The baseless fabric of this vision: EU Citizenship, the right to reside and EU law

Transcription

1 Trinity College Dublin, Ireland From the SelectedWorks of Mel Cousins July, 2016 The baseless fabric of this vision: EU Citizenship, the right to reside and EU law Mel Cousins Available at:

2 The Baseless Fabric of this Vision : EU Citizenship, the Right to Reside and EU Law 1 Mel Cousins Trinity College, Dublin Entitlement; EU law; EU nationals; Right to reside; Social security benefits This article provides an analysis of the recent EU case law governing residence and social security. It also discusses how it has been applied in the higher courts in the UK and its wider implications for the social security rights of migrants. Introduction This article examines the current status of the right to reside under EU law in relation to social assistance and broader social security payments in the light of recent Court of Justice of the European Union (CJEU) rulings in particular the German trilogy of cases (Dano, Alimanovic and García-Nieto) and the decision of the UK Supreme Court in Mirga and Samin. 2 In the past, the CJEU had taken a broad-based approach to the rights of EU citizens to social assistance payments in cases such as Martinez Sala, Trojani, and Grzelczyk. 3 In these cases, the Court had assessed the compatibility of national rules concerning access to right to social assistance against the EU Treaty provisions on nationality discrimination. The Court had also explicitly considered the right to social assistance in the case of a person (Mr Trojani) who it found did not have a right to reside in the host country under EU law. In the recent series of cases, the Court without explicitly overruling its earlier decisions 4 has taken a different and much narrower approach. First, it has assessed the compatibility of national rules with EU secondary legislation (primarily EU Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States) rather than the EU Treaty. Second, it has held that a person cannot have an entitlement to social assistance in the host country under EU law unless that persons has a right to reside there under EU law. The first part of the article provides a short overview of earlier EU case law. In parts two, three and four, it summarises the key findings of the three recent cases 1 The reference is to Prospero, The Tempest Act 4, Scene 1, pp I owe the reference to Charlotte O Brien s case note. See [Accessed 7 July 2016]. 2 Dano (C-333/13) EU:C:2014:2358); Alimanovic (C-67/14) EU:C:2015:597; [2016] 2 W.L.R. 208); García-Nieto (C-299/14) EU:C:2016:114; [2016] W.L.R. (D) 99); Mirga and Samin v Secretary of State for Work and Pensions and Another [2016] UKSC 1. 3 Martínez Sala (Case C-85/96) [1998] ECR I-2691; Trojani (Case C-456/02) [2004] E.C.R. I-7573; Grzelczyk (Case C-184/99) [2001] E.C.R. I Indeed, the Court makes no reference at all to these cases in the three recent German rulings. 89

3 90 Journal of Social Security Law and discuss how they differ from the Court s earlier approach. It also examines how this approach has been implemented by the UK Supreme Court in Mirga and Samin. Part five examines whether this approach should be extended to social security benefits, such as the UK child benefit, an issue recently considered in Commission v United Kingdom Overview of earlier CJEU case law A. Where a person has a right of residence under EU law In terms of the situation where a person has a right of residence under EU law, the question arises as to whether such a person is entitled to a social assistance payment in the host Member State notwithstanding the restrictions set out in Directive 2004/38 in relation to not becoming an (unreasonable) burden on the social assistance system of that state. This issue arose in Grzelczyk. 6 Mr. Grzelczyk was a French student who studied in Belgium. For the first three years of his studies, he met his own costs of maintenance, accommodation and study by taking on various minor jobs and by borrowing. However, at the beginning of his fourth and final year of study, he applied for the Belgian minimum income payment. Although this was originally granted, it was subsequently terminated because of his lack of Belgian nationality. Assuming that Mr Grzelczyk was not a worker, on the basis of his minor jobs (an issue left for the national court to determine), it appeared that his residence in Belgium was on the basis of Directive 93/96 (now replaced by Directive 2004/38). The Court pointed out that the Directive allowed Member States to require persons to satisfy the national authority that they have sufficient resources. However, it also pointed out that while the Directive made clear that it did not establish any right of payment of maintenance grants, there was no provision which precluded students from receiving social security benefits. While art.4 of the Directive did provide that the right of residence was to exist as long as beneficiaries fulfilled the conditions laid down in art.1, the preamble of the Directive envisaged that the beneficiaries of the right of residence would not become an unreasonable burden on the public finances of the Member State. The Court imaginatively interpreted this provision as accepting a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary. 7 The Court stated that Union citizenship was destined to be the fundamental status of nationals of Member States enabling them to enjoy the same treatment in law irrespective of nationality (subject to specific exemptions). Accordingly, the Court ruled, following its judgment in Martínez Sala (discussed below), that a citizen of the EU, legally resident in the host Member State, could rely on art.12 EC (now art.18 TFEU) in all situations which fell within the scope ratione materiae 5 Commission v United Kingdom (Case C-308/14) EU:C:2016:436; [2016] W.L.R. (D) Grzelczyk (Case C-184/99) [2001] E.C.R. I See M. Dougan and E. Spaventa, Educating Rudy and the (non-) English patient (2003) 28 E.L. Rev ; A Iliopoulou and H. Toner, annotation (2002) 39 C.M.L. Rev ; D. Martin, A big step forward for Union citizens, but a step backwards for legal coherence (2002) 4 European Journal of Migration and Law Grzelczyk (Case C-184/99) [2001] E.C.R. I-6193, at [44].

4 EU Citizenship, the Right to Reside and EU Law 91 of EU law. 8 The situations include those involving the exercise of the fundamental freedom guaranteed by the Treaty and those involving the exercise of the right to move and reside freely in another Member State conferred by art.18 EC. Therefore the Court ruled that Mr Grzelczyk was entitled to claim the Belgian minimum income payment and that the Member States nationality rules could not be applied against him. Thus the Court held that a person entitled to reside in another Member State under EU law was entitled to access to national social security benefits without the application of any discriminatory national provisions such as a requirement that the person be a national of the Member State concerned. It is clear from the Court s decision that such an application for national benefits may allow the Member State concerned to reconsider whether the person remains entitled to a right of residence. However, the national authorities must consider all the circumstances of the case and cannot automatically withdraw the right of residence simply on the basis of a temporary reliance on social assistance. The national authorities were required to consider the case in accordance with the rule of proportionality. Thus it appeared that a person in Mr Grzelczyk s case who has resided in the Member State for a number of years without reliance on social benefits and who required benefits for a specified temporary period might be entitled to those benefits without this affecting his right of residence. B. Where a person has a right of residence under national law The situation where a person is entitled to reside in the country under national but not EU law was considered by the Court of Justice in a number of cases including Martínez Sala and Trojani. 9 In Martínez Sala a Spanish national had lived in Germany since She had worked there on various occasions and until 1984 had been issued with a residence permits. 10 Since that date she had only received documents certifying that an extension of a residence permit had been applied for. After the birth of a child in 1993, she applied for a child raising allowance but this was rejected on the basis that she did not have German nationality, a residence entitlement or a residence permit. 11 However a residence permit was subsequently issued to her. The Court noted that, in this case, possession of a residence permit was a condition of entitlement for the right to benefit. The Court ruled that for a Member State to require a national of another state to produce such a document when its own nationals did not have to do so amounted to unequal treatment. The Court ruled that this constituted discrimination prohibited by art.12 EC within the sphere of application of the Treaty and in the absence of any justification. As the case involved discrimination based on the claimant s nationality and, as in any event, nothing to justify unequal treatment had been argued by the German authorities, the Court held that the discrimination was in breach of EU law and that the claimant was entitled to the child benefit. 8 Martínez Sala (Case C-85/96) [1998] E.C.R. I See the annotation by C. Tomuschat (2000) 37 C.M.L. Rev Martínez Sala (Case C-85/96) [1998] E.C.R. I-2691; Trojani (Case C-456/02) [2004] E.C.R. I The Court explicitly did not discuss whether Ms Martinez Sala could rely on the provisions of the Treaty to establish a right of residence considering that this was not necessary in the circumstances. 11 See the decision of the European Court of Human Rights in relation to a similar issue under the European Convention on Human Rights: Niedzwiecki v Germany (App. No.58453/00), 25 October 2005.

5 92 Journal of Social Security Law This issue was also considered in Trojani. 12 Mr Trojani was a French national who moved to Belgium and lived, variously, in a campsite, a youth hostel and then in a Salvation Army hostel where in return for board and lodging and pocket money, he did various jobs for about 30 hours a week as part of a reintegration programme. He claimed the Belgian minimum income payment which was refused as he did not have Belgian nationality. The Court of Justice was asked, inter alia, whether a person in Mr Trojani s situation might, simply by being a citizen of the European Union, enjoy a right of residence in Belgium by the direct application of (then) art.18 EC. The Court, in reply, held that Mr Trojani could not qualify for a right to reside under EU law as he did not have sufficient resources. Contrary to the situation in Baumbast the Court held that there was no indication that the failure to recognise that right would go beyond what is necessary to achieve the objective pursued by that Directive. 13 However, the Court went on to point out that Mr Trojani was legally resident in Belgium (under national law) and had been issued with a residence permit. The Court ruled that while the Member States may make residence of a Union citizen who was not economically active conditional on his having sufficient resources, this did not mean that such a person could not, during his lawful residence in the Member State, be entitled to benefit from the fundamental principle of equal treatment laid down in (then) art.12 EC. The Court pointed out that a social assistance benefit, such as the Belgian minimum income, fell within the scope of the Treaty. 14 Secondly, a citizen of the Union who was not economically active might rely on art.12 EC where he has been legally resident in the host Member State for a certain time or possessed a residence permit. The Court ruled that national legislation which did not grant social assistance to citizens of the EU who were not its own nationals (where such persons resided there lawfully and satisfied the conditions required of nationals) constituted discrimination prohibited by art.12 EC. The Court did, however, point out that it remained open to the Member State to take the view that such a national no longer fulfilled the conditions of his or her right of residence but that recourse to the social assistance system by the citizen of the Union might not automatically lead to expulsion. Thus it appeared, at that time, that EU citizens legally resident in another Member State (for a certain period or being in possession of a residence permit) would be entitled to social security on the same basis as nationals. The discrimination encountered in the two cases discussed here involved direct discrimination on grounds of nationality. However, the Court s approach also appeared to apply to indirect discrimination. In addition, in subsequent cases, the Court had treated a barrier to free movement as per se potentially in breach of EU law and as requiring justification Trojani (Case C-456/02) [2004] E.C.R. I See A.P. van der Mei, Union citizenship and the de-nationalisation of the territorial welfare state (2005) 7 European Journal of Migration and Law Trojani (Case C-456/02) [2004] E.C.R. I-7573, at [36]; Baumbast (C-413/99) [2002] E.C.R. I Trojani (Case C-456/02) [2004] E.C.R. I-7573, at [42] [45]. 15 de Cuyper (Case C-406/04) [2006] E.C.R. I-6947, at [39]; Tas-Hagen (Case C-192/05) [2006] E.C.R. I

6 EU Citizenship, the Right to Reside and EU Law Recent CJEU rulings Although it might not be immediately apparent to a casual reader of the Court s rulings, 16 all is changed indeed changed utterly after the three recent judgments in references from German courts. The author does not propose a blow-by-blow account of the rulings which have already received detailed treatment in the jurisprudence, but rather a more structured look at where these rulings leave the law in relation to the three factual scenarios addressed in the three decisions, viz: (1) that of the national of a Member State who moves to another Member State and stays there but without pursuing the aim of seeking employment there (scenario 1); (2) that of the national of a Member State who has stayed in another Member State for more than three months and who has worked there (scenario 2); (3) that of the national of a Member State who moves to another Member State to seek employment there (scenario 3). 17 A. Scenario 1 Dano The first of these scenarios reflects the facts in Dano. 18 Ms Dano and her young son both Romanian nationals came to Germany in November Ms Dano was granted a residence card of unlimited duration in July She did not work in Germany (or apparently in Romania) and lived with and was supported by her sister. Indeed there was no evidence that she had looked for work. Ms Dano claimed a subsistence benefit under the German Social Code (SGB). This forms part of the benefits for jobseekers and is listed as a special non-contributory benefit (SNCB) under Regulation 883/2004 on the coordination of social security systems. However, as the Court had ruled in Brey, 20 SNCBs are generally categorised as social assistance within the meaning of Directive 2004/ This benefit was refused to Ms Dano on the basis that she was a non-employed foreign national who had come to Germany to seek employment and/or to seek benefits. 22 The issue was 16 That is the Court does not acknowledge its change in approach. 17 Three factual situations were identified by Advocate General Wathelet in Alimanovic (C-67/14) EU:C:2015:597; [2016] 2 W.L.R However, I have modified the wording slightly and the order to fit the chronological order of the case law. 18 For a more detailed discussion, see M. Cousins, Dano v Jobcenter Leipzig (C-333/13) EU:C:2014:2358 (2015) 22 J.S.S.L ; D. Düsterhaus, Timeo Danones et dona petentes (2015) 11 European Constitutional Law Review ; D. Thym, The elusive limits of solidarity: Residence rights of and social benefits for economically inactive Union citizens (2015) 52 C.M.L. Rev ; and H. Verschueren, Preventing benefit tourism in the EU: a narrow or broad interpretation of the possibilities offered by the ECJ in Dano (2015) 52 C.M.L. Rev It appears that Ms Dano had been there previously and her son was born in Germany. 20 Brey (Case C-140/12) EU:C:2013: Brey (Case C-140/12) EU:C:2013:565 at [63]. The issue as to whether the benefit at issue should be categorised as social assistance or a benefit intended to facilitate access to the labour market was also considered by the CJEU in Alimanovic (at [40] [46]) but this issue will not be considered here. See Alhashem v Secretary of State for Work and Pensions [2016] EWCA Civ 395 in which the Court of Appeal considered the status of Employment and Support Allowance, holding that it should be classified as social assistance in the light of the CJEU s case law. 22 The CJEU states that the Sozialgericht Leipzig considered that Ms Dano was not entitled to benefit by virtue of point 2 of the second sentence of Paragraph 7(1) of SGB II and Paragraph 23(3) of SGB XII. Paragraph 7(1) of SGB II provides in relevant part that: The following are excluded [from benefits under SGB II]: 1. foreign nationals who are not workers or self-employed persons in the Federal Republic of Germany and do not enjoy the right of freedom of movement under Paragraph 2(3) of the Law on freedom of movement of Union citizens, and their family members, for the first three months of their residence,

7 94 Journal of Social Security Law referred to the CJEU by the national court which asked whether EU law, in particular art.4 of Regulation 883/2004 on equality of treatment, the general principle of non-discrimination resulting from art.18 TFEU and the general right of residence resulting from art.20 TFEU precluded the relevant provisions of German law. Given the facts of the case, a chamber of the CJEU could uncontroversially (and without calling into question the approach in Trojani) have answered this question in the negative given Ms Dano s lack of connection with the German (or indeed any) labour market and her very limited social and economic integration into German society. Instead the case was considered by the Grand Chamber which went beyond what was necessary to answer the question and, at the same time, took a narrow approach to its interpretation of EU law. The CJEU reinterpreted the question as asking whether art.18 TFEU, art.20(2) TFEU, art.24(2) of Directive 2004/38 and art.4 of Regulation 883/2004 precluded national legislation under which nationals of other Member States who are not economically active are excluded from entitlement to a SNCB although those benefits are granted to nationals of the home Member State who are in the same situation. The CJEU pointed out that although art.18(1) TFEU prohibits any discrimination on grounds of nationality within the scope of the Treaties, art.20(2) TFEU expressly states that the rights conferred on Union citizens by that article are to be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder. 23 Article 21(1) TFEU also provides that the right of Union citizens to move and reside freely within the Member States is subject to compliance with the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect (emphasis added). Thus, the CJEU pointed out that the general principle of non-discrimination, laid down in art.18 TFEU, is given specific expression in art.24 of Directive 2004/38 and art.4 of Regulation 883/2004. Accordingly, it focussed its interpretation on this secondary legislation rather than on the general Treaty provisions. The Court noted that art.24(1) of Directive 2004/38 provides that all Union citizens residing on the basis of the directive in the host Member State are to enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. 24 The CJEU concluded from this that, as concerns access to social benefits, a Union citizen could claim equal treatment with nationals of the host Member State only if her residence complied with the conditions of Directive 2004/38 and specifically with the requirement that she have sufficient resources for herself and her family members. 25 The Court stated that: To accept that persons who do not have a right of residence under Directive 2004/38 may claim entitlement to social benefits under the same conditions 2. foreign nationals whose right of residence arises solely out of the search for employment and their family members, Since it appears that Ms Dano did not seek employment in Germany, it is not clear how this could have applied to her. So refusal would appear to be based on para. 23 (3) of SGB XII which states that Foreign nationals who have entered national territory in order to obtain social assistance or whose right of residence arises solely out of the search for employment, and their family members, have no right to social assistance. 23 Dano (C-333/13) EU:C:2014:2358 at [60]. Emphasis added by author. 24 Judgement at [68] onwards. The Court noted that art.24(2) was not applicable on the facts of the case. 25 Article 7(1)(b) of Directive 2004/38.

8 EU Citizenship, the Right to Reside and EU Law 95 as those applicable to nationals of the host Member State would run counter to an objective of the directive, set out in recital 10 in its preamble, namely preventing Union citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State. 26 The Court ruled that a Member State must be allowed to refuse to grant social benefits to economically inactive Union citizens (who do not have sufficient resources) who exercise their right to freedom of movement solely in order to obtain another Member State s social assistance. It pointed out that: any unequal treatment between Union citizens who have made use of their freedom of movement and residence and nationals of the host Member State with regard to the grant of social benefits is an inevitable consequence of Directive 2004/ Ms Dano did not have sufficient resources (according to the referring court) and, therefore, could not claim a right or residence under EU law. It followed that she could not invoke the principle of non-discrimination in art.24(1) of Directive 2004/38. Nor did art.4 of Regulation 883/2004 preclude a refusal of benefits. That Regulation allowed SNCBs to be granted in accordance with [national] legislation and the Court had consistently held that there was nothing in EU law to prevent the granting of social benefits to Union citizens who are not economically active being made conditional upon those citizens meeting the necessary requirements for obtaining a legal right of residence in the host Member State. 28 The Court did not explicitly consider the proportionality of the German rule (or even refer to the concept of proportionality). B. Scenario 2 Alimanovic The second scenario reflects the facts in Alimanovic a case also heard by the Grand Chamber. 29 If Dano was always a lost cause, one might have expected a more sympathetic approach to the claimants in this case who had recently worked in Germany. Some commentators had argued that the ruling in Dano should be seen in the light of its particular facts and should not be given a broad interpretation. 30 The CJEU quickly showed that this interpretation was incorrect. Ms Alimanovic and her three German born children were all Swedish nationals. They apparently left Germany in 1999 and returned in They were issued with a certificate attesting the right of permanent residence. 31 Ms Alimanovic and her oldest daughter worked between June 2010 and May 2011 in temporary jobs lasting less than a year. They received various social benefits, including the 26 Dano (C-333/13) EU:C:2014:2358 at [74]. 27 Dano (C-333/13) EU:C:2014:2358 at [77]. 28 Dano (C-333/13) EU:C:2014:2358 att [83] and see Brey (Case C-140/12) EU:C:2013:565 at [44]. 29 Alimanovic (C-67/14) EU:C:2015:597; [2016] 2 W.L.R See A.P. van der Mei, Overview of recent cases before the Court of Justice of the European Union (2016) 8(1) European Journal of Social Security 77 and D. Kramer, at [Accessed 6 July 2016]. 30 See, for example, H. Verschueren, Preventing benefit tourism in the EU: a narrow or broad interpretation of the possibilities offered by the ECJ in Dano (2015) 52 C.M.L. Rev Alimanovic (C-67/14) EU:C:2015:597 at [59].

9 96 Journal of Social Security Law subsistence benefit under the German Social Code (SGB) (the same benefit at issue in Dano). This was terminated after six months apparently on the basis of art.7(3)(c) of Directive 2004/38 (see below). As interpreted by the CJEU, the referring court asked whether art.24 of Directive 2004/38 and art.4 of Regulation 883/2004 precluded national legislation under which nationals of other Member States who are job-seekers in the host Member State are excluded from entitlement to certain SNCBs, which also constitute social assistance within the meaning of Directive 2004/38, although those benefits are granted to nationals of the Member State concerned in the same situation. The Court recalled that, following Dano, a Union citizen could claim equal treatment as regards access to social assistance under art.24(1) of Directive 2004/38 only if her residence in the host Member State complied with the conditions of Directive 2004/ Therefore, the Court first examined whether Ms Alminaovic had a right to reside under EU law in Germany. The Court pointed out that only two provisions of Directive 2004/38 might grant Ms Alimanovic and her daughter a right of residence, i.e. art.7(3)(c) 33 and art.14(4)(b). 34 It accepted that they did have such a right under art.7(3)(c) but this was only for six months and they no longer enjoyed that status when they were refused entitlement to the benefits at issue. The national (referring) court accepted that the Alimanovics could rely on art.14(4)(b) to establish a right of residence even after the expiry of the six-month period However, art.24(2) of Directive 2004/38 specifically provides that the host Member State may refuse to grant any social assistance to a Union citizen whose right of residence is based solely art.14(4)(b). 35 Therefore, there was no (longer a) right of residence under art.7 and the Member State was entitled to refuse social assistance where the right was based solely on art.14. Perhaps recognising that this might seem a disproportionate response given the Alimanovics previous work record, the Court did, in this case, refer to proportionality. However, rather than applying an individualised test of proportionality, the CJEU stated that: Directive 2004/38, establishing a gradual system as regards the retention of the status of worker which seeks to safeguard the right of residence and access to social assistance, itself takes into consideration various factors 32 Alimanovic (C-67/14) EU:C:2015:597 at [49]. 33 Article 7(3)(c) of Directive 2004/38 provides that if the worker is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first 12 months and has registered as a jobseeker with the relevant employment office, he retains the status of worker for no less than six months. 34 Article 14(4)(b) of Directive 2004/38 provides that Union citizens who have entered the territory of the host Member State in order to seek employment may not be expelled for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. 35 Alimanovic (C-67/14) EU:C:2015:597 at [52] [58]. Article 24 provides: 1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence. 2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.

10 EU Citizenship, the Right to Reside and EU Law 97 characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity. By enabling those concerned to know, without any ambiguity, what their rights and obligations are, the criterion referred to both in [the relevant national law], and in Article 7(3)(c) of Directive 2004/38, namely a period of six months after the cessation of employment during which the right to social assistance is retained, is consequently such as to guarantee a significant level of legal certainty and transparency in the context of the award of social assistance by way of basic provision, while complying with the principle of proportionality. 36 The Court noted that it had previously 37 held that Directive 2004/38 requires a Member State to take account of the individual situation of the person before it adopted an expulsion measure or found that the person was placing an unreasonable burden on its social assistance system; it held that no such individual assessment is necessary in circumstances such as those at issue in the main proceedings. 38 As regards the assessment of whether a claim constituted an unreasonable burden, the Court considered that the assistance awarded to a single applicant could scarcely be described as an unreasonable burden for a Member State, within the meaning of art.14(1) of Directive 2004/38. However, while an individual claim might not place the Member State under an unreasonable burden, the accumulation of all the individual claims which would be submitted to it would be bound to do so. 39 The Court appears to be saying that in applying the individualised assessment of burden, the authorities may take into account not just the individual s claim but the accumulation of claims which would be made. 40 Accordingly the Court ruled that the national legislation was not contrary to EU law. C. Scenario 3 García-Nieto Finally, the third scenario reflects the ruling in García-Nieto. Despite the case name, the Court focussed mainly on the circumstances of Mr Peña Cuevas. 41 Ms García-Nieto and Mr Peña Cuevas had lived together as a couple with their children (all Spanish nationals) for a number of years in Spain and formed an economic unit, without being married or having entered into a civil partnership. In 2012, Ms García-Nieto came to Germany with her daughter and shortly afterwards took up employment. Mr Peña Cuevas and his son then joined them. In July 2012 (about a month after the latter arrival), the Peña-García family applied for subsistence benefits under the Social Code. These benefits were initially refused to Mr Peña Cuevas and his son on the basis that, at the time of the application, they had resided 36 Alimanovic (C-67/14) EU:C:2015:597 at [60] [61]. In this regard the Court differed from Advocate General Whatelet who had argued (at [103] [111] of his opinion) that an individualised assessment of proportionality would be necessary to comply with EU law. 37 In Brey (C-140/12) EU:C:2013:565, at [64], [69] and [78]. More accurately the Directive establishes this requirement. 38 Alimanovic (C-67/14) EU:C:2015:597 at [59]. 39 Alimanovic (C-67/14) EU:C:2015:597 at [62]. 40 But which claims for what by whom? 41 García-Nieto (C-299/14) EU:C:2016:114. For initial commentary, see M. Haag, at -citizens-in-the-first-three-months-abroad/ [Accessed 7 July 2016] and D. Kramer, at =c garcia-nieto-and-others [Accessed 6 July 2016].

11 98 Journal of Social Security Law in Germany for less than three months and that Mr Peña Cuevas did not have the status of a worker or self-employed person. Benefits were granted with effect from October 2012, presumably on the basis that the initial three months residence period had expired. The national court asked whether EU law precluded national legislation under which nationals of other Member States who are in a situation referred to in art.6(1) of Directive 2004/38 (i.e. persons who move to another Member State for a period of up to three months) are excluded from entitlement to SNCBs which are categorised as social assistance under Directive 2004/38. The Court repeated the point that a Union citizen could claim equal treatment only if his residence in the host Member State complied with the conditions of Directive 2004/38. Mr Peña Cuevas right of residence was based on art.6(1) of Directive 2004/38 and, as in Alimanovic, art.24(2) of Directive 2004/38 allows the host state to refuse to grant social assistance in those circumstances. Following Alimanovic the Court stated that no individual assessment is necessary in circumstances such as those at issue in these proceedings. 42 It reiterated that Directive 2004/38 itself takes into consideration factors involving the individual situation of each applicant for social assistance. It went on to say that if such an assessment was not necessary in the case of a citizen seeking employment who no longer had the status of worker (i.e. the Alimanovics), the same would apply a fortiori to first-time jobseekers such as Mr Peña Cuevas. Again the Court upheld the German law. This might seem unsurprising in the circumstances of Mr Peña Cuevas himself but the Court was careful to avoid any reference to the fact that his partner (Ms García-Nieto) was a worker The UK Supreme Court The CJEU s rulings would appear to confirm the UK Supreme Court s decision (if not its exact line of reasoning) in Patmalniece. 44 Indeed Lady Hale, in that case, argued for the approach here adopted by the Court, i.e. that there should be a link between the right to reside under EU law and the right to claim benefits. This was confirmed in the Supreme Court s approach in Mirga and Samin. 45 The Mirga case involved a refusal of income support to an A8 national who had lived for several years in the UK and also worked there for a period (though not in compliance with the Worker Registration Scheme) but who did not have a right to reside. Samin involved a residence requirement concerning housing assistance. The Supreme Court granted leave to appeal but, by the time the cases reached the Court, the CJEU had handed down its decision in Dano and Alimanovic was also considered by the Court before judgment was handed down. The Supreme Court (relatively) shortly rejected the claims holding that the position under EU law was now acte éclairé in the light of those two rulings. Following the Court of Justice, the unanimous Supreme Court held that the two claimants could not establish a right to reside on the basis of EU law because they did not qualify under the 42 García-Nieto (C-299/14) EU:C:2016:114 at [46] [49]. 43 Arguably this was justified on the basis that the members of an unmarried (or unregistered) couple would not fall within the definition of Family member set out in art.2(2) of Directive 2004/ Patmalniece v Secretary of State for Work & Pensions [2011] UKSC 11. See M. Cousins, Case analysis (2011) 18 J.S.S.L Mirga and Samin v Secretary of State for Work and Pensions and Another [2016] UKSC 1.

12 EU Citizenship, the Right to Reside and EU Law 99 implementing rules and could not call in aid general Treaty provisions. 46 Nor could they rely on a Baumbast type proportionality approach and the Court held that it would be unrealistic to require an individual examination of each case Key points from the series of decisions There are a number of key points which can be taken from this series of decisions: A. A consistent line First, the CJEU has taken a clear and consistent line on the issues with successive cases repeating and building on the approach taken before. There is no sign of the two steps forward; one step back sometimes seen in the Court s approach. Having allocated a rather straightforward case to the Grand Chamber (and all three cases to Advocate General Wathelet) 48 the Court has clearly set out to send a message as to its approach in this area. B. Emphasis on secondary law and downplaying of citizenship In the earlier case law discussed above (Martinez Sala etc), there was a considerable emphasis on the Treaty provisions and on the developing concept of EU citizenship. In stark contrast, in these cases, the Court emphasised that the relevant Treaty provisions (art.20(2) and art.21(1) TFEU) expressly state that the rights conferred on Union citizens are to be exercised in accordance with the conditions and limits defined by the measures adopted to give them effect, i.e. in secondary legislation. 49 Although the Court does refer to the claimants as citizens, the concept of citizenship is not mentioned in any of the three rulings. While it would be unfair to accuse the Court of Orwellian newspeak, it is clear that, at least in this context, citizens are a species with rights much less extensive than workers. 50 C. Equality rather than free movement One result of the Court s approach is that where, in some of the earlier cases, the analysis looked at whether the provisions at issue constituted a barrier to free movement, the new approach looks at whether the provisions are in breach of equality of treatment though (in contrast to Martinez Sala et al) since the CJEU holds that the claimants are not entitled to rely on these provisions the Court never gets to analyse this issue. 46 Mirga and Samin [2016] UKSC 1 at [45] and [47] 47 Mirga and Samin [2016] UKSC 1 at [62] and [68] [69]. Though Lord Neuberger did leave open the possibility of a proportionality approach in extreme circumstances or exceptional cases (at [69] [70]). 48 It might be more normal to allocate different Advocates General so as to have the benefits of different views as in the surrogacy cases where two different Advocate Generals were allocated to cases raising very similar issues: C.D. v S.T. (Case C-167/12) EU:C:2014:169; Z v A Government Department (Case C-363/12) EU:C:2014: Dano (C-333/13) EU:C:2014:2358) at [60]. 50 For an extensive discussion of the current status of EU citizenship, see C. O Brien, I trade, therefore I am: Legal personhood in the European Union (2013) 50 C.M.L. Rev ; and N. Shuibhne, Limits rising, duties ascending: The changing legal shape of Union citizenship (2015) 52(4) C.M.L. Rev

13 100 Journal of Social Security Law D. Downplaying of proportionality Similarly, there is a lack of emphasis on proportionality. The Court does not mention this at all in Dano (although this is perhaps understandable given the facts of the case). However, in the two subsequent cases, the Court takes the view that Directive 2004/38 in itself guarantees proportionality without having to assess proportionality on an individual basis. This is again a long way from the Court s earlier willingness to assess proportionality in individual cases, such as in Baumbast. E. Residence must be based on EU law In contrast to the approach adopted in earlier cases such as Trojani, the Court now requires that, in order to rely on a right of equal treatment, the right to reside must arise under EU law. In these cases, it would appear that both Ms Dano and the Alimanovic family had been granted a legal right to reside in Germany under national law and had received documentation specifically acknowledging this. Thus there was no question of rights being granted to persons who had entered the country illegally or whose immigration situation was unclear. Nonetheless, the Court entirely disregarded the position under national law and its previous case law. F. Overruling (aspects of) Brey The approach adopted by the CJEU would also appear to overrule (sub silentio) aspects of the recent Brey ruling. The Court in Brey (incorrectly in this author s view) held that there should be an individual assessment of whether a claim would constitute an unreasonable burden in relation to a claim for benefits. Here the Court explicitly says that there is no need for such an assessment in relation to a claim for benefits. 51 The Brey court also gave certain guidance as to the factors to be taken into account in this assessment (the amount and the regularity of the income which the person receives; the fact that those factors have led those authorities to issue him with a certificate of residence; and the period during which the benefit applied for is likely to be granted to him). In Alimanovic the Grand Chamber appears to say that the detail of the assistance awarded to a single applicant is largely irrelevant and that what matters is the amount which would be awarded to some (undefined) broader group. This again appears inconsistent with the approach in Brey. It would of course be helpful if the Court clung less to the façade of jurisprudential infallibility and honestly acknowledged when it was distancing itself from earlier case law. G. Problematic issues Many will consider the approach discussed above to be fundamentally problematic both from legal and policy perspectives. However, at least from a policy perspective, there are certain advantages. This approach may lead to greater level of certainty on the vexed issue of social benefits and the right to reside. The Court s bright-line 51 Alimanovic (C-67/14) EU:C:2015:597 at [59].

14 EU Citizenship, the Right to Reside and EU Law 101 approach at least clarifies the position and is arguably much clearer from an administrative perspective than requiring a case-by-case approach to whether a person had a sufficient link to the host labour market or was sufficiently integrated into the host society. However, even accepting the Court s own approach to the issue, there are some problematic issues. There is arguably some inconsistency in the Court s approach to the principle of equal treatment (non-discrimination) as it states that: the principle of non-discrimination, laid down generally in Article 18 TFEU, is given more specific expression in Article 24 of Directive 2004/38 in relation to Union citizens who, like the applicants in the main proceedings, exercise their right to move and reside within the territory of the Member States. 52 Yet the Court goes on to hold that the applicant cannot claim a right to equal treatment under art.24(1) as she has no right of residence. This appears to suggest that a person, such as Ms Dano, has no right to equality of treatment at all under EU law. This is a long way from (pre-directive 2004/38) cases such as Martínez Sala, Grzelczyk, or Trojani where the Court ruled that a citizen of the EU, legally resident in the host Member State, could rely on art.18 TFEU in all situations which fell within the scope ratione materiae of EU law, including access to social assistance Beyond social assistance? The Commission v UK case has raised the issue of whether the Dano line of cases should be extended beyond SNCBs under Regulation 883/2004 which are also categorised as social assistance within the meaning of Directive 2004/38 to apply to social security benefits under Regulation 883/2004 (in this case child benefit and child tax credit). 54 This would represent a rather fundamental change in the approach to the system of co-ordination of social security benefits, with Regulation 883/2004 now being read in the light of Directive 2004/38. In this case, the Commission claimed that, by imposing a condition for entitlement to certain social security benefits which UK nationals automatically meet, the United Kingdom has created a situation involving direct discrimination (or alternatively indirect discrimination) against nationals of other Member States in breach of art.4 of Regulation 883/ Advocate General Cruz Villalón took the view that Regulation 883/2004 should be read in the light of Directive 2004/ While acknowledging that the current case involved social security benefits rather than SNCBs, he concluded that: the provisions of Directive 2004/38 governing Union citizens freedom of movement and residence also remain fully effective within the framework of 52 Alimanovic (C-67/14) EU:C:2015:597 at [61]. 53 See, inter alia, Martínez Sala (Case C-85/96) [1998] ECR I-2691 at [63]; Grzelczyk (Case C-184/99) [2001] E.C.R. I-6193 at [33]; Trojani (Case C-456/02) [2004] E.C.R. I-7573 at [39] [43]. Note that Ms Dano had been granted was a residence card of unlimited duration in Germany. 54 Commission v UK (Case C-308/14) EU:C:2016:436. See C. O Brien, at /06/dont-think-of-children-cjeu-approves.html [Accessed 6 July 2016]. 55 This was just one aspect of the case but for reasons of space we will not deal here with the other issues raised in the proceedings. 56 See C. O Brien [Accessed 6 July 2016].

15 102 Journal of Social Security Law a regulation such as that at issue, intended to give practical effect to the right of free movement and residence within the Union, and that they cannot be considered ineffective within that context. 57 Therefore, he considered that: Regulation 883/2004 requires a Member State to grant social benefits such as those at issue in the case only to a Union citizen who is exercising his right to free movement and residence in its territory lawfully, that is to say, in particular, in compliance with the requirements of Directive 2004/38. In the view of the Advocate General, this meant that any difference in treatment between UK nationals and nationals of other Member States occurred before the application of art.4 of Regulation 883/2004, and, therefore, did not affect its applicability in principle. 58 The Court of Justice did not clearly follow this approach and, instead, applied the standard indirect discrimination approach. The Court, unsurprisingly, did not consider that the issue involved direct discrimination (albeit sub silentio). 59 Indeed, it was clear from the Bressol ruling 60 that this was the approach which the Court would adopt and it was rather unclear why the Commission raised the issue. However, the Court did accept that a host Member State which, for the purpose of granting social benefits, such as the social benefits at issue, requires a national of another Member State to be residing in its territory lawfully commits indirect discrimination. 61 Therefore, national legislation which is intrinsically liable to affect nationals of other Member States more than nationals of the host State and which consequently risks placing the former at a particular disadvantage, must be regarded as indirectly discriminatory. 62 In this case, the Court ruled that the right to reside requirement was more easily satisfied by United Kingdom nationals. 63 Therefore [i]n order to be justified, such indirect discrimination must be appropriate for securing the attainment of a legitimate objective and cannot go beyond what is necessary to attain that objective. 64 The Court cited the recent Giersch case 65 as authority for this proposition. In that case, the Court spent 10 paragraphs of its ruling looking at whether there was a legitimate aim; 12 paragraphs at the appropriateness of the measure; and 13 paragraphs at whether it was necessary holding that the law at issue went beyond what was necessary. In contrast, in this case, the CJEU summarily concluded that there was a legitimate aim: 57 Opinion at [72]. 58 Commission v UK (Case C-308/14) EU:C:2016:436 at [77]. 59 If there is some merit in the Court simply ignoring the arguments advanced by the parties, it is not immediately apparent what that might be. If the Court wishes to limit the length of its ruling it might better do so by leaving out the tedious recitation of the EU laws involved. 60 Bressol and Others (C-73/08) EU:C:2010: Commission v UK (Case C-308/14) EU:C:2016:436 at [76]. 62 Commission v UK (Case C-308/14) EU:C:2016:436 at [77]. 63 Commission v UK (Case C-308/14) EU:C:2016:436 at [78]. Characteristically, the Court then confused the issue by explaining that UK nationals more often than not are habitually resident in the United Kingdom, whereas nationals of other Member States generally reside in a Member State other than the United Kingdom. The point, of course, is that UK nationals automatically have a right to reside in the UK whereas other nationals do not. 64 Commission v UK (Case C-308/14) EU:C:2016:436 at [79]. 65 Giersch and Others (C-20/12) EU:C:2013:411, at [46].