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At this point, the CJEU certainly did not please either the Member States
that provide higher social standards or their citizens who finance these standards
from their taxes. It is not necessary to add that the term “financial solidarity” may
have, according to a particular ideological orientation, very different meanings. The
European Commission submitted a more concrete proposal according to which an
unreasonable burden on the social system shall be examined in terms of the number
of recipients of specific social benefits. In our particular case, thus, Austria should
take into account the number of migrant pensioners from other Member States who
qualify for the compensatory supplement.
With respect to the initial question of the Austrian Supreme Court of Law,
the CJEU concluded that the Austrian legislation which automatically excluded
economically inactive EU citizens from receiving compensatory supplements to their
pensions and did not take account of the particular circumstances of the individual
case or the possible burden for the overall system of social assistance, was not in line
with Directive 2004/38.
3.3 The lesson from the Brey case
Regarding the impact of the Brey judgment of the CJEU on the proceedings
before the Supreme Court of Justice in Vienna, the situation was very clear. The
Supreme Court concluded that Mr. Brey was entitled to a compensatory supplement
to his German pension. The Supreme Court of Justice, on one hand, explicitly called
the fight against “social tourism” of EU citizens legitimate but, on the other hand,
considered the automatic exclusion of inactive EU citizens from social benefits as
disproportionate.
Although the CJEU judgment could, thus, serve as a useful guide in this particular
case, from a conceptual point of view it raised more questions than solutions. The
vague terms contained in Directive 2004/38 and Regulation 883/2004 have been
supplemented by other very vague criteria. Indeed, the Supreme Court of Justice
in Vienna, in its judgment of 17 December 2013, indicated that the compensatory
supplement for Mr. Brey was based on the current situation when the competent
authority had decided on the legal residence of the applicant. The circumstances of
the case of Mr. Brey, however, may be later re-examined. In the light of the CJEU
judgment, Austria should consider the fact that the financial problems of the applicant
were maybe not of a temporary nature or that the migration of a large number of
pensioners from other EU Member States affected Austria’s social assistance system
disproportionately and unreasonably. So, in the case of a new assessment of the case
of Mr. Brey, the lack of clarity of EU legislation and CJEU case-law could come back
like a boomerang.
From a practical point of view, we have to ask how, respectively, to what extent
is it possible to implement a detailed assessment of all individual cases of migrant