Eu Citizens’ Access To Benefits: The Cjeu Clarifies The Position Of Quondam Workers

Steve Peers

Today’s CJEU judgment inwards Alimanovic clarifies in 1 lawsuit to a greater extent than the important of the European Union constabulary rules on the thorny number of European Union citizens’ access to benefits inwards closed to other Member State. Like final year’s judgment inwards Dano (discussed here), it takes a to a greater extent than restrictive approach than suggested past times the Court’s prior illustration law. However, similar that prior judgment, today’s ruling leaves closed to issues open. I volition hash out inwards plough the judgment itself, the impact on European Union citizens' access to benefits, in addition to the United Kingdom of Great Britain in addition to Northern Ireland of Britain in addition to Northern Republic of Ireland government's plans to renegotiate the country's European Union membership. 

As a starting point, on the number of European Union citizens’ access to benefits, it is of import to brand distinctions equally regards iii issues: (a) the status of the mortal applying for the do goodness ((i) non economically active; (ii) first-time job-seeker inwards the host State; (iii) previously employed inwards the host State; (iv) currently inwards work; (v) permanent resident); (b) the type of do goodness at number (social assistance, or concerning access to the labour market); in addition to (c) whether the dispute concerns access to benefits or expulsion of the mortal concerned.

The judgment

The Alimanovic illustration concerns a Swedish adult woman in addition to her immature lady who had worked inwards Federal Republic of Federal Republic of Germany briefly, so lost their jobs. They sought a special do goodness inwards Germany, in addition to the national courtroom asked the CJEU if they were entitled to it.

First of all, the Court reiterated in addition to expanded on what it had said inwards Dano: the do goodness inwards query was a ‘social assistance’ benefit, non a do goodness relating to labour marketplace access. This distinction is of import because the European Union citizens’ Directive states that access to ‘social assistance’ benefits tin shipping away hold upwards denied to first-time job-seekers, for equally long equally they are seeking work, in addition to to all European Union citizens during their start iii months of residence. Furthermore, the Court’s previous illustration constabulary (interpreting the Treaty rules on costless displace of workers) states that start fourth dimension job-seekers were entitled to benefits relating to labour marketplace access, but non to social assistance benefits. The Court references that illustration constabulary obliquely inwards the Alimanovic judgment, but does non either reaffirm or denounce it; it should hold upwards noted that a illustration virtually job-seekers’ access to this same do goodness is pending (Garcia-Nieto: reckon the Advocate-General’s persuasion inwards that illustration here).

Secondly, the Court so turned to the query of whether European Union citizens who were previously briefly employed inwards the host State could hold upwards denied social assistance benefits. The previously employed are non 1 of the ii categories of people specifically excluded from equal handling to social assistance benefits past times the citizens’ Directive; but that does non necessarily hateful that they possess got access to those benefits.

To create upwards one's heed whether they had access to those benefits, the Court interpreted the equal handling dominion inwards the Directive, which states that equal handling applies to all those European Union citizens ‘residing on the footing of this Directive’ in addition to their menage unit of measurement members (leaving aside the exclusions which were already mentioned, equally good equally other exclusions inwards the Treaties or other European Union legislation). So were the ii do goodness claimants residing on the footing of the Directive?

The Court ruled that they were non notwithstanding covered past times the Directive equally erstwhile workers, since the Directive says that those who run inwards the host State for less than 1 yr (as inwards their case) retain ‘worker’ status for at to the lowest degree vi months after becoming unemployed. After that point, a Member State tin shipping away (as Federal Republic of Federal Republic of Germany did) terminate their worker status, which agency (unless they possess got closed to other footing to stay, which was non relevant inwards this case) they are no longer covered past times the equal handling rule, in addition to lose access to social assistance benefits. The national courtroom also took the see that they could hold upwards classified equally first-time job-seekers, although the Court pointed out that inwards that case, the Directive expressly permits Federal Republic of Federal Republic of Germany to reject access to social assistance benefits.

Next, the Court distinguished prior illustration constabulary which requires an private assessment of whether an European Union citizen could hold upwards expelled or is an ‘unreasonable burden’ on the social assistance arrangement of the host State. In this case, no such assessment was needed, because the citizens’ Directive already took line of piece of work concern human relationship of the private seat of workers. The specific menses of retaining worker status laid out inwards the Directive in addition to national constabulary ensured legal certainty, piece ‘while complying amongst the regulation of proportionality’. Finally, when considering whether at that spot was an ‘unreasonable burden’ on national systems, the private claim did non count: rather the total of all claims would hold upwards ‘bound to’ flora such a burden.

Comments

As inwards Dano, the CJEU does non expressly overturn prior illustration law, but makes it easier for Member US to justify refusal of benefits than mightiness otherwise possess got been the illustration nether prior illustration law. (See past times analogy the comparing of Dano amongst prior illustration constabulary here). It’s unsurprising that the do goodness at number is ‘social assistance’, equally the Court previously assumed inwards Dano, although this postpones whatsoever farther clarification of the questions of access to labour-market related benefits for the diverse categories of European Union citizens.

However, it’s rather to a greater extent than surprising that the Court but applies the Directive’s Definition of erstwhile workers. As lately equally final year, inwards its judgment inwards Saint-Prix (discussed here), the Court insisted that the concept of ‘worker’ was laid out inwards the Treaties, non secondary legislation, in addition to so it vicious mainly to hold upwards defined past times the Court. In that ruling, the Court asserted that a adult woman who gave upwards run exactly earlier giving nascency retained ‘worker’ status (and so access to benefits) nether sure as shooting conditions. Yet inwards today’s judgment, the Court but follows the Directive’s Definition of erstwhile worker, without overruling or distinguishing (or fifty-fifty mentioning) the prior judgment. Certainly, equally the Court said, next the precise wording of the Directive on this signal promotes legal certainty; but it hardly promotes legal certainty to but ignore plainly conflicting lines of illustration law.

For the record, the other circumstances inwards which the Directive requires ‘worker’ status to hold upwards retained are where: the worker is ‘temporarily unable to work’ due to disease or accident (the words ‘temporarily unable’ are non farther defined); the worker is unemployed after to a greater extent than than 1 year’s work, if he or she is ‘registered equally a job-seeker amongst the relevant work office’; or the worker has begun vocational training, although this must hold upwards linked to the worker’s prior work unless the worker is involuntarily unemployed.

Equally, it’s surprising that the Court ruled out a requirement for an private assessment of the erstwhile worker’s position, which the Advocate-General had advocated (see give-and-take here). The Court draws a distinction betwixt the private assessment which the Directive implicitly requires equally regards expulsion (more on expulsion of the unemployed after the Dano judgment here) in addition to the number of access to benefits. And the protection of the correct of residence which the European Union legislature expressly laid out for beneficiaries of social assistance inwards the Directive has effectively been removed past times the Court’s interpretation inwards today’s judgment, which seems to laid out an irrebuttable presumption that whatsoever private application for social assistance constitutes an ‘unreasonable burden’ on national systems, due to the applications made past times other people inwards the same situation.

EU citizens’ access to benefits in addition to expulsion: where do nosotros stand?

It’s useful to summarise where nosotros stand upwards after this judgment equally regards diverse categories of European Union citizens’ access to benefits in addition to expulsion.

(i) non seeking work: non entitled to social assistance, or labour marketplace benefits; no automatic expulsion;

(ii) first-time job-seeker inwards the host State: non entitled to social assistance, entitled to labour marketplace benefits; no expulsion equally long equally they tin shipping away demo testify of job-seeking in addition to genuine lead chances of employment;

(iii) previously employed inwards the host State: retain worker status on weather laid out inwards the Directive, or during intermission from work due to motherhood on weather laid out inwards Saint-Prix; thus notwithstanding entitled to social assistance or labour marketplace benefits; no expulsion; if they do non run across the weather to retain worker status, Alimanovic assumes that the rules on first-time job-seekers apply past times analogy;

(iv) currently inwards work: entitled to social assistance or labour marketplace benefits; no expulsion.

(v) permanent residents (those resident for to a greater extent than than v years legally): total equal handling regarding benefits in addition to their status is no longer dependent on non applying for social assistance; no expulsion.

   

Of course, whatsoever European Union citizen tin shipping away hold upwards expelled on grounds of world policy, world safety or world health, dependent area to the detailed rules inwards the Directive; the references to expulsion higher upwards refer to expulsion on other grounds. Permanent residents possess got enhanced protection against expulsion on grounds of world policy, world safety or world health.

Implications for the UK’s renegotiation of European Union membership

Finally, this brings us to the elephant inwards the room: does today’s judgment possess got whatsoever implications for David Cameron’s renegotiation of the UK’s European Union membership? Last year, Cameron outlined nine objectives specifically related to the costless displace of European Union citizens (he also has objectives on other issues, equally discussed here).

I examined those nine objectives inwards special at the fourth dimension (see here). Let’s hold off at those nine objectives again, inwards low-cal of today’s judgment. I possess got underlined the impact which the judgment mightiness possess got on sure as shooting issues (I haven’t copied all of the prior analysis, but solely those parts which mightiness hold upwards affected past times the judgment). As nosotros tin shipping away see, inwards full general the judgment makes it easier to attain the negotiation objectives of curtailing the benefits of erstwhile workers who are instantly unemployed, but it reaffirms the difficulty of changing rules relating to expulsion of job-seekers.

1. No access to taxation credits, housing benefits in addition to social housing for 4 years for European Union citizens

For European Union citizens who are non workers, work-seekers or erstwhile workers, this confirms the status quo, equally laid out inwards Dano.

For European Union citizens who are work-seekers, the costless displace of workers inwards the Treaties (as interpreted past times the CJEU) requires Member US to laissez passer on them access to benefits linked to labour-market participation. These benefits would in all likelihood non hold upwards covered past times that rule. So this confirms the status quo.

For European Union citizens who are workers (as defined past times the Treaties in addition to CJEU interpretation) or erstwhile workers (as defined past times European Union legislation, in addition to the CJEU interpretation of the Treaties), at that spot is a correct to equal treatment.  As regards workers, changing this dominion would require a Treaty amendment. However, equally regards erstwhile workers, the Alimanovic judgment implicitly suggests that it is to a greater extent than oft than non upwards the European Union legislature to create upwards one's heed when they retain the status of ‘worker’. So potentially access to benefits could hold upwards curtailed for erstwhile workers past times agency of amending secondary law – although the CJEU did refer to the regulation of proportionality inwards this context.

2. Removal if job-seekers do non detect a chore inside vi months

For European Union job-seekers, the European Union legislation states that they cannot hold upwards expelled equally long equally they ‘can furnish testify that they are continuing to seek work in addition to that they possess got a genuine lead chances of beingness engaged’. This reflects the illustration constabulary of the CJEU, interpreting the Treaties (Antonissen judgment). Therefore this modify would require a Treaty amendment. The Alimanovic judgment reaffirms this dominion inwards the legislation.

3. Ending the entry of non-EU menage unit of measurement members without restrictions

Not relevant to the Alimanovic judgment.

4. Tougher in addition to longer re-entry bans for unusual petroleum sleepers, beggars in addition to fraudsters

Not relevant to the Alimanovic judgment. But complaint that re-entry bans are non possible at the 2nd for petroleum sleepers in addition to beggars: Article 15(3) of the EU citizens’ Directive states unambiguously that a ban on entry cannot hold upwards imposed where a mortal was expelled for grounds other than world policy, world safety in addition to world health; in addition to Article 27(1) states clearly that such grounds ‘cannot hold upwards invoked to service economical ends’. This dominion could perhaps hold upwards overturned by EU legislative amendment, but it is possible that the CJEU would detect that this would flora a disproportionate restriction on costless displace for those who were entering to obtain run later. So a Treaty amendment might hold upwards needed.

5. Stronger measures to comport European Union criminals

Not relevant to the Alimanovic judgment.

6. Longer waiting periods for costless displace of persons from novel Member States

Not relevant to the Alimanovic judgment.

7. European Union citizens to possess got a chore offering earlier entry

Not relevant to the Alimanovic judgment. But the CJEU reiterated the electrical current dominion inwards European Union legislation that European Union citizens tin shipping away remain if they are a job-seeker, dependent area to the proviso that they possess got a genuine lead chances of getting work. So this proposal would require a legislative amendment and a Treaty amendment, since the CJEU has said (in Antonissen) that the Treaty correct to costless displace of workers also applies to job-seekers, giving them the correct to move into in addition to remain inwards a Member State to hold off for work.

8. No taxpayer back upwards for job-seekers

The European Union legislation already rules out social assistance for job-seekers, so this reflects the status quo. However, the CJEU has said that job-seekers possess got a correct to access benefits linked to labour marketplace participation, if they possess got a link already amongst the labour marketplace inwards question. While David Cameron suggested that the UK’s hereafter Universal Credit would non autumn inside the reach of the CJEU’s illustration law, that would probable hold upwards challenged inwards practice. So a Treaty amendment is probable necessary equally regards electrical current rules, in addition to perhaps necessary equally regards universal credit. As regards job-seekers who are erstwhile workers, the Alimanovic judgment makes it easier to deny them social assistance, in addition to to tighten the rules to this halt past times agency of amending secondary European Union law, equally discussed above.

9. Payment of kid do goodness to children abroad

Not relevant to the Alimanovic judgment. But complaint that at that spot is a illustration pending earlier the CJEU on the dissever query of the UK’s restrictions on payment of kid do goodness to children of closed to European Union citizens living inwards the United Kingdom of Great Britain in addition to Northern Ireland of Britain in addition to Northern Republic of Ireland (the ‘habitual residence’ test).

Barnard & Peers: chapter 13

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