An EU citizen who enjoys a temporary right of residence in a Member State without means testing cannot be systematically excluded from social assistance guaranteed to nationals of that State, said the Advocate General of the Court of Justice of the EU, Jean Richard de la Tour, in his conclusions delivered on Thursday 24 June (Case C-709/20).
In June 2020, a Dutch-Croatian national was granted temporary residence status in the UK on the basis of the EU residence scheme, which came into force in March 2019. She challenged the refusal to grant her social benefits, arguing discrimination on the basis of her nationality.
After noting that the Court has jurisdiction to rule on the reference for a preliminary ruling by virtue of the UK’s EU withdrawal agreement, the Advocate General interprets Directive 2004/38 (Article 24) on the right of EU citizens to move freely within the territory of the Member States.
According to the Advocate General, the principle of equal treatment could lead to an interpretation of the Directive which would preclude the UK legislation at issue.
However, it points out that, despite the absence of conditions for the granting of a right of residence, a Member State may verify the existence of a right to social benefits. The host Member State should, therefore, be able to lay down legitimate restrictions on the granting of social benefits to “prevent persons exercising their right of residence from becoming an unreasonable burden on the social assistance system of the host Member State”.
Mr Richard de la Tour is indeed of the opinion that a difference in treatment between persons with a right of residence, depending on whether they are economically active or inactive, would not be contrary to the principle of equal treatment. However, the systematic nature of the denial of access to social benefits does not seem proportionate to such an objective.
The Advocate General considers that a national regulation which does not require any assessment of all the individual circumstances (situation of indigence of the person concerned, consequences of a refusal of their application for social assistance, right to respect for family life and the best interests of the child) goes beyond what is necessary to maintain the balance of the host Member State’s national welfare system.
See the conclusions: https://bit.ly/3w2Q7EZ (Original version in French by Mathieu Bion)