CYIL 2015

201

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

pensioners and other inactive EU citizens. According to official statistics, in 2010 a

total of 240,000 people was receiving the compensatory supplement under Austrian

law, of which, however, there were only 694 pensioners from other EU Member

States. By 2012, the later number had increased to 980 people. As a result of the Brey

judgment we may expect a further increase in the number of EU citizens applying

for the compensatory supplement. In this context, it could be necessary to re-address

the issue of the relevant burden on the overall system. What should be the relevant

threshold for the Austrian authorities: 700, 900, 1500 or 5000 new applicants for

the compensatory supplement? Shall such numbers be considered as an unreasonable

burden? Shall this question be decided by the authorities of the Member States within

a certain margin of appreciation, or shall it be left rather to the CJEU to decide such

cases in the light of “financial solidarity”?

4. Social benefits for economically inactive EU citizens according

to the Dano case

In the Dano case

the CJEU had to address the problem that, within the

European Union, it is not only a relatively small group of migrant pensioners which

applies for social benefits in the host Member State, but also by an ever-growing

number of jobseekers or other immigrants from other Member States who do not

have any realistic chance of finding employment in the labour market of the host

Member State.

4.1 The circumstances of the case and national legislation

In 2010, Elisabeta Dano, a Romanian national, together with her five year-old

son, Florian, moved to Germany. In June 2011, the German authorities provided

her with a residence permit for an indefinite period, notwithstanding the fact that

the social situation of Ms. Dano was precarious right from the beginning. After her

arrival in Germany she lived with her sister, who supported her financially. Germany

further paid child benefits to Ms. Dano in the amount of 184,- € a month and also

an advance on child maintenance payments in the amount of 133,- € per month.

The legal dispute on the national level occurred when Ms. Dano applied for a

benefit under the second part of the Social Security Act (SGB II). The provisions

of Section 7, paragraph 1 SGB II provide that basic security benefits for jobseekers

shall not be granted to foreigners who have a right of residence based only on job

search. When the German competent authority (Jobcenter Leipzig), in September

2011, with reference to Section 7 SGB II rejected Ms. Dano’s application for a social

benefit, she did not appeal and the decision became final. In January 2012, however,

Ms. Dano submitted a new application for a benefit under SGB II, and, after a

C-333/13 Elisabeth Dano, Florian Dano v. Jobcenter Leipzig.