CYIL 2015

205

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

freedom of movement without intending to integrate themselves from becoming a

burden on the social assistance system”.

At first sight, these deliberations of the Advocate General seem to be clearer and

more logical than the reasoning of the CJEU in the Brey case. In principle we agree

with the arguments of the Advocate General, which more or less manifestly criticize

the not very consistent CJEU case-law. However, neither can the arguments of the

Advocate General fully clarify issues concerning the free movement of economically

inactive Union citizens and their access to social benefits. In practice, it may be

extremely difficult to detect whether a particular person entered the territory of the

host state “solely in order to obtain the social assistance of another Member State”.

Maybe Ms. Dano did not intend to only draw social benefits in Germany, but maybe

she also wanted to ensure her son a better future and a better education, or, being a

Roma woman from Romania, she wanted to avoid ethnic discrimination. Or, above

all, she just wanted to live together with her sister. So we have to ask, how did the

Advocate General find out about the real motivation of Ms. Dano without examining

the individual circumstances of her case.

4.3 The judgment

Six months after the opinion of the Advocate General (20 May 2014) had been

published, the Grand Chamber of the CJEU delivered its judgment in the Dano

case.

In the first part of the judgment the Court dealt with problems that had

already been addressed in previous case law. So, the CJEU confirmed that “special

non-contributory cash benefits” within the meaning of Article 3, paragraph 3 and

Article 70 of Regulation 883/2004 are subject to the prohibition on discrimination

which is laid down in Article 4 of Regulation 883/2004.

The key part of the judgment is dedicated to the question whether Germany

may exclude Ms. Dano from the application of the non-discrimination principle

under Article 4 of Regulation 883/2004 by reference to Article 24, paragraph 2 of

Directive 2004/38 (and Article 20 TFEU). In more general terms, the question asks

whether an economically inactive Union citizen may invoke Article 4 of Regulation

883/2004 even in the case that his residence in the host Member State does not meet

the criteria of Directive 2004/38. In this respect the CJEU agreed with the argument

of the Advocate General when it concluded that it would be contrary to the objective

set out in Recital 10 of the Preamble of Directive 2004/38, if an inactive Union

citizen could meet the condition of sufficient resources by drawing social benefits

of the host country. The CJEU built this argument on a teleological interpretation

of Article 7, paragraph 1 of Directive 2004/38. According to the CJEU, Article 7,

paragraph 1 of Directive 2004/38 excludes economically inactive EU citizens from

the social security system of the host country.

The judgment was announced on 11 November 2014.