Case C-67/14 Alimanovic: Entitlement to social assistance

The judgment in Case C-67/14 Alimanovic came out on 15 September 2015. This case raises similar questions with Case C-333/13 Dano (blogged here). The Court of Justice (“CoJ”) made here another clarification regarding entitlement to “social assistance” under (the Citizenship) Directive 2004/38.

The facts of Case C-67/14 Alimanovic can be summarised as follows: Nazifa Alimanovic and her three kids are all Swedish nationals (the first born in Bosnia and the three kids in Germany). The family left Germany in 1999 and came back to that State in 2010. Ms Alimanovic and her older daughter were in employment between 2010 and 2011 in temporary jobs lasting less than one year. During the period between December 2011and May 2012, Ms Alimanovic was paid family allowances for her two younger kids, subsistence allowance for the long-term unemployed and social allowances for beneficiaries unfit to work, i.e. the two younger kids. The case concerns the grant of the aforementioned benefits, payment of which the German administration decided to cease in respect of May 2012 as Ms Alimanovic and her older daughter were entitled to those benefits due to their status as foreign jobseekers whose right of residence stemmed solely from their search of employment.

The CoJ point of departure in the judgment is the classification of the benefits in question. The referring court characterised the benefits at issue as ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of Regulation No 883/2004. Those benefits are intended to cover subsistence costs for persons who cannot cover those costs themselves and that they are not financed through contributions, but through tax revenue. Since those benefits are moreover mentioned in Annex X to Regulation No 883/2004, they meet the conditions in Article 70(2) thereof, even if they form part of a scheme which also provides for benefits to facilitate the search for employment. The CoJ adds that, as is apparent from its case-law, such benefits are also covered by the concept of ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38. That concept refers to all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by an individual who does not have resources sufficient to meet his own basic needs and those of his family and who by reason of that fact may, during his period of residence, become a burden on the public finances of the host Member State which could have consequences for the overall level of assistance which may be granted by that State (judgment in Dano, paragraph 63).

However, the predominant function of the benefits at issue in the main proceedings is in fact to cover the minimum subsistence costs necessary to lead a life in keeping with human dignity. Thus, those benefits cannot be characterised as benefits of a financial nature which are intended to facilitate access to the labour market of a Member State (see, judgment in Vatsouras and Koupatantze, C‑22/08 and C‑23/08, paragraph 45) but must be regarded as ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38.

The question is whether a Member State is allowed under Article 24 of Directive 2004/38 and Article 4 of Regulation No 883/2004 nationals of other Member States who are job-seekers in the host Member State from entitlement to certain ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of Regulation No 883/2004, which also constitute ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38, although those benefits are granted to nationals of the Member State concerned who are in the same situation.

As regards access to social assistance, a Union citizen can claim equal treatment with nationals of the host Member State under Article 24(1) of Directive 2004/38 only if his residence in the territory of the host Member State complies with the conditions of Directive 2004/38 (judgment in Dano, C‑333/13, paragraph 69).

To accept that persons who do not have a right of residence under Directive 2004/38 may claim entitlement to social assistance under the same conditions as those applicable to nationals of the host Member State would run counter to an objective of the directive, set out in recital 10 in its preamble, namely preventing Union citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State (judgment in Dano, C‑333/13, paragraph 74).

In order to determine, the CoJ continues, whether social assistance, such as the benefits at issue in the main proceedings, may be refused on the basis of the derogation laid down in Article 24(2) of Directive 2004/38, it is necessary to determine beforehand whether the principle of equal treatment referred to in Article 24(1) of that directive is applicable and, accordingly, whether the Union citizen concerned is lawfully resident on the territory of the host Member State.

Two provisions of Directive 2004/38 may confer on job-seekers in the situation of Ms Alimanovic and her daughter Sonita a right of residence in the host Member State under that directive: Article 7(3)(c) and Article 14(4)(b).

As regards Article 7(3)(c) of Directive 2004/38 provides that if the worker is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first 12 months and has registered as a jobseeker with the relevant employment office, he retains the status of worker for no less than six months. During that period, the Union citizen concerned retains his right of residence in the host Member State under Article 7 of Directive 2004/38 and may, consequently, rely on the principle of equal treatment, laid down in Article 24(1) of that directive.

Union citizens who have retained the status of workers on the basis of Article 7(3)(c) of Directive 2004/38 have the right to social assistance, such as the benefits at issue, during that period of at least six months (Vatsouras and Koupatantze, paragraph 32).

However, it is not disputed that Ms Alimanovic and her daughter Sonita, who retained the status of workers for at least six months after their last employment had ended, no longer enjoyed that status when they were refused entitlement to the benefits at issue.

As regards Article 14(4)(b) of the Citizenship Directive, for Union citizens in the situation of Ms Alimanovic and her daughter Sonita, that provision provides that Union citizens who have entered the territory of the host Member State in order to seek employment may not be expelled for as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.

Ms Alimanovic and her daughter Sonita may rely on that provision to establish a right of residence even after the expiry of the period referred to in Article 7(3)(c) of Directive 2004/38, for a period, covered by Article 14(4)(b) thereof, which entitles them to equal treatment with the nationals of the host Member State so far as access to social assistance is concerned, it must nevertheless be observed that, in such a case, the host Member State may rely on the derogation in Article 24(2) of that directive in order not to grant that citizen the social assistance sought.

Thus, the host Member State may refuse to grant any social assistance to a Union citizen whose right of residence is based solely on Article 14(4)(b) of the Citizenship Directive.

Moreover, no individual assessment is necessary in a case such as that of Ms. Alimanovic, the CoJ stated: Directive 2004/38, establishing a gradual system as regards the retention of the status of ‘worker’ which seeks to safeguard the right of residence and access to social assistance, itself takes into consideration various factors characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity.

Lastly, the CoJ stated that, as regards the individual assessment for the purposes of making an overall appraisal of the burden which the grant of a specific benefit would place on the national system of social assistance at issue in the main proceedings as a whole, it must be observed that the assistance awarded to a single applicant can scarcely be described as an ‘unreasonable burden’ for a Member State, within the meaning of Article 14(1) of Directive 2004/38. However, while an individual claim might not place the Member State concerned under an unreasonable burden, the accumulation of all the individual claims which would be submitted to it would be bound to do so.

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