Case C-67/14, Alimanovic, Opinion of Advocate General Wathelet delivered on
Alimanovic raised the question whether a Member State may exclude nationals of other Member States who are not, or are no longer, economically active and are in need of assistance from entitlement to non-contributory subsistence benefits. As AG Wathelet identified, “The problem is sensitive in human and legal terms.”
The Advocate General began by identifying the relevant parts of the Treaty: Article 18TFEU prohibits discrimination on grounds of nationality; Article 20 TFEU establishes citizenship of the Union, and Article 45 TFEU assures the freedom of movement for EU workers. Regulation (EC) No 883/2004 on the coordination of social security systems was also considered, alongside Directive 2004/38/EC, followed by the relevant German law.
The relationship between Regulation 883/2004 and Directive 2004/38 has already been considered in part by the Court in Dano. Following that judgment, it was established that Member States may refuse to grant social assistance to Union citizens who enter their territory without intending to find a job and without being able to support themselves by their own means.
Ms Alimanovic, a Swedish national, has three Swedish children, all born in Germany in the 1990s. The applicants left Germany in 1999 and re-entered in June 2010. Ms Alimanovic and her eldest daughter (who were ‘fit for work’ under German law) worked in short-term jobs between June 2010 and May 2011. All applicants received benefits to cover subsistence costs. Ms Alimanovic and her daughter received subsistence allowances for beneficiaries fit for work, whereas Ms Alimanovic’s two other children received social allowances for beneficiaries unfit for work.
Alimanovic is concerned with the situation in which, after working for less than a year in the territory of a Member State of which she is not a national, a Union citizen applies for subsistence benefits in the host State. The case concerned whether the national rules excluding Union citizens seeking employment were precluded by the principle of non-discrimination.
Approach of the Advocate General
Classification of the benefit at issue in the case was essential, as this determined the provision in the light of which the compatibility of a scheme such as that at issue in the case in the main proceedings must be evaluated: Article 24(2) of Directive 2004/38, if it is social assistance, or Article 45(2) TFEU, in the case of a measure intended to facilitate access to the labour market.
The Advocate General did not depart from the Court’s approach in Vatsouras and Koupatantze, where it stated that financial benefits intended to facilitate access to the labour market cannot be regarded as constituting social assistance within the meaning of Article 24(2) of Directive 2004/38. This is essentially a question for the Member State.
1. Where a Union citizen moves to a Member State for less than three months, or for longer but without intending to work;
The first situation was assessed by Dano, where the host Member State was not obliged to confer entitlement to social benefits on a national of another Member State or his family members for periods of residence of up to three months. Since Member States cannot require Union citizens to have sufficient means of subsistence and personal medical cover for a three-month stay, it is legitimate not to require Member States to be responsible for them.
Dano also held that Member States could refuse to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence.
2. Where a Union citizen moves to another Member State to seek employment;
In relation to the second situation, the exclusion of entitlement to a benefit which constitutes social assistance of persons who move to the territory of that Member State in order to seek employment does not, in the Advocate General’s view, run counter to Article 4 of the Regulation or to the system established by the Directive.
3. Where a Union citizen has been in a Member State for longer than three months and has worked there.
The automatic effect of exclusion from entitlement to social assistance linked to the loss of the status of ‘worker’ raises more problems. Under the German law, Union citizens who have worked for less than one year retain their right of residence in German territory for six months in the event of involuntary unemployment confirmed by the relevant employment office.
No longer having the status of ‘worker’, Ms Alimanovic and her daughter were again regarded as jobseekers. Accordingly, they were automatically excluded from the long-term unemployed from entitlement to subsistence allowances. Consequently, her two other children lost their secondary entitlement to social assistance to cover their subsistence costs.
In Brey, the Court held that the automatic bar of nationals of other Member States who are not economically active from receiving a particular social security benefit, even for the period following the first three months of residence does not enable the authorities of the host Member State to carry out an overall assessment of the specific burden which granting that benefit would place on the social assistance system as a whole by reference to the personal circumstances of the individual.
The Advocate General emphasised that it is important that the authorities of the host Member State take into account not only the amount and regularity of the income received by the citizen of the Union, but also the period during which the benefit applied for is likely to be granted to them. The demonstration of ‘real links’ with the host State ought to prevent automatic exclusion from the relevant benefits.
Having worked in the past, or even the fact of having found a new job after applying for the grant of social assistance, ought also to be taken into account in that connection. Strict rules relying on one criterion alone are overly restrictive.