Opinion of the Advocate General — ECLI:EU:C:2015:666
Date: 2015-10-06
Language of the case: English
Subject matter: Social security for migrant workers
Procedure: Action for failure to fulfil obligations - unfounded
Origin: United Kingdom

Summary 99. In conclusion, I consider that it does not constitute discrimination prohibited by Article 4 of Regulation No 883/2004 if national legislation provides that, when examining claims for social benefits such as child benefit or child tax credit, the Member State’s authorities may carry out the checks necessary to ensure that nationals of other Member States claiming those benefits are lawfully resident in its territory. However, for that purpose, the authorities responsible for carrying out those checks will, in any case, from the procedural point of view, have to observe the principles described above, in particular the principle of proportionality, as well as the provisions of the second paragraph of Article 14(2), Article 15(1) and Articles 30 and 31 of Directive 2004/38. V – Costs 100. Since I propose that the action should be dismissed, in accordance with Article 138(1) of the Rules of Procedure of the Court of Justice, the Commission must be ordered to pay the costs. VI – Conclusion 101. In the light of the foregoing, I therefore propose that the Court should: (1) dismiss the action; (2) order the European Commission to pay the costs. 1 – Original language: Spanish. 2 – Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 (OJ 2004 L 166, p. 1). 3 – C‑140/12, EU:C:2013:565. 4 – C‑333/13, EU:C:2014:2358. 5 – C‑67/14, EU:C:2015:597. See also the Opinion of Advocate General Wathelet in García Nieto and Others, C‑299/14, EU:C:2015:366. 6 – Directive of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77). 7 – C‑140/12, EU:C:2013:565. 8 – In reality, as the United Kingdom points out, the habitual residence test (to which the other social benefits referred to in the reasoned opinion are indeed subject but do not form part of the subject-matter of the action for failure to fulfil obligations), is not applicable to the benefits at issue in this case, where the requirement is that the claimant ‘must be in the United Kingdom’. One of the conditions that a claimant must meet in order to be regarded as being ‘in the United Kingdom’, besides being physically present and ordinarily resident there, is to have a right of residence there. 9– As opposed to ‘stay’, which, according to Article 1(k) of Regulation No 883/2004, means ‘temporary residence’. 10– In reality, the test to determine whether the claimant is in the United Kingdom. See footnote 8. 11– C‑73/08, EU:C:2009:396. The Advocate General’s reasoning was not endorsed in the judgment in Bressol and Others (C‑73/08, EU:C:2020:181), where the Court held that the difference in treatment in question constituted indirect discrimination (paragraph 47). 12– C‑140/12, EU:C:2013:565. In that judgment, the Court concluded that ‘the Austrian compensatory supplement to the old-age pension’ with which that case was concerned was to be considered both a ‘special non-contributory cash benefit’ for the purposes of Regulation No 883/2004 and a ‘social assistance benefit’ for the purposes of Directive 2004/38. For that reason, it held to be consistent in principle with EU law the fact that, in the case of Union citizens, entitlement to that compensatory supplement was conditional upon their demonstrating that they had a ‘legal right to reside in Austria’, so as to ensure that paying that benefit to economically inactive Union citizens did not impose an unreasonable burden on Austria’s finances. That said, it is in any event necessary to examine the particular circumstances of the case in question in order to determine whether the grant of the benefit at issue to a person in Mr Brey’s situation might represent an unreasonable burden on the national social assistance system. 13 – Paragraph 35 of the defence. 14 – Paragraph 36 of the defence. 15– C‑140/12, EU:C:2013:565. 16– C‑140/12, EU:C:2013:565, paragraphs 71 to 78. 17– C‑140/12, EU:C:2013:565. 18– In French, ‘prestations sociales’, which is the same as ‘social benefits’. 19– C‑140/12, EU:C:2013:565, paragraphs 63 to 80. 20– C‑140/12, EU:C:2013:565, paragraph 44. 21– C‑333/13, EU:C:2014:2358. 22– C‑140/12, EU:C:2013:565. 23– C‑333/13, EU:C:2014:2358, paragraph 73. 24– C‑140/12, EU:C:2013:565, paragraphs 63 to 80. 25– Paragraph 21 of the rejoinder. 26– See, in particular, page 3 of the United Kingdom’s reply to the reasoned opinion. 27– Regarding child benefit, see, for Great Britain, Section 146 of the Social Security Contributions and Benefits Act 1992 and Section 23 of the Child Benefit (General) Regulations 2006 [as amended by the Child Benefit (General) and the Tax Credits (Residence) (Amendment) Regulations 2014] and, for Northern Ireland, Section 142 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and Section 27 of the aforementioned Child Benefit (General) Regulations (as amended). 28– See details on https://gov.uk/child-benefit, the UK Government website which explains how this benefit works. According to the information on that website, child benefit is currently GBP 20.72 per week for the first child and GBP 13.70 per week for each subsequent child. See also https://www.citizensadvice.org.uk/benefits/children-and-young-people/benefits-for-families-and-children/#h-child-benefit, which gives practical details of how to claim and obtain this benefit. 29– Regarding the residence requirement for child tax credit, see Section 3 of the Tax Credits (Residence) Regulations 2003 (as amended by the Child Benefit (General) and the Tax Credits (Residence) (Amendment) Regulations 2014). 30 – Despite its name, child tax credit is a regular payment made by the competent authorities into the beneficiary’s bank account and which apparently requires the beneficiary to be a taxpayer. The website https://www.gov.uk/child-tax-credit/what-youll-get does not give a specific sum, because the amount received will depend on the particular personal and family circumstances. More details on how this tax credit works can be found on https://www.citizensadvice.org.uk/benefits/children-and-young-people/benefits-for-families-and-children/#-child-benefit. 31– Paragraph 6 of the United Kingdom’s defence. 32– Judgment in Hoever and Zachow (C‑245/94 and C‑312/94, EU:C:1996:379), paragraph 27. See also the judgment in Hughes (C‑78/91, EU:C:1992:331), paragraph 22. It is true that the amount of child tax credit depends on family income and the number of children, and ceases to be paid when that income exceeds a given level, but the Court has already held in the judgment in Hughes (C‑78/91, EU:C:1992:331), paragraph 17, that it does not follow that the grant of the benefit is dependent on an individual assessment of the claimant’s personal needs, which is a characteristic feature of social assistance, since the criteria applied are objective, legally defined criteria, which, if met, confer entitlement to the benefit, the competent authority having no power to take account of other personal circumstances. 33– See the judgment in Hughes (C‑78/91, EU:C:1992:331), paragraph 21. 34– See, in that regard, Lenaerts, K., and van Nuffel, P., European Union Law, 3rd edition, London: Sweet and Maxwell, 2011, p. 269, and Eichenhofer, E., Sozialrecht der Europäischen Union, 3rd edition, Berlin: Erich Schmidt, pp. 49 and 50 and p. 68 et seq. 35– Regarding the content of the principle of equal treatment and the prohibition of discrimination on grounds of nationality in the specific area of EU law on social security, see Husmann, M., ‘Diskriminierungsverbot und Gleichbehandlungsgebot des Art. 3 VO 1408/71 und der Artt. 4 and 5 VO 883/2004’, Zeitschrift für europäisches Sozial- und Arbeitsrecht, No 3, 2010, p. 97 et seq., and Bokeloh, A., ‘Die Gleichbehandlung der Staatsangehörigen in der Europäischen Sozialrechtskoordinierung’, Zeitschrift für europäisches Sozial- und Arbeitsrecht, No 10, 2013, p. 398 et seq., and also Eichenhofer, E., op. cit., p. 82 et seq. and the bibliography and case-law cited therein. 36– A feature of the system of conflict rules contained in Regulation No 883/2004 is that it has the effect of divesting the legislature of each Member State of the power to determine the ambit and the conditions for the application of its national legislation, so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned (judgment in Ten Holder, 302/84, EU:C:1986:242, paragraph 21). 37– See, by analogy, the judgment in Brey (C‑140/12, EU:C:2013:565), paragraph 38 et seq. 38– The Court has already held that the term ‘residence’ for those purposes means ‘habitual residence’, that is, the place in which the persons concerned habitually reside and in which the habitual centre of their interests is to be found, and thus constitutes an autonomous concept particular to EU law (judgments in B., C‑394/13, EU:C:2014:2199, paragraph 26, and Swaddling, C‑90/97, EU:C:1999:96, paragraphs 28 and 29). 39– See, in particular, the judgments in Swaddling (C‑90/97, EU:C:1999:96), paragraph 29, and Wencel (C‑589/10, EU:C:2013:303), paragraph 45 et seq. 40– Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1). 41– Both in the case of child benefit and that of child tax credit, in order to be entitled to those benefits, the relevant national legislation requires the claimant ‘to be in the United Kingdom’ (literally ‘is in Great Britain’ or in Northern Ireland). It subsequently states that that requirement is fulfilled only if the claimant (a) is physically in the United Kingdom, (b) has his habitual residence in the United Kingdom and (c) has a right of residence in the United Kingdom. Thus, those benefits will not be granted if the claimant does not have a right of residence in the United Kingdom because, in that case, under Section 23(4) of the Child Benefit (Residence) Regulations 2006 and Section 3(5) of the Tax Credits (Residence) Regulations 2003, in conjunction with Section 146 of the Social Security Contributions and Benefits Act 1992, that person is considered ‘not to be in’ the United Kingdom. 42– The United Kingdom expressly recognises this in paragraph 32 of its defence and paragraph 7 of its rejoinder. 43– C‑140/12, EU:C:2013:565. 44 – C‑333/13, EU:C:2014:2358. 45– See also the recent judgment in Alimanovic (C‑67/14, EU:C:2015:597), to which the parties have not made reference because it was delivered after the hearing in the present case. 46– C‑140/12, EU:C:2013:565. 47– C‑333/13, EU:C:2014:2358. 48– It should be borne in mind that, in the case of economically inactive citizens, it is Directive 2004/38, in particular Article 7(1)(b) thereof, which sets out the circumstances which the host Member State must verify in order to determine whether a person claiming the social benefits at issue in this case (which fall within the material scope of Regulation No 883/2004) is legally resident within its territory. 49 – C‑67/14, EU:C:2015:597, paragraph 43. 50– See, in particular, the judgment in Brey (C‑140/12, EU:C:2013:565), paragraph 58 et seq. 51– Thus, as Advocate General Wathelet stated in point 96 of his Opinion in Dano (C‑333/13, EU:C:2014:341), inevitably introducing ‘potential unequal treatment in the granting of social assistance benefits between nationals of the host Member State and other Union citizens’. 52– C‑333/13, EU:C:2014:2358, paragraph 57. 53– Judgments in Grzelczyk (C‑184/99, EU:C:2001:458), paragraph 31; D’Hoop (C‑224/98, EU:C:2002:432), paragraph 28; and N. (C‑46/12, EU:C:2013:97), paragraph 27. 54– Judgments in Dano (C‑333/13, EU:C:2014:2358), paragraph 59; and N. (C‑46/12, EU:C:2013:97), paragraph 28, inter alia. 55– C‑333/13, EU:C:2014:2358, paragraph 60. 56– See, inter alia, the judgments in Baumbastand R (C‑413/99, EU:C:2002:493), paragraph 84 et seq.; Trojani (C‑456/02, EU:C:2004:488), paragraph 31 et seq.; and Brey (C‑140/12, EU:C:2013:565), paragraphs 46 and 47. 57– Explanations relating to the Charter of Fundamental Rights, OJ 2007 C 303, p. 17. 58– See, in that regard, the judgment in Wencel (C‑598/10, EU:C:2013:303): those principles, which underlie the provisions for the coordination of national social security legislation, are closely connected with freedom of movement for persons, the most important principle of which is that the activities of the European Union are to include, in particular, the abolition, as between Member States, of obstacles to freedom of movement for persons (paragraph 39). 59– Regulation No 883/2004 does not harmonise Member States’ social security legislation, so that it is still for the Member States to decide what benefits they will grant to whom and subject to what conditions and how their social security systems are to be funded. That Regulation is in principle without prejudice to the substantive conditions that each Member State may establish for the purpose of granting the social security benefits coordinated by the Regulation, provided that they observe the common principles laid down therein (see, to that effect, the judgment in Brey, C‑140/12, EU:C:2013:565, paragraph 41 and the case-law cited). 60– As the Commission itself recognised at the hearing. 61– See also the Opinion of Advocate General Wathelet delivered in Dano (C‑333/13, EU:C:2014:341), point 90. 62– C‑140/12, EU:C:2013:565, paragraphs 46 and 47. 63– C‑333/13, EU:C:2014:2358, paragraph 60 et seq. 64 — C‑67/14, EU:C:2015:597. 65– See paragraph 33 of its application. 66– Paragraph 32 of the application. 67– The Court has on many occasions addressed the relationship between the free movement of Union citizens who are economically inactive or seeking employment and their entitlement to various kinds of social benefits. See, in particular, inter alia, the judgments in Martínez Sala, C‑85/96, EU:C:1998:217; Grzelczyk, C‑184/99, EU:C:2001:458; D’Hoop, C‑224/98, EU:C:2002:432; Collins, C‑138/02, EU:C:2004:172; Trojani, C‑456/02, EU:C:2004:488; Bidar, C‑209/03, EU:C:2005:169; Vatsouras and Koupatantze, C‑22/08 and C‑23/08, EU:C:2009:344; and the judgments in Brey, C‑140/12, EU:C:2013:565; Dano, C‑333/13, EU:C:2014:2358; and Alimanovic, C‑67/14, EU:C:2015:597. 68– In that regard, I cannot agree with the Commission’s assertion in paragraph 18 of its reply that, with regard to social security benefits such as those at issue in this case, the test of lawful residence introduces a barrier to movement that would not occur if solely a test of habitual residence were applied. 69– See, in particular, the judgment in Martínez Sala (C‑85/96, EU:C:1998:217), paragraph 63 [‘a citizen of the European Union, lawfully resident in the territory of the host Member State can rely on Article 6 of the Treaty in all situations which fall within the scope ratione materiae of Community law’ (emphasis added)], a finding that is repeated verbatim in the judgments in Grzelczyk, C‑184/99, EU:C:2001:458, paragraph 32, and Bidar, C‑209/03, EU:C:2005:169, paragraph 32, paragraph 46 of which states that ‘Article 3 of Directive 93/96 does not preclude a national of a Member State who, by virtue of Article 18 EC and Directive 90/364, is lawfully resident in the territory of another Member State where he intends to start or pursue higher education from relying during that residence on the fundamental principle of equal treatment enshrined in the first paragraph of Article 12 EC’ (emphasis added). See also the judgment in Trojani (C‑456/02, EU:C:2004:488), in which, before going on to examine the effects of the principle of equal treatment in Mr Trojani’s case, points out that he ‘is lawfully resident in Belgium’ (paragraph 37). 70– C‑140/12, EU:C:2013:565, paragraph 44, which has been the subject of intensive discussion between the parties during these proceedings. 71– C‑333/13, EU:C:2014:2358, paragraph 69. 72 – Irrespective of the fact that, since the judgment in Alimanovic (C‑67/14, EU:C:2015:597) quotes paragraph 69 of the judgment in Dano (C‑333/13, EU:C:2014:2358), the language it uses is more precise in that it refers to ‘access to social assistance, such as that at issue in the main proceedings’ (paragraph 49). 73– See, in that regard, the judgment in Dano (C‑333/13, EU:C:2014:2358): ‘any unequal treatment between Union citizens who have made use of their freedom of movement and residence and nationals of the host Member State with regard to the grant of social benefits is an inevitable consequence of Directive 2004/38’ (paragraph 77), which cites the Opinion of Advocate General Wathelet delivered in that case (C‑333/13, EU:C:2014:341), points 93 and 96. 74– Regarding permanent residence, see also Article 19 of Directive 2004/38. 75– A purpose which the Court has deemed lawful since the judgment in Grzelczyk (C‑184/99, EU:C:2001:458), paragraph 44. It should be borne in mind that the aim of protecting public finances is not strictly economic, but rather that the Court associates it with the indirect objective of protecting the overall level of assistance that the State in question is able to offer (judgments in Bidar, C‑209/03, EU:C:2005:169, paragraph 56, Brey, C‑140/12, EU:C:2013:565, paragraph 61 and Dano, C‑333/13, EU:C:2014:2358, paragraph 63). 76– Paragraph 37 of the defence. 77– C‑140/12, EU:C:2013:565, especially paragraph 69. 78– It should be recalled that, under Article 14(2) of Directive 2004/38, ‘Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein. In specific cases where there is a reasonable doubt as to whether a Union citizen or his/her family members satisfies the conditions set out in Articles 7, 12 and 13, Member States may verify if these conditions are fulfilled. This verification shall not be carried out systematically’. 79– According to the statements made by the United Kingdom, these checks are carried out as follows: the claimant has to complete the claim form with information which may be used to determine whether he has a right of residence in the United Kingdom; once they receive the form, the authorities responsible for deciding whether to grant the benefits then carry out the relevant checks; in specific cases, the authorities require claimants to produce evidence to show whether they actually have the right of residence as shown by the information provided in the form. 80– It should be borne in mind that this procedure applies not only to Union citizens, but also to third-country nationals, who may be entitled to the family benefits in question if they have a right of residence in the United Kingdom and fulfil the requirements of being present in and having their habitual residence in that State. 81– Loss of the right of residence in the host Member State under Directive 2004/38 is an automatic consequence of failure to fulfil the requirements set out therein. 82– Article 15(1) of Directive 2004/38 provides that ‘[t]he procedures provided for by Articles 30 and 31 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 or public health’. As Advocate General Wahl points out in his Opinion delivered in Brey (C‑140/12, EU:C:2013:337), ‘Union citizens undoubtedly enjoy the procedural guarantees referred to in Article 15 of the Directive, which cannot be circumvented through proceedings which deal not only with that person’s entitlement to a benefit, but also with his right of residence altogether’ (point 93). 83– Despite what the German-language version of Article 7(1)(b) of that directive appears to indicate; see, in that regard, the Opinion of Advocate General Wahl delivered in Brey (C‑140/12, EU:C:2013:337), point 74 et seq. 84– C‑140/12, EU:C:2013:565, paragraph 64 et seq. I also agree with the argument put forward by Advocate General Wathelet in his Opinions delivered in Alimanovic (C‑67/14, EU:C:2015:210), point 107 et seq., and García Nieto (C‑299/14, EU:C:2015:366), point 85 et seq., to the effect that the national authorities should also take account for that purpose of other representative elements that demonstrate a real link between the Union citizen and the host Member State (ultimately, whether he is socially and economically integrated into that State which, in the final analysis, is what the United Kingdom asserts that it wishes to ensure), such as the fact of having worked in the past, a previous contribution history, dependent children in education (see the findings by the Court in the judgment in Ibrahim, C‑310/08, EU:C:2010:89) or the existence of close ties of a personal nature with the Member State in question (see, in that regard, the judgments in Prete, C‑367/11, EU:C:2012:668, paragraph 50, and Stewart, C‑503/09, EU:C:2011:500, paragraph 100).