CYIL Vol. 7, 2016
CYIL 7 ȍ2016Ȏ SAVING THE EU AND ITS WELFARE STATES THROUGH DISINCENTIVES… other hand, absolutely clear that the CJEU gave priority to the clarity and certainty of the rules and also to the lightening of the burden borne by the national social security system. The judges formulated an axiom that while an individual claim might not place the concerned Member State under an unreasonable burden, the accumulation of all the individual claims which would be submitted to it would be bound to do so (para 62). Stipulating this, the CJEU ruled out, for cases similar to Alimanovic’s situation, any doubts about the need to take into account the ties and needs of the applicant (who e.g. worked only one week less than 12 months). The statement that an individual claim would never be a burden but the accumulation of similar claims would always present one, is universally applicable and makes any interest in individual destinies superfluous. Given that the Alimanovic family could not be labeled simply as welfare tourists (contrary to Dano ), the surprise produced by such approach towards their requests for social assistance was significantly greater. 56 The last of the recently decided cases, Garcia- Nieto, was at first sight less ambiguous. The issue at stake was the request of Spanish immigrants to Germany for social assistance falling once more into the category of special non-contributory cash benefits. The applicants came to Germany to join relatives and to work there and wanted to benefit from this social allowance during the first three months of their residence and before they found a job. The CJEU applied its conclusions of Dano and Alimanovic cases regarding the application of Directive 2004/38 to the requests of social assistance of those who do not meet the conditions of this secondary legislation and due to that may not enjoy equal treatment in the host Member State. The logic that any EU citizen can reside in another Member State for a period of up to three months without any conditions or formalities and that the price for this freedom consists in the fact that he may not become an unreasonable burden on the social assistance system of this Member State is compelling (para 42). What makes such a simple solution difficult to accept in the García-Nieto case was once more a complete disregard to the individual situation. The CJEU acknowledged but did not take into consideration that Mr. Peña-Cuevas (with his son – together applicants for the social assistance) joined in Germany Ms. García-Nieto as they had lived previously together in Spain, had a daughter in common, and even though they had never married nor entered into a civil partnership, they lived in Germany as a family on Ms García-Nieto’s income (para 29) and together lodged action against the non-granting of social assistance. Even the CJEU frequently referred to them as “members of the Peña-García family” (paras 2, 27, 29, 30 etc.). Contrary 56 See for instance: DION KRAMER, ‘Had they only worked one month longer. An Analysis of the Alimanovic case C-67/17‚
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