Short-term Residence, Social Benefits and the Family; an Analysis of Case C-299/14 (García-Nieto and others)
By Dion Kramer
Following its strict findings in the Dano and Alimovic judgments, the Court of Justice of the European Union could not but state the obvious in case C-299/14 (García-Nieto and others): Member States may exclude economically inactive EU citizens from social assistance who are residing in the host Member State for a period shorter than three months. Again, the Court opts for legal certainty in rigorous and explicit terms and emphasises the objective of preventing the foreign EU citizen from becoming an unreasonable burden on the host Member State’s social assistance system. However, just like with Dano and Alimanovic, this comes with a human cost. This time the Court neglected the possibility to give a more substantial meaning to the unity of the family, allowing discrimination towards the migrant worker.
The Spanish nationals García-Nieto (‘mother García’) and Peña Cuevas (‘father Peña’) are not married or under a civil partnership, but have lived together in Spain for multiple years and have a common child (‘Jovanlis’, born in 2006). Father Peña has a son (‘Joel’, born in 1999) from an earlier relationship. Mother García and their common child Jovanlis moved to Germany in April 2012, where she moves in with her mother, registers as a job-seeker and starts working in a kitchen on the 12th of June. She receives a monthly net salary of 600 euros and is compulsorily insured under German social security. Father Peña and his son follow soon and join the family on the 23rd of June. Until 1 November, the Peña-García family’s living expenses are met from mother García’s income while they reside with her mother, i.e. their ‘grandmother’. As of November, father Peña also starts to work in short-term jobs.
The case concerns the family’s request for social assistance benefits on the 30th of July 2012. According to the facts of the case, the local ‘Jobcenter’, the German authority responsible for social benefits, only denied these benefits to father Peña and his son Joel for August and September as they resided shorter than three months in Germany and were neither working nor self-employed. This means that, apparently, mother García and her son Jovanlis did receive benefits in the form of supplementary social assistance on the basis of her worker status and that father Peña and his son started to receive benefits in October 2012.
As a result, the preliminary questions only relate to the Jobcenter’s decision to deny father Peña and his son’s entitlement to ‘Arbeitslosengeld’ for August and September and come down to the question of whether Germany was allowed to exclude from entitlement to non-contributory welfare benefits those EU citizens who reside shorter than three months and are neither employed or self-employed.
The Court starts by emphasizing that EU citizens can only claim equal treatment with respect to social assistance benefits on the basis of article 24 (1) of Directive 2004/38 (‘Citizenship Directive’) if they meet the residence conditions of that Directive (para. 38). In this case, it is clear that Father Peña and his son enjoyed a right to residence during the relevant period on the basis of article 6 (1) of the Citizenship Directive: EU citizens have a right to residence in another Member State for a period of three months without conditions other than the possession of a valid identity card of passport (paras. 41-42).
In this situation however, the host Member State may rely on the derogation from the principle of equal treatment under article 24 (2) of the Directive (para. 43). According to the Court, this provision allows the host Member State to refuse EU citizens other than workers, self-employed persons or those who retain that status and members of their families any social assistance during the first three months of residence (para. 44). As host Member States may not demand from EU citizens in this first period to have sufficient means of subsistence and personal medical cover, it is legitimate, according to the Court, not to require those Member States to be responsible for those citizens during this Following explicitly the opinion of the Advocate-General, such an interpretation would meet the objective stated in recital 10 of the Directive to maintain the ‘financial equilibrium of the social assistance systems of the Member States’ (para. 45).
In a further bid to limit the potential consequences of the ‘individual assessment’ required by its Brey judgment, the Court applies the similar logic as in paragraph 60 of Alimanovic: although the Directive requires host Member States to take account of the individual situation of the EU citizen when it considers an EU citizen to be a burden on the social assistance system, this is not required in the current situation. Just like the job-seeking EU citizen who lost his/her worker status, the Citizenship Directive itself provides for the economically inactive in his first three months of residence a ‘gradual system […] which seeks to safeguard the right of residence and access to social assistance’, 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’ (paras 46-48). In addition, the Court considers that this individual claim would not be an ‘unreasonable burden’ on the national system of social assistance, but the accumulation of all such individual claims which might be submitted to it would be bound to do so (para. 50). To conclude, the German rule to exclude economically inactive EU citizens from social assistance during their first three months of residence is considered not to be in breach with EU law.
A Push for Legal Certainty in the Shadow of Brey
The judgment could best be understood in the context of the Court’s recent push for legal certainty and transparency in the field of EU citizens’ welfare rights. The Court is very explicit in reiterating its statement that the German rule at issue enabled those concerned to know, without any ambiguity, what their rights and obligations are, hailing its quality to guarantee a significant level of legal certainty and transparency while complying with the principle of proportionality (para. 49). Indeed, individual rights under EU free movement law have been uncertain. Not only has the linkage between lawful residence and access to the host welfare state generated much confusion among EU citizens, but also national administrations have struggled massively with the application of vague concepts such as ‘unreasonable burden’, ‘sufficient resources’ or the requirement of an ‘individual assessment’. The question is though, what has caused this confusion in the first place with respect to those EU citizens residing short than three months, as article 24 (2) of the Directive is very clear in this respect?
In the case of Brey, a retired German couple already applied for a supplementary pension benefit in their first month of residence in Austria. Here the Court scrutinized Austria’s practice of automatically denying Brey’s lawful residence on the basis of their recourse to the supplementary benefit. Interestingly, the Court already noted that it is only during the first three months of residence that, by way of derogation from the principle of equal treatment set out in Article 24(1), the host Member State is not under an obligation to confer entitlement to social assistance on economically inactive Union citizens (Brey, para. 66). However, a mechanism that automatically barred the economically inactive from receiving any particular social benefit ‘even for the period following the first three months of residence’ would not enable the competent authorities to carry out an individual assessment (Brey, para. 77). The problem was that the Austrian authorities based their rejection on the residential conditions and not on the derogation from the principle of equal treatment.
A combined reading of the cases offers some practical implications. As long as EU citizens do not qualify as workers, self-employed persons or those who retain that status and members of their families they do not have access to any social assistance during the first three months of residence in their host State. After this initial period, their right to social assistance needs to be assessed according to the residential conditions of the Citizenship Directive, involving the individualized proportionality test famous from Brey and as restrictively applied in the case of Dano. In this respect the German authorities appear to have been rather generous as they awarded father Peña and his son with social assistance during their fourth month of residence. Unfortunately, the official documents do not explicate the Jobcenter’s considerations for this decision. The fact that father Peña found a short term job one month later might have worked to his advantage in retaining his right to residence.
Towards Uncertainty: Equal Treatment for the Worker’s Family Members?
Despite the judgment’s clear contribution to legal certainty as regards the application of article 24 (2) to economically inactive EU citizens, the judgment is confusing with respect to the possible status of father Peña and his son as family members of a worker. After all, article 24 (2) explicitly offers equal treatment with respect to social assistance during the first three months of residence to ‘workers, self-employed persons, persons who retain such status and members of their families.’ What transpires from the facts of the case is that, although not married or under a civic partnership, mother García and father Peña enjoyed a stable and durable relationship with a 6-year old common child, sharing a ‘household’ and forming an ‘economic unit’ (para. 27). Since the Court speaks throughout of a ‘Peña-García family’ that applies for benefits and brings an action before the court, it is highly remarkable that the possible eligibility of father Peña to social benefits as a family member of a worker under article 24 of the Directive (mother García, after all, did receive social assistance) is not addressed.
A possible explanation for the Court’s silence might be that the issue was simply not raised at any stage of the legal proceedings; not by the legal representation of the EU citizens concerned, not by the referring Court, not by the Advocate-General nor suo motu by the Court itself. However, not addressing their status as family members leaves it unclear whether the judgment offers any ground for national authorities to exclude spouses or other family members in the meaning of the Directive from social assistance during their first three months of residence.
Another explanation is that the Court has opted for a strict textual interpretation of the definition of a family member. Indeed, from a formal point of view, father Peña and his son Joel are not ‘family members’ in the sense of the Citizenship Directive, making a discussion of the matter simply irrelevant. According to article 1 (2), family members include the spouse (a), the registered partner (b) and the direct descendants under the age of 21 and those of the spouse or partner (c). If this explanation is correct, arranging a formal marriage might come of use when exercising EU free movement rights.
There were at least two alternative roads open to the Court. First, with respect to entry and residence, the Directive does offer room to boost a more substantial meaning of the family. Article 3 requires Member States to facilitate residence to the partner with whom the Union citizen has ‘a durable relationship, duly attested’ (b) and ‘dependants or members of the household’ (a). Indeed, recital 6 of the Directive confirms the objective to ‘maintain the unity of the family in a broader sense’ and examine the situation of those persons who are not included in the definition of family members under the Directive. The Court could have used its power to examine Germany’s national legislation or apply an analogous interpretation of article 3 of the Directive in order to provide a more substantial meaning of the family.
Secondly, the Court could have considered the case in the light of the traditionally wide range of protection offered to mobile economically active EU citizens and their accompanying family members. At least in terms of spirit, the judgment is at odds with those judgments in which the Court acknowledged ‘the importance for the worker, from a human point of view, of having his entire family with him […] and of the integration of the worker and his family into the host Member State without any difference in treatment in relation to nationals of that State’ (para. 68 Case C-413/99, Baumbast). With this in mind, the Court has extended the right of residence to the primary carer of the child of a migrant worker, even though this care-provider has been divorced from the worker (Baumbast) or had to rely on welfare benefits (Teixeira). Indeed, it could be argued that the Court leaves its traditional activism on achieving the objective of facilitating the mobility of migrant workers by combatting all discrimination they might face, including the possibility to bring over their companions, whether married or unmarried under EU law (see case 59/85, Reed).
In the light of this case law, the García-Nieto judgment not only confirms the Dano–Alimanovic line of jurisprudence, but also adds another dimension to the realization that the heyday of a justice-driven EU social citizenship is behind us.