Opinion of the Advocate General — ECLI:EU:C:2015:366
Date: 2015-06-04
Language of the case: German
Subject matter: Citizenship of the Union;Social security for migrant workers;Free movement of workers;Anti-discrimination;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 25 February 2016 1. Citizenship of the Union — Right to move and reside freely within the territory of the Member States — Directive 2004/38 — Principle of equal treatment — Obligation on the host Member State to grant entitlement to social assistance to nationals of other Member States not exercising an economic activity — Conditions — Residence in the territory of the host Member State complying with the conditions of the Directive (European Parliament and Council Directive 2004/38, Recital 10 and Art. 24(1)) 2. Citizenship of the Union — Right to move and reside freely within the territory of the Member States — Directive 2004/38 — Principle of equal treatment — National legislation under which nationals of other Member States are excluded from entitlement to certain special non-contributory cash benefits during the first three months of residence in the host Member State — Lawfulness (European Parliament and Council Regulation No 883/2004, Arts 4 and 70(2); European Parliament and Council Directive 2004/38, Arts 6(1), 14(1) and 24(2)) 1. See the text of the decision. (see paras 38, 39) 2. Article 24 of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and Article 4 of Regulation No 883/2004 on the coordination of social security systems must be interpreted as not precluding legislation of a Member State under which nationals of other Member States who are in a situation such as that referred to in Article 6(1) of that directive are excluded 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. Article 6(1) of that directive provides that provides that Union citizens have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport and, under Article 14(1) of that directive, that right is retained as long as the Union citizen and his family members do not become an unreasonable burden on the social assistance system of the host Member State. That said, the host Member State may rely on the derogation in Article 24(2) of Directive 2004/38 in order to refuse to grant that citizen the social assistance sought. Indeed, it follows from the express wording of that provision that the host Member State may refuse to grant persons other than workers, self-employed persons or those who retain that status any social assistance during the first three months of residence. That provision is consistent with the objective of maintaining the financial equilibrium of the social assistance system of the Member States pursued by Directive 2004/38, as is apparent, in particular, from recital 10 in the preamble to that directive. Since the Member States cannot require Union citizens to have sufficient means of subsistence and personal medical cover for a period of residence of a maximum of three months in their respective territories, it is legitimate not to require those Member States to be responsible for those citizens during that period. The same conclusion must be reached as regards the interpretation of Article 4 of Regulation No 883/2004. The benefits at issue, which constitute ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of that regulation, are, under Article 70(4), to be provided exclusively in the Member State in which the persons concerned reside, in accordance with the legislation of that Member State. It follows that there is nothing to prevent such benefits being refused to nationals of other Member States who do not have the status of workers or self-employed persons or persons who retain such status during the first three months of residence in the host Member State. (see paras 42-45, 52, operative part)