In light of the Dano judgment, when can unemployed EU citizens be expelled?

 

Steve Peers

Yesterday’s important CJEU judgment in Dano concerned an application for access to benefits, not expulsion. So it has no direct impact upon the latter issue. Nevertheless, it is possible that the judgment has an indirect impact on that issue, due to the Court’s interpretation of the EU citizens’ Directive.

Earlier this year, I wrote a detailed blog post on the issue of when unemployment could justify expulsions and entry bans of EU citizens. The following supplements that analysis in light of the Dano judgment.   

Rules on expulsion

The bulk of the rules on expulsion (and also denial of entry or exit) appear in Title VI of the EU citizens’ Directive, Articles 27-33. These rules concern expulsions or entry bans on grounds of ‘public policy, public security or public health’. However, they can’t be used to justify expulsions or entry bans of unemployed people, because Article 27(1) says that they ‘shall not be invoked to serve economic ends’.

Having said that, the Directive clearly does allow for the expulsion of unemployed EU citizens and their family members.  Article 15(1) states that some of the procedural rules applicable to expulsion on grounds of public policy, et al, ‘shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security and public health’ (my emphasis). On the other hand, the Directive clearly rules out entry bans for such persons: Article 15(3) states that ‘Member States may not impose a ban on entry in the context of an expulsion decision’ within the scope of Article 15(1).   

So when exactly can EU citizens and their family members be expelled other than on grounds of public policy, et al? Article 14(4) says that ‘an expulsion measure may in no case be adopted’ against EU citizens or their family members who are workers or self-employed persons, or who entered the territory as job-seekers, provided that (in the latter case) the EU citizens ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. So Member States can expel job-seekers, provided that the job-seekers fail to meet that particular condition.

What about former workers or self-employed persons, ie those who have lost their job in the host State? Article 7(3) specifies that the status of worker or self-employed person (and therefore, presumably, the protection against expulsion) is retained in a number of cases, such as retraining, or if the worker has worked for at least a year. Earlier this year, the CJEU confirmed that the list of cases where this status is retained is non-exhaustive: it also applies, for instance, to those who quit work due to maternity, for a limited period (see my analysis of the Saint-Prix judgment). But Member States could clarify in their national law that the status of worker or self-employed person is lost in any case where the Directive or the case-law permits it to be lost.

It should also be mentioned that once EU citizens or their family members become permanent residents, due to five years’ legal residence, they have full equal treatment as regards social assistance and need no longer meet the conditions which apply to the initial right of residence. So it obviously follows that they cannot be expelled on grounds of unemployment.

Another important rule in the Directive is Article 14(3), which specifies that ‘an expulsion measure shall not be the automatic consequence of…recourse to the social assistance system of the host Member State’ by the EU citizen or family member.

The impact of Dano

A key element of the Dano ruling was the scope of the equal treatment rule in the Directive, which applies to social assistance. The Court ruled that the equal treatment rule only applied where a person had a ‘right to reside’ under the Directive, ie the right to stay for an initial three-month period without any conditions besides holding a passport, or for a longer period if they are a worker, self-employed person, student or have ‘sufficient resources…not to become a burden on the social assistance system’. In the latter two cases, they must also have medical insurance; students must submit a declaration as regards sufficient resources. It should be noted that according to the Court’s case law, ‘sufficient resources’ need not be generated by the EU citizen himself or herself, but could be provided by someone else, such as a family member.

Does the Court’s ruling mean that persons without a ‘right to reside’ under these provisions of the Directive have no protection against expulsion? The answer is absolutely not: the judgment does not in any way prevent such persons from relying on the protection set out in Articles 14 and 15.

Let’s look at the reasons why that’s the case. First of all, there’s the wording of the judgment itself: the Court states that its ruling applies ‘so far as concerns access to social benefits’, as regards the ‘equal treatment’ rules. The Court is careful to refer to equal treatment and social benefits throughout its ruling, rather than exclusion from the scope of the Directive entirely.

Secondly, there’s the wording of the Directive, which the Court relies on to justify its ruling. The right to equal treatment in Article 24(1) applies to ‘all Union citizens residing on the basis of the Directive’. But no such qualification applies to Articles 14(3), 15(1) or 15(3).

Thirdly, there’s the overall logic of the Directive. As regards Article 15(1) and (3) in particular, since those who qualify for a right to reside cannot be expelled on grounds other than public policy et al, those provisions would have no meaning unless they applied to people who don’t have a right to reside. Similarly, since an application for social assistance could mean that the EU citizen loses a right to reside, Article 14(3) would have little or no relevance unless it applied to those without such a right.

Finally, the Court of Justice already ruled that EU law rules on expulsion protected those who did not have a right to reside under the EU free movement rules that preceded the Directive, in the Commission v Netherlands case. In particular, the Court ruled that:

To exclude from the benefit of those substantive and procedural safeguards [on expulsion] citizens of the Union who are not lawfully resident on the territory of the host Member State would deprive those safeguards of their essential effectiveness.

Logically the same applies here. Indeed, the rules on expulsions on grounds of public policy et al are also not limited in scope to those who have a ‘right to reside’ under the Directive, other than Article 28(2), which applies only to those who have permanent residence. This wording suggests an a contrario reading of the rest of the rules on expulsion.  

Types of residence in another Member State

It may sound odd to say that parts of the Directive (such as the expulsion rules) can be invoked by all EU citizens, whereas other parts of the Directive (such as the equal treatment rules) can be invoked only by those who have a ‘right to reside’ under it. But there are other circumstances in which EU citizens reside in another Member State, even if there is not a ‘right to reside’ under the Directive.

One such case is where they are children of a former worker, or the parent carer of such children. In that case, they will sometimes have rights not under the Directive, but under the separate Regulation on the free movement of workers (see the Alarape judgment).

Secondly, they might also have the right to reside under national law, but not EU law (see the Ziolkowski judgment), although their right to claim equal treatment as regards social assistance in such cases (developed since the judgment in Martinez Sala) seems to have been implicitly overruled by the Dano judgment, which links such equal treatment to the right to reside under the Directive only.

Thirdly, they might be residing irregularly on the territory of the host Member State.

Finally, they might have a child who has the nationality of the host State, due to a prior relationship with a national of that State. In that case, the interesting question arises whether there might be a parallel with the Ruiz Zambrano judgment, in which the Court ruled that the third-country national parent of an EU citizen child could not be expelled, since that would de facto result in the removal of an EU citizen from the territory of the EU. Could an analogous rule apply to the de facto removal of a national of the home Member State to the territory of another Member State? Or would that be unobjectionable, since the child in question would still, as an EU citizen, remain within the territory of the Union?

We can look forward to some interesting jurisprudence from the Court of Justice.

 

Barnard & Peers: chapter 13, chapter 16

Free movement and social benefits for economically inactive EU citizens: The Dano judgment in historical context

 

Géraldine Renaudière, Trainee at the CJEU, within the cabinet of the Court Vice-President, Koen Lenaerts. (This post reflects the author's view only). 

In yesterday’s judgment in Elisabeta Dano and Florin Dano v Jobcenter Leipzig, the CJEU once again addresses the highly sensitive issue of the exclusion by national legislation of economically inactive Union citizens, from special non-contributory cash benefits, although these are provided to nationals of the respective Member States who are in the same situation. One year after its controversial Brey decision, the Court attempts to redefine the relationship between two primordial EU law instruments: Directive 2004/38 on the right of citizens of the Union to move and reside freely within the territory of the Member States (the citizens’ Directive) and Regulation 883/2004 on the coordination of social security systems. The broader political context of the judgment has been discussed in the separate post by Steve Peers, but it is also important to examine the judgment in the historical context of the development of the case-law on EU citizens' access to benefits.

Background

In this regard, it might be noted that although the Maastricht Treaty marked an important milestone in the field of free movement of persons by expanding the right to move and reside freely within the EU (formerly the exclusive preserve of people exercising an economic activity) to all Union citizens, the traditional “economically-oriented” approach has never entirely disappeared from the EU legal landscape. So the right of free movement remains subject to limitations and conditions, as laid down in Articles 20, (2) and 21 TFEU. On several occasions, the CJEU was called upon to clarify those conditions (now specifically provided by Directive 2004/38) while at the same time it had to deal with the closely related issue of the (equal) access for EU citizens to social assistance and minimum subsistence benefits in the State of residence.

The least one can say is that, so far, the Court hardly achieved the right balance between the rights of economically inactive migrants and the legitimate interest of Member States to protect their welfare systems from so-called benefit tourism. Even more, it has caused further confusion regarding the very existence of a “right” to social benefits for European students, retired people or in a particular state of need. The question now is whether the Dano judgment departs from the previous logic and to what extent it ensures greater legal certainty and a fairer balance of the interests at stake.

Judgment

In the case at hand, the Sozialgericht Leipzig of Germany requested a preliminary ruling in a case concerning the refusal from the German authorities to grant Mrs. Dano and her son, Romanian nationals and non-economically active, subsistence benefits, social allowance as well as contribution to accommodation and heating costs. In reply to questions raised by the national judge, the Court starts to recall that such “special non-contributory cash benefits” fall within the scope Article 4 of Regulation 883/2004. This provision, corresponding to the specific expression of the principle of non-discrimination embodied in Article 18 TFEU (applying to Union citizens who invoke in the host Member State such category of social benefits) must however in the present case be interpreted in the light of Article 24 of Directive 2004/38 which sets out an equal treatment rule for Union citizens exercising their right to move and reside freely within the EU territory.

Essentially following the Advocate General’s observations, the Court admits for the first time that when it is apparent that the applicant does not meet the conditions set out in Article 7(1) of Directive 2004/38 (i.e. does not have sufficient resources to meet his own basic needs and the needs of his family) he does not fall within the scope ratione personae of Article 24(1) and (2) of the Directive. Therefore, as far as social benefits are concerned, a Union citizen is not entitled to claim equal treatment with nationals of the host Member State once it is established that his right of residence in the territory of that State does not comply with the conditions of the Directive 2004/38.

Comments

In a series of judgments rendered prior to the entry into force of Directive 2004/38, the usual approach adopted by the CJEU was to consider the right to equal treatment and non-discrimination on grounds of nationality in the host State as the corollary of the status of citizen of the Union, both principles being consecrated by the TFEU (see the Martinez Sala judgment). In that sense, it enabled those who found themselves in the same situation to enjoy the same treatment in law, irrespective of their nationality, and therefore to be granted social assistance benefits (minimex or family benefits) independently of a right to reside and to move freely within the territory of the Member States in the meaning of EU Law (see the Grzelczyk and Trojani judgments). Regarded as a cornerstone of Union citizenship, only restrictive and proportionate differential treatments were deemed acceptable whilst forgetting that Article 18 TFEU additionally requires a situation to fall “within the scope of application of the Treaties”.

Having been criticised for this “too generous” approach, the Court progressively allowed more flexibility to Member States which, depending on the case, could render the access to social benefits for economically inactive EU migrants conditional upon the demonstration of a genuine link to the employment market (Collins and Vatsouras), a certain degree of integration into the host society by the person concerned (Bidar and Forster) or temporary financial difficulties unlikely to place an unreasonable burden on the State’s public finances (Grzelczyk again).

While this balanced and individual approach is to be welcomed, this case-law, still referring to vague and general concepts and leaving a wide margin of appreciation to national authorities, somewhat undermined the legal certainty and predictability of the Court’s decisions. Yet the Court adopted the same logic in Brey, albeit the issue at stake was a bit more complex. In that case, a compensatory supplement was refused to a retired German national on the ground that he didn’t have sufficient resources to establish his lawful residence in Austria in the meaning of Article 7 (1) (b) of Directive 2004/38 while the benefit requested was listed among the “special non-contributory benefits” provided by Regulation 883/2004.  

According to the Court in its Brey judgment, Member States remain free to determine the conditions to be met in order for inactive EU migrants to receive such benefits, notably having a legal right to reside for more than three months within the meaning of EU law. But paradoxically, when assessing whether such conditions have been fulfilled, national authorities must take into account additional elements, especially the social benefit requested (in this case, intended to ensure minimum means of subsistence of the person concerned: see Skalka) and assess whether being eligible for such benefit could jeopardize the right of residence of the migrant and place an unreasonable burden on the national social assistance system as a whole.

 

In such circumstances, it appeared almost impossible to clearly define the beneficiaries of those special non-contributory benefits. On the contrary, the judgment in Dano (also dealing with the relationship between the Directive and the Regulation, especially in terms of equality of treatment) is much less confusing on that point: Member States can decide to exclude inactive European Union citizens from accessing non-contributory benefits when they do not have a proper right of residence pursuant to Article 7(1) of Directive 2004/38. More importantly, the condition of having sufficient resources not to become an “unreasonable” burden on the social assistance system of the host Member State, is to be appreciated in the light of individual circumstances but without taking into account of the social benefits claimed.

 

By proceeding in this way, the Court clearly distinguishes people who have acquired a legal right of residence of more than three months, but who, owing to circumstances, are temporarily unable to fulfill the necessary conditions, from people who have arrived in a Member State without fulfilling such conditions and are therefore not entitled to rely on equality of treatment to get (unconditional) access to such benefits. Any other interpretation would, in the Court’s view, defeat the object and purpose of the Directive 2004/38 seeking to prevent economically inactive citizens from using the host Member State’s welfare system to fund their means of subsistence.

 

It remains now to be seen whether this last case, beyond the legal clarification, will put an end to the practical difficulties which might result from the interpretation of concepts such as “sufficient resources” or “unreasonable burden” (when the very right of residence within EU law is contested or when financial issues of the inactive migrant are no longer “temporary”…) and whether, in practical terms, a fair and reasonable balance between EU inactive migrants’ rights and Member States’ legitimate interests has finally been achieved…

 

Barnard & Peers: chapter 13, chapter 16