CYIL 2015

HARALD CHRISTIAN SCHEU CYIL 6 ȍ2015Ȏ a disproportionate burden on this system in the host Member State. If we start from a very narrow concept of social assistance in the sense of those benefits, to which Regulation 883/2004 does not apply, the Member States should provide all other social benefits, especially hybrid “special non-contributory cash benefits” to all migrating Union citizens, including those who are inactive. It is obvious that such an interpretation would totally undermine the protection of the social systems of Member States against unreasonable burden, which is regulated in Directive 2004/38. The condition of “sufficient resources”, which is laid down e.g. in Article 7 of Directive 2004/38, would become absurd, since the host Member State could not terminate the stay of a Union citizen who does not have sufficient means, but it would have to provide him such sufficient resources in the form of social benefits. What further contributes to the problem is the fact that, although Regulation 883/2004 and Directive 2004/38 were adopted on the same day (29 April 2004) 20 and, therefore, had to be drafted around the same time, we do not find a single cross reference in the texts of both legal acts or at least an attempt to harmonize the concepts and terms used. This regards not only the concept of social assistance but also the principle of equal treatment. Article 24, paragraph 2 of Directive 2004/38 contains an exemption from the prohibition of discrimination on grounds of nationality to the extent that the host State is not obliged to grant social assistance during the first three months of residence or a longer period of job search. 21 Such an exemption, however, is not contained in Article 4 of Regulation 883/2004, under which all persons to whom the Regulation applies shall have the same access to hybrid benefits as is provided for nationals of the Member State. It is very difficult to solve the conflict between the two different standards in both legal acts. 22 The practical dimension of this problem is beautifully illustrated by a desperate attempt by which the Social Court of Berlin-Brandenburg tried to address the relationship between Regulation 883/2004 and Directive 2004/38. 23 The Social Court dealt with a case concerning a disputed legal claim to a job-seeker’s benefit. The legal claim was made by a Polish single mother with two dependent children living in Germany. The relevant statutory provisions 24 , however, did not provide an entitlement to those EU citizens who had not yet been employed. The Social Court had to solve the question of whether the distinction between EU nationals who had already been employed and EU citizens who were still looking for work in Germany 20 Regarding the genesis of Regulation 883/2004, cf. ŠTEFKO, M., KOLDINSKÁ, K. Sociální práva cizinců , Praha: C.H. Beck, 2013, 83-84. 21 See Article 14, paragraph 4 lit.. b) of Directive 2004/38. 22 Hauschild, M. Art. 4 VO (EG) 883/2004. In: SCHLEGEL, R., VOELZKE, T. Juris Praxiskommentar SGB I (second edition), Saarbrücken, 2011. 23 L 5 AS 2157/11 B ER (decision of 3 April 2012). 24 Sozialgesetzbuch (SGB II).

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