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CYIL 7 ȍ2016Ȏ SAVING THE EU AND ITS WELFARE STATES THROUGH DISINCENTIVES…
other hand, absolutely clear that the CJEU gave priority to the clarity and certainty
of the rules and also to the lightening of the burden borne by the national social
security system. The judges formulated an axiom that while an individual claim
might not place the concerned Member State under an unreasonable burden, the
accumulation of all the individual claims which would be submitted to it would be
bound to do so (para 62). Stipulating this, the CJEU ruled out, for cases similar to
Alimanovic’s situation, any doubts about the need to take into account the ties and
needs of the applicant (who e.g. worked only one week less than 12 months). The
statement that an individual claim would never be a burden but the accumulation
of similar claims would always present one, is universally applicable and makes any
interest in individual destinies superfluous. Given that the Alimanovic family could
not be labeled simply as welfare tourists (contrary to Dano), the surprise produced by
such approach towards their requests for social assistance was significantly greater.56
The last of the recently decided cases, Garcia- Nieto, was at first sight less
ambiguous. The issue at stake was the request of Spanish immigrants to Germany
for social assistance falling once more into the category of special non-contributory
cash benefits. The applicants came to Germany to join relatives and to work there
and wanted to benefit from this social allowance during the first three months
of their residence and before they found a job. The CJEU applied its conclusions
of Dano and Alimanovic cases regarding the application of Directive 2004/38 to
the requests of social assistance of those who do not meet the conditions of this
secondary legislation and due to that may not enjoy equal treatment in the host
Member State.
The logic that any EU citizen can reside in another Member State for a period
of up to three months without any conditions or formalities and that the price for
this freedom consists in the fact that he may not become an unreasonable burden
on the social assistance system of this Member State is compelling (para 42). What
makes such a simple solution difficult to accept in the García-Nieto case was once
more a complete disregard to the individual situation. The CJEU acknowledged
but did not take into consideration that Mr. Peña-Cuevas (with his son – together
applicants for the social assistance) joined in Germany Ms. García-Nieto as they
had lived previously together in Spain, had a daughter in common, and even though
they had never married nor entered into a civil partnership, they lived in Germany
as a family on Ms García-Nieto’s income (para 29) and together lodged action
against the non-granting of social assistance. Even the CJEU frequently referred
to them as “members of the Peña-García family” (paras 2, 27, 29, 30 etc.). Contrary
56 See for instance: DION KRAMER, ‘Had they only worked one month longer. An Analysis of the
Alimanovic case C-67/17‚ > accessed 20 April 2016; or also Maria
Haag, ‚C67/14 Alimanovic: The not so fundamental status of Union citizenship.’ <https://delilawblog.
status-of-union-citizenship/> accessed 20 April 2016.