CYIL 2015

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

fully applies. Due to these national measures, any attempt to qualify benefits under

SGB II as social assistance seems to be entirely hopeless. So even if Germany managed

to convince the CJEU that the benefits under SGB II represent a substantial portion

of social assistance, under Article 70 in conjunction with Annex X to Regulation

883/2004 such benefits have to be granted to EU citizens in Germany, in line with

the prohibition of discrimination on grounds of nationality. In this situation it

appears that requests for preliminary rulings made by German courts are almost

redundant, since the relevant questions concerning the access of job-seeking Union

citizens to SGB II benefits have been mostly clarified in the cases of Vatsouras and

Koupatantze.

The case of Ms. Dano, however, added a new dimension to the whole issue.

Unlike the Greek applicants, Ms. Dano was not able to prove a genuine link with the

German labour market. The Romanian applicant had not entered German territory

in order to seek work and had not even tried to find work after her arrival. Her

chances on the German labour market were extremely low because she had not even

completed primary education in Romania, she had no professional qualifications

or experience, and she was not able to fully understand ordinary complex text in

German language. Under these circumstances, Ms. Dano belonged to a specific

group of inactive EU citizens whose integration into the labour market of the host

country is, at least in the medium term, practically impossible.

4.2 The

Advocate

General’s

Opinion

A number of governments of EUMember States intervened before the CJEU – the

German, the Austrian, the Danish, the Irish, the French and the British governments.

According to reports in German newspapers,

the European Commission argued

that the criteria for granting social benefits to migrating EU citizens should be

examined with regard to the specific circumstances of each particular case. According

to the European Commission, the German authorities had to determine whether

the financial problems of Mrs. Dano were only temporary and whether she was well

integrated in Germany. The legal counsel of Ms. Dano supported this argument and

pointed out that Ms. Dano had been living in Germany for almost four years and

had close ties to her sister, with whom she was sharing the household. The Austrian

government partially supported the argument of the European Commission and

argued that each case should be reviewed individually. The Austrian government,

however, added that, in the particular case of Ms. Dano, integration into the German

labour market was very unlikely and the benefit under SGB II should not be granted.

The German government denied the request for an individual examination of the

case and explained that such a procedure would excessively burden the competent

See e.g. Badische Zeitung of 19 March 2014 (available at:

deutschland/deutschland-verteidigt-ausschluss-von-hartz-iv.