The Dano and Alimanovic decisions of the ECJ have triggered various developments in German social security law and (social) court jurisprudence. While the German courts’ rulings regarding the rights of non-active EU migrants still vary, the legislator has moved towards excluding more EU citizens from receiving non-contributory benefits. In the aftermath of Dano and, more specifically, Alimanovic, the provisions of Book II of the German Social Code were revised at the end of 2016. The new rules not only ‘confirm’ the ECJ-decisions, but also go beyond, as far as to exclude EU migrants who have residence rights according to Reg. (EU) No. 492/2011.
This article discusses these recent developments. It focuses on the ECJ-case law regarding Art. 10 of Reg. (EU) No. 492/2011 (former Art. 12 of Reg. 1612/68), in particular the Ibrahim and Teixeira rulings. Which residence rights do prevail—those according to Dir. 2004/38/EC or those based on Reg. (EU) No. 492/2011? It is argued that a new discussion on the interrelation between Dir. 2004/38/EC and Reg. (EU) No. 492/2011—an aspect ignored by the German legislator—is emerging: What started as a restriction of access to national welfare for economically non-active persons has obviously reached the ‘economically active’ (= workers) as well. The German example shows that Member States may be testing which other residence rights—in addition to those for short stays and job searches—might be valid before the ECJ ‘as residence rights without social rights’.