Steve Peers

The ability of EU citizens to move freely between Member States, often referred to as ‘immigration,’ has sparked significant political debate, particularly in the UK. Access to benefits for these individuals remains a point of contention. The Court of Justice of the European Union (CJEU) has an opportunity to provide clarity on key aspects of this issue in the upcoming case of Alimanovic. An Advocate-General recently issued a non-binding opinion on this case.

While the CJEU’s final judgment may differ from the Advocate-General’s opinion, if adopted, it could complicate the Conservative party’s strategy for renegotiating the UK’s EU membership. Even if the outcome of the upcoming UK general election renders the Conservative party’s plans irrelevant, the CJEU’s judgment will still be relevant to the Labour party’s less ambitious plans to limit EU citizens’ access to benefits.

Background

In November 2014, the CJEU ruled in the well-known Dano case that unemployed EU citizens who move to another Member State are not entitled to social benefits if they are not actively seeking work. This ruling did not apply to other groups of unemployed EU citizens: those who move to another Member State to seek employment and those who have previously worked in that Member State but have become unemployed. This current opinion addresses these two groups.

The EU citizens’ Directive states that unemployed EU citizens looking for work in another Member State cannot receive social assistance benefits from that Member State if they have no prior work history there. However, the CJEU has previously ruled that these individuals can invoke the free movement of workers rules within the EU Treaty to claim benefits related to the labor market.

Regarding EU citizens who have worked in a Member State and subsequently become unemployed, the Directive states that they retain worker status (and therefore access to benefits, including social assistance) if they have worked there for over a year. This status is retained for six months if they worked for less than a year. However, relying again on the Treaty’s free movement rules, the CJEU has ruled that worker status can be retained in other situations, like women taking a short break for maternity leave.

The Conservative party’s stance is that EU citizens working in a Member State should wait four years before accessing tax credits, social housing, housing benefits, and any taxpayer-funded job-seeker support. These points represent the first and eighth of Prime Minister Cameron’s nine objectives for renegotiating UK’s EU membership concerning ‘migration’ from other EU countries. The Labour party, however, believes EU citizens should only wait two years for benefits.

This particular case involves Swedish citizens (a mother and her children) who previously resided in Germany, left for several years, and then returned. The mother and oldest child worked in Germany for a short period and subsequently became unemployed. The central question is whether they are entitled to benefits.

The Opinion

The Advocate-General first clarifies that the benefits in question are categorized as social assistance, not labor-market related. Consequently, only former workers, not job-seekers, are generally eligible. However, this analysis reaffirms the existing rule that, according to the Treaty, job-seekers are entitled to labor-market-related benefits.

Next, the Advocate-General examines whether individuals who become unemployed after brief periods of work in a host Member State can be considered former workers, thus retaining access to social assistance benefits, even in situations not explicitly covered by the Directive. He argues that, based partly on the EU Treaties, they can be considered former workers, and any Member State that refuses to grant such benefits automatically violates EU law. Instead, Member States must assess benefit requests on a case-by-case basis, considering whether a sufficient link to that State’s labor market exists.

Comments

If the CJEU adopts the Advocate-General’s opinion, both the Conservative and Labour parties will face challenges in their attempts to renegotiate UK membership regarding EU citizens’ access to benefits. The crucial difference lies in whether the renegotiation involves amending the Treaty, which requires unanimous agreement from all Member States and national ratification, a far more difficult process than amending EU legislation like the citizens’ Directive, which requires a qualified majority of Member States, a proposal from the Commission, and agreement from the European Parliament.

Firstly, the opinion reiterates that, according to the Treaty, all job-seekers are entitled to labor-market-related benefits. Overturning this rule would necessitate a Treaty amendment.

Secondly, the opinion asserts that the Treaty mandates that former workers may be eligible for benefits on a case-by-case basis if they stop working in circumstances not specified in the Directive. This interpretation goes beyond the current situation, where the CJEU has only established this for women taking maternity leave. The workers in this case were employed in Germany for periods significantly shorter than the four-year waiting period proposed by the Conservatives or even the two-year period supported by Labour.

It remains to be seen whether the Court will endorse this opinion or opt for a judgment more clearly reflecting the political sensitivities surrounding unemployed EU citizens’ access to benefits, as it did in the Dano judgment.

Barnard & Peers: chapter 13