Former EU workers, school children, and the limits of social solidarity in the EU – Case C-181/19 Jobcenter Krefeld v JD
Note that at the time of writing this post, an English version of the judgment is not available.
On 6 October 2020, the Grand Chamber of the CJEU delivered an important decision clarifying and reinforcing the right to equal access to social assistance of Union citizens resident in a host Member State. More specifically, the decision concerns Union citizens resident on the basis of Article 10 of Regulation No. 492/2011 (Workers Regulation). According to Article 10 of the Workers Regulation, children of EU migrant workers enjoy a right of equal access to education in the host Member State. This right extends beyond the worker status of the parent, i.e. even when the EU citizen ceases to be a worker in the host state, his/her child continues to enjoy the right to education.
The new judgment builds on the previous expansive case law of the Court of Justice on this right and firmly distinguishes it from its Dano line of case law.
Before diving into the case, I will briefly explain the right provided by Article 10 of the Workers Regulation. The right to equal access to education can be broken down into three interdependent components:
- the right of equal access to education of the child of a migrant worker in the host Member State (this right continues even once the parent ceases to be a migrant worker – see Baumbast, para 69);
- the right of residence of that student in the host Member State (this continues even if the parent moves back to the home Member State – see Moritz and Echternach, paras 22-23); and
- the right of residence of the primary carer of that student in the host Member State (see Baumbast, para 71).
The Court of Justice has also previously held that Article 10 of the Workers Regulation applies independently from the residence requirements set out in Article 7 of Directive 2004/38 (Citizenship Directive). Consequently, the primary carer and student have to be granted a right of residence, even if they cannot, for example, show that they have sufficient resources or comprehensive health insurance, as is provided under Article 7(1)(b) of the Citizenship Directive (see Teixeira, paras 53 &70).
In Jobcenter Krefeld v JD, the Court of Justice has now added a fourth component: the right to equal access to social assistance.
JD is a Polish national and has two Polish national daughters. At end of 2012/beginning of 2013, the family moved to Germany and, since 2016, the children have attended school there. Since 2015, the father has been employed on-and-off in Germany. Since January 2018, JD is in full-time employment.
Between September 2016 and June 2017, JD and his daughters received social benefits to cover their subsistence costs. JD then applied for those benefits to be continued to be paid to his family. The local job centre (the applicant) rejected the request, arguing that JD’s residence as a jobseeker in Germany had elapsed and that he could therefore be excluded automatically from receiving further social assistance. Following two appeals, the case ended up before the referring court which, in essence, asked the Court of Justice the following questions:
- Does the right to reside under Article 10 of the Workers Regulation also entail a right to equal access to social assistance?
- May the right to equal treatment be derogated from based on Article 24(2) of the Citizenship Directive?
In its judgment, the Grand Chamber addresses the first question by reaffirming its previous case law on Article 10 of the Workers Regulation, holding that both the student and primary carer enjoy a right to reside in the host Member State which is not subject to the residence requirements set out in Article 7 of the Citizenship Directive (para 39). The Court then holds that EU citizens residing in a host Member State on the basis of Article 10 of the Workers Regulation also have the right to equal treatment under Article 7(2) of the same Regulation, even if they no longer hold the status of worker (paras 55 & 79). The mere fact that the defendant was unemployed at the time of his request for social assistance does not change this conclusion (para 47). Furthermore, the Court highlights that it is not only the parent that enjoys this right to equal treatment but also the child in education that needs to be treated equally (para 54).
As regards the second question, the Court clarifies that Article 24(2) of the Citizenship Directive does not apply to this case. Article 24(2) contains a derogation from Article 24(1) of the Citizenship Directive. The latter establishes a right to equal treatment for all EU citizens who reside in a host Member State on the basis of the Citizenship Directive. Article 24(2) provides that Member States may derogate from this entitlement to equal treatment during the first three months of residence (see Garcia-Nieto) and where a jobseeker has never entered the labour market or is no longer considered a worker (see Alimanovic). Could the Citizenship Directive not also apply in the defendant’s case? Yes, it could! Whilst the Citizenship Directive covers both economically active and inactive EU citizens, the Workers Regulation covers – as the name would suggest – workers (and, to a certain extent, their families, as is exemplified by Article 10). The present case illustrates that there is an overlap between the two pieces of legislation. The defendant is, in theory, covered both by the Citizenship Directive as a jobseeker and the Workers Regulation as the primary carer of his children in education. Thus, whilst the father in this present case might also be considered a jobseeker, the Court is very clear here: Article 24(2) of the Citizenship Directive is a derogation that may only be applied to EU citizens who reside in a host Member State solely based on the Citizenship Directive; it does not apply to or change the scope of the Workers Regulation (see paras 62-64). In other words, JD enjoys a right of equal treatment on the basis of the Workers’ Regulation which may not be derogated from based on the Citizenship Directive. Furthermore, the Court underlines how important it is that Union citizens can rely on both pieces of legislation which are not mutually exclusive. Anything else could mean that primary carers might be discouraged from also seeking work in a host Member State if they risked being excluded from the right to equal treatment (see para 71).
The case is a follow-up to the CJEU’s line of case law that started with Dano. It is yet another preliminary reference from a German court testing the limits of social solidarity for EU citizens residing in a host Member State.
As it happens, the facts in the present case bear similarities with the previous Alimanovic case, in which the Court focused only on the Citizenship Directive and the limits of the rights enjoyed as a jobseeker under Article 14(4)(b) of the Citizenship Directive. In this case, it did not address the fact that the applicant was also the primary carer of her two minor children in education and thus could benefit from Article 10 of the Workers’ Regulation. Admittedly, the national court had not referred a question on Article 10, however, as Advocate General Wathelet pointed out in his Opinion, this should not prevent “the Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in the questions.” (see his Opinion in Alimanovic, paras 117-122). This issue, nonetheless, was left unaddressed in the Court’s judgment. The CJEU’s silence in Alimanovic on Article 10 of the Workers Regulation was then, in fact, relied upon as an argument by the German government in the present case. The counsels took it to mean that Article 24(2) of the Citizenship Directive also applied to Article 10 of Workers Regulation. The Court of Justice has now firmly clarified this issue. Maybe this confusion could have been avoided if the Court had given a more complete interpretation of EU law in Alimanovic?
Overall, the present case should be applauded for being written clearly and well-argued. It carefully and undoubtedly distinguishes the present case from Dano and Alimanovic (see paras 68-71). It also addresses the persistent concerns of the Member States of ‘welfare tourism’ by pointing out that the number of potential beneficiaries of Article 10 is limited by the fact that only a child whose parent has entered the host labour market enjoys a right to equal access to education. Children of EU citizens who have moved to a Member State to look for employment are not covered by Article 10. Furthermore, the right is temporarily limited to the extent that it only lasts as long as the child is in education (para 75). Cases in which abuse of law can be proven are also not covered by Article 10 of the Workers Regulation (para 76).
Jobcenter Krefeld v JD is a break-away from the more restrictive interpretations of Union citizens’ rights and their access to social assistance in host Member States we have witnessed in recent years. Particularly noteworthy, in this context, is the fact that the Court emphasises not only the rights of the former worker and the importance of his/her integration into the host state’s society, but also the rights of the child. This case reinforces the effectiveness of the child’s right to education in the host Member State. As AG Pitruzzella rightly argues in his Opinion, an actual, effective right to equal access to education means that if a host Member State ensures that children who are nationals of that state have “dignified living conditions and conditions at school”, the same must be made available to children of (former) migrant workers (para 74).
Overall, this is a helpful judgment which sets clear limits to the Dano line of case law.