CYIL vol. 7 (2016)

162

VÁCLAV ŠMEJKAL

CYIL 7 ȍ2016Ȏ

derived directly from the Treaty over narrowly and proportionally applied conditions

of their exercise fixed by secondary EU legislation.

Yet, in the aforementioned

case

Brey

(para 70) the CJEU seemed to confirm, in September 2013, such a trend:

freedom of movement was stressed as a fundamental principle of EU law and due

to this fact, any limitations of it provided by secondary EU legislation, had to be

construed narrowly. The assessment of personal circumstances characterizing the

individual situation of the person concerned was a must for national authorities

deciding on social assistance for applicants from another Member State (para 64).

The case law from the euro-optimistic 90s (

Martínez Sala, Grzelczyk, Baumbast

)

was still quoted as good precedent. Especially in light of such a confirmation

of continuity, the decisions of the CJEU from 2014–2016 in the cases of

Dano,

Alimanovic

and

García-Nieto

came as a u-turn in its approach.

In C-333/13

Dano

an economically inactive EU-migrant from Romania was

legally residing in Germany; nevertheless German authorities refused to give her and

her son social assistance consisting in a so-called “basic provision” from the category

of “special non-contributory social benefits”.

The “basic provision” (

existenzsichernde

Regelleistung

) was intended to cover subsistence costs of jobseekers and allow them to

lead a life keeping with human dignity. However, Ms. Dano, having no qualification

and no previous work experience, did not really look for a job in Germany. Even

though it seems that it was not difficult for the CJEU to confirm the view of German

authorities, and the refusal of such benefits was fully in line with the applicable EU

law (especially Directive 2004/38), this judgement was surprising in its total disregard

of the personal situation of Ms. Dano. Already in Germany in July 2009, she had

given birth to a son there. Then, hosted by her sister, she had stayed permanently

in that country since November 2010 and in July 2011 she received a certificate of

residence for an indefinite period of time from German authorities and also child

benefits were paid to her there. Although it was clear that under Directive 2004/38

Ms. Dano was, as an economically inactive person surviving in a host Member State

without sufficient resources, not entitled to demand the EU right of residence, it was

at the same time impossible to assert that she resided in Germany illegally and without

any bonds or that there were no social solidarity reasons in favor of her receiving social

assistance. Moreover, the German court itself was not sure whether Ms. Dano had

not been treated in conflict with the general EU law provision on non-discrimination

SHUIBHNE (n 33) 890.

Case C-333/13

Elisabeta Dano and Florin Dano v Jobcenter Leipzig

EU:C:2014:2358.

As defined by article 70(2) of Regulation 883/2004. The benefits provided by national welfare

systems are usually divided into three types: contributory benefits (based mainly on insurance-type

contributions, i.e. social security), non-contributory benefits (based mainly on tax-type contributions,

i.e. social assistance) and special non-contributory tax benefits which have characteristics both of social

security and of social assistance and their examples are benefits to guarantee the minimum subsistence

income or specific protection for the disabled. Regulation 883/2004 governs the availability of “social

security” to EU-migrants, while “social assistance” is excluded from its scope.