No ‘Benefit Tourism’ in Leipzig
By Chris Higman, British citizen and FDP local councillor in Schwalbach, close to Frankfurt am Main, Germany
The issue of 'benefit tourism' is as much of an issue in Germany, where it is known as 'social tourism', as it has been in Britain. The concern has been that people could simply use freedom of movement as a means of moving to another EU country where the system of social insurance is more generous than that of their home country. Although there is obviously a certain potential for such benefit tourism, answers to repeated questions in the Bundestag have consistently revealed that it is not a mass phenomenon. In May 2014 the German Government reported "a few dozen" "suspected" cases country-wide. The following month it reported that it had no data itself, but referred to a "not insignificant number" of "suspected" sham marriages.
A case before the European Court of Justice in 2014 made it clear that claiming unemployment benefit in another EU country is by no means as easy as it sounds and that it is a matter for national lawmakers to decide, whether they wish to pay such benefits to nationals of other EU countries who have never worked in the host country.
In Germany unemployment benefit is paid out by local authorities. In the case of the City of Leipzig, the authorities refused unemployment benefit to a 25 year old Romanian woman, who together with her five year old son had been living in the city with her sister since 2010.
During this time she had never seriously looked for work. The Jobcentre in Leipzig refused her application for benefit. The local Social Court (First Tier Tribunal) agreed that she was not seeking work and asked the European Court of Justice for clarification.
The ECJ confirmed that national law was applicable. The woman did not have "sufficient means of existence" and in accordance with EU law, could not therefore claim a right of residence in Germany. European non-discrimination law was not applicable in this case. The ECJ specifically confirmed that EU law does not require a host state to pay benefits for the first three months of residence. EU citizens have the right to reside anywhere in the EU, but this is coupled to conditions. Specifically EU law makes the right of residence from three months to five years for a person without employment dependent on having sufficient means of existence.
However the ruling did not cover all cases under German law. No payment was required in the first three months, though EU law did require individual consideration of each case. But more importantly national law could make commitments beyond those required under EU law. Since then other cases have come regularly before the German courts.
In a ruling from December 2015 the highest German Social Court confirmed that citizens of other EU countries could not claim unemployment benefit if they came to Germany looking for work, but did not find it. However the court also found that under German law after six months non-German EU citizens would as a rule be entitled to social assistance - a benefit of value similar to unemployment benefit, but on a different legal basis.
The German Government has now in October 2016 reacted to these decisions by German courts and decided to make use of the freedom allowed by EU law to reduce the potential for benefit tourism. The Minister of Labour, Andrea Nahles, has announced a new bill to go before the Bundestag that provides only for emergency assistance for up to a maximum of four weeks.