Opinion of the Advocate General — ECLI:EU:C:2021:114
Date: 2021-02-11
Language of the case: Latvian
Subject matter: Citizenship of the Union;Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Latvia

Summary C-535/19 — 1 
Case C-535/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
12 July 2019 
Referring court: 
Augstākā tiesa (Senāts) (Supreme Court, Latvia) 
Date of the decision to refer: 
9 July 2019 
Appellant: 
A 
Other party to the appeal in cassation: 
Veselības ministrija (Ministry of Health) 
  
Subject matter of the main proceedings 
Appeal proceedings relating to the decision of the national authorities not to 
register a foreign citizen in the register of recipients of health care services 
financed from the State budget and refusing to grant that person a European 
Health Insurance Card. 
Subject matter and legal basis of the reference 
On the basis of Article 267 TFEU, the referring court is seeking an interpretation 
of Regulation No 883/2004 and Directive 2004/38, as well as of 
Articles 18 TFEU, 20 TFEU and 21 TFEU, in order to clarify the applicability of 
Regulation No 883/2004 to publicly-funded health care services and the 
conditions under which a State may refuse to grant access to medical care to a 
foreign national — an unemployed Union citizen. It also asks whether it is lawful 
that a situation exists in which that person is denied the right to receive health care 
services financed by the State in all the Member States concerned. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-535/19 
 
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Questions referred 
1. Must publicly-funded health care be regarded as being included in ‘sickness 
benefits’ within the meaning of Article 3(1)(a) of Regulation No 883/2004? 
2. In the event that the first question is answered in the affirmative, are 
Member States permitted, under Article 4 of Regulation No 883/2004 and 
Article 24 of Directive 2004/38, to refuse such benefits — which are granted 
to their nationals and to family members of a Union citizen having worker 
status who are in the same situation — to Union citizens who do not at that 
time have worker status, in order to avoid disproportionate requests for 
social benefits to ensure health care? 
3. In the event that the first question is answered in the negative, are Member 
States permitted, under Articles 18 and 21 of the Treaty on the Functioning 
of the European Union and Article 24 of Directive 2004/38, to refuse such 
benefits — which are granted to their nationals and to family members of a 
Union citizen having worker status who are in the same situation — to 
Union citizens who do not at that time have worker status, in order to avoid 
disproportionate requests for social benefits to ensure health care? 
4. Is it compatible with Article 11(3)(e) of Regulation (EC) No 883/2004 for a 
citizen of the European Union who exercises his right to freedom of 
movement to be placed in a situation in which he is denied the right to 
receive public health care services financed by the State in all the Member 
States concerned in the case? 
5. Is it compatible with Articles 18, 20(1) and 21 of the Treaty on the 
Functioning of the European Union for a citizen of the European Union who 
exercises his right to freedom of movement to be placed in a situation in 
which he is denied the right to receive public health care services financed 
by the State in all the Member States concerned in the case? 
6. Should legality of residence, as provided for in Article 7(1)(b) of Directive 
2004/38, be understood as giving a person a right of access to the social 
security system and also as being capable of constituting a reason to exclude 
him from social security? In particular, in the present case, must the fact that 
the applicant has comprehensive sickness insurance cover, which constitutes 
one of the prerequisites for legality of residence under Directive 2004/38, be 
regarded as capable of justifying the refusal to include him within the health 
care system financed by the State? 
EU legal framework 
Treaty on the Functioning of the European Union: Article 18, Article 20(1), 
Article 20(2), first subparagraph, point (a), Article 21 and Article 168(7). 
A 
 
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Directive 2004/38/EC on the right of citizens of the Union and their family 
members to move and reside freely within the territory of the Member States: 
recitals 1, 2, 3, 4 and 10. Article 7(1)(b), Article 14(1) and (2) and Article 24. 
Regulation No 883/2004 on the coordination of social security systems: recital 45. 
Article 3(1)(a) and (5), Article 4 and Article 11(3)(e). 
Case-law of the Court of Justice 
Judgments of the Court of Justice: 
of 27 March 1985, Hoeckx (249/83, EU:C:1985:139, paragraph 12); 
of 27 March 1985, Scrivner and Cole (122/84, EU:C:1985:145, paragraph 19); 
of 12 June 1986, Ten Holder (302/84, EU:C:1986:242, paragraph 21); 
of 16 July 1992, Hughes (C-78/91, EU:C:1992:331, paragraph 17); 
of 11 July 1996, Otte (C-25/95, EU:C:1996:295, paragraph 22); 
of 5 June 1997, Uecker and Jacquet (C-64/96, EU:C:1997:285, paragraph 23); 
of 5 March 1998, Molenaar (C-160/96, EU:C:1998:84, paragraphs 19, 20 and 21); 
of 20 September 2001, Grzelczyk (C-184/99, EU:C:2001:458, paragraph 31); 
of 11 July 2002, D’Hoop (C-224/98, EU:C:2002:432, paragraph 28); 
of 17 September 2002, Baumbast and R (C-413/99, EU:C:2002:493, paragraph 84 
et seq., paragraph 91); 
of 7 November 2002, Maaheimo (C-333/00, EU:C:2002:641, paragraph 23); 
of 2 October 2003, Garcia Avello (C-148/02, EU:C:2003:539, paragraph 26); 
of 7 September 2004, Trojani, C-456/02, EU:C:2004:488, paragraph 31 et seq.); 
of 19 October 2004, Zhu and Chen (C-200/02, EU:C:2004:639, paragraph 32); 
of 15 March 2005, Bidar (C-209/03, EU:C:2005:169, paragraph 33); 
of 12 July 2005, Schempp (C-403/03, EU:C:2005:446), paragraphs 17, 18 and 20; 
of 18 July 2006, De Cuyper (C-406/04, EU:C:2006:491, paragraph 23); 
of 1 April 2008, Government of the French Community and Walloon Government 
(C-212/06, EU:C:2008:178, paragraph 39); 
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of 22 May 2008, Nerkowska (C-499/06, EU:C:2008:300, paragraphs 26 and 29). 
of 25 July 2008, Metock and Others (C-127/08, EU:C:2008:449, paragraph 82); 
of 4 March 2010, Chakroun (C-578/08, EU:C:2010:117, paragraph 43); 
of 5 May 2011, McCarthy (C-434/09, EU:C:2011:277, paragraph 39); 
of 30 June 2011, da Silva Martins (C-388/09, EU:C:2011:439, paragraphs 38, and 
the case-law cited, and 41); 
of 24 April 2012, Kamberaj (C-571/10, EU:C:2012:233, paragraph 86); 
of 21 February 2013, L.N. (C-46/12, EU:C:2013:97, paragraphs 27 and 28); 
of 19 September 2013, Brey (C-140/12, EU:C:2013:565, paragraphs 46, 70 and 
71); 
of 11 November 2014, Dano (C-333/13, EU:C:2014:2358, paragraphs 59 and 60); 
of 26 February 2015, Martens (C-359/13, EU:C:2015:118, paragraph 25); 
of 15 September 2015, Alimanovic (C-67/14, EU:C:2015:597, paragraph 62); 
Opinion of the Advocate General in that case, point 85; 
of 16 September 2015, Commission v Slovakia (C-433/13, EU:C:2015:602), 
paragraphs 70, 71 and 73; 
of 25 February 2016, García Nieto and Others (C-299/14, EU:C:2016:114, 
paragraphs 38 and 50); 
of 14 June 2016, Commission v United Kingdom (C-308/14, EU:C:2016:436, 
paragraph 76); 
of 30 May 2018, Czerwiński (C-517/16, EU:C:2018:350, paragraph 33); 
of 25 July 2018, A (C-679/16, EU:C:2018:601), paragraphs 33, 56, 57 and 60; 
Opinion of Advocate General [Wathelet], of 26 July 2017, in Gusa (C-442/16, 
EU:C:2017:607, point 52). 
Basic provisions of national law 
Ārstniecības likums (Law on medical treatments) (in force until 31 December 
2017), Article 17. 
Veselības aprūpes finansēšanas likums (Law on the financing of medical care) (in 
force as from 1 January 2018), Articles 7, 9 and 11. 
A 
 
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Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant is an Italian national who married a Latvian national. At the end of 
2015 or in January 2016, the appellant left Italy and moved to Latvia to live with 
his family. The appellant intends to remain in Latvia on a long-term basis to care 
for his children. The appellant’s declared place of residence is in Latvia. The 
appellant states that he is a highly qualified engineer and was seeking employment 
when he brought his appeal. In his view, job seeking should be interpreted as a 
desire to integrate into Latvian society and to become a full member of that 
society alongside Latvian nationals. At the present time, the appellant is in an 
employment relationship. The appellant’s residence in Latvia is based on an EU 
citizen’s registration certificate, which, under Latvian law, is regarded as a 
temporary residence permit. 
2 At the end of 2015, the appellant informed the competent Italian authorities of his 
move to Latvia. Accordingly, he was registered with ‘AIRE’ (Anagrafe degli 
Italiani Residenti all’Estero), a register of Italian nationals living abroad; persons 
who move to reside outside Italy for a period exceeding 12 months are entered in 
that register. Since the persons entered in that register have their place of 
residence abroad, they are refused access to publicly-funded health care in Italy. 
3 On 22 January 2016, the appellant requested that the Latvijas Nacionālajais 
veselības dienests (Latvian National Health Service) enter him in the register of 
recipients of health care services and issue a European Health Insurance Card. By 
decision of 17 February 2016, the National Health Service refused to enter the 
appellant in the register and refused to issue the card. By decision of 8 July 2016, 
the Veselības ministrija (Ministry of Health) confirmed the decision of the 
National Health Service, noting that it was clear from Article 17(1) of the Law on 
medical treatments that Union citizens who were not employed or self-employed 
were excluded from the categories of persons who could receive health care 
services financed by the State. Since the appellant is not employed or self-
employed in Latvia and is an Italian national residing in Latvia on the basis of an 
EU citizen’s registration certificate, he is not included in the categories of persons 
referred to in Article 17 of the Law on medical treatments, for whom such 
services are financed from the State budget. Under Article 17(5) of the Law on 
medical treatments, the appellant must pay for the provision of health services. 
4 The appellant brought an administrative-law action against the decision of the 
Ministry of Health before the Administratīvā rajona tiesa (District Administrative 
Court), which dismissed his action. 
5 After examining the case on appeal, the Administratīvā apgabaltiesa (Regional 
Administrative Court) dismissed the appeal by a judgment of 5 January 2018 for 
the reasons set out below. 
6 The appellant is a Union citizen who is not economically active and whose legal 
residence is in Latvia. Thus, in accordance with Article 11(3)(e) of Regulation 
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No 883/2004, Latvian law, including Article 17 of the Law on medical treatments, 
applies to the present case. The appellant is not included in the categories of 
persons referred to in Article 17 of the Law on medical treatments, for whom the 
provision of health services is financed from the State budget, which, pursuant to 
Article 17(5) of that law, means that the appellant must pay to receive those 
services. 
7 Under Articles 7(1)(b), 14(1) and (2) and 24 of Directive 2004/38, and the case-
law of the Court of Justice of the European Union (‘the Court of Justice’ or ‘the 
Court’), for any period of longer than three months and less than five years a 
Member State is not required to grant a national of another Member State the right 
to receive social assistance. Those rules pursue the legitimate objective of 
protecting the financial interests of the host Member State. The appellant wishes 
to receive comprehensive health services in Latvia but does not fulfil any of the 
requirements set out in Regulation No 883/2004 for the grant of that right (neither 
the requirements of Article 17 and Article 12 nor those of Articles 23 to 26). 
8 If follows from Article 168(7) TFEU and the Court’s case-law that Latvia has the 
power to adopt specific provisions for its own social security system and that that 
system cannot be regarded as a ground of discrimination solely because it has 
adverse effects for the appellant. Both the case-law of the Court of Justice and that 
of the Satversmes tiesa (Constitutional Court, Latvia) have consistently recognised 
that Latvia has the discretion to determine, in circumstances where public 
resources are limited, the categories of persons to whom health services financed 
from the State budget are to be provided. 
9 Although the appellant is legally resident in Latvia in accordance with the 
requirements of Article 7(1)(b) of Directive 2004/38 and may properly rely on the 
principle of non-discrimination set out in Article 24(1) of that directive, the 
difference in treatment is justified, since it is based on objective considerations 
and has the legitimate objective of protecting the public finances and the right of 
other persons to receive health care financed from the State budget. Moreover, in 
the present case, that treatment is also proportionate, since the State guarantees the 
appellant the provision of emergency medical services, the cost of sickness 
insurance is not unreasonably high and such a situation continues only until the 
person acquires a permanent right of residence (after five years). 
10 According to the Latvian legislation, only persons who have the right to receive 
health care services financed from the State budget can obtain the European 
Health Insurance Card. Consequently, the appellant cannot obtain a health 
insurance card. 
11 The appellant’s status as a Union citizen is not comparable to that of a Latvian 
national, and as a result the appellant does not have the same rights as Latvian 
nationals. The freedom of movement of persons is not absolute; the host Member 
State has the right to apply different rules to its nationals, based on objective 
considerations of the legislation of that State, and to protect its interests as a host 
A 
 
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State, so that nationals of another Member State do not become an unreasonable 
burden on its social assistance system. 
12 A family member of a Union citizen who is working in Latvia (who has the right 
to receive health care financed by the State in accordance with Article 17(1)(3) of 
the Law on medical treatments) cannot be compared to a family member of a 
Latvian national who is working in Latvia (who has no right to receive health care 
financed by the State). The fact that a Latvian national is working in Latvia does 
not imply the existence of cross-border elements and in such a situation Latvian 
nationals do not exercise their right to freedom of movement. Moreover, when 
Union citizens exercise their freedom of movement, they are subject to certain 
requirements which also depend on whether or not the citizen of the European 
Union is an employed person in the State of residence. 
13 The appellant lodged an appeal in cassation before the Senāts (Supreme Court) 
against the judgment of the Regional Administrative Court. 
Essential arguments of the parties to the main proceedings 
14 According to the appellant, the Regional Administrative Court erroneously 
applied the concept of ‘social assistance’ in so far as he is concerned. The 
appellant wished to have the right to social security, not to social assistance. 
15 He asserts that the Regional Administrative Court misunderstood the relationship 
between Directive 2004/38 and Regulation No 883/2004, since it misinterpreted 
Article 7(1)(b) of Directive 2004/38 as applying to the right to the social security 
requested by the appellant. 
16 In the appellant’s view, the Regional Administrative Court erroneously held that 
the difference in treatment resulting from Directive 2004/38 with respect to the 
right of a Union citizen who is not economically active to receive social assistance 
in another Member State of the European Union extends to the right to social 
security. In accordance with Regulation No 883/2004, the appellant is subject to 
Latvian legislation as regards the right to social security. According to Article 4 of 
Regulation No 883/2004, Union citizens who are not economically active have the 
right to social security, that is to say to health care services, under the same 
conditions as nationals of that Member State. 
17 The legitimate objective of restricting the right of Union citizens who are not 
economically active to social assistance in other Member States of the European 
Union concerns situations addressing the issue of whether a Union citizen fulfils, 
in the first place, the requirements of Article 7(1)(b) of Directive 2004/38. If those 
requirements are fulfilled, the restrictions on social security and social assistance 
are then not considered. 
18 The difference in treatment applied to the appellant, within the meaning of 
Article 4 of Regulation No 883/2004, is not proportionate, since the appellant 
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cannot receive health care financed by the State either in Italy or in the State 
which is currently his habitual place of residence and where his interests are 
centred. The appellant is not seeking to benefit from the social assistance system 
of another Member State of the European Union, but to be reunited with his 
family. 
19 Even assuming that the concept of ‘social assistance’ were applicable to the 
appellant, that right cannot be automatically denied to a Union citizen who is not 
economically active without examining the relevant factual circumstances, in the 
light of his integration into society, or analysing the proportionality of the support 
granted to the person concerned in relation to the social assistance system of the 
State as a whole. 
20 The guarantee of equal treatment of citizens of the European Union who are not 
economically active depends solely on whether they meet the requirements of 
Article 7(1)(b) of Directive 2004/38 when they reside in a given country. This 
follows from Article 18 TFEU and also from Article 24 of Directive 2004/38 and 
Article 4 of Regulation No 883/2004. 
Succinct presentation of the grounds of the request for a preliminary ruling 
21 In the present case, it is necessary to determine whether the appellant was with 
good reason deprived of the right to receive medical treatment services (medical 
care) financed by the State, in accordance with Article 17 of the Law on medical 
treatments (now Articles 9 and 11 of the Law on the financing of medical care), 
which transposed Article 7(1)(b) of Directive 2004/38 into Latvian national law. 
22 Although, according to the appellant, he currently has an employment 
relationship, he is entitled to ascertain whether he had the right to obtain a 
favourable decision, inter alia, to prevent a similar situation from occurring in the 
future. Such an interest must be acknowledged as a legitimate reason for 
continuing with the proceedings. 
23 According to the Supreme Court, this case is relevant in relation to a series of 
fundamental values of the European Union: (i) citizenship of the Union 
(Article 20(1) TFEU); (ii) freedom of movement and of residence, a fundamental 
principle stemming from citizenship of the Union (Articles 20(2)(a) TFEU and 21 
TFEU), and (iii) the prohibition of discrimination on grounds of nationality 
(Article 18 TFEU). 
24 As regards Directive 2004/38 and Regulation No 883/2004, the objectives of those 
provisions are closely linked to the right to freedom of movement of Union 
citizens. 
25 From the first four recitals of Directive 2004/38 and Article 1(a) of that directive, 
it follows that the main objective of that directive is to facilitate and strengthen the 
exercise of Union citizens’ primary right to move and reside freely within the 
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territory of the Member States (judgment in Brey, paragraph 71; see also Metock 
and Others, paragraph 82). This is reflected, moreover, in the title of that 
directive. 
26 Regulation No 883/2004 was adopted to coordinate the social security systems of 
the Member States, so that the right to freedom of movement of persons can be 
exercised effectively (recital 45 of Regulation No 883/2004), and to contribute 
towards improving standards of living and conditions of employment (recital 1 of 
the regulation) (judgment in Brey, paragraph 41 and the case-law cited). 
27 At the same time, another of the objectives of Directive 2004/38 is set out in 
recital 10 thereof: persons exercising their right of residence should not, however, 
become an unreasonable burden on the social assistance system of the host 
Member State during an initial period of residence. That second objective 
nonetheless exists only by reason of the first: since the directive aims to facilitate 
the exercise of the right of residence, the Member States felt it necessary to ensure 
that the financial burden of that freedom be kept under control (Opinion of 
Advocate General Wathelet in Gusa, point 52). 
28 In view of the Member States’ interests of financial protection, the directive lays 
down a series of requirements and restrictions, permitted by Articles 20 TFEU and 
21 TFEU, in relation to the freedom to move and reside freely in the European 
Union. In the present case, the relevant requirement — laid down in 
Article 7(1)(b) of Directive 2004/38 — is that which an EU citizen who is not 
economically active must comply with in order to obtain a right of residence in the 
host Member State (for more than three months), in other words, the requirement 
to have sufficient resources not to become a burden on the social assistance 
system of the host Member State during his period of residence and to have 
comprehensive sickness insurance cover. 
29 In the present case, the competent authorities have applied the provisions of both 
Directive 2004/38 and Regulation 883/2004. The Supreme Court has no doubt as 
to the applicability of Directive 2004/38 but considers that the question of the 
relevance of Regulation No 883/2004 in the present case must be clarified. 
30 The Court of Justice has held that the distinction between benefits excluded from 
the scope of Regulation No 883/2004 and those which fall within it is based 
essentially on the constituent elements of each particular benefit, in particular its 
purpose and the conditions on which it is granted, and not on whether a benefit is 
classified as a social security benefit by national legislation (judgments in 
Molenaar, paragraph 19, Commission v Slovakia, paragraph 70, and Czerwiński, 
paragraph 33). 
31 According to settled case-law, a benefit may be regarded as a social security 
benefit in so far as it (i) is granted, without any individual and discretionary 
assessment of personal needs, to beneficiaries on the basis of a legally defined 
position and (ii) relates to one of the risks expressly listed in Article 3(1) of 
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Regulation No 883/2004 (judgments in da Silva Martins, paragraph 38 and the 
case-law cited, and Commission v Slovakia, paragraph 71). 
32 It follows from settled case-law that the first of the two conditions is satisfied if 
the grant of a benefit is made with regard to objective criteria which if satisfied, 
give entitlement to the benefit without the competent authority being able to take 
other personal circumstances into consideration (judgments in Hughes, 
paragraph 17; Molenaar, paragraph 21; Maaheimo, paragraph 3; De Cuyper, 
paragraph 23; Hughes, paragraph 17; Commission v Slovakia, paragraph 73, and 
A, paragraph 34). 
33 Given that the two conditions are cumulative, the fact that one of them is not 
satisfied will mean that the benefit in question does not fall within the scope of 
Regulation No 883/2004 (judgment in A, paragraph 33). The list contained in 
Article 3(1) of Regulation No 883/2004 is exhaustive and as a result a benefit that 
does not cover one of the risks listed in that article must, in any event, fall outside 
the scope of Regulation No 883/2004 (judgments in Hoeckx, paragraph 12; 
Scrivner and Cole, paragraph 19; Otte v Germany, paragraph 22; Molenaar, 
paragraph 20, and da Silva Martins, paragraph 41). 
34 Currently, the Latvian health care system is mainly based on the delivery of health 
care services financed by the State and is funded through the taxes levied. As of 
2018, it has also been funded through mandatory contributions to State social 
security. Similarly, the following constitute sources of financing for health care: 
co-payment by patients, funds from voluntary insurance, financing from 
municipal budgets under municipal provisions, income from health institutions 
and private investments in medical centres. In general, it may be stated that 
medical care in Latvia is essentially publicly-funded. In the light of the foregoing, 
the system of health care in Latvia may currently be described as a compulsory 
national health insurance system; the Finance Law for the relevant year 
establishes the level of its financing. 
35 Under the Latvian legislation, several categories of persons laid down by law may 
receive health care financed by the State. Other residents may receive medical 
treatment services by paying the charges imposed by the health care institution or 
the fees established for the services of a specialist. 
36 Citizens of Member States of the European Union who are not employed or self-
employed in Latvia are excluded from the categories of persons who can receive 
health care services financed by the State. 
37 Taking this into account, health services are provided to any Latvian resident 
included in one of the categories established in the law, irrespective of the 
economic means available to that resident. The criteria taken into consideration to 
assess the inclusion of a person are clearly objective and describe the 
characteristics which must be fulfilled in order to be included in the register of 
recipients of health services and, therefore, to receive health care services 
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financed by the State. It does not follow from the legislation that the competent 
authority has the right or obligation to take into account any other personal 
circumstances. Therefore, the provision of health care services (as a social 
security benefit in kind) could fulfil the first requirement for application of 
Regulation No 883/2004. Similarly, health care services could fulfil the 
requirements of Article 3(1)(a) of Regulation No 883/2004. 
38 The application of Regulation No 883/2004 is shown, inter alia, by the nature of 
the S1 form, established on the basis of that regulation, which is issued when a 
national of a Member State resides in a country other than that in which the 
national is insured. In that situation, a person and his family members are entitled 
to all benefits in the form of services (such as health care) provided for by the 
legislation of their country of residence as if they were insured in that country. 
However, in the present case, the appellant has not received that form. 
Nevertheless, as is clear from the documents before the Court, this is due only to 
the fact that the Italian competent authority considered that the appellant should be 
excluded from its health care system when he moved to Latvia, with the result that 
that form should not be issued to him. Also relevant in the present case is the 
E104 form, which contains information on the periods of insurance of the person 
in the country issuing the form (in the present case, Italy). 
39 At the same time, it must be borne in mind that Article 3(5) of Regulation 
No 883/2004 excludes social and medical assistance from its scope. 1 
40 In the light of the foregoing, it is necessary in the present case to clarify whether 
Regulation (EC) No 883/2004 can be applied to health care services. 
41 In the event that Regulation No 883/2004 is applicable in the present case, the 
following comments must be put forward. 
42 The purpose of Article 11(3)(e) of Regulation No 883/2004 is to determine the 
national legislation applicable to entitlement to the social security benefits 
included in Article 3(1) of that regulation when the provisions of Article 11(3)(a) 
to (d) of the regulation are not applicable to a person, in particular, to a person 
who is not economically active. Article 11(3)(e) of Regulation No 883/2004 is 
intended to prevent the concurrent application of a number of national legislative 
systems to a given situation and the complications which might ensue, as well as 
to ensure that persons covered by that regulation are not left without social 
security cover because there is no legislation which is applicable to them (see, by 
analogy, judgment in Brey, paragraph 38 et seq.). 
43 The system of conflict rules contained in Regulation No 883/2004 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 
 
1  Translator’s note: the Latvian-language version, among others, uses the stricter concept of 
‘medical assistance’ instead of ‘health care assistance’ used in the Spanish-language version. 
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persons who are subject thereto and the territory within which the provisions of 
national law take effect are concerned (see judgment in Ten Holder, 
paragraph 21). 
44 In the present case, since the appellant has been denied access to the Italian and 
Latvian health care systems, there has arisen a situation in which he has been left 
entirely without social security cover. That situation has arisen because the 
appellant exercised his right to freedom of movement. It should not be permissible 
for a person to be excluded from the social security systems of all the EU Member 
States concerned in any particular case. As is clear from the case-law of the Court 
of Justice referred to above, Article 11(3)(e) of Regulation No 883/2004 was 
introduced precisely to prevent those situations. At the same time, it is not entirely 
clear which Member State has made an error when applying its own legislation: 
Italy, by excluding the appellant from its health care system because he moved, or 
Latvia, by not including the appellant within the national health care system, 
because he was not working in Latvia when he made the request. 
45 If the provisions of Regulation No 883/2004 are not applicable in the present 
case, it would be necessary, since the appellant is a Union citizen, to determine 
whether the solution provided for by the Latvian legislation is compatible with 
Articles 18 TFEU and 21 TFEU. 
46 The Court of Justice has held that the status of citizen of the Union is destined to 
be the fundamental status of nationals of the Member States, enabling those 
among such nationals who find themselves in the same situation to receive, as 
regards the material scope of the FEU Treaty, the same treatment in law 
irrespective of their nationality, subject to such exceptions as are provided for in 
that regard (judgments in Grzelczyk, paragraph 31; D’Hoop, paragraph 28, and 
L.N., paragraph 27). 
47 It has also been held that every Union citizen may rely on the prohibition of 
discrimination on grounds of nationality laid down in Article 18 of the Treaty on 
the Functioning of the European Union in all situations falling within the material 
scope of EU law. These situations include those relating to the exercise of the 
right to move and reside within the territory of the Member States conferred by 
point (a) of the first subparagraph of Article 20(2) and Article 21 of the Treaty on 
the Functioning of the European Union (judgments in L.N., paragraph 28 and the 
case-law cited, and Dano, paragraph 59). 
48 It also follows from settled case-law that national legislation which places certain 
nationals at a disadvantage simply because they have exercised their freedom to 
move and to reside in another Member State constitutes a restriction on the 
freedoms conferred by Article 21(1) of the Treaty on the Functioning of the 
European Union on every citizen of the European Union (judgments in Martens, 
paragraph 25, and A, paragraph 60). 
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49 In the judgment in Trojani, the Court of Justice held, in essence, that if a Union 
citizen is in possession of a permit for residence in a Member State, he may rely 
on Article 18 TFEU in order to be granted a social assistance benefit under the 
same conditions as nationals of that Member State (judgment in Trojani, 
paragraph 46). 
50 The situation in the present case indicates that there may have been a serious 
infringement of the appellant’s rights, thereby limiting his right to freedom of 
movement and depriving him of rights in relation to which the European Union 
has adopted a series of social security and social assistance coordination rules. By 
the mere fact of being a Union citizen, the appellant actually has the right to 
publicly-funded health care, which is included within the scope of the 
aforementioned rules. Therefore, that status grants the appellant the right to 
receive the requested benefits. Consequently, even in the absence of rules of 
secondary legislation, it is sufficient that the appellant requests health care 
financed by the State, based solely on his status as a Union citizen. 
51 Indeed, the opportunities offered by the Treaty in relation to freedom of 
movement for citizens of the Union cannot be fully effective if a national of a 
Member State can be dissuaded from using them by obstacles resulting from his 
stay in another Member State, because of legislation of his State of origin which 
penalises the mere fact that he has used those opportunities (judgments in 
Martens, paragraph 26, and A, paragraph 61). 
52 Article 18(1) of the Treaty on the Functioning of the European Union establishes 
that, within the scope of application of the Treaties, and without prejudice to any 
special provisions contained therein, any discrimination on grounds of nationality 
is to be prohibited. At the same time, the Court of Justice has clearly indicated the 
limited nature of freedom of movement and residence within the territory of the 
Member States. In particular, the second subparagraph of Article 20(2) of the 
Treaty on the Functioning of the European Union expressly states that the rights 
conferred by that article are to be exercised in accordance with the conditions and 
limits defined by the Treaties and by the measures adopted thereunder. Under 
Article 21(1) of the Treaty on the Functioning of the European Union, the right of 
citizens of the Union to move and reside freely within the territory of the Member 
States is recognised only subject to the limitations and conditions laid down in the 
Treaties and by the measures adopted to give them effect (judgment in Brey, 
paragraph 46 and the case-law cited; Dano, paragraph 60; Baumbast and R., 
paragraph 84 et seq.; and Trojani, paragraph 31 et seq.). 
53 A restriction on the freedom of movement can be justified in the light of EU law 
only if it is based on objective considerations of public interest independent of the 
nationality of the persons concerned and if it is proportionate to the legitimate 
objective of the provisions of national law. It follows from the Court’s case-law 
that a measure is proportionate when, while appropriate for securing the 
attainment of the objective pursued, it does not go beyond what is necessary in 
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order to achieve it (judgments in Martens, paragraph 34 and the case-law cited, 
and A, paragraph 67). 
54 Under the Italian legal system, an Italian national registered abroad loses his right 
to receive health care from that State while he is abroad. If the Latvian legislation 
is in conformity with the provisions of Directive 2004/38 and Regulation 
No 883/2004, a situation will arise in which the appellant will continue to receive 
no publicly-funded health care services from any Member State, a situation which, 
according to the Supreme Court, runs counter to the efforts made by the European 
Union to guarantee freedom of movement of persons within the European Union 
and European integration. 
55 The Court of Justice has already had the opportunity to address issues relating to 
the interaction between Directive 2004/38 and Regulation No 883/2004. In the 
view of the Supreme Court, the most relevant case in the context of the present 
dispute is Brey. To date, however, no disputes have been examined which directly 
relate to the provision of publicly-funded health care to citizens of the European 
Union in Member States in which such medical care is provided to their nationals. 
56 The Court of Justice held that, while Regulation No 883/2004 is intended to 
ensure that Union citizens who have made use of the right to freedom of 
movement for workers retain the right to certain social security benefits granted 
by their Member State of origin, Directive 2004/38 allows the host Member State 
to impose legitimate restrictions in connection with the grant of such benefits to 
Union citizens who do not or no longer have worker status, so that those citizens 
do not become an unreasonable burden on the social assistance system of that 
Member State (judgment in Brey, paragraph 57). 
57 The Court has referred to the right of workers to freedom of movement and the 
corollary right to receive social security benefits. The appellant emphasised that 
he moved to Latvia in order to reunite with his family. Although, as indicated 
above, Article 11(3)(e) of Regulation (EC) No 883/2004 applies to persons who 
are not economically active, it is essential to note that it would also be reasonable 
to examine the issue from the perspective of the freedom of movement of workers. 
An E104 form has been issued to the applicant with information on the periods of 
insurance completed by the person in the State issuing the form. Thus, it is 
possible that the appellant had worker status in Italy and that when he moved to 
Latvia he also exercised the right to freedom of movement as a worker. Moreover, 
the appellant had been seeking employment since he moved to Latvia, and has 
been in an employment relationship since January 2018. At the same time, since 
the appellant did not (or had ceased to) have worker status when he moved to 
Latvia, it is, as already stated, reasonable to impose under Directive 2004/38 
certain restrictions on the grant of benefits, so that the person does not become a 
burden on the Latvian social assistance system. 
58 Article 24 of Directive 2004/38 and Article 4 of Regulation No 883/2004 clarify 
the scope of the principle of non-discrimination as regards citizens of the 
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European Union who exercise their freedom to move and reside within the 
territory of the Member States established in Article 18 TFEU. The Supreme 
Court is concerned that the principle of equality has been infringed in the present 
case, because the appellant, as an Italian national who has used his right to 
freedom of movement, is placed at a disadvantage vis-à-vis Latvian nationals and 
family members of a Union citizen who has moved to Latvia for employment 
purposes. 
59 In the present case, the Latvian authorities have stated that the protection of 
Latvia’s financial resources is a legitimate objective for the restrictions on the 
granting of social benefits. That may be a legitimate objective, but the Supreme 
Court is uncertain whether that objective is proportionate in the present case. 
60 Since the right to freedom of movement is — as a fundamental principle of EU 
law — the general rule, the conditions laid down in Article 7(1)(b) of Directive 
2004/38 must be construed narrowly (judgment in Brey, paragraph 70; see also, by 
analogy, the judgments in Kamberaj, paragraph 86, and Chakroun, paragraph 43) 
and in compliance with the limits imposed by EU law and the principle of 
proportionality (judgments in Baumbast and R, paragraph 91; Zhu and Chen, 
paragraph 32, and Brey, paragraph 70). 
61 When examining whether a person has become an unreasonable burden on the 
social assistance of a Member State, national authorities must apply the guidance 
established by the case-law of the Court of Justice, in particular the obligation to 
take into account the circumstances of each case. 
62 As regards the individual assessment for the purposes of making an overall 
appraisal of the specific burden which the grant of a specific benefit would place 
on the national system of social assistance in question in the main proceedings as 
a whole, the Court of Justice held 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, for an individual claim is not 
liable to place the Member State concerned under an unreasonable burden, but the 
accumulation of all the individual claims which might be submitted to it would be 
bound to do so (judgments in Alimanovic, paragraph 62, and García Nieto and 
Others, paragraph 50). 
63 The Court of Justice has held that such a mechanism, whereby nationals of other 
Member States who are not economically active are automatically barred by the 
host Member State from receiving a particular social security benefit, even for the 
period following the first three months of residence referred to in Article 24(2) of 
Directive 2004/38, does not enable the competent authorities of the host Member 
State, where the resources of the person concerned fall short of the reference 
amount for the grant of that benefit, to carry out — in accordance with the 
requirements under, inter alia, Articles 7(1)(b) and 8(4) of that directive and the 
principle of proportionality — an overall assessment of the specific burden which 
granting that benefit would place on the social assistance system as a whole by 
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reference to the personal circumstances characterising the individual situation of 
the person concerned (judgment in Brey, paragraph 77). 
64 In the present case, both the competent Latvian authorities and the lower courts 
have taken the view that the particular situation in the present case constitutes in 
itself an unreasonable burden on the Latvian social assistance system. However, in 
the light of the findings of the Court of Justice, there may be doubts as to that 
assessment. In the present case, the specific situation of the applicant for a benefit 
must be assessed, taking into account, for example, the fact that the appellant 
moved to Latvia to be reunited with his family, that he had worked in Italy and 
was seeking employment in Latvia and that he has two minor children who 
depend on him and who are both Italian and Latvian nationals. This indicates that 
the applicant for a benefit has close personal ties with Latvia, which does not 
allow the appellant to be automatically excluded from the health care system 
financed by the State. 
65 It is relevant that, as regards social assistance benefits, 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 (judgments in Dano, 
paragraph 69; Alimanovic, paragraph 49, and García-Nieto and Others, 
paragraph 38). There is nothing to prevent national legislation which makes the 
grant of social security benefits to economically inactive citizens subject to the 
substantive condition that those citizens meet the requirements necessary for 
possession of a right to reside lawfully in the host Member State (judgments in 
Brey, paragraph 44, and Dano, paragraph 69; Opinion of the Advocate General in 
Commission v United Kingdom, point 77). The Court also held, however, that 
such legislation would nonetheless be indirectly discriminatory. Consequently, in 
order to be justified, that legislation must pursue a legitimate objective and not go 
beyond what is necessary to attain that objective (judgment in Commission v 
United Kingdom, paragraph 76). 
66 In the present case, it is not disputed that the appellant meets the residency 
requirements provided for in Article 7(1)(b) of Directive 2004/38. However, it 
follows from the administrative decisions that the prerequisite for legal residence 
becomes an obstacle resulting in exclusion of the right to a social security benefit 
(health care financed by the State). The Supreme Court is uncertain whether this is 
in accordance with the provisions of Directive 2004/38 and Regulation 883/2004. 
In other words, the question arises as to whether the fact that the applicant has 
comprehensive health insurance, which is one of the prerequisites for the legality 
of the residence provided for in Directive 2004/38, can form the basis for refusing 
to include him within the health care system financed by the State. At the same 
time, there arises the concern as to whether the restrictions established to protect 
the financial interests of the Latvian social assistance system are appropriate or 
whether they go beyond what is necessary to achieve the objective. 
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67 Moreover, the issue of reverse discrimination must be considered. In the present 
case, as is clear from the Law on the financing of medical care, a member of the 
family of a citizen of the European Union who is working would have a right to 
publicly-funded health care. However, since the appellant is married to a Latvian 
citizen who has not exercised her freedom of movement, he has been denied 
access to health care as a family member by marriage. 
68 The Court of Justice has held that, if the Union citizen concerned has never 
exercised his right of freedom of movement and has always resided in a Member 
State of which he is a national, that citizen is not covered by the concept of 
‘beneficiary’ for the purposes of Article 3(1) of Directive 2004/38, so that that 
directive is not applicable to him (judgment in McCarthy, paragraph 39). 
69 It has also been held that citizenship of the Union is not intended to extend the 
material scope of the Treaty to internal situations which have no link with EU law. 
In such cases, any discrimination against a national of a Member State must be 
governed by the legal instruments of that country (Uecker and Jacquet, 
paragraph 23; see also Garcia Avello, paragraph 26; Schempp, paragraph 20, and 
Government of the French Community and Walloon Government, paragraph 39). 
70 At the same time, the Court of Justice has held that situations which fall within the 
material scope of EU law include those involving the exercise of the fundamental 
freedoms guaranteed by the Treaty and those involving the exercise of the 
freedom to move and reside within the territory of the Member States (judgments 
in Nerkowska, paragraph 26; Bidar, paragraph 33; and Schempp, paragraphs 17 
and 18). 
71 If a person has exercised a freedom accorded by EU law and this has an impact on 
their right to receive a benefit provided for by national legislation, the situation 
cannot be considered to be an internal matter with no link to EU law (Nerkowska 
judgment, paragraph 29). 
72 In one case, the Court of Justice held that EU law was applicable to a situation in 
which the person who had exercised the right to freedom of movement was not the 
applicant himself, but his former spouse. The Court of Justice ruled, in essence, 
that the fact that another person had made use of the rights conferred by the 
European Union and that the situation as a whole gave rise to a sufficient link with 
EU law meant that those rights were also to be attributed to the applicant 
(judgment in Schempp, paragraph 25). 
73 In the present case, the situation is different from that of the aforementioned case, 
since the appellant himself, and not his spouse, is the person who has exercised 
the EU right of freedom of movement. However, as in the aforementioned 
judgment of the Court of Justice, the matter in question cannot be regarded as a 
purely internal situation with no link to EU law. It must be taken into account that 
any discrimination on grounds of nationality is prohibited. In addition, the 
Supreme Court is concerned that in the present case not only the appellant’s 
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European citizenship but also the essence of the rights derived from it (the right to 
freedom of movement) will be seriously affected. Thus, in so far as the appellant 
is concerned, even though his spouse, a Latvian national, has not exercised the 
right to freedom of movement, the same provisions of EU law that would apply to 
a family member of a Union citizen should apply to him. 
74 The appellant, as the spouse of a Latvian national, should have the possibility of 
benefiting from the same advantages as a family member of a Union citizen who 
moves to Latvia for employment purposes.