CYIL 2015

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HARALD CHRISTIAN SCHEU

CYIL 6 ȍ2015Ȏ

can be distinguished from those European Union citizens who have the hope of

getting a job. As long as a particular EU citizen falls into the category of inactive

Union citizens who are seeking work, the conclusions from the Dano case will not

apply. Under Article 45, paragraph 3 TFEU, job seekers may move freely within the

territory of the Member States, and Article 14, paragraph 4 of Directive 2004/38

makes reference to the genuine chance of being engaged.

German law (§ 7 SGB II), however, excludes from drawing certain unemployment

benefits not only people like Ms. Dano, who do not seek work, but also EU citizens

genuinely seeking work. According to the German literature it is very doubtful

whether such a general measure which does not take into consideration individual

circumstances is compatible with Article 24, paragraph 1 of the Directive and

Article 4 of Regulation 883/2004.

In relation to this category of economically

inactive Union citizens, which in practice is very relevant, the CJEU judgment in the

Dano case has not brought any useful guidelines. So, it is necessary to wait for further

judgments clarifying this question, and legal uncertainty persists.

This problem of legal uncertainty is, in the first place, the result of poor EU

legislation. On the other hand, the problem has been exacerbated by significant

differences in the social systems of Member States and their national legislations. In this

contribution we have focused on examples from Austria and German practice, since

those countries have become the final destination of quite many economically inactive

EU citizens. Further, we have shown how the case-law of the CJEU has contributed

to the state of legal uncertainty. It seems that the CJEU, in some cases, has lost sight

of the practical aspects of migration into social systems and the functioning of control

mechanisms in the Member States.

Legal uncertainty, confusing legislation and cryptic judgments of the CJEU are

factors which contribute to the rise of xenophobia and irrational political debates. From

a legal perspective, however, we have to recall that the cases of EU citizens migrating

into social assistance systems of host Member States do not fall into the category of

abuse of rights or so-called benefit tourism because those who simply claim rights

which are laid down in EU law, respectively the law of the Member States, cannot be

called benefit tourists. In our opinion, the failure is not on the side of those who choose

to migrate in search of a better life, but on the side of the national and EU legislative

bodies which are responsible for confusing and incoherent legal acts. We believe that

questions concerning access of economically inactive Union citizens to social benefits

should be regulated by new and more transparent EU legislation. However, given the

complexity of the legislative process at the European and the national level, such a

solution is not very likely.

For further details, see Nowrot and Struckmeyer-Öner (

op. cit.

)

This problém shall be addressed by the CJEU e.g. in the Alimanovic case (C-67/14).