CYIL 2015

THE LIMITS OF SOǧCALLED BENEFIT TOURISM AND THE FREE MOVEMENT OF EU CITIZENS pensioners and other inactive EU citizens. According to official statistics, in 2010 a total of 240,000 people was receiving the compensatory supplement under Austrian law, of which, however, there were only 694 pensioners from other EU Member States. By 2012, the later number had increased to 980 people. As a result of the Brey judgment we may expect a further increase in the number of EU citizens applying for the compensatory supplement. In this context, it could be necessary to re-address the issue of the relevant burden on the overall system. What should be the relevant threshold for the Austrian authorities: 700, 900, 1500 or 5000 new applicants for the compensatory supplement? Shall such numbers be considered as an unreasonable burden? Shall this question be decided by the authorities of the Member States within a certain margin of appreciation, or shall it be left rather to the CJEU to decide such cases in the light of “financial solidarity”? 4. Social benefits for economically inactive EU citizens according to the Dano case In the Dano case 35 the CJEU had to address the problem that, within the European Union, it is not only a relatively small group of migrant pensioners which applies for social benefits in the host Member State, but also by an ever-growing number of jobseekers or other immigrants from other Member States who do not have any realistic chance of finding employment in the labour market of the host Member State. 4.1 The circumstances of the case and national legislation In 2010, Elisabeta Dano, a Romanian national, together with her five year-old son, Florian, moved to Germany. In June 2011, the German authorities provided her with a residence permit for an indefinite period, notwithstanding the fact that the social situation of Ms. Dano was precarious right from the beginning. After her arrival in Germany she lived with her sister, who supported her financially. Germany further paid child benefits to Ms. Dano in the amount of 184,- € a month and also an advance on child maintenance payments in the amount of 133,- € per month. The legal dispute on the national level occurred when Ms. Dano applied for a benefit under the second part of the Social Security Act (SGB II). The provisions of Section 7, paragraph 1 SGB II provide that basic security benefits for jobseekers shall not be granted to foreigners who have a right of residence based only on job search. When the German competent authority (Jobcenter Leipzig), in September 2011, with reference to Section 7 SGB II rejected Ms. Dano’s application for a social benefit, she did not appeal and the decision became final. In January 2012, however, Ms. Dano submitted a new application for a benefit under SGB II, and, after a

35 C-333/13 Elisabeth Dano, Florian Dano v. Jobcenter Leipzig.

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