Steve Peers

The UK government recently established a new income requirement for EU citizens from other Member States to be classified as “workers” and access certain benefits. This raises the question of whether these rules align with EU law regarding the free movement of workers and if modifications are necessary.

Under these regulations, EU citizens must earn a minimum of £150 weekly for at least three months to be considered “workers” and qualify for benefits such as child benefit, child tax credit, job-seekers’ allowance, and housing benefit. Failure to meet this threshold doesn’t automatically disqualify them from benefits but instead triggers a case-by-case evaluation.

Determining whether this constitutes a violation of EU law requires examination. The Court of Justice of the European Union (CJEU) has previously clarified the definition of a “worker” under EU Treaties, which guarantee the free movement of workers. Their stance emphasizes that even part-time employment qualifies, provided the work is “genuine and effective” and not “marginal or ancillary.” Notably, even those receiving top-up benefits could be considered “workers.” However, there’s no definitive rule on what constitutes an EU worker.

The new UK rules seem to establish a fixed criterion, potentially conflicting with CJEU case law. Based on previous rulings, it’s highly probable that the CJEU would recognize some individuals earning below £150 per week for three months as workers. They would likely object even more strongly if the rule mandates earning above this amount every single week instead of an average, although the rule’s precise interpretation remains unclear.

It’s worth noting that the new British rule isn’t absolute. It appears to establish a rebuttable presumption that individuals earning less than the stipulated amount aren’t considered workers. Consequently, its compatibility with the free movement of workers hinges significantly on its application in individual circumstances, which could be influenced by government-issued guidelines for civil servants responsible for implementation. The pivotal aspect is how this presumption can be refuted.

Therefore, the question of whether this new rule aligns with EU law depends on its practical application. While not entirely conclusive, this answer reflects the reality of legal interpretations. Nonetheless, challenging these rules through national courts and complaints to the Commission might offer valuable clarification regarding the EU definition of “worker.”

Should EU regulations concerning benefits for EU citizens be modified?

This leads to the second question: Should the rules change? While inherently political, this question operates within a legal framework. Given the close connection between these rules and the concept of a “worker,” a term enshrined in EU Treaties, any change necessitates a treaty amendment. Such an amendment requires unanimous agreement from all 28 Member States, potentially increasing to 29 if Scotland were to become independent.

Under normal circumstances, achieving unanimous agreement on a Treaty change that could negatively impact citizens working in other Member States is improbable. However, it’s conceivable that a limited clarification on worker access to benefits might be negotiated as part of a broader UK renegotiation of its EU membership terms. Such a change could potentially apply universally, finding support in other Member States and even bolstering public support for future EU enlargement.

One might argue that any limitations on the established rights of EU workers are inconceivable. However, consider the alternative: A Conservative government securing a significant majority in the 2015 UK general election could lead to renegotiation demands and a potential UK exit from the EU if not met. This scenario would essentially strip EU citizens of all rights within the UK, except for those negotiated under a hypothetical association agreement. Compared to calls for imposing quotas on EU citizen arrivals, a measured restriction on benefits for low-wage workers represents a less drastic measure. Is it time to contemplate the unthinkable?

Barnard & Peers: chapter 13