Personal Immigration

Opinion Given on Social Benefits Entitlement

An Advocate General of the Court of Justice of the European Union has given his opinion on the legality of excluding EU citizens from certain social benefits in another Member State.

This case is one of a series of German cases in which the Court of Justice has been asked to rule on the question whether the exclusion of certain EU citizens from entitlement to social benefits provided for by national legislation is compatible with EU law, and in particular with the principle of equality.

These cases concern the basic Germany provision benefits, from which are excluded:

  • foreign nationals (and the members of their families) whose right of residence arises solely out of the search for employment, and
  • during the first three months of their residence, foreign nationals (and the members of their family) who are not workers or self-employed persons and cannot be regarded as having retained that status.

The Court has already held in a previous case that the Member States may exclude the entitlement to social assistance of EU citizens who arrive in their territory without intending to find a job. In another case, currently pending before the Court, an Advocate General proposed that social benefits cannot automatically be refused, without individual consideration, where EU citizens seek entitlement to the same benefits after having resided in Germany for more than three months and having worked there for less than a year.

The present case concerns the situation of a Spanish national who, during the first three months of his residence in Germany, was not a worker or self-employed person (and who could not be regarded as having retained that status) and who accordingly had no entitlement to the German basic benefits during that period. The German Court asked the Court of Justice whether this exclusion is compatible with EU law.

According to Advocate General Wathelet, EU citizens who move to a Member State of which they are not nationals may be excluded from entitlement to certain social benefits during the first three months.

However, they may not be excluded during that period from entitlement to benefits intended to facilitate access to the labour market without being given the opportunity to prove the existence of a genuine link with the labour market in the host Member State.

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