Overview of Recent Cases before the Court of Justice of the European Union (October–December 2014)

DOI10.1177/138826271501700105
Date01 March 2015
Published date01 March 2015
Subject MatterRecent News and Case Law
/tmp/tmp-175VTq3E0g8xbY/input OVERVIEW OF RECENT CASES BEFORE THE
COURT OF JUSTICE OF THE EUROPEAN UNION
(OCTOBER-DECEMBER 2014)
Anne Pieter van der Mei*
For all those following the case law of the Court of Justice of the European Union
(CJEU) in social security matters, the last three months of 2014 were particularly
interesting.1 Th
e CJEU delivered its long-awaited judgment in the ‘social tourism case’
of Dano, expressed itself (once again) on the powers of the European Union (EU) to
adopt social security measures vis-à-vis third countries (Turkey in United Kingdom
v Council
) and provided important clarifi cation about the rights of third-country
nationals who de facto cannot be treated for the illnesses they suff er from in their
countries of origin (M’Bodj and Abdida). In addition, the CJEU delivered noteworthy
rulings on planned hospital treatment in other Member States (Petru), old-age
pensions (Larcher; Somova) and family benefi ts (Fassbender-Firman; Österreichischer
Gewerkschaft sbund
).
1.
ECONOMICALLY INACTIVE UNION CITIZENS’
ENTITLEMENT IN OTHER MEMBER STATES
TO SOCIAL ASSISTANCE AND SPECIAL
NON-CONTRIBUTORY CASH BENEFITS: DANO
In recent years, the topic of social tourism has returned to the political agenda, as
notably illustrated by the ‘immigration speech’ of British Prime Minister, David
Cameron.2 Concerns about EU citizens looking for greener social pastures in other
Member States relate fi rst and foremost to jobseekers and other economically inactive
persons who are not (yet) able to provide for themselves and their families. Directive
*
Associate Professor in EU Law, Maastricht Centre for European Law. Address: P.O. Box 616, 6200 MD
Maastricht, Th
e Netherlands; phone: +31 43 3884832; e-mail: ap.vandermei@maastrichtuniversity.nl.
1
Th
e next overview will report on the case law of the European Court of Human Rights in social
security matters in the year 2014.
2
For the full text see http://blogs.spectator.co.uk/coff eehouse/2014/11/david-camerons-immigration-
speech-full-text/. See further Poptcheva (2014).
102
Intersentia

Overview of Recent Cases before the Court of Justice of the European Union
2004/383 on the free movement and residence rights of Union citizens does off er
Member States protection against ‘social tourists’ but the degree to which it does so is
not crystal clear.
Member States must accept the entry into their territories of all Union citizens,
regardless of their motive and resources, but they do not have to confer upon such
‘fellow citizens’ social assistance during the fi rst three months, or as long as these are
still genuinely looking for a job.4 Problems arise thereaft er. On the one hand, the right
of residence for more than three months is, for EU citizens who have not yet found
an ‘eff ective and genuine’ job,5 subject to them having enough fi nancial means so as
not to become a burden on the social assistance system of the host Member State.
On the other hand, all Union citizens are, aft er having resided in the host State for
more than three months, entitled to equality of treatment, regardless of nationality,
in relation to all matters falling within the scope of EU law, without there being an
explicit exclusion of social assistance. How do these two aspects relate to each other?
Does the fi nancial means requirement for the right to reside exclude access to social
assistance systems? Th
at was the core question the CJEU had to address in the case
of Dano.6
Ms. Dano and her young son, Florin, are Romanian nationals living in Leipzig
(Germany). Ms. Dano last entered Germany in November 2010 and received a
residence certifi cate of unlimited duration from the city of Leipzig. Since their arrival
in Leipzig, Ms. Dano and her son have been living in the apartment of Ms. Dano’s
sister, who provides for them materially. For her son, Ms. Dano receives child benefi t
of EUR 184 per month as well as an advance on maintenance payments of EUR 133
per month. Ms. Dano attended school for three years in Romania, but did not obtain
any leaving certifi cate. She understands German orally and can express herself in
simple German. However, she cannot write in German and her ability to read texts in
that language is limited. She has not been trained in a profession and, to date, has not
worked in Germany or Romania. Although her ability to work is not in dispute, there
is nothing to indicate that she has looked for a job.
Even though she did not look for work, Ms. Dano applied in 2012 for social
benefi ts for jobseekers, and, more concretely, for a subsistence benefi t for herself, a
social allowance for her son as well as a contribution to accommodation and heating
costs. Th
e benefi ts were refused as, according to the relevant German rules, foreign
nationals whose right of residence arises solely out of the search for employment are
not entitled to such benefi ts, nor are their family members. In addition, the German
rules stipulate that foreign nationals who have entered national territory in order to
3
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right
of citizens of the Union and their family members to move and reside freely within the territory of
the Member States, OJ 2004 L 158: 77.
4
Article 24(2) Directive 2004/38.
5
D.M. Levin v Staatssecretaris van Justitie, Case 53/81, ECLI:EU:C:1982:105, at 17.
6
Dano, Case C-333/13, ECLI:EU:C:2014:2358.
European Journal of Social Security, Volume 17 (2015), No. 1
103

Anne Pieter van der Mei
obtain social assistance or whose right of residence arises solely out of the search for
employment have no right to social assistance, nor do their family members. Ms.
Dano went to a Leipzig court, which stayed proceedings to ask preliminary questions
to the CJEU.
Above all, the Leipzig court wished to know from the CJEU whether Article 20(2)
TFEU on the right to freedom of movement for Union citizens and the prohibition of
discrimination on grounds of nationality, as contained in Article 18 TFEU, Article 24 of
Directive 2004/38 and Article 4 of Regulation 88 3/2004, objects to national legislation
denying economically inactive nationals of other Member States entitlement to special
non-contributory cash benefi ts (SCNBs) under the same conditions as nationals.
Th
e CJEU fi rst established that this question is not to be answered on the basis
of Articles 18 and 20 TFEU. Th
e former provision prohibits discrimination on the
ground of nationality ‘without prejudice to special provisions’, whereas the latter
Treaty provision states that free movement rights are to be exercised in accordance
with conditions, among others, laid down in legislative measures. Hence, the CJEU
concluded that the preliminary question must be answered on the basis of Article 24
of Directive 2004/38 and Article 4 of Regulation No. 8 83/2004, as these provisions give
specifi c expression to the principle of non-discrimination, as embedded in Article 18
TFEU.7
In interpreting these legislative provisions, the CJEU fi rst recalled the conclusion
drawn in Brey that SNCBs within the meaning of Article 70 of Regulation No.
883/2004, including those for which Ms. Dano applied, constitute social assistance for
the purposes of Directive 2004/38.8
Th
e Court subsequently held that Article 24(1) of Directive 2004/38 provides that
all Union citizens residing on the basis of the Directive in the territory of the host
Member State are to enjoy equal treatment with the nationals of that Member State
within the scope of the Treaty. Hence, as regards access to social benefi ts, a Union
citizen can claim equal treatment with nationals of the host Member State only if his
residence in the territory of the host Member State complies with the conditions of
Directive 2004/38.9 For an economically inactive Union citizen this implies that he or
she must possess suffi
cient fi nancial means to avoid becoming a burden on the social
assistance system of the host Member State.
In determining whether an economically inactive Union citizen – like Ms. Dano
– who does not satisfy the conditions for the right of residence of more than three
months can claim social assistance, the CJEU opined that Directive 2004/38 seeks
to prevent economically inactive Union citizens from using the host Member State’s
welfare system to fund their means of subsistence. Any unequal treatment between
Union citizens who have made use of their freedom of movement and residence and
7
Ibid., at 60–61.
8
Ibid., at 63 (referring Brey, EU:C:2013:565, at 61). See, also, Verschueren (2014).
9
Ibid., at 68–69.
104
Intersentia

Overview of Recent Cases before the Court of Justice of the European Union
nationals of the host Member State with regard to the grant of social benefi ts is an
inevitable consequence of Directive 2004/38. Such potentially unequal treatment is
founded on the link established by the Union legislature between the requirement to
have suffi
cient resources as a condition for residence and the concern not to create a
burden on the social assistance systems of the Member States. Th
erefore, a Member
State must be able to refuse to grant social benefi ts to economically inactive Union
citizens who exercise their right to freedom of movement solely in order to obtain
another Member State’s social assistance if they do not have suffi
cient resources to
claim a right of residence. To deny the Member State concerned that possibility would
have the...

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