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VÁCLAV ŠMEJKAL
CYIL 7 ȍ2016Ȏ
secondary EU legislation was demonstrated in its decisions in cases
Alimanovic
from September 2016
53
and
García-Nieto
from February 2016.
54
In those cases, the
CJEU did not mention at all Article 21 TFEU (or any article of the Charter), never
mentioned citizenship, solidarity, genuine link, etc., and the quotes of “old” case law
such as
Martínez Sala, Grzelczyk, Baumbast
or
Trojani
were replaced by references
to…
Dano
.
In the
Alimanovic
case, citizens of Sweden (mother and three children, all born in
Germany) unsuccessfully applied for benefits of social assistance nature in Germany,
where the family enjoyed a right of permanent residence in accordance with the
local rules. The mother and the oldest child had worked for 11 months in Germany
(thanks to employment promotion measures). When their jobs ended, they received
during the following six months a subsistence allowance for unemployed, as in full
conformity with Directive 2004/38 [Article 7 (3)] they had maintained the status
of EU-worker for exactly half a year after the termination of their employment (had
they worked longer than 12 months they would not have lost this status and the
right of equal access to all benefits). AG Wathelet had no doubt that Alimanovic,
having applied for the social assistance and not for the job-seeking allowance, could
not be eligible for such aid under the strictly applied Directive 2004/38.
55
However,
given that the applicants had worked in Germany, the AG did not recommend
an automatic rejection of their claim, but suggested an individual assessment of
whether they had already built a genuine link with the host Member State. Among
other differences from the
Dano
case, it could be mentioned in favor of the applicants
that their minor children attended school in Germany as, being family members of
a (former) migrant EU-worker, they enjoyed right of access to education pursuant to
EU Regulation 492/2011. The CJEU nevertheless concluded, based on a consistent
application of Directive 2004/38, that under the circumstances, the applicants were
no longer entitled to benefits of social assistance. Surprisingly, however, the judges
did not deem any individual assessment as necessary (para 59).
This conclusion, which distinguished the
Alimanovic
case from
Brey
and from
the older case law in general, was grounded by the CJEU in the provisions of
Directive 2004/38, which established a gradual system regarding the retention
of worker status and thus took into consideration different factors characterizing
the individual situation of each applicant for social assistance and, in particular, the
duration of the exercise of any economic activity (para 60).
Although it is not entirely clear how the general and concise provisions of the
Directive could replace the previously required individual assessment, it is, on the
53
Case C-67/14
Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others
EU:C:2015:597.
54
Case C-299/14
Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto and Others
EU:C:2016:114.
55
Alimanovic
(n 53) Opinion of AG Wathelet EU:C:2015:210.