Ægteskabudengrænser.dk

Dear ÆUG!
I applied for SU, while i was working in my first job with 90 dkk/per hour and had none problems with SU. Afterwards i have changed my working place. Within the period of June 2014 - December 2014 i was working in another restaurant and getting SU. The problem is that the salary was only 65 dkk before tax and i was paying taxes and getting feriepenge-which means the job was legal.All my salaries have gone through SKAT using Bikort .But now i got a letter from SU that i need to give back money for all this period(6-7 months) - although in this period each particular month i had more than 43 hours, around 50. As they say - salary, by their opinion, was too low and can not be genuine , but still they were not refusing my SU and continuously paid. What can i do in this situation? That's just a tremendous amount of money, that's just lethal to a student. Thank you!
Med venlig hilsen,
Vladislavs Vitkovskis

You can presumably take the case to SU-Ankenævnet. Does it not say anything about that in the letter? You are welcome also to scan the letter and send it to ÆUG councelling at:

raadgivning@aegteskabudengraenser.dk

This is not really within the working area of ÆUG, but we are actually quite interested in this subject with SU after EU-rules, because it also affect those danish-foreign cupples, who are staying together in Denmark under EU-rules after a trip to eg. Sweden.

It would therefore be helpfull for ÆUG councelling to see that letter, since we have never seen such a case before. And after reading the letter, we can much better advice you on the best line of action to take.

Greetings ÆUG!
I have sent the letter to your e-mail address and will be grateful to know if there is any chance to solve that/ ´´fight´´ with them.As i understood they think that this salary wasn´t real.Each month i had around 50 hours but they stated it as ´´0´´, although i´ve got all payslips for this period. Why 65 dkk was enough for them before,and became unappropriate just now?, what can be the worst case scenario?...let´s say if i need to pay back - can the payment be prolonged for 4-5 years? Thank you!
Med venlig hilsen,
Vladislavs Vitkovskis

Your salary is below the minimum wage for Horesta-employees - unless you are under 18, the hourly minimum wage for unskilled assistants was 115,23 DKK as of 1. of March 2014, while it is now 116,94.

Have you been active and sat for the necessary exams in the period?

What kind of exams do you mean? well,as i can say in Aalborg there is a few restaurants who are actually paying the minimum wage as it should be (this 115 dkk). Mainly - from 65 to 90, and all the time in all cases it was enough for SU administration to qualify.I am a student. above 18

You do not qualify for SU by working for a wage under the minimum.

You qualify for SU if you study actively. In order for you to be considered as studying actively, you have to pass exams for a minimum of 30 ECTS within 18 months.

I am currently studying , and passing all exams.In my case there is not a deal with University itself.But still that´s strange why when your salary has been 80-90 it was alright, no claims from SU..and now they started to ask for refunds, although when i was applying in 2013 there has not been such requirement as minimum wage, only the amount of hours.

Below I am quoting from SU-styrelsens decision in an anonomous form:

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"For at kunne betragtes som arbejdstager efter EU-retten er det et krav, at du i en længerevarende periode har faktisk og reel beskæftigelse, der ikke udgør et marginalt supplement, hvilket normalt vil sige beskæftigelse i minimum 10 - 12 timer hver uge svarende til ca. 43 timer om måneden.

Når vi vurderer, hvorvidt der er tale om faktisk og reel beskæftigelse, lægger vi endvidere vægt på ansættelsesforholdet, idet blandt andet kriterier såsom ret til betalt ferie, pension, løn eller sygedagpenge under sygdom, overtidsbetaling, arbejdsforholdets tidsmæssige udstrækning samt om man er dækket af en overenskomst indgår i den samlede konkrete vurdering af, om et ansættelsesforhold kan betragtes som faktisk og reel beskæftigelse.

Af oplysninger fra SKAT fremgår det, at ansættelsesforholdet er påbegyndt den (DATO). Af dine lønsedler fremgår det, at din timeløn er 65 kr. Vi vurderer, at en timeløn på 65 kr. er så beskeden, at din ansættelse ikke kan betragtes som faktisk og reelt arbejde efter EU-retten.

Foruden timelønnen har vi lagt vægt på ansættelsesforholdets tidsmæssige udstrækning, ligesom det af lønsedlerne fremgår, at der ikke er indbetalt til en pensionsordning.

Det betyder, at vi ikke finder, at din ansættelse og beskæftigelse hos (VIRKSOMHED) kan indgå i vores vurdering af, om du har arbejdet i et tilstrækkeligt omfang til at kunne betragtes som arbejdstager efter EU-retten."

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Personally I find, that this decision is an attempt to limit the definition of a "worker" according to EU-law to save money on SU, and I find it quite doughtfull, that the Danish government would win this case, if it reached the EU-court.

There is no clear definition of, what a "marginal supplement" is. But it is not obvious to me, that a monthly income of 3.250 (50 * 65) kroner is completely marginal. It is a bit borderline though considering the costs of living in Denmark. And probably that is why, the danish authorities try to make a stand here.

I would take this case to SU-ankenævnet. And since it is a rather principal one, ÆUG is willing to help with the complaint letter, if you dont prefer to get someone else to assist you like a professional lawyer.

Most likely SU-ankenævnet will not change the decision, so if you want to proceed with the case, you should prepare already to take it to the danish legal system. SU-ankenævnet is just an intermediary step, which it is best to go through first.

As an additional comment, the simple fact that the salary is considerably lower than Horestas overenskomst is not in itself enough to conclude, that the work is not "genuine" (faktisk og reelt). There is no official minimum salary in Denmark, and employers are not mandated to follow any overenskomst.

If Twister7259 can prove, that salarys much lower than the overenskomst are now actually the norm rather than the expection for this kind of work in Aalborg, that will strengthen his case.

On the other hand the weak point of the case, as I see it, is that the monthly earnings are still significantly smaller than the SU itself. So for anyone else reading this the advice must be, that your monthly earnings should be at least somewhat more than just 3.250 kroner. Perhaps rather something similar to the SU itself.

Hi fundiver!
First of all thank you for a fast reply!
If i understood it right, there is a chance in my case...but there are some ´´weak´´ points, by which the SU authority still can win. How do you think, an accounter from the restaurant ,where i was earning this 65 dkk/hour, will be able to give me any papers, that will show that the 65 dkk is´´normal´´ salary for this type of worker(such as dishwasher)? or they will be trying to be sneaky and ´´fuck me up´´?(apologize for my French). What is an average professional lawyer´s salary per hour?(is that around 2000 dkk?). And what can be the possible consequences if my case will lead to court for example - is the price for that is going to be even higher than my 45000 dkk possible debt?Have you got an office in Aalborg, where we can meet and discuss that?Thank you and have a nice day!

Med venlig hilsen,
​Vladislavs Vitkovskis

Realistically the fee for a lawyer might well be higher than than the 45.000 kroner, the dispute is about. Therefore you will need to either have an Insurance, which cover legal assistance, or to get "free process", if you are taking the case to court. That is another reason, why you should definitly go through Ankenævnet first, since this is free.

And like I already stated, the EU-Court rarely provide crystal clear answers to, how definitions like "marginal supplement" should be understood. They deliberate leave quite a lot of room for member states to interpret this themselfes.

Unsurpricingly member states then mostly try to use that room for interpretation to their own advantage. By doing this the member state buys itself time, and it can also hope, that most people give up in advance on this kind of "David vs. Goliath" fight.

So no your case is not a very clear-cut one, and I think it could go both ways. However while the member states usually always try to make limiting interpretations of grey zones, the EU-Court traditionally does the opposite.

So on balance I would be surpriced, if the EU-Court will "buy" the central reasoning of the Danish authorities, that because a job carries an unusually low salary, then it is not to be considered as work. It would in my opinion run contrary to the line, the EU-Court has taken in many other cases.

But of course there is an invisible limit somewhere, and if a person only work eg. 2 hours pr. year and earn 250 kroner for that, then it is obviously marginal.

Which documents would be relevant to include in this complaint to SU-Ankenævnet?
Since they have seen my payslips,probably there is no point in that. And is that possible to send them a complaint few times,not just once (within 4 weeks ,as it stated according to rules) - for example if i will send one letter with your help, and after some time will send it with the lawyer´s help, is that going to make things complicated or even worse ?

If you are a member of a trade union, this would also be the kind of case, where they could help you with legal advice as a member free of charge.

Yes it is possible to file a complaint within the 4 week deadline and then send more documentation or reasoning letters, before they make a decision in your case. But if they give you deadline of say 14 days to send in more material, you need to comply with that. You can not insist, that the processing is drawn out indefinitly.

But on the other hand, as long as they have not made a decision, they can not refuse to consider, whatever you send to them. And since usually the waiting time for them to process the case is something like ½ year, in reality you will have plenty of time to send in more material, if you wish to.

The relevant documents are your payslips and employment contracts and not so much else in my opinion. The rest then is a reasoning letter, which compare your case to the relevant previous cases at the EU-Court. And since you are probably not very familiar with these cases yourself, you will need someone to assist you with this letter.