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administrative authorities and courts. Germany also highlighted the disproportionate
burden to the welfare system, which would occur in the case that EU citizens like
Mrs. Dano were entitled to benefits under SGB II. According to news reports, these
arguments of the German government were supported by Denmark, Ireland and the
United Kingdom. The British government added that it would be hardly possible to
find a more obvious case of benefit tourism than is the case of Ms. Dano.
In the oral proceedings, the judges of the CJEU raised questions concerning the
link between the residence permit which had been issued by the competent German
authority and the rejection of social benefits for a Union citizen legally residing in
Germany. Thus they re-opened an issue which had already been dealt with in the
Brey case: what is the connection between the right of residence under Directive
2004/38 and the payment of social benefits falling under regulation 883/2004?
Advocate General Melchior Wathelet delivered his opinion on the case on
20 May 2014. The opinion contains some very interesting considerations which
differ, in certain respects, from the CJEU verdict in the Brey case. The Advocate
General took issue with the idea of individual assessment, which had become one of
the leitmotifs of CJEU case-law. According to the Advocate General, the application
of this rule “could lead to an impasse”. He argued that under Directive 2004/38
there were only two possibilities: either economically inactive Union citizens have
sufficient resources and therefore they have a right of residence in the host country,
or they do not have sufficient resources. In the second case, the Union citizen might
qualify for social assistance within the meaning of Directive2004/38, but only in his
home state.
Advocate GeneralWathelet interpreted Article 24, paragraph 2 of Directive 2004/38,
under which the host Member State is not obliged to confer entitlement to social
assistance during the first three months of residence or for a longer period of job
search, as a valid legal basis for general measures by the Member State which do not
call for the assessment of individual circumstances. If the situation of inactive EU
citizens not intending to integrate themselves into the labour market of the host
Member State had to be assessed individually, they would be in a more favourable
situation than those who truly seek a job. According to Wathelet, such a situation
would be paradoxical.
Based on these arguments, Wathelet found that the relevant German regulation
was compatible with EU law. In paragraph 131 of his opinion, the Advocate General
concluded that “by refusing basic provision benefits to persons who come to
Germany solely in order to benefit from the social assistance system of that Member
State and who do not seek in any way to integrate themselves into the labour market
the national legislation is consistent (…) with the EU legislature’s intention.” The
Advocate General also stressed the need to prevent “persons exercising their right to