Free movement: Germany pushes the limits of EU law [updated]

How much are the new immigrants costing us asks Bild

The German government's preliminary report on EU migration was presented yesterday by Interior Minister Thomas de Maizière and Labour Minister Andrea Nahles, and contains some very interesting measures.

The explosive combination of EU migration and access to benefits has been giving David Cameron a headache for a while now, although as we’ve noted in our press summary and on our blog, similar debates have also been kicking off in Germany, Denmark, the Netherlands and elsewhere. In particular in Germany it has been rumbling for some time, with some mention of it during the election and the new coalition agreement, however this intervention is likely to step up the debate a notch or two.

The proposals actually have quite a lot in common with Cameron's position, although not exactly and each side goes further on certain specific issues. The key question remains though whether they will be judged to be consistent with EU law. This remains unclear and whether or not a challenge from the ECJ is forthcoming will certainly set a precedent in this area. 

Key proposals

Potentially the most important proposal in the draft report is that:

• Jobless EU migrants seeking work in Germany, who have no means of supporting themselves and have limited job opportunities, should be given a limited window to find a job before being required to leave.

Crucially, the report stresses that this can be achieved within the constraints of existing EU law as this would not apply to those EU jobseekers who have a 'reasonable' chance of being employed, those with sufficient financial means including affording their own health insurance, or even those who have a “mini-job” involving just a few hours of work per week. 

The report recommends that EU migrants who cannot fulfil these requirements would have a grace period before being expelled, and notes that the ECJ deems six months to be appropriate. However, whether such expulsions would work is not clear, since, in theory, EU migrants’ right to free movement would kick in immediately after they left Germany, allowing them to return right away again.

Other proposals in the paper include:

• Temporary re-entry bans on migrants abusing EU free movement (by forging documents or being in a fake marriage, for example).
• Linking child benefit payments to tax identification numbers.
• €200m in financial assistance to help local authorities to deal with migration (€140m would come out of the European Social Fund). 

How does this compare to Cameron's position?

There are some similarities between the German position as set out yesterday and Cameron's position as set out in his FT piece last year, but also some important differences.

On the question of kicking EU migrants out, Berlin is proposing to do so in cases where migrants do not have a job after six months, have no realistic prospects of finding one and are not financially self sufficient, while Cameron wrote that:

“If people are not here to work – if they are begging or sleeping rough – they will be removed. They will then be barred from re-entry for 12 months, unless they can prove they have a proper reason to be here, such as a job.”

This means that Cameron and Merkel have adopted a similar position on removing people who are not working, but London is going further on the specific question of the re-entry ban which would apply to everyone in that position, whereas the German re-entry ban would be limited to more serious cases such as fraud. 

On the question of child benefit, the German and UK positions differ. In the UK, Cameron, Clegg and Miliband all want to be able to stop paying child benefit to parents whose children do not live in the UK. The German position is different – the government currently has no plans to restrict child benefit for children not resident in Germany, the linking of the payments to tax ID numbers is designed to crack down on potential fraud and duplicate payments. 

Next steps

The preliminary report will be finalised by end of June before it enters the legislative process. How will the EU respond? The big question mark is if - despite what the report says - these proposals are compatible with EU law or if either the six-month cut off, or the re-entry ban could face a legal challenge.

Interestingly the report also has a section on “possible further measures on the European level” which notes that:

“Also in other [EU] member states…the issue is debated, in parts very controversially. In this respect the question arises….if and in how far considerations for further steps on the European level or together with European regulations are necessary and reasonable. The Committee will deliver an opinion on this in its final report.”

Meanwhile, there are two separate cases referred from German social courts to the ECJ to watch out for. They deal predominantly with the questions in how far EU jobseekers and EU migrants which are “economically inactive” can be generally excluded from receiving unemployment benefits in Germany. We will closely monitor the developments and keep you updated.