Brussels, 26/03/2015 (Agence Europe) - Member states may deny social assistance benefits to European citizens on their territory who are not working. However, the outlines of this exclusion, in other words who this might apply to and under what circumstances, are not yet quite clearly defined or, at least, not entirely understood by the national authorities and jurisdictions. On Thursday 26 March, Advocate General Melchior Wathelet was asked to present the Court of Justice of the EU with a more comprehensive interpretation than he provided in an earlier case, which defined the Court's case-law on 'social tourism' (see EUROPE 11195).
This case (see EUROPE 11245), the second of this kind to be brought before the Court of Justice, concerns a woman of Swedish nationality, whose three children were all born in Germany, who has been living in Germany since 2010 and worked there for at least one year before finding herself out of work. The payment of various maintenance benefits (non-contributory cash benefits) to all of the members of this family was finally decided upon. The German authorities took the view that the parties' right of residence could only be justified by actively seeking work. German legislation allows social benefits to be withdrawn, as the “Free Movement of Citizens” directive (2004/38/EC) allows this possibility.
However, this new case differs from the earlier one as a more complex question needs to be resolved, as it requires an answer as to whether benefits of this kind can be denied to an EU citizen seeking work if that individual has already worked in the host member state for a certain period of time, which implies that the individual's interest in remaining in the member state in question is not necessarily limited to looking for work alone. On the basis of the directive in question and other provisions of Community law, Wathelet distinguishes between three different scenarios.
The first two cases are relatively simple scenarios, because they can easily be interpreted through the prism of the directive (a European citizen who goes to another member state to look for a job there) or the case-law of the Court (a European citizen who goes to another member state and lives there without the aim of finding work). In either of these scenarios, the derogation included in the directive allows citizens to be discriminated against on the basis of their nationality by denying them social benefit payments.
The third scenario, which corresponds to the present case, is of an entirely different level of complexity and the directive alone, which was hitherto used for this purpose, is not enough to provide a satisfactory answer. Advocate General Wathelet finds that if a national of one member state lives for more than three months in another member state and works there, then that individual cannot be automatically denied the benefits in question, as this would run counter to the principle of equality.
It is this principle which predominates, even if Community law stipulates that an EU citizen loses his or her status of worker after six months of unemployment, if they have worked in the country for less than a year. The Advocate General considers that under these circumstances, if the unemployment was involuntary, the citizen must be given the option to demonstrate the existence of a genuine link to the host member state. A link of this kind can be established by the family context (such as the children's schooling), actively seeking work for a reasonable period or by the fact that the citizen has previously worked in the host member state or has found a new job after applying for social benefits.
As regards the present case, the German authorities appear to have used the wrong provisions of Community law and their own legislation, because this link can be established by the fact that the children attend a German school. The outcome is that the interested parties all have a right of residence in Germany under EU law and this right of residency does not depend on the conditions laid down in the “Free Movement of Citizens” directive, Wathelet concluded. The possibility provided for by the German legislation of excluding European citizens from social benefit payments, if the sole reason for their residency in Germany is to look for work, cannot be applied to the parties in this case. (Jan Kordys)