The Judgement of the Case of Dano Versus Jobcenter Leipzig - Report Example

CRITICAL EVALUATION OF THE JUDGEMENT OF THE CJEU IN CASE C-333/13 ELISABETA DANO, FLOIN DANO v JOBCENTER LEIPZIG By Presented to Introduction The European Union (EU) member states have devised various legal provisions that enable free movement and interaction among nationals of these states. As a result, legal experts and academicians are following a new reality to the unification theme – the union citizenship. Although vigorously promoted, this term has been associated with some of the defining case laws within the union. For instance, the Dano and the Brey cases have come up basically due to erroneous or misconceived interpretation of the legal statutes governing the union, and partly due to the fragmented nature of the laws governing union citizenship. In this paper, the case of Elisabeta Dano and Floin Dano v. Jobcentre Leizpig is critically reviewed, looking at the various, relevant provisions of the law that were used to reach the judgement against the arguments of the petitioner and the emerging theme of welfare tourism. Background to the Case The complainant, Ms Elisabeta Dano is a Romanian national who has been residing in the city of Leizpig, Germany, for several years. The court established that she had been living there for at least four years by the time the judgement was delivered. Her last stint in the city followed a brief return to her country of birth, Romania, before returning in 2010. During her earlier visit, she bore her son, Florin (in 2009). Her status as determined by the court of law is that of a person who might not have worked at any one time throughout her stay in Germany, one who was not actively seeking a job, possessing very little knowledge of the German language, had attended school for three years in her motherland without obtaining any certificates, and not trained in any profession. Despite all these glaring shortfalls to her merit, she was awarded a free movement certificate by the Leizpig authorities and received €371 (€184 in child benefit and €133 as advance on maintenance payments). She further applied for subsistence benefits, the largest of all social assistance recognized under German law. Dano’s application was rejected twice, which prompted her to seek redress in the Social Court. The court further sent a preliminary reference to Luxembourg. On 11th November 2014, the Grand Chamber constituted to rule in the case concluded that Ms Dano did not possess a residence right under the EU law. Consequently, she could not claim equal treatment (Thym, 2015). The judgement was hailed as having come up with a synchronised system of interpreting and combining the primary and secondary laws that touch on non-discrimination of residents of any member state of the union. Effectively, the ruling touched on the sensitive issue of primary and secondary nationality, a doctrine that is purposely being phased out by the theme of union citizenship. The next section presents a review of the major arguments coinciding with the delivery of the judgement. Critical Evaluation The Ruling in Light of the Right of Free Movement of Persons One aspect of the characterization that the jury in Dano’s case was that she was not seeking a job, and was had not sought any despite being without one throughout her stay in Germany. Looking back at the benefits that being actively engaged in job seeking would offer her helps to recreate the connection between seeking benefits while searching for a job and when not actively involved in job search. The EU has a broad framework which provides for the free movement of citizens from the member states to interact and seek job opportunities everywhere (University of Northampton, 2014). The laws lift extra burdens placed on citizens of non-EU countries in accessing jobs offered across the union. Referred to as frontier workers, persons seeking employment across the union are conferred the privilege of accessing retraining centres and vocational schools without limitation (Jorens, Minderhoud and De Coninck, 2014; Rutledge, 2014). Effectively, we find that the extra benefits conferred by the notion that the individual is seeking employment in a new place within the union does not guarantee them access to social privileges unrelated with the job they are seeking. But, does this contravene the right to free movement? The answer to the above question is: yes, indeed. Being a non-working or a non-sustaining residence seeker in a country other than that of your birth is limited to either being working (having gotten employment or owning a business as an entrepreneur), or being self-sustaining. In general, the residence seeker must not make the government of their new destination feel overburdened for extra social/ welfare costs accruing from hosting the new immigrant. There was no information regarding Ms Dano’s sustainability plans. However, it is clear that she constantly pushed to get more and more access to social help and social benefits provided in Germany (not her homeland) (Infocuria, 2014a). Clearly, a possible ‘caveat’ to the movement of Ms Dano could be her failure to secure a job, and pushing to get unjustified recognition from the German social welfare system. The advocate to the court quoted Article 7(1) of the Directive 2004/38 that states: ‘All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a)     Are workers or self-employed persons in the host Member State; or (b)     Have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State (Infocuria, 2014b). Based on the above directive, it is clear that freedom of movement is not fully granted within the framework of the EU. As such, any interpretations to the contrary should differentiate between ‘absolute freedom of movement’ and ‘conditional freedom of movement’, which is exactly the case when interpreting Dano’s case (Court of Justice of the European Union, 2014; Government Communication Service, 2015). It is therefore prudent to acknowledge that based on the circumstances underlying the case, and with full regard to the perceived unwillingness to work observed from the complainant, the court had no alternative ways to rule. The ruling is fully consistent with the provisions of the EU law. However, there is a possible loophole presented by the lack of a legal framework requiring a thorough audit of an individual’s lifestyle to ascertain whether they are really living just within the means accorded by the welfare benefits to which they qualify. This is an aspect that was overlooked in Dano’s case. The jury was comfortable to make a ruling based on her continued demands for inclusion in more welfare brackets. While relying on this latter notion also raises a strong argument for the judges to rely on, their decision could be reinforced further by provision of evidence of lifestyle audit on the complainant. The Ruling in Light of the Concept of EU Citizenship The concept of EU citizenship has been used to call for expanded right for all citizens of the member states. In general, it calls for the removal of artificial barriers that prevent citizens of one country from accessing as much privilege as they do in their own country. The argument lies in the common vision of a borderless, unified and highly interactive EU Jacobs, 2007). However, like in the definition of ‘free movement’, the definition of ‘EU citizenship’ is again controversial and not implicative of the usual meaning that the term would elicit. The position used by the advocate of the court to argue for the right to citizenship is contained in Article 14 of the Directive 2004/38, which acknowledges the right to retain residence. Section 1 of the article directs:  Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State (Infocuria, 2014b). Again, it is evident that the term ‘EU citizenship’ is intertwined with the priorities of the state – majorly, the economic perspective attached to adding new dependent persons to the system. Inevitably, the notion of citizenship is relative. Referring to some provisions for citizenship in specific member states, citizenship is not complete without the recognition of the individual’s right of access to social benefits, should they be in a position to justifiably lay claim (Stasinopoulos, 2011). Based on the argument made by the advocate of the court, the same that guided the decisions of the judges, it is clear that the court did not have any alternative ways to interpret the situation of Dano in relation to the concept of EU citizenship. Apparently, the EU law provides for the recognition of citizens of other member states as ‘non-primary citizens’ based on the criterion stated under section 1 of Article 14 of the Directive 2004/38. Again, it is prudent to note that the judges did not err in law by classifying Dano as a person of ‘non-German citizenship governed by the law stating that she should not appear to be a burden to the state. Welfare Tourism Welfare tourism is a term used to define the phenomenon that exists when persons from a foreign country migrate to another country to seek the social benefits that come with being either a citizen of the destination country or a resident there (Murati, 2014). The concept is especially used to refer to persons who migrate to such countries for the sole reason of being enrolled into a social welfare system that is either superior or inexistent in their former country of settlement. Ms Dano appeared interested in benefitting from the social welfare benefits offered in Germany. Without revising the question of whether Germany offers better welfare conditions than Romania, one thing that comes out is that Dano is keen to sustain herself fully from the social benefits accorded to her for settling in Germany. She is not keen to work or even seek employment. Furthermore, there are no records indicating that she has been trying to acquire more skills that would help her get better chances at employment. These factors combine to reinforce the proposed position that she is a welfare tourist. In accordance with the EU law, Ms Dano is entitled to some social benefits, categorically classified as ‘social help’, or ‘special non-contributory cash benefit’. An audit of her lifestyle was not done establish whether she lies outside or within the ‘burdening’ category of immigrants. However, her continued push for more social benefits (particularly in categories that are excluded for her class of citizenship) is tantamount to being a welfare tourist. The jury was rightly guided by the provided information to declare her unfit to get the extra benefits she was claiming. Conclusion A review of the case based on the legal tools and provisions available to the judges at the time they made the ruling reveals a great attempt to coalesce a large number of fragmented laws and directives that have previously made it unclear how EU citizenship is governed. The review concludes that the judges made an accurate ruling in the case. Based on her unwillingness to engage in either job search or any type of work, the complainant did not qualify for the benefits she was asking to be given. Further reinforcing the advocate’s case against her is the fact that she did not engage in any kind of training to acquire further skills to help her find a job. References Court of Justice of the European Union. 2014. Judgement in Case C-333/13: Elisabeta Dano v Jobcenter Leipzig. CVRIA. Government Communication Service. 2015. Review of the balance competences between the United Kingdom and the European Union. Single market: Free movement of persons. London: Crown. InfoCuria. 2014a. Case law of the court of justice: Judgement of the court (Grand Chamber), 11 November 2014. Court of Justice. [Online]. http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130de8be29b37fa1646109b5ea0c8d650a142.e34KaxiLc3eQc40LaxqMbN4ObxaMe0?text=&docid=159442&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=178801. Infocuria. 2014b. Opinion of Advocate General Wathele. Court of Justice. [Online]. http://curia.europa.eu/juris/document/document.jsf?text=&docid=152523&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=182121. Jacobs, F. G. 2007. Citizenship of the European Union – A legal analysis. European Law Journal. 13(5): 591-610. Jorens, Y., Minderhoud, P. and De Coninck, J. 2014. Fressco newsletter – Issue 2. FRESSCO. Murati, A. 2014. Workers or “welfare tourists”? EU eastern enlargement and western Balkans migration. Journal of Western Balkans Politics. Rutledge, D. 2014. Dano and the exclusion of inactive EU citizens from certain non-contributory social benefits. [Online]. https://www.freemovement.org.uk/dano-and-the-exclusion-of-inactive-eu-citizens-from-certain-non-contributory-social-benefits/. Stasinopoulos, P. 2011. EU citizenship as a battle of the concepts: Travailleur v Citoyen. European Journal of Legal Studies. 4(2): 74-103. Thym, D. 2015. When union citizens turn into illegal migrants: The Dano case. European Law Review. University of Northampton. 2014. Update on EU citizenship and free movement. [Online]. http://blogs.northampton.ac.uk/law/2015/03/09/update-on-eu-citizenship-and-free-movement/. Read More