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rule of law and politics November 11, 2014

Posted by Bradley in : eu , trackback

THe EU’s Court of Justice held in Elisabeta Dano, Florin Dano v Jobcenter Leipzig (Case C-333/13) that EU rules on social security schemes do not prohibit Member States from excluding

nationals of other Member States… from entitlement to certain ‘special non-contributory cash benefits’ … although those benefits are granted to nationals of the host Member State who are in the same situation, in so far as those nationals of other Member States do not have a right of residence under Directive 2004/38 in the host Member State.

Ms Dano, a Romanian national, and her son, had been living in Leipzig with Ms Dano’s sister. She challenged a denial of non-contributory benefits. The Court noted the general principle of non-discrimination but that a particular derogation in the relevant EU rules:

it must be pointed out that, whilst Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004 reiterate the prohibition of discrimination on grounds of nationality, Article 24(2) of that directive contains a derogation from the principle of non-discrimination.
Under Article 24(2) of Directive 2004/38, the host Member State is not obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the period of seeking employment, referred to in Article 14(4)(b) of the directive, that extends beyond that first period, nor is it obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies to persons other than workers, self-employed persons, persons who retain such status and members of their families.
It is apparent from the documents before the Court that Ms Dano has been residing in Germany for more than three months, that she is not seeking employment and that she did not enter Germany in order to work. She therefore does not fall within the scope ratione personae of Article 24(2) of Directive 2004/38.

Ms Dano had been in Germany for more than three months but less than five years. In these circumstances the Court said:

To accept that persons who do not have a right of residence under Directive 2004/38 may claim entitlement to social benefits under the same conditions as those applicable to nationals of the host Member State would run counter to an objective of the directive, set out in recital 10 in its preamble, namely preventing Union citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State…. the applicants do not have sufficient resources and thus cannot claim a right of residence in the host Member State under Directive 2004/38. Therefore…they cannot invoke the principle of non-discrimination in Article 24(1) of the directive.

In the UK, where migration within the EU is a hot topic, Cameron said he would be looking closely at the judgment to see what he could do with it. The sort of careful parsing of the rules illustrated by the judgment isn’t inevitably what we see from the Court of Justice, but in an environment where concerns about immigration threaten the stability of the EU it isn’t surprising to see a careful rather than an ambitious approach to interpretation of the requirements of EU law.


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