CYIL Vol. 7, 2016
VÁCLAV ŠMEJKAL CYIL 7 ȍ2016Ȏ derived directly from the Treaty over narrowly and proportionally applied conditions of their exercise fixed by secondary EU legislation. 49 Yet, in the aforementioned case Brey (para 70) the CJEU seemed to confirm, in September 2013, such a trend: freedom of movement was stressed as a fundamental principle of EU law and due to this fact, any limitations of it provided by secondary EU legislation, had to be construed narrowly. The assessment of personal circumstances characterizing the individual situation of the person concerned was a must for national authorities deciding on social assistance for applicants from another Member State (para 64). The case law from the euro-optimistic 90s ( Martínez Sala, Grzelczyk, Baumbast ) was still quoted as good precedent. Especially in light of such a confirmation of continuity, the decisions of the CJEU from 2014–2016 in the cases of Dano, Alimanovic and García-Nieto came as a u-turn in its approach. In C-333/13 Dano 50 an economically inactive EU-migrant from Romania was legally residing in Germany; nevertheless German authorities refused to give her and her son social assistance consisting in a so-called “basic provision” from the category of “special non-contributory social benefits”. 51 The “basic provision” ( existenzsichernde Regelleistung ) was intended to cover subsistence costs of jobseekers and allow them to lead a life keeping with human dignity. However, Ms. Dano, having no qualification and no previous work experience, did not really look for a job in Germany. Even though it seems that it was not difficult for the CJEU to confirm the view of German authorities, and the refusal of such benefits was fully in line with the applicable EU law (especially Directive 2004/38), this judgement was surprising in its total disregard of the personal situation of Ms. Dano. Already in Germany in July 2009, she had given birth to a son there. Then, hosted by her sister, she had stayed permanently in that country since November 2010 and in July 2011 she received a certificate of residence for an indefinite period of time from German authorities and also child benefits were paid to her there. Although it was clear that under Directive 2004/38 Ms. Dano was, as an economically inactive person surviving in a host Member State without sufficient resources, not entitled to demand the EU right of residence, it was at the same time impossible to assert that she resided in Germany illegally and without any bonds or that there were no social solidarity reasons in favor of her receiving social assistance. Moreover, the German court itself was not sure whether Ms. Dano had not been treated in conflict with the general EU law provision on non-discrimination 49 SHUIBHNE (n 33) 890. 50 Case C-333/13 Elisabeta Dano and Florin Dano v Jobcenter Leipzig EU:C:2014:2358. 51 As defined by article 70(2) of Regulation 883/2004. The benefits provided by national welfare systems are usually divided into three types: contributory benefits (based mainly on insurance-type contributions, i.e. social security), non-contributory benefits (based mainly on tax-type contributions, i.e. social assistance) and special non-contributory tax benefits which have characteristics both of social security and of social assistance and their examples are benefits to guarantee the minimum subsistence income or specific protection for the disabled. Regulation 883/2004 governs the availability of “social security” to EU-migrants, while “social assistance” is excluded from its scope.
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