CYIL 2015

206

HARALD CHRISTIAN SCHEU

CYIL 6 ȍ2015Ȏ

From a conceptual point of view it is essential that Article 7 of Directive 2004/38

is, thus, seen as the basis for unequal treatment of migrating EU citizens and

nationals of the host Member State. However, the CJEU took over the somewhat

unfortunate wording of the Advocate General’s opinion, according to which certain

benefits may be denied to those inactive EU citizens who entered the host country

only in order to qualify for social assistance. The problem of complex motivations of

migrant EU citizens has already been indicated above. Anyway, the examination of

such motivations by the host Member State calls for an individual assessment with

respect to the economic situation of the particular EU citizen. This is bad news for

those Member States which consider that a thorough review of each individual case

will be, in practice, unmanageable.

On the other hand, Member States have, certainly with some relief, taken note

of the fact that the CJEU did not any longer require any degree of financial solidarity

between the nationals of the host State and nationals of other Member States, and

thus it deviated from the arguments used by the five-member Senate in its judgment

in the Brey case. The term “solidarity” does not appear in the Dano case.

Also in line with the interests of the Member States, the CJEU interpreted the

relationship between Regulation 883/2004 and Directive 2004/38 so that social

security benefits under Regulation 883/2004 shall be provided only to those EU

citizens who fulfil the residence requirements under Directive 2004/38. Such an

interpretation has a significant impact on the scope of the non-discrimination

principle of Article 4 of Regulation 883/2004. It may lead to a repetition of the

situation in the Brey case, when the Austrian immigration authority indirectly

decided on the social benefit and the social security authority indirectly ruled on the

right of residence.

5. Conclusions and perspectives

While the judgment in Brey has been criticized by national politicians and

numerous legal experts as a free ticket to the social union for all economically inactive

EU citizens, the more recent ruling in the Dano case was presented as a protection

against “benefit tourism”. After the judgment of the CJEU in the Brey case had been

published, media reported that Austria shall financially support all Union citizens

who, in their home countries, receive a low pension and therefore move to Austria.

On the contrary, after the verdict in the Dano case especially German politicians

and judges expressed genuine pleasure, but also the British Prime Minister posted a

comment to the social media: “I support the European Court of Justice ruling that

curbs ‘benefits tourism‘ - it’s simple common sense“.

Cf. e.g. the information that one private company of tax advisors sent to its customers (available at

, p. 11).