CYIL 2015

207

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

With regard to both judgments, the situation is certainly more complicated than

it appears from media coverage. According to the conclusions of the CJEU in the

Brey case, the EU Member States were not excluded from restricting the stay of EU

citizens who lacked sufficient resources. The CJEU only explained that the national

authorities have to consider all cases individually in the light of the temporariness

of difficulties, the length of stay, the personal circumstances and also the impact on

the overall social assistance system. It was not clear, however, what these different

conditions should mean in practice. Indirectly in response to the arguments

of the CJEU in the Brey case, the Advocate General in the Dano case called this

interpretation “an impasse” and a paradoxical situation.

Indeed, the judgment in the Dano case has brought some clarification with regard

to the status of one group of economically inactive EU citizens, i.e. the relatively

small group of inactive EU citizens who do not try or are not able to integrate into

the labour market of the host country. However, even in relation to this category,

the original dilemma of the Brey case remains: to which extent shall a Member

State examine each case on an individual basis? Exactly this question has been raised

by Germany during the oral proceedings, because, in practice, excessive workload

of administrative authorities and courts seems the major problem. Although the

Advocate General indicated that in the light of EU law an individual assessment of

the economic situation of each migrating EU citizen is not required, the CJEU did

not touch upon this key issue.

In theDano case, the CJEUapproved of the restrictive approach taken by theGerman

authorities, as it found that they rightly rejected Ms. Dano’s claim for unemployment

benefits. Neither Germany nor the CJEU, however, dealt with the simple fact that Ms.

Dano, since her arrival in Germany, had already received social benefits totalling more

than 300,-€ per month (in the form of child benefits

and maintenance payments). At

no stage of the proceedings, didGermany deny that these benefits, probably exceeding the

average wage in Romania, had been paid in accordance with German law. It is therefore

not true that Ms. Dano was not entitled to social benefits in Germany.

Moreover, it is obvious that the case of Dano is somehow special, because, even

at first glance, it seemed to be clear that Ms. Dano had no realistic chances on the

German labour market. She has not even sought work. But to what degree would the

situation change if Ms. Dano, as an economically inactive Union citizen, had been

looking for a job at least on a formal level, if she had completed some basic education

in her country of origin, if she had basic knowledge of German language, or if she

had gained some experience in previous jobs? How would the CJEU decide on access

to social benefits under such circumstances?

In view of these unanswered questions it is far from being clear how the category

of economically inactive Union citizens who are not employable in the labour market

Germany provides this child benefit even in case that the child concerned does not live in Germany.