CYIL Vol. 7, 2016
VÁCLAV ŠMEJKAL CYIL 7 ȍ2016Ȏ secondary EU legislation was demonstrated in its decisions in cases Alimanovic from September 2016 53 and García-Nieto from February 2016. 54 In those cases, the CJEU did not mention at all Article 21 TFEU (or any article of the Charter), never mentioned citizenship, solidarity, genuine link, etc., and the quotes of “old” case law such as Martínez Sala, Grzelczyk, Baumbast or Trojani were replaced by references to… Dano . In the Alimanovic case, citizens of Sweden (mother and three children, all born in Germany) unsuccessfully applied for benefits of social assistance nature in Germany, where the family enjoyed a right of permanent residence in accordance with the local rules. The mother and the oldest child had worked for 11 months in Germany (thanks to employment promotion measures). When their jobs ended, they received during the following six months a subsistence allowance for unemployed, as in full conformity with Directive 2004/38 [Article 7 (3)] they had maintained the status of EU-worker for exactly half a year after the termination of their employment (had they worked longer than 12 months they would not have lost this status and the right of equal access to all benefits). AG Wathelet had no doubt that Alimanovic, having applied for the social assistance and not for the job-seeking allowance, could not be eligible for such aid under the strictly applied Directive 2004/38. 55 However, given that the applicants had worked in Germany, the AG did not recommend an automatic rejection of their claim, but suggested an individual assessment of whether they had already built a genuine link with the host Member State. Among other differences from the Dano case, it could be mentioned in favor of the applicants that their minor children attended school in Germany as, being family members of a (former) migrant EU-worker, they enjoyed right of access to education pursuant to EU Regulation 492/2011. The CJEU nevertheless concluded, based on a consistent application of Directive 2004/38, that under the circumstances, the applicants were no longer entitled to benefits of social assistance. Surprisingly, however, the judges did not deem any individual assessment as necessary (para 59). This conclusion, which distinguished the Alimanovic case from Brey and from the older case law in general, was grounded by the CJEU in the provisions of Directive 2004/38, which established a gradual system regarding the retention of worker status and thus took into consideration different factors characterizing the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity (para 60). Although it is not entirely clear how the general and concise provisions of the Directive could replace the previously required individual assessment, it is, on the 53 Case C-67/14 Jobcenter Berlin Neukölln v Nazifa Alimanovic and Others EU:C:2015:597. 54 Case C-299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto and Others EU:C:2016:114. 55 Alimanovic (n 53) Opinion of AG Wathelet EU:C:2015:210.
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