EU member states can cut off some social assistance to non-native EU citizens who come here to work but have since become unemployed, the European Court of Justice ruled yesterday.
The case concerned Ms Alimanovic, a Swedish national, and her three Swedish children, all born in Germany in the 1990s. The family left Germany in 1999 and re-entered in June 2010. During part of the first year after their arrival Ms Alimanovic and her elder daughter Sonita worked in short-term jobs. Thereafter, they were unemployed. Initially Ms Alimanovic and her eldest daughter received subsistence allowances for beneficiaries fit for work, and the two other children received social allowances for beneficiaries unfit for work. However these benefits were all withdrawn on the ground that German legislation, since 2011, denies such benefits to non-nationals who only have a right to reside in Germany as jobseekers.
The social court in Berlin originally sided with the Alimanovic family, finding that because they were EU citizens they were entitled to the same benefits as any German national would receive. But the job center appealed, noting that Alimanovic no longer qualified as a job seeker under German or EU law since she hadn’t worked since 2011, and could no longer rely on the EU’s right of residence as workers or freedom of movement to claim public assistance. The German appeals court asked the European Court of Justice whether the EU’s principle of equal treatment required the Alimanovics to receive the same benefits as a similarly situated German would.
Advocate General’s Opinion
Advocates General (AG) are responsible for presenting a legal opinion on the cases assigned to them by the European Court of Justice. They provide independent and impartial opinions concerning the Court’s cases. These opinions are advisory and do not bind the Court. In the Alimanovic case AG Wathelet gave his opinion to the Court on the 26th March this year (here).
In answering the question whether the withdrawal of the benefits initially granted to Ms Alimanovic and her children is compatible with EU law, AG Wathelet distinguished three situations.
The first concerned Union citizens who travel and move to another Member State and do not seek to find employment. The relationship between Regulation 883/2004 (which concerns the coordination of social security systems), and Directive 2004/38/EC (free movement) had already been considered in part and earlier this year 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.
The second situation involves Union citizens who move to another Member State and do try to find a job. In the AG’s view, such jobseekers could also be denied social assistance.
The third situation concerned Union citizens who stay for more than three months in the territory of another Member State and who, like Ms Alimanovic and her daughter Sonita, had worked there before but were now unemployed. In the AG’s opinion, and following on from the case of Brey, these jobseekers could not automatically be excluded from social assistance. The host Member State could not simply carry out an overall assessment of the specific burden which granting that benefit would place on the social assistance system as a whole without reference to the personal circumstances of the individual. Although they were no longer workers, individuals in such a situation had to be given the opportunity to demonstrate a “genuine link” with the host Member State. If they could do this, through family circumstances (such as the children’s education), or previous work history etc, they could not be denied social assistance.
The distinction was formulated on the basis that “first time jobseekers” had yet to make a meaningful contributions to the host State’s economy (therefore social tourism might occur), whereas “second-time work-seekers” had been contributing members of the host State’s society and awarding them a right to social assistance under the same conditions as nationals of the host State was in keeping with the idea of Union citizenship and equal treatment, regardless of nationality.
The AG did not depart from the Court’s previous case law in Vatsouras and Koupatantze, which stated that financial benefits intended to facilitate access to the labour market could not 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.
In a nine-page opinion, the Court of Justice ruled that Germany’s limits on public assistance paid to foreign nationals did not violate equal-treatment laws.
The Court said the German benefits in this case were, as in Dano, to be regarded as ‘social assistance’. This was because they were intended to cover subsistence costs for people who could not cover those costs themselves, and were not financed through contributions, but through tax revenue. In order to obtain social assistance, an EU citizen can only claim equal treatment with nationals of the host Member State if their residence in the host Member State complies with the conditions of the free movement Directive 2004/38/EC.
The Court noted that there are two possibilities for the purposes of granting a right of residence to job-seekers such as those in the Alimanovic case:
Where an EU citizen has enjoyed a right of residence as a worker, but is in involuntary unemployment after having worked for less than a year and has registered as a job-seeker with the relevant employment office, they retain the status of worker and the right of residence for no less than six months. During this period, they can rely on the principle of equal treatment and are entitled to social assistance.
Where an EU citizen has never worked in the host Member State or where the period of six months has elapsed, a job-seeker cannot be expelled from that Member State as long as they can provide evidence that they are continuing to seek employment and have a genuine chance of being engaged. However, in such circumstances, the host Member State may refuse to grant any social assistance.
Finally, although a Member State must take account of the individual situation of the person concerned before it adopts an expulsion measure or finds that the residence of that person is placing an unreasonable burden on its social assistance system – no individual assessment is necessary in regards to access to benefits. In the Court’s view, the free movement Directive already takes into consideration such factors in regards to claims for social assistance. The Court went on to state that the issue of whether payment of social security benefits constitutes an ‘unreasonable burden’ for a Member State was to be assessed after accumulating all the individual claims submitted and that it would be ‘bound’ to constitute such a burden.
Although the CJEU does not expressly overturn its prior case law, the case of Alimanovic, like that of Dano, will certainly make it easier for member states, like the UK, to justify the refusal of job seeker and other social assistance benefits. In addition, in not following the AG opinion that, when looking at access to benefits, an individual assessment of a former worker’s position is required, the Court effectively says that any individual application for social assistance will constitute an ‘unreasonable burden’ on national systems, because of applications made by other people in the same situation.
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.