CYIL 2015

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HARALD CHRISTIAN SCHEU

CYIL 6 ȍ2015Ȏ

negative decision by the Jobcenter Leipzig, she failed an administrative action to the

competent court (Sozialgericht Leipzig).

The action of Ms. Dano was based on both primary EU law, namely on Articles 18

and 45TFEU, which govern the prohibition of discrimination in connection with the

free movement of workers and job-seekers, and the CJEU judgment of 4 June 2009

in the joined cases of Vatsouras and Koupatantze.

In these cases, which have been

mentioned above, the CJEU had already dealt with the access of EU citizens to

benefits under SGB II. The CJEU had held that Germany must grant benefits under

SGB II only in the case that a Union citizen seeking work shows a genuine link to the

labour market in the host country. When the German court had argued that the first

of two Greek citizens exercised his professional activities to a limited extent and for

a short time and the second worked slightly longer than a month, the CJEU rejected

this interpretation and admitted that even in such cases there could be a genuine link

between the job seekers and the labour market.

In the Dano case, however, another part of the CJEU judgment in the cases of

Vatsouras and Koupatantze turned out to be relevant. Indeed, the question arose

to what category belong the benefits under SGB II. On the one hand, they seem

be a benefit for unemployed people, which is fully covered by the principle of non-

discrimination on grounds of nationality under Article 4 of Regulation 883/2004.

On the other hand, it shows signs of “social assistance” under Article 4, paragraph 5

of the Regulation 883/2004, according to which distinction based on citizenship is

legal. This issue concerned the very essence of the German rules and also showed that

the current ambiguities are not only grounded in EU law and the case-law of the

ECJ, but also in national legislation.

The German parliament adopted a new concept of social benefits under SGB II

on 24 December 2003. The date seems to be significant in this context. Without

any external pressure and without any concrete reference to EU law, the new Act

abolished the previous model of social assistance and introduced a new social benefit,

which partially served the purpose of basic care for those in need but for the major

part was meant to support the future inclusion of benefits recipients into the labour

market. As rightly pointed out by Professor Helga Spindler from the University of

Essen, it was extremely reckless to accept the EU ban on discrimination in relation to

all unemployment benefits and, at the same time, at the national level to replace the

original concept of social assistance precisely by such a benefit.

Moreover, it seems rather incomprehensible that Germany added the benefits

under SGB II to the list of benefits in Annex X, to which Regulation 883/2004

C-22/08 a C-23/08.

Spindler, H. Warum ist eigentlich die Zuwanderung direkt in ein soziales Fürsorgesystem in Europa

und in Deutschland so unklar und missverständlich geregelt? The contribution of 18 March 2014 is

available at :