CYIL 2015

HARALD CHRISTIAN SCHEU CYIL 6 ȍ2015Ȏ From a conceptual point of view it is essential that Article 7 of Directive 2004/38 is, thus, seen as the basis for unequal treatment of migrating EU citizens and nationals of the host Member State. However, the CJEU took over the somewhat unfortunate wording of the Advocate General’s opinion, according to which certain benefits may be denied to those inactive EU citizens who entered the host country only in order to qualify for social assistance. The problem of complex motivations of migrant EU citizens has already been indicated above. Anyway, the examination of such motivations by the host Member State calls for an individual assessment with respect to the economic situation of the particular EU citizen. This is bad news for those Member States which consider that a thorough review of each individual case will be, in practice, unmanageable. On the other hand, Member States have, certainly with some relief, taken note of the fact that the CJEU did not any longer require any degree of financial solidarity between the nationals of the host State and nationals of other Member States, and thus it deviated from the arguments used by the five-member Senate in its judgment in the Brey case. The term “solidarity” does not appear in the Dano case. Also in line with the interests of the Member States, the CJEU interpreted the relationship between Regulation 883/2004 and Directive 2004/38 so that social security benefits under Regulation 883/2004 shall be provided only to those EU citizens who fulfil the residence requirements under Directive 2004/38. Such an interpretation has a significant impact on the scope of the non-discrimination principle of Article 4 of Regulation 883/2004. It may lead to a repetition of the situation in the Brey case, when the Austrian immigration authority indirectly decided on the social benefit and the social security authority indirectly ruled on the right of residence. 5. Conclusions and perspectives While the judgment in Brey has been criticized by national politicians and numerous legal experts as a free ticket to the social union for all economically inactive EU citizens, the more recent ruling in the Dano case was presented as a protection against “benefit tourism”. After the judgment of the CJEU in the Brey case had been published, media reported that Austria shall financially support all Union citizens who, in their home countries, receive a low pension and therefore move to Austria. 40 On the contrary, after the verdict in the Dano case especially German politicians and judges expressed genuine pleasure, but also the British Prime Minister posted a comment to the social media: “I support the European Court of Justice ruling that curbs ‘benefits tourism‘ - it’s simple common sense“. 41 40 Cf. e.g. the information that one private company of tax advisors sent to its customers (available at http://www.stb-pointecker.at/pdf/KLI2014-1.pdf, p. 11). 41 https://twitter.com/david_cameron/status/532171672120725504.

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