Free Movement or Benefit Tourism: The Unreasonable Burden of Brey

Abstract

Abstract This article analyses the Brey judgment of the eu Court of Justice, in which the cj had to rule on a claim for a social assistance benefit in a host Member State by an economically inactive migrant person. The legal context within which the Court had to deal with these questions differs from other cases regarding the politically highly sensitive question of the right to access to social benefits for economically inactive migrant Union citizens. It had to deal with the interpretation of the provisions in Social Security Coordination Regulation 883/2004 on the so-called ‘special non-contributory cash benefits’. This article examines the judgment in the light of previous political compromises and agreements on the relationship between Regulation 883/2004 and Citizens Directive 2004/38. It also looks into the consequences of the judgment for the concept of ‘social assistance’ in both these instruments and for the concept of ‘conflict rule’ in Regulation 883/2004. The issue of what claim should be considered as an ‘unreasonable burden’ on the host State’s social assistance system under Directive 2004/38 is assessed in more detail. The conclusion of the article is that this judgment has not only overruled previous political compromises but has also created more confusion than ever on the entitlement to social minimum benefits for economically inactive eu migrants.

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