CYIL 2015

HARALD CHRISTIAN SCHEU CYIL 6 ȍ2015Ȏ negative decision by the Jobcenter Leipzig, she failed an administrative action to the competent court (Sozialgericht Leipzig). The action of Ms. Dano was based on both primary EU law, namely on Articles 18 and 45TFEU, which govern the prohibition of discrimination in connection with the free movement of workers and job-seekers, and the CJEU judgment of 4 June 2009 in the joined cases of Vatsouras and Koupatantze. 36 In these cases, which have been mentioned above, the CJEU had already dealt with the access of EU citizens to benefits under SGB II. The CJEU had held that Germany must grant benefits under SGB II only in the case that a Union citizen seeking work shows a genuine link to the labour market in the host country. When the German court had argued that the first of two Greek citizens exercised his professional activities to a limited extent and for a short time and the second worked slightly longer than a month, the CJEU rejected this interpretation and admitted that even in such cases there could be a genuine link between the job seekers and the labour market. In the Dano case, however, another part of the CJEU judgment in the cases of Vatsouras and Koupatantze turned out to be relevant. Indeed, the question arose to what category belong the benefits under SGB II. On the one hand, they seem be a benefit for unemployed people, which is fully covered by the principle of non discrimination on grounds of nationality under Article 4 of Regulation 883/2004. On the other hand, it shows signs of “social assistance” under Article 4, paragraph 5 of the Regulation 883/2004, according to which distinction based on citizenship is legal. This issue concerned the very essence of the German rules and also showed that the current ambiguities are not only grounded in EU law and the case-law of the ECJ, but also in national legislation. The German parliament adopted a new concept of social benefits under SGB II on 24 December 2003. The date seems to be significant in this context. Without any external pressure and without any concrete reference to EU law, the new Act abolished the previous model of social assistance and introduced a new social benefit, which partially served the purpose of basic care for those in need but for the major part was meant to support the future inclusion of benefits recipients into the labour market. As rightly pointed out by Professor Helga Spindler from the University of Essen, it was extremely reckless to accept the EU ban on discrimination in relation to all unemployment benefits and, at the same time, at the national level to replace the original concept of social assistance precisely by such a benefit. 37 Moreover, it seems rather incomprehensible that Germany added the benefits under SGB II to the list of benefits in Annex X, to which Regulation 883/2004 36 C-22/08 a C-23/08. 37 Spindler, H. Warum ist eigentlich die Zuwanderung direkt in ein soziales Fürsorgesystem in Europa und in Deutschland so unklar und missverständlich geregelt? The contribution of 18 March 2014 is available at : http://www.nachdenkseiten.de/?p=21125.

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