Blog AnalysisCase law

The Court says no to social tourism

(B2) Can a European citizen who has just moved to another Member State benefit from all the social benefits like a national or a long-term resident? This is the question that the judges of the European Court of Justice were to decide on Tuesday (11 November). A question of law of course. But also a political subject… and of controversy. We remember how many parties across the Channel, and the Prime Minister, David Cameron, in the lead, had made this subject a public campaign argument.

What are the facts ?

Me Dano, of Romanian nationality, mother of a young child, had moved in with her sister in 2010, in Leipzig (Germany), with no real income other than allowances. She wasn't working and apparently wasn't looking for work. He " it appears from the file that she is not looking for a job note the judges. The city's JobCenter (employment agency) therefore refused him payment of the basic allowance (a system quite similar to the RSA).

What is the point of the judgment?

This is the first time that the Court of Justice has ruled on the application of the 2004 citizenship directive and the new social security regulation 883.

What does the directive say?

The 2004 directive distinguishes 3 periods. When the length of stay is less than 3 months, a European citizen has the right to stay but not to social assistance. When the duration of the stay is between three months and five years (period which is at issue in the present case), the directive places two conditions on the right of residence of the citizen who is not a worker: 1° the citizen has, for him and his family members, sufficient resources so as not to become a burden on the social assistance system of the host Member State during his stay; 2° he has comprehensive health insurance in the host Member State. Beyond 5 years, European citizens have the right to residence and social benefits.

What are the judges saying?

The principle of equality between Europeans is not without limits, underline the judges. The 2004 directive provides, in fact, that for a stay of less than 5 years, the right of residence is conditional having sufficient own resources ". A European citizen should not, in fact, become an unreasonable burden on the social assistance system of the host State ».

Is this a novelty?

Not really. The judges are, in fact, only taking up and applying one of the provisions of the directive. As Advocate General Melchior Wathelet pointed out, repeating the words of another Advocate General (Wahl) intervening in another judgment (Brey case), if “ the main objective of Directive 2004/38 is to simplify and strengthen the right to freedom of movement and residence of all citizens of the Union, the particular objective of Article 7 § 1b) is to guarantee that persons exercising their right of residence do not become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence”. " This indicates that this provision seeks to prevent economically inactive EU citizens from using the social protection system of the host Member State to finance their livelihoods.».

Can we generalize this judgment?

Not quite. We must be careful, said a lawyer from the Court interviewed by me. " The Court is not a legislator. Our judgments certainly apply throughout the European Union. But we respond to a concrete case and specific legislation ». For example, this judgment does not automatically apply to family allowances which are subject to another regime… Likewise, this judgment only concerns an “inactive” citizen. For workers or job seekers, other rules apply. A case is also under examination before the Court, concerning a job seeker, at the request of the Bundessozialgericht, the highest German court in social matters (case C-67/14).

(Nicolas Gros-Verheyde – long version of the article published in Ouest-France)

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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