Brussels, 25/02/2016 (Agence Europe) - On Thursday 25 February, the European Court of Justice endorsed the validity of a provision in Union law that allows a member state to deny welfare benefits to nationals from other member states, without examination of individual cases, for the first three months of their stay in the country.
This decision (C-299/14) subsequently backs up the case law of the European Court of Justice developed on two relatively recent cases and pejoratively described as “benefit tourism” practised by Europeans (the 'Dano' and 'Alimanovic' cases, see EUROPE 11195 and EUROPE 11389). This new case again involves deciding what circumstances EU law allows for the application or not of the principle of equal treatment between citizens of a member state and the nationals from other member states that have come to the former's territory.
The “citizen of the EU” (2004/38/EEC) directive is at the crux of this current case which stipulates that it should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of job-seekers, to Union citizens other than those who are workers or self-employed persons or who retain that status or their family members (article 24.2). If, in the first regard, legal exemptions to the principle of equal treatment appear obvious, the Advocate General Melchior Wathelet, demonstrated, however, in his conclusions (see EUROPE 11329) the existence of a certain margin of manoeuvre for different interpretations.
In this case, the German authorities refused to pay “subsistence allowance to jobseekers and their children” to Spanish nationals that have been in Germany for three months but have not worked. The crux of the matter therefore consists in establishing whether these benefits should be considered as “social assistance benefits” in the sense of the directive and Regulation No. 883/2004 on the coordination of social security systems.
The Court finally provided the same interpretation today as those in previous cases, even though the Advocate General was examining another solution. The court considers that the allocations in question were subsistence allowances (special benefits of a non-contributory character) and not benefits that aim to facilitate access to the German labour market. In these circumstances, the German authorities can refuse their payment, (in an effort to preserve a financial balance in their social welfare system) to unemployed European migrants who have arrived in Germany over a period that is less than three months.
Wathelet had suggested taking into account of the real link with the host member state labour market before excluding a European migrant from these kinds of benefits. The Court did not appreciate this proposal because it believed that an individual examination of cases was not necessary in these circumstances because it could ultimately involve all cases and possibly lead to an “unreasonable burden” on the member state in question. (Original version in French by Jan Kordys)