EU law imposes that persons travelling to a host Member State must have ‘sufficient resources or sickness cover’ so as to not become a ‘burden’ on the host Member State’s finances if they intend to reside for a period exceeding three months. However, in any cases economically inactive Citizens are able to reside freely in a host Member State and are also eligible to apply for ‘special non-contributory benefits’.[122] Recital 16 of 883/2004 specifically provides that ‘within the Community there is in principle no justification for making social security rights dependent on the place of residence of the person concerned.’ The aim of Regulation 883/2004 is to coordinate special non-contributory benefits so that European Union Citizens who invoke their free movement rights have their social security entitlements protected. However, EU law requires that certain objectives are upheld so as to ensure that the application of EU law in different national systems does not harm persons who exercise their free movement rights.[123] Receiving such benefits ‘should contribute towards improving their standard of living and conditions of employment’.[124] However, Social security regulations 883/2004EC does explicitly recognize that awards of social benefits are a matter of national law.[125] Furthermore, article 4 of the 883/2004EC Directive provides that ‘persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof’. Thus, it can be implied that a person moving to the host Member State will receive equal treatment.
The relevance of Article 18 TFEU together with Article 4 of 883/2004 is that the Court of Justice of the European Union (hereinafter-CJEU) oftentimes intervenes to uphold Treaty rights, specifically on non-discrimination which override the ‘sufficient resource’ criteria enshrined in Directive 2004/38EC. For example, in Trojani[126] the claimant, though not a worker in the context of Workers Directive 1612/68 (now repealed by 492/2011), was awarded the ‘minimex’ which is the minimum subsistence allowance, because he took up various jobs for about 30 hours per week for which he received board, lodging and some ‘pocket money’.[127] Trojani did not derive a right to receive social benefits under EU law since he was unable to establish self-sufficiency, however he was lawfully resident in the host Member State as he had resided there for a while, had a residence permit which the national ‘authorities’[128] had approved of, and thus he could not be denied benefits. It is the substance rather than the explicit form that enabled him to receive benefits. He was allowed to receive equal treatment under article 21 of TFEU where the Court accepted that a ‘quasi-constitutional requirement, may be interpreted and thereby particularized, but not annulled or undermined by secondary law.’[129]
In Vatsouras[130] students were allowed to receive jobseekers allowance in the host Member State as long as they were able to show that they were ‘genuinely’ seeking employment.
In the key case of Brey[131] it was established that national legislation which ‘automatically bars’[132] an economically inactive Citizen from receiving non-contributory benefits merely due to not possessing ‘sufficient resources’ was declared as contravening with EU law.[133] Accordingly, the citizen must become an ‘unreasonable burden’[134] on the host Member State’s welfare system and in no case will expulsion become an automatic consequence.[135] Furthermore, the CJEU held that nothing in Regulation 883/2004, or in the Directive, allows a Member State from entitling SNCB based on the claimant’s legal right to reside.[136] Thus, there must be individual examination of the burden which includes that the authorities granting such social assistance must act ‘in accordance with the requirements under, inter alia, Articles 7(1)(b) and 8(4) of that [2004/38] Directive and the principle of proportionality – an overall assessment of the specific burden which granting that benefit would place on the social assistance system as a whole by reference to the personal circumstances characterising the individual situation of the person concerned’.[137] So, what does the decision in Brey teach us? Citizens invoking their free movement rights who have no right to reside under national law but have mitigating circumstances, ought not to be considered an unreasonable burden on the host Member State.
However, it is usually the case that the strict eligibility criteria[138] under social security regulation 883/2004EC applying to EU Citizens, together with the total strict eligibility criteria under directive 2004/38, makes benefit tourism difficult in practice.[139] Where an EU Citizen migrates to a host Member State ‘solely in order to obtain another Member State’s social assistance’[140] he/she will be denied assistance.
The CJEU has asserted worker status can be ascertained when there is ‘real link or an ‘economic’ link for EU Citizens to be eligible for receiving social benefits. However, this does not wholly preclude economically inactive EU Citizens from freely residing within a host Member State. Economically inactive Citizens will have the right to apply for SNCBs under 883/2004[141] so as to make them available to the labour market, if they are involuntarily unemployed and lack sufficient resources, provided that they too, can demonstrate a real link with the host Member State. Article 7(3) of the Citizens Directive specifically states that a worker status will be retained if a Citizen is involuntarily unemployed, after having been in employed for a year and be registered as a jobseeker. This criteria can be compared to the transitional measure of registering for work in the UK under the Worker Registration Scheme in relation to Eastern European nationals. Yet, the UK Courts have indicated their unwillingness to grant social benefits to those contrary to statement in Collins that a ‘the criterion cannot [for denying social benefits] be a monolithical one. Rather, in its application, there has to be room for considering other indications of integration, such as the individual circumstances of the applicant, and for taking into account the degree of solidarity requested’.[142]
[1] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 32 [2] F Pennings, ‘EU Citizenship: Access to Social Benefits in Other EU Member States’ (2012) 28(3) IJCLLIR 307 [3] Chalmers and Davies and Monti, European Union Law (4th edn, Cambridge University Press 2010) 447 [4] CEE countries consist of the following: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia who joined EU joined the EEC following enforcement of the Accession Treaty on 1st May 2004 (also referred to as EU10); whereas Romania and Bulgaria joined the EEC on 1st January 2007 (also referred to as EU2) [5] P Larkin, ‘The Limits to European Social Citizenship in the United Kingdom’ (2005) 68(3) MLR 435, 446 [6] Chalmers (n 3) 449 [7] A host Member State is defined as ‘the Member State to which a Union Citizen moves in order to exercise his/her right of free movement and residence’ as per article 2(3) of Directive 2004/38EC [8] Article 14 of Directive 2004/38EC [9] Emphasis added [10]M Dougan and E Spaventa, ‘Educating Rudy and the non-English patient: a double bill on residency rights under Article 18 EC’ (2003) 28(5) ELR 699 [11] K Puttick, ‘Paying their way? Contesting "Residence", self-sufficiency, and economic inactivity barriers to EEA nationals' social benefits: proportionality and discrimination’ (2011) 25(3) JIANL 280, 282 [12] A Wiesbrock, ‘Union Citizenship and the Redefinition of the "Internal Situations" Rule: The Implications of Zambrano’ (2011) 12(11) GLR 2077, 2081 [13] Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47 [14] The European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 [15] Austria, Belgium, Denmark, Finland, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden and the United Kingdom (also referred to as ‘EU10’ countries) [16] European Citizen Action Service, ‘Who’s afraid of the EU’s latest enlargement? The Impact of Bulgaria and Romania joining the Union on Free Movement of Persons’ (2008) Sixth Framework Research Programme Liberty and Security <http://www.libertysecurity.org/IMG/pdf_ECAS_REPORT_free_movement_in_2007.pdf> accessed 3 March 2015 [17] P Goodman, ‘Under this Government, we have what Gordon Brown called for during his – ‘British jobs for British workers’ (2013) Consevative Home <‘http://www.conservativehome.com/thetorydiary/2013/02/by-paul-goodmanthe-most-convincing-explanation-of-why-the-economys-rickety-condition-is-marching-in-step-with-booming-emplo.html> accessed 15 March 2015 [18] M Jouen and C Papant, ‘Social Europe in the throes of enlargement’ (2005) Policy Papers No 15 Notre Europe Etudes & Recherches <http://www.institutdelors.eu/media/policypaper15-en-jouen-palpant-europesocialandenlargement.pdf?pdf=ok > accessed 3 March 2015 [19] Ibid [20] V Mitsilgas ‘Free movement of workers, EU citizenship and the enlargement: the situation in the UK’ (2007) 21(3) JIANL 223, 225 [21] B Smith, ‘Eastern European immigrants 'overwhelming benefit UK economy’ (2013) The Telegraph <http://www.telegraph.co.uk/news/uknews/immigration/10484225/Eastern-European-immigrants-overwhelming-benefit-UK-economy.html> accessed 7 March 2015 [22] Ibid (n 4) on for full list of countries [23] See (n 15) for full list [24] See Article 24, Act of Accession [2003] OJ L236/33 refers to a series of Annexes that contain the details of the transitional arrangements in respect of each accession Member State. For example, in relation to Poland see Annex XII [2003] OJ L236/875 [25] S Currie, ‘Challenging the UK rules on the rights of EU8 workers’ (2009) 31(1) JSWFL 47, 48 [26] The Accession (Immigration and Worker Authorisation) Regulations 2006, s 6(1) [27] HM Revenue and Customs, ‘CBTM10070 - Residence and immigration: residence - right to reside in the UK’ (2015) <http://www.hmrc.gov.uk/manuals/cbtmanual/cbtm10070.htm> accessed 7 March 2015 [28] Ibid [29] Part II (Articles 18-25) of the Treaty on the Functioning of the European Union (TFEU) [30] Ibid (n 27) [31] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [32] K Puttick (n11) 284 [33] Article 4 of The European Parliament and Council Regulation 883/2004/EC of 29 April 2004 on the coordination of social security systems [2004] OJL 116 [34] E Guild and S Carrera and K Eisele, Social benefits and migration: A Contested relationship and policy challenge in the EU (Centre for European Policy Studies) (2013) 9 [35]Article 2 of The Treaty of Rome 1947 [36] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 [37] Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 [2009] 2 CMLR 3 [38] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783 [39] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [40] K Puttick (n 11) 292 [41]C Barnard, The Substantive Law of the EU - The Four Freedoms (4th edn, Oxford University Press 2010) 223 [42] The Treaty on European Union (TEU) was signed in Maastricht on 7 February 1992 and came into force on 1 November 1993 [43] The European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77 [44] A Wiesbrock, ‘Union Citizenship and the Redefinition of the "Internal Situations" Rule: The Implications of Zambrano’ (2011) 12(11) GLR 2077, 2081 [45] Case C-378/97 Wijsenbeek [1999] ECR I-6207, Opinion of A.G. Cosmas, paras 86 [46] S O'Leary, ‘Putting Flesh on the Bones of European Union Citizenship’ (1999) 24 ELR 68, 68 [47] Article 20 (1) of TFEU [48] Case C-212/06 Flemish Insurance [2008] ECR I-1683, para 33 [49] Case C-175/78 Saunders [1979] ECR I- 1129, para 11 [50] Case C-127/08 Metock v Minister for Justice [2008] ECR I - 6241, para 78 [51] This was implemented in the UK by the Immigration (EEA) Regulation 2006 (SI 2006/1003) [52] Article 1 of Directive 2004/38EC [53] Article 288 of the TFEU [54] Article 14(2) of Directive 2004/38EC [55] Case C-34/09 Ruiz Zambrano [2011], para 42 [56] K Puttick (n 11) 292 [57] Case C-209/03 Bidar [2005] ECR I-2119 [58] Ibid para 51 [59] Recital 23 of Directive 2004/38EC [60] Case C-85/96 Martínez Sala v Freistaat Bayern [1998] [61] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 115 [62] Article 24 of Directive 2004/38EC [63] Case C-406/04 De Cuyper v Office national de l’emploi [2006] para 42 [64] Ibid para 43 [65] Case C-145/09 Land Baden-Wurttemberg v Tsakouridis [2010] ECR I-11979, para 50 [66] Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I -2703, para 30 [67] Ibid 40 [68] R White, ‘Free movement, equal treatment, and Citizenship of the Union’ (2005) 54(4) ICLQ 885, 897 [69] Article 6(2) of 2004/38EC [70] Article 6(1) of Directive2004/38EC [71] Article 16(1) of Directive2004/38EC [72] Article 3(i) of Treaty of Rome 1947 [73] Ex Article 39 TEC [74] Case C-334/94 Commission v France – Registration of Vessels [1996] ECR I-1307, para 21 [75] Case C-66/85 Lawrie-Blum [1986] ECR I-2121; see also Case C-196/87 Steymann [1988] ECR I-6159 [76] Case C-413/01 Ninni-Orasche [2003] ECR I-13187, para 32 [77]Case C-14/09 Genc v Land Berlin Case [2010] 2 CMLR 44 [78] Case C-41/71 Van Duyn v Home Office [1971] ECR I -1337, 1352 [79] Ibid [80] REGULATION (EU) No 492/2011 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 5 April 2011 on freedom of movement for workers within the Union (codification) (Text with EEA relevance) [2011] OJ L141 [81] The European Parliament and Council Regulation 1612/68 on freedom of movement for workers within the Community [1968] OJ L257/2 [82] Article 7(1) workers regulation 492/2011 [83] Article 9 of workers regulation 492/2011EC [84] Ibid, Article 7(2) [85] Ibid [86] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [87] Case Analysed in-depth in Chapter 5 [88] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448, para 24 [89] Article 14 of Directive 2004/38EC [90] Case C-363/89 Danielle Roux v Belgian State [1991] ECR I-273, 16 [91] Article 3(2)(a) of 2004/38EC [92] Ibid [93] Ibid, Article 24 [94] Case C-34/09 Ruiz Zambrano [2011] ECR I-01177 [95] A TCN is someone who is not an EU Citizen [96] Case C-34/09 Ruiz Zambrano [2011] ECR I-01177, para 44 [97] Article 7(3)(b) of Directive 2004/38EC [98] Article 45(2) of TFEU [99] Article 24(2) of Directive 2004/38EC [100] Ibid, Article 14(4)(b) [101] Case C-138/02 Collins v Secretary of State for Work and Pensions [2004] ECR I -2703 [102] Ibid, para 63 [103] Case C-209/03 R(Bidar) v Ealing London Borough Council[2005] QB 812 [104] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ECR 1-7091 [105] Ibid, para 94 [106] Article 8(4) of Directive 2004/38EC [107] Article 8(4) of Directive 2004/38EC [108] Ibid, Article 14(3) [109] Ibid [110] Recital 23 of Directive 2004/38EC [111] Ibid, Article 14 [112] Ibid, Recital 16 [113] P Minderhoud, ‘Legislative Comment-Directive 2004/38 and access to social assistance benefits’ [2011] 18(4) JSSL 153, 156 [114] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [115] Ibid, 643 [116] Ibid,663 [117] Ibid, 663 [118] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 32 [119] Ibid, 652 [120] C O’Brien, ‘Real links, abstract rights and false alarms: the relationship between the ECJ's ‘real link’ case law and national solidarity’ (2008) 33(5) ELR 643 [121] Ibid, 655 [122] Recital 37 of 883/2004EC [123] Rectal 1 of 883/2004EC [124] Ibid [125] Ibid, Recital 24 [126] Case C-456/02 Trojani v Centre publique d'Aide sociale de Bruxelles [2004] ECR I-7573 [127] Ibid para 37 [128] K Puttick (n 11) 284 [129] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 135 [130] Case C-22/08 Vatsouras v ARGE Nürnberg [2009] ECR I-04585 [131] Case C-140/12 Pensionsversicherungsanstalt v Brey [2014] ECR 00000 [132] Ibid, para 77 [133] Ibid, para 80 [134] Article 14 of Directive 2004/38EC [135] Case C-184/99 Grzelczyk v Centre Public d'Aide Sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 43 [136] C-140/12 Pensionsversicherungsanstalt v Brey [2014] paras 39 [137] Ibid, para 77 [138] Strict conditions are regulated by Title III, Chapter 6, Articles 61-65 of Regulation 883/2004EC [139] Case C-333/13 Dano v Leipzig [2014] [140] Ibid, para 78 [141] Recital 37 of Regulation 883/2004EC [142] Lenaerts and Heremans, ‘Contours of a European Social Union in the Case-Law of the European Court of Justice’ (2006) 2 Eur. Consititut. Law Rev. 101. [143] K Puttick (n 11) 292 [144] Regulation 6(1) of Immigration (European Economic Area) Regulations 2006 ‘worker, self-employed, jobseeker, self-sufficient person or student’ [145] Model example is given in Income Support (General) Regulations 1987 21AA where a list of ‘persons not from abroad’ [146] Article 13(3)(b) of Immigration (European Economic Area) Regulations 2006 [147] Accession (Immigration and Worker Registration) Regulations 2004 (Introductory text) [148] S Currie (n 25) 53 [149] K Puttick (n 11) 282 [150] P Larkin, ‘A policy of inconsistency and hypocrisy: United Kingdom social security policy and European Citizenship’ (2010) 31(1) JSWFL 33, 35 [151] Ibid, 39 [152] Ibid, 37 [153] Ibid [154] Ibid [155] S Currie (n 25) 56 [156] P Larkin, (n150) 42 [157] For the full accurate list please see paragraph 17 of Schedule 7 to the Income Support (General) Regulations 1987 [158] P Minderhoud ‘Legislative Comment-Directive 2004/38 and access to social assistance benefits’ [2011] 18(4) JSSL 153, 156 [159] Nessa v Chief Adjudication Officer (1999) 4 All ER [160] P Larkin, (n150) 37 [161] Trojani para 18 [162] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783, para 61 [163] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11 [2011] 1 WLR 783 para 46 [164] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573 [165] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573, para 71 [166] Case C-333/13 Dano v Leipzig [2014], para 76 [167] EU Commission Notice IP/10/1418 Free Movement of Workers: Commission Requests UK to End Discrimination on other Nationals' Right to Reside as Workers (Brussels: 28 October 2010) [168] Puttick (n 11) 292 [169] Accession Monitoring Report 2004-2008 (Home Office/UKBA et al, 2008) p 23 [170] Report from the Commission to the European Parliament and the Council on the Application of Directive 2004/38/EC on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States', Brussels 10.12.09 COM (2008) 840 Final [171] Case C-413/99 Baumbast and R v Secretary of State for the Home Department [2002] ] ECR 1-7091 [172] F Weiss and C Kaupa, European Union Internal Market Law (1st edn, Cambridge University Press 2014) 201 [173] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24, para 69 [174] Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310 [2009] 2 CMLR 3 [175] Case C-507/12 Jessy Saint Prix v Secretary of State for Work and Pensions [2014] PTSR 1448 [176] Section 17 of Schedule of the Income Support (General) Regulations 1987 [177] Section 5 of Immigration (European Economic Area) Regulations 2000. [178] Article 16(3) of Directive 2004/38EC [179] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 [180] Regulation 2(4) of Accession (Immigration and Worker Registration) Regulations 2004 [181] Section 5 of The Accession (Immigration and Worker Registration) Regulations 2004 [182] Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 para 36 [183] Ibid para 39 [184] Ibid para 44 [185] Ibid para 44 [186]Zalewska v Department for Social Development [2008] UKHL 67 [2009] 1 CMLR 24 Para 79 [187] Ibid para 29 [188] Ibid para 49-56 [189] Ibid para 48 [190] S Currie (n 25) 54 [191] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783 [192] SI 2002/1792 [193] Ibid reg (4) that ‘A person is not to be treated as not in Great Britain if he is - (a) a worker … (b) a self-employed person…’ and is otherwise within the scope of the directive. [194] Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11; [2011] 1 WLR 783 para 20 [195] Regulation 2 of 2002 states A person is to be treated as not in Great Britain if he is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, [196] Case C-73/08 Bressol v Gouvernement de la Communaute Francaise [2010] 3 CMLR 20 [197] Ibid para 60-62 [198] Ibid para 104 [199] Ibid para 103 [200] Case C-456/02 Trojani v Centre publique d’Aide sociale de Bruxelles [2004] ECR I-7573 [201] K Puttick (n 11) 292 [202] K Puttick (n 11) 292 [203] K Puttick (n 11) 292 [204] S Currie (n 25) 56 [205] S Currie (n 25) 57 [206] S Currie (n 25) 57 [207] S Currie (n 25) 52 [208] Case C-53/81 Levin [1982] ECR-I 1035 [209] S Currie ‘”Free" movers? The post-accession experience of accession-8 migrant workers in the UK’ (2006) 31(2) ELR 207, 226 [210] K Puttick (n 11) 284 [211] Article 4 of 883/2004EC [212] Article 2 of The Treaty of Rome 1947 [213] Case C-333/13 Dano v Leipzig [2014], para 74 [214] Case C-34/09 Ruiz Zambrano [2011], Opion of AG Eleanor Sharpston para 127-129 [215] K Puttick (n 11) 292 [216] Accession Monitoring Report 2004-2008 (Home Office/UKBA et al, 2008
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