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CYIL 7 ȍ2016Ȏ SAVING THE EU AND ITS WELFARE STATES THROUGH DISINCENTIVES…
citizens from other EU countries may gather in some Member States.59 These people
would survive in relative poverty with the help of their relatives, friends or charity,
and with a bit of luck would hold on – legally – for five years and then they would
acquire the right of permanent residence and become entitled to all kinds of benefits
as nationals of the host Member State. This phenomenon, even though statistically
maybe unimportant, would undoubtedly create a need for further legislative or
judicial clarification. The CJEU has thus so far solved only the first of the questions
lining the path towards reconciliation between the European ideal of freedom
of movement and the inability and unwillingness of the national social security
systems to serve all EU applicants without discrimination.
Conclusion: the new approach of the CJEU and its impact on the EU
Although the turn in the CJEU case law, due to decisions in Dano, Alimanovic,
García-Nieto (with an expected continuation in the pending case Commission v.
UK60 ) is now the topic of lively debates and there is little doubt that the CJEU’s retreat
from its earlier support of expansion of the EU citizen’s status has a great symbolic
significance, the practical impact of this recent development on the free movement of
persons, as well as on the national social systems, should not be overestimated.
In all of the three cases, the issue was the right to a specific kind of social assistance
rather than the right to be supported by the social system of the host Member State in
general. Even those who had been denied this particular type of aid were receiving
in parallel other types of German social security benefits e.g. child allowance or
became fully entitled to any kind of benefit once they got a job. The actual impact of
these CJEU rulings should be limited, at present, to the payment of benefits of social
assistance61 to migrant EU citizens without resources who a) would either really try
to abuse the social system of another Member State, or b) would try to draw from
this system in situations where the long established EU secondary law does not allow
for, such as during the first three months of residence of economically inactive EU-
59 On this issue see HERWIG VERSCHUEREN, ‘Free Movement of EU Citizens: Including for the Poor?’
> accessed 20 April 2016.
60 Case C-308/14 Commission v United Kingdom. Opinion of AG Cruz Villalón, EU:C:2015:666, largely
confirmed the tendency by concluding, that “when examining claims for social benefits such as child
benefit or child tax credit, the Member State’s authorities may carry out the checks necessary to ensure that
nationals of other Member States claiming those benefits are lawfully resident in its territory” (para 99).
61 Very much in the same vein the CJEU found, in the less-cited decision of joined cases C-361/13
and C-433/13 Commission v. Slovakia EU:C:2015:601, that Slovakia could limit the entitlement to
specific disability benefits and to the Christmas bonus for persons on low income to just Slovak residents
without infringing EU law (namely Regulation 883/2004) as the Commission had claimed. On the other
hand, the job-seeking allowance, i.e. “benefits of a financial nature which are intended to facilitate access
to the labour market of a Member State” are still in accordance with the “old” case law, Vatsouras and
Koupatantze (n 37), available to EU-migrants without discrimination, as the CJEU distinguished this type
of benefits from “social assistance” also in the Alimanovic ruling (para 46).