paragraph 4 of Directive 2004/38, according to which a

Member State may not lay down a fixed amount which is considered as “sufficient

resources” but it must take into account the personal situation of the person

concerned. According to the CJEU, a Member State may state a certain sum as a

point of reference, which may be based upon the minimum income, according to

which nationals of the host Member State become eligible for social assistance.

Even more difficult than studying and taking into account the circumstances

of the individual case is the determination of the impact of granting a social benefit

to a concrete EU citizen on the overall system of social assistance in the Member

State. By reference to the concept of “unreasonable burden” within the meaning

of Recitals 10 and 16 of the Preamble of Directive 2004/38 the CJEU came to

the somewhat adventurous conclusion that Directive 2004/38 “recognises a certain

degree of financial solidarity between nationals of a host Member State and nationals

of other Member States”.

C-140/12, paragraph 72.