Citizens of EU member states (European Community) can work freely and on equal terms with the local population in the territory of EU member states. This is the so-called basic freedom of the labor market and movement of workers within the EU. Migration of EU citizens within the community is regulated by supranational EU legal institutions and controlled by European justice. These rules, it must be said, are very favorable to workers and job seekers.
An EU foreigner who has lost a job in Germany and is forced to apply for social support has the same social rights as a German resident. The interpretation of law by the European Court of Justice makes it possible for an EU foreigner to receive social benefits even as a result of a short period of labor participation in the local labor market. According to the high court, part-time work is also considered participation in the labor process. Not long ago, two Greek citizens won German social assistance in court, although their length of service before the onset of unemployment in Germany was six months of part-time work.
During the period of job search in Germany, citizens of EU member states (among our readers these are Estonia, Latvia, Lithuania, Greece) are excluded from the German social system (§ 7 SGB II). This prevents the undesirable relocation of citizens from poor EU countries to the territory of more prosperous community members solely for the purpose of receiving social assistance. After all, social assistance in Germany often exceeds the average salary in Romania or Bulgaria, and now perhaps in Greece and Portugal.
In developing the interpretation of law by the European Court of Justice, the Berlin Social Court (Sozialgericht Berlin) granted the right to social assistance under SGB II to a female Italian citizen who had not worked a single day in Germany (Sozialgericht Berlin, Beschluss vom 08.05.2012 S 91, As 8804/12 ER). With this, the Berlin Court limited the effect of § 7 SGB II, which social officials, as they thought, had correctly applied in response to the Italian citizen's application. The court saw the incompatibility of the rules of German § 7 SGB II (exclusion from German social systems of EU citizens without a work history in Germany) with Article 4 of European Regulation No. 883/2004. The court recognized the primacy of European regulations over national German law and the violation by paragraph 7 SGB II of European social norms.
The key statement of European Regulation No. 883/2004 states: “…persons subject to this regulation have the same rights and obligations as citizens of the state under national legal acts.” Lawyers argue whether Regulation No. 883/2004 can be interpreted as full and unconditional equality, including the freedom of an EU citizen to settle in a pleasant EU country, with the right to immediate and unconditional social support under the laws of the country of his choice? After all, this could lead to migration from crisis-stricken Greece to more prosperous Germany. It is conceivable that a resident of a rain-soaked remote German village on the Polish border might want to live on the French Riviera. Should the local social assistance system immediately and without special prerequisites recognize the equal rights of its own citizens and EU citizens claiming public support?
An important word in this, completely non-theoretical discussion was said by the Berlin Social Court, recognizing the primacy of European law over German national laws. The decision of the court of first instance of the Berlin Social Court does not have federal significance and is relevant only for the judicial district of Berlin. The legal case, however, seems to me so significant that someday the Federal Social Court will issue its guiding judicial instructions in the final instance. The Berlin Court itself considered the right of EU citizens to receive social assistance to be a fundamental legal issue. Therefore, it ordered that the Italian citizen be provided with social assistance until the issue is finally clarified, which will likely happen in a few years.
Already now, EU citizens who have lost their means in Germany may consider applying to German social authorities for assistance, citing the favorable decision of the Berlin Social Court for EU citizens. The outcome of the dispute is difficult to predict; courts in Germany have their own competence and are bound only by decisions of higher courts and the law. It is always wise to obtain advice from a specialist on the specifics of a particular case before starting legal proceedings. Nevertheless, in justified individual cases, EU foreigners who have lost their means can count on help from the welfare state.
I would like to warn travel enthusiasts against thoughtless trips across Europe with the aim of obtaining social assistance between Stockholm and Malta. Even the favorable decision of the Berlin Social Court requires the fulfillment of various, specific social-law prerequisites for receiving assistance under national regulations. Social authorities cannot approve outright abuse of public payments.
Thomas PUE,
German lawyer.