Posts

Maria Haag – C‑67/14 Alimanovic: the not so fundamental status of Union citizenship?

On the 15th of September 2015, the Grand Chamber of the Court of Justice of the European Union (CJEU) further clarified the limits of the right to access to social assistance granted to Union citizens in host Member States under EU Law. In November 2014, the Court already established in C-333/13 Dano (see previous DELI post) that Member States are allowed under EU law to deny certain social assistance benefits to Union citizens who have never worked and are not looking for employment in the host Member State. The present case of Alimanovic is different in that it concerns Union citizens who have worked in the host Member State for less than a year and are now jobseekers.

Facts

The case concerned four Swedish nationals, Ms Alimanovic and her three children. The applicants left Germany in 1999 and then moved back in June 2010. Both Ms Alimanovic and her oldest daughter worked between June 2010 and May 2011 – i.e. for less than a year – in short-term jobs or under employment-promotion schemes. In December 2011, the applicants started receiving subsistence allowances. In May 2012, the Jobcenter Berlin Neukölln suspended their grant of benefits. This decision was annulled by the Sozialgericht Berlin as it concluded that any discrimination against Union citizens was prohibited under Article 4 of Regulation No. 883/2004. The Jobcenter brought an action against this annulment before the referring court. The three questions that were referred, can be summarised as follows:

Do Article 24 of Directive 2004/38, and Article 45 TFEU in combination with Article 18 TFEU, preclude national legislation which does not in any circumstance allow the grant of a social benefit, intended to cover subsistence costs and facilitate access to the labour market, to Union citizens whose right of residence arises solely out of the status of jobseeker?

Decision

The Court first confirmed its decision in Dano that the benefits in question should be classified as ‘social assistance’, rather than benefits intended to facilitate the access to the labour market (see Dano, para 63).[1] The Court here follows the Advocate General’s analysis of the benefit stating that “the predominant function of the benefits at issue […] is in fact to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity” (see para 45 and AG Wathelet’s Opinion, para 72). This particular distinction is important because Articles 45 and 18 TFEU only apply to benefits related to the labour market access. As the benefits are ‘social assistance’, however, the Court concludes that it only has to analyse the compatibility of the German national law with Article 24 of the Directive. It explains that to determine whether the principle of equality applies – by which the Union citizen must be treated like a national in terms of access to social assistance (Article 24(1) of Directive 2004/38) – it must be established that the Union citizen resides lawfully within the host Member State. Two provisions of Directive 2004/38 apply to jobseekers like Ms Alimanovic and her daughter in this regard:

  • Article 7(3)(c): if a Union citizen, after having been employed in the host Member State for less than a year, becomes unemployed and registers as such with the authorities, then he or she retains the status of worker – and therefore the right of residence and equal treatment – for a period of six months.

As the Court points out, this does not apply in the present case, as the period of six months had already expired when the grant of social assistance was suspended (para 55).

  • Article 14(4)(b): Union citizens who have entered a host Member State looking for work cannot be expelled – and thus have a right of residence – as long as they can provide evidence that they continuing to search for employment and have a genuine chance of being employed.

However, as the Court notes, in such a case the host Member State can rely on the derogation provided in Article 24(2) of the Directive not to grant social assistance.

The Court then states, in the most interesting part of its decision, that no “individual assessment is necessary in circumstances as those at issue in the main proceedings”, thereby going against its decision in C-140/12 Brey. In Brey it previously held that the host Member State cannot automatically exclude Union citizens from the right to benefits, and has to take the individual situation of the person into account (see paras 77-80). The Court in the present case explains that the Directive 2004/38 already creates a system of individual assessment taking “into consideration various factors characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity” (para 60). The Court makes it unambiguously clear that the only criterion relevant in this case is the period of six month in which the right to social assistance is retained. According to the Court, this clear-cut rule creates legal certainty and transparency (para 61).

Finally, the Court clarifies that it does not matter that a single applicant could never really be an ‘unreasonable burden’ for a Member State, however “the accumulation of all the individual claims which would be submitted to it would be bound to [be] so” (para 62).

The Court therefore rules that Article 24 of the Directive 2004/38 does not preclude legislation of a Member State under which nationals of other Member States are excluded from entitlement to benefits that constitute social assistance, although those benefits are granted to nationals.

Comment

The Court of Justice in Alimanovic again addresses the politically highly sensitive and important issue of the availability of benefits to foreign nationals. It makes it abundantly clear that a jobseeker, who has worked in the host Member State for less than a year, is only entitled to social assistance benefits for a period of six months. After this period has expired no circumstances oblige the host Member State under EU law to continue the grant of such benefits.

The most remarkable change of this decision is the bold rejection of the ‘individual assessment’ in this case. Whilst the Court’s legal argument in Alimanovic is sound and directly based on the Directive 2004/38, it straight-out contradicts its precedent case law. In September 2013, the Court held in Brey that EU law precluded an automatic exclusion of an economically inactive Union citizen without considering the personal situation of the Union citizen involved. The host Member State was thus not allowed to implement legislation that automatically bars Union citizens who do not fulfil the requirements for a right to reside in Directive 2004/38. In November 2014, the Court  in Dano considered only the legality of the Union citizen’s right of residence to establish her right to social benefits. It remained completely silent about Ms Dano’s personal circumstances and did not demand the application of the principle of proportionality in her case. The two cases seemed to contradict each other (for more on this see DELI blog post on Dano). In Alimanovic, the Court has now made it very clear that no individual assessment is necessary. It follows that, according to the CJEU, Directive 2004/38 does not actually preclude Member States from automatically excluding a Union citizen jobseeker from the access to social assistance benefits.

The only personal circumstance that really is of interest in this case is “the duration of the exercise of any economic activity” (para 60). Interestingly, in the same vein, the Court does not mention Union citizenship or Article 20 TFEU establishing Union citizenship once, nor does it quote its famous line of ‘the fundamental status of Union citizenship’ (see C-184/99 Grzelczyk, para 31). Even though the Court came to a similar conclusion in its earlier decision in Dano, it quite strikingly did mention the fundamental status of EU citizenship in its judgment then (Dano para 58). Dano therefore, in contrast with Alimanovic, shares many more of the original elements of the older and more expansive EU citizenship cases (see, e.g. C-413/99 Baumbast and R).

It is also noteworthy that the Court does not address the fact that both Ms Alimanovic’s minor children (therefore excluding her oldest daughter)[2] and Ms Alimanovic herself, as the primary care-taker of minors, according to settled case law (see C-310/08 Ibrahim and C-480/08 Teixeira) have a right of residence based solely on Article 10 of Regulation No 492/2011, i.e. on the children’s right of access to education (see AG Wathelet’s Opinion paras 117-122). Advocate General Wathelet premises his Opinion in Alimanovic with the following thought:

The problem is sensitive in human and legal terms. It will necessarily lead to the Court ruling both on the protection offered by EU law to its citizens, as regards their financial situation and their dignity too, and on the current scope of the fundamental right to free movement, a founding principle on which the European Union is built.

There is no indication in the judgment which leads to suggest that the Court took this into consideration. The Alimanovic decision seems to put the fundamental status granted by Union citizenship into perspective. This suggests the question: after two decades of judicial activism in the area of Union citizenship, is the Court of Justice now backtracking?

 

Maria Haag

PhD Researcher, European University Institute

 

[1] Incidentally, as both cases concern Germany, the social benefit at issue (known in Germany as ‘Hartz IV’) is exactly the same in Dano and Alimanovic.

[2] For the specificities on this, namely the age of majority and right to education, see C-480/08 Teixeira para 87.

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s