CYIL 2015

HARALD CHRISTIAN SCHEU CYIL 6 ȍ2015Ȏ At this point, the CJEU certainly did not please either the Member States that provide higher social standards or their citizens who finance these standards from their taxes. It is not necessary to add that the term “financial solidarity” may have, according to a particular ideological orientation, very different meanings. The European Commission submitted a more concrete proposal according to which an unreasonable burden on the social system shall be examined in terms of the number of recipients of specific social benefits. In our particular case, thus, Austria should take into account the number of migrant pensioners from other Member States who qualify for the compensatory supplement. With respect to the initial question of the Austrian Supreme Court of Law, the CJEU concluded that the Austrian legislation which automatically excluded economically inactive EU citizens from receiving compensatory supplements to their pensions and did not take account of the particular circumstances of the individual case or the possible burden for the overall system of social assistance, was not in line with Directive 2004/38. 3.3 The lesson from the Brey case Regarding the impact of the Brey judgment of the CJEU on the proceedings before the Supreme Court of Justice in Vienna, the situation was very clear. The Supreme Court concluded that Mr. Brey was entitled to a compensatory supplement to his German pension. The Supreme Court of Justice, on one hand, explicitly called the fight against “social tourism” of EU citizens legitimate but, on the other hand, considered the automatic exclusion of inactive EU citizens from social benefits as disproportionate. Although the CJEU judgment could, thus, serve as a useful guide in this particular case, from a conceptual point of view it raised more questions than solutions. The vague terms contained in Directive 2004/38 and Regulation 883/2004 have been supplemented by other very vague criteria. Indeed, the Supreme Court of Justice in Vienna, in its judgment of 17 December 2013, indicated that the compensatory supplement for Mr. Brey was based on the current situation when the competent authority had decided on the legal residence of the applicant. The circumstances of the case of Mr. Brey, however, may be later re-examined. In the light of the CJEU judgment, Austria should consider the fact that the financial problems of the applicant were maybe not of a temporary nature or that the migration of a large number of pensioners from other EU Member States affected Austria’s social assistance system disproportionately and unreasonably. So, in the case of a new assessment of the case of Mr. Brey, the lack of clarity of EU legislation and CJEU case-law could come back like a boomerang. From a practical point of view, we have to ask how, respectively, to what extent is it possible to implement a detailed assessment of all individual cases of migrant

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