Steve Peers
The recent Court of Justice of the European Union (CJEU) decision in the Alimanovic case provides further clarification on EU citizens’ access to benefits in other Member States, a complex issue. Similar to last year’s Dano ruling, it takes a stricter stance than previous interpretations of EU law. However, like its predecessor, this judgment leaves some questions unanswered. This analysis will delve into the judgment itself, its implications for EU citizens’ access to benefits, and the UK government’s plans to renegotiate its EU membership.
Understanding EU citizens’ access to benefits requires differentiating between three key aspects: (a) the applicant’s employment status (e.g., not economically active, first-time job-seeker, previously employed, currently employed, permanent resident); (b) the type of benefit sought (social assistance or labor market access related); and (c) whether the dispute involves access to benefits or potential deportation.
The Judgment
The Alimanovic case centers on a Swedish woman and her daughter who, after a short period of employment in Germany, lost their jobs. They applied for a specific benefit in Germany, prompting the national court to seek clarification from the CJEU regarding their eligibility.
Initially, the Court reiterated and elaborated on its stance in the Dano case: the benefit in question was categorized as ‘social assistance,’ not one related to labor market access. This distinction is crucial because the EU Citizens’ Directive allows Member States to deny ‘social assistance’ to first-time job-seekers actively looking for work and to all EU citizens within their first three months of residency. Additionally, previous CJEU interpretations of the Treaty rules on free movement of workers establish that first-time job-seekers are entitled to labor market access benefits but not social assistance. The Alimanovic judgment indirectly mentions this precedent without reaffirming or rejecting it. Notably, a separate case concerning job-seekers’ access to the same benefit, Garcia-Nieto, is currently pending.
Next, the Court addressed whether EU citizens with brief prior employment in the host state could be denied social assistance. While not explicitly excluded from equal treatment regarding social assistance under the Citizens’ Directive, this doesn’t automatically guarantee their access.
To determine eligibility, the Court examined the Directive’s equal treatment principle. This principle applies to EU citizens ‘residing on the basis of this Directive’ and their families, barring specific exceptions outlined in the Directive, Treaties, or other EU legislation. The key question was whether the two applicants still qualified for residency under the Directive.
The Court concluded that they were no longer covered by the Directive as former workers. Since their employment lasted less than a year, the Directive grants them ‘worker’ status for a minimum of six months post-unemployment. Subsequently, Member States (as Germany did) can revoke this status. Without an alternative basis for residency, which wasn’t applicable in this case, they lose the equal treatment protection and access to social assistance. The national court also considered classifying them as first-time job-seekers, which the Court acknowledged as grounds for Germany to refuse social assistance under the Directive.
Furthermore, the Court differentiated this case from previous rulings requiring an individual assessment of an EU citizen’s potential for deportation or whether they place an ‘unreasonable burden’ on the host state’s social assistance system. In this instance, such assessment wasn’t necessary because the Citizens’ Directive already factored in the specific situation of workers. The defined period for retaining ‘worker’ status in the Directive and national law ensured legal clarity while adhering to the ‘principle of proportionality’. Regarding the ‘unreasonable burden’ aspect, the Court stated that individual claims weren’t the deciding factor; instead, the cumulative effect of all claims would inevitably strain national systems.
Comments
Similar to the Dano ruling, the CJEU refrains from explicitly overturning prior case law. However, it provides Member States with more leeway in justifying benefit denials than previously possible. The classification of the benefit as ‘social assistance’ aligns with the Dano case, postponing clarification on access to labor market-related benefits for various EU citizen categories.
Surprisingly, the Court simply adopted the Directive’s definition of ‘former worker.’ In last year’s Saint-Prix judgment, the Court maintained that the ‘worker’ definition stemmed from the Treaties, not secondary legislation, leaving its interpretation primarily to the Court. That ruling affirmed that women leaving work shortly before childbirth retain ‘worker’ status (and benefit access) under specific conditions. However, the Alimanovic judgment contradicts this by directly applying the Directive’s definition without addressing, overruling, or even acknowledging the previous ruling. While aligning with the Directive might promote legal certainty in this specific context, disregarding seemingly contradictory case law undermines overall legal clarity.
For context, the Directive mandates ‘worker’ status retention in situations like: temporary inability to work due to illness or accident (without further defining ’temporarily unable’), unemployment after working for more than a year if registered as a job-seeker with relevant authorities, or participation in vocational training linked to prior employment unless involuntarily unemployed.
Equally unexpected was the Court’s dismissal of the need for individual assessments of former workers’ situations, a point advocated by the Advocate-General. The Court distinguishes between the implicit requirement for individual assessments regarding deportation under the Directive and access to benefits. Additionally, the Court’s interpretation effectively nullifies the protection of residency rights for social assistance beneficiaries explicitly stated in the Directive. The judgment implies a conclusive presumption that any individual application for social assistance burdens national systems due to the cumulative effect of similar applications.
EU Citizens’ Access to Benefits and Deportation: Current Landscape
Following this judgment, it’s crucial to summarize the implications for various categories of EU citizens concerning their access to benefits and potential deportation:
(i) Not seeking work: Ineligible for social assistance or labor market benefits; no automatic deportation.
(ii) First-time job-seeker: Ineligible for social assistance, but entitled to labor market benefits; no deportation as long as actively seeking employment with a genuine chance of finding it.
(iii) Previously employed: Retain ‘worker’ status under conditions outlined in the Directive, or during maternity leave as per Saint-Prix, granting access to social assistance and labor market benefits; no deportation. If they don’t meet the criteria for retaining worker status, Alimanovic presumes the application of rules for first-time job-seekers.
(iv) Currently employed: Entitled to social assistance and labor market benefits; no deportation.
(v) Permanent residents (legally residing for over five years): Full equal treatment concerning benefits, and their status isn’t contingent on not applying for social assistance; no deportation.
It’s important to remember that any EU citizen can be deported on grounds of public policy, public security, or public health, subject to the Directive’s specific rules. The deportation references above pertain to grounds other than these. Permanent residents enjoy heightened protection against deportation on these grounds.
Implications for the UK’s Renegotiation of EU Membership
Finally, the pressing question: does this judgment impact David Cameron’s renegotiation of the UK’s EU membership? Last year, Cameron outlined nine objectives concerning the free movement of EU citizens, alongside objectives on other matters.
Analyzing these nine objectives in light of the recent judgment, particularly those relating to benefits for unemployed former workers and deportation of job-seekers, reveals that the judgment simplifies achieving the goal of restricting benefits for the former but reaffirms the challenges in altering deportation rules for the latter.
No access to tax credits, housing benefits, and social housing for four years for EU citizens:
For non-workers, non-job-seekers, and non-former workers: This aligns with the status quo established in Dano.
For job-seekers: Existing Treaties, as interpreted by the CJEU, require Member States to provide access to labor market-related benefits, likely excluding the benefits mentioned. This confirms the existing situation.
For workers (as defined by Treaties and CJEU interpretation) and former workers: They have a right to equal treatment. Altering this for workers necessitates a Treaty amendment. However, for former workers, the Alimanovic judgment suggests the EU legislature primarily determines when they retain ‘worker’ status. Therefore, amending secondary law could restrict their benefits access, though the CJEU highlighted the ‘principle of proportionality’ in this context.
Deportation of job-seekers failing to find employment within six months:
- For EU job-seekers: EU legislation, reflecting the CJEU’s interpretation of the Treaties (Antonissen judgment), prohibits deportation as long as they can prove ongoing job hunting with a genuine chance of success. This necessitates a Treaty amendment. The Alimanovic judgment reiterates this rule.
Unrestricted entry for non-EU family members:
- Not relevant to the Alimanovic judgment.
Stricter and longer re-entry bans for foreign rough sleepers, beggars, and fraudsters:
- Not relevant to the Alimanovic judgment. However, current legislation (Article 15(3) of the EU Citizens’ Directive) clearly prevents re-entry bans for those deported on grounds other than public policy, public security, or public health, specifically excluding economic reasons (Article 27(1)). Amending EU legislation could overturn this, but the CJEU might deem this disproportionately restrictive for those seeking work later. A Treaty amendment might be necessary.
Stronger measures to deport EU criminals:
- Not relevant to the Alimanovic judgment.
Longer waiting periods for free movement of persons from new Member States:
- Not relevant to the Alimanovic judgment.
Job offer prerequisite for entry for EU citizens:
- Not relevant to the Alimanovic judgment. The CJEU reiterated the current rule allowing EU citizen entry as job-seekers if they have a genuine chance of finding work. This proposal requires both legislative and Treaty amendments since the Antonissen ruling established job-seekers’ right to enter and stay in a Member State for job hunting as part of the free movement of workers.
No taxpayer support for job-seekers:
- Existing EU legislation already excludes social assistance for job-seekers, reflecting the status quo. However, the CJEU ruled that job-seekers with an existing link to a labor market are entitled to access relevant benefits. While David Cameron proposed excluding the UK’s future Universal Credit from the CJEU’s interpretation, this would likely face legal challenges. Thus, a Treaty amendment is necessary for existing rules and potentially for Universal Credit. For job-seekers who are former workers, Alimanovic simplifies denying social assistance and tightening rules through secondary EU law amendments.
Payment of child benefit to children abroad:
- Not relevant to the Alimanovic judgment. A separate case concerning UK restrictions on child benefit payments for children of some EU citizens residing in the UK (the ‘habitual residence’ test) is currently pending before the CJEU.
Barnard & Peers: chapter 13