Opinion of the Advocate General — ECLI:EU:C:2014:341
Date: 2014-05-20
Language of the case: German
Subject matter: Anti-discrimination;Fundamental rights;Non-discrimination on grounds of nationality;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Germany

summary of the existing case-law of the Court of Justice 98. Faced with a similar problem in Brey (the national legislation at issue in that case made the entitlement to a social assistance benefit conditional on lawful residence in the territory of that Member State), Advocate General Wahl was categorical, stating that, ‘[u]nder the Directive, it would seem justified for a Member State to protect its social assistance system in respect of inactive Union citizens who have not yet obtained permanent residence. However, … rules which make the right to reside conditional upon not having recourse to the social assistance system of the host Member State and which do not provide for an individual assessment of a Union citizen’s economic capability are incompatible with Articles 8(4) and 14(3) of the Directive’. (32) 99. It is clear that the Court followed this interpretation of Directive 2004/38 when it decided, in paragraph 77 of the judgment in Brey, (33) that ‘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 … 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 reference to the personal circumstances characterising the individual situation of the person concerned’. 100. The conclusion arrived at in the judgment in Brey is consistent with the earlier case-law of the Court on the matter of social assistance benefits. 101. In Grzelczyk, (34) the Court decided inter alia that Articles 6 EC and 8 EC (now Articles 18 TFEU and 20 TFEU) preclude entitlement to a noncontributory social benefit from being made conditional, in the case of nationals of Member States other than the host State where they are legally resident, on their falling within the scope of the regulation on freedom of movement for workers, when no such condition applies to nationals of the host Member State. 102. The most extreme outcome of that case-law is undoubtedly to be found in Trojani, (35) where the Court, after stating that a Union citizen who does not enjoy a right of residence in the host Member State under Articles 45 TFEU, 49 TFEU or 56 TFEU may, simply as a Union citizen, enjoy a right of residence there by direct application of Article 20(1) TFEU, added that ‘once it is ascertained that a person in a situation such as that of the claimant in the main proceedings is in possession of a residence permit, he may rely on Article [18 TFEU] in order to be granted a social assistance benefit’. c) Application of the case-law to this case, and to the ratio legis and wording of Directive 2004/38 103. I am called upon to apply the case-law of the Court to this case, and to the ratio legis and wording of Directive 2004/38. (36) 104. Directive 2004/38 expressly makes the right of residence for a period of longer than three months of Union citizens who are not workers or self-employed persons subject to the double condition that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State. (37) 105. In so far as the validity of that directive is not called into question in the light of Articles 18 TFEU, 20 TFEU and 21 TFEU, it therefore seems to me legitimate that a Member State can refuse to grant social assistance benefits to citizens who exercise their right to freedom of movement solely in order to obtain the social assistance of another Member State although they do not have sufficient resources to claim a right of residence of longer than three months. 106. To deny Member States this right would have the consequence that a national of a Member State who, upon arriving in the territory of another Member State, does not have sufficient resources to provide for himself would have them, automatically and de facto, through the grant of a special non-contributory cash benefit which is intended to cover the beneficiary’s subsistence costs by enabling him to lead a life in keeping with human dignity. 107. The cumulative application of the two acts of secondary legislation, namely Regulation No 883/2004 and Directive 2004/38, would, if they were interpreted as preventing the general exclusion of nationals of Member States other than the host Member State from receipt of a social assistance benefit of this kind, result in the nullification of the legislature’s intention in enacting that directive. 108. According to recital 10 in the preamble to Directive 2004/38, persons exercising their right of residence are to be prevented from becoming an unreasonable burden on the social assistance system of the host Member State, which means that ‘[t]herefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions’. Recital 21 adds that ‘it should [therefore] be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of jobseekers, to Union citizens other than those who are workers or self-employed persons or who retain that status or their family members’. 109. I should add that, although Article 14(1) of Directive 2004/38 authorises the right of residence of Union citizens and their family members during the first three months, (38) ‘as long as they do not become an unreasonable burden on the social assistance system of the host Member State’, Article 7(1)(b) thereof requires Union citizens who have exercised their right to freedom of movement and wish to remain in the territory of the host Member State for more than three months to have sufficient resources not to become a burden on the social assistance system of the host Member State, without requiring that the burden should be ‘unreasonable’. 110. Moreover, recital 16 in the preamble to Directive 2004/38, which explains the idea behind the condition of sufficient resources necessary for the maintenance of the right of residence, links the expression ‘unreasonable burden’ to all ‘beneficiaries of the right of residence’. The latter are therefore viewed collectively. 111. In this regard, I share the opinion of Advocate General Wahl where he finds that ‘[a] mere request for social assistance cannot amount in itself to a disproportionate burden on the social assistance system of a Member State and cause the loss of the right to reside’. (39) It is, in fact, scarcely conceivable that the assistance granted to a single applicant can amount to an intolerable burden on a Member State, however small the latter is. The legislature therefore necessarily had in mind the possible overall consequence of all individual applications when it allowed the Member States to require all applicants for residence to prove that they have sufficient resources and comprehensive sickness insurance cover in order to be able to reside for more than three months in the territory of a Member State other than that of which they are nationals. 112. I therefore have some difficulty in reconciling these considerations with the idea, developed in the same point in the Opinion delivered in Brey, that ‘rules which make the right to reside conditional upon not having recourse to the social assistance system of the host Member State and which do not provide for an individual assessment of a Union citizen’s economic capability are incompatible with … the Directive’. 113. In my view, such reasoning could lead to an impasse. Directive 2004/38 makes the right of residence subject to the two objective conditions of having sufficient resources and comprehensive sickness insurance cover. There are two possibilities: either the Union citizen has sufficient resources, in which case he can reside in the territory of the Member State of his choice and will not need, by the very fact of having sufficient resources, to have recourse to social assistance benefits the purpose of which is to meet basic needs, or he does not have sufficient resources, in which case he theoretically fulfils the conditions to receive this type of social assistance benefit, but cannot then reside in a Member State other than that of which he is a national in the light of Article 7(1)(b) of Directive 2004/38. To prevent the Member States from excluding this kind of situation from the scope of social assistance results in the condition of sufficient resources being artificially fulfilled in the case of Union citizens moving to another Member State merely in order to obtain social assistance from a Member State other than that of which they are nationals. 114. An interpretation of Regulation No 883/2004 and Directive 2004/38 in line with the case-law of the Court (40) is also, in my view, liable to result in a paradoxical situation in the light of Article 24(2) of that directive. 115. Whilst Article 24(1) of Directive 2004/38 lays down the principle of equal treatment, Article 24(2) derogates from it by expressly authorising the host Member State to refuse jobseekers entitlement to social assistance. 116. Therefore, if the Court were to consider legislation such as that at issue in the main proceedings to be contrary to EU law, we would arrive at a situation where a national of a Member State who has exercised his right to freedom of movement as a Union citizen without intending to integrate himself into the labour market of the host Member State would be in a more favourable situation than a national of a Member State who has left his country of origin in order to seek employment in another Member State. The second person might be refused a social assistance benefit on the basis of legislation adopted in accordance with Article 24(2) of Directive 2004/38, whereas the first person could be refused it only on the basis of a thorough examination of his personal situation. (41) 117. I shall conclude these remarks on the coherence of the system put in place by Directive 2004/38 with the thought that the grant of a social assistance benefit is necessarily a burden on the social assistance system. This follows from the very definition of a social assistance system adopted by the Court, which perceives it as ‘covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by that State’. (42) 118. In the light of these considerations, legislation of a Member State, such as that at issue in the main proceedings, under which entitlement to a special non-contributory cash benefit within the meaning of Regulation No 883/2004 (a benefit which, moreover, constitutes social assistance within the meaning of Directive 2004/38) is precluded in the case of persons who move to the territory of that Member State solely in order to benefit from that measure or to seek employment does not, in my view, run counter to Article 4 of Regulation No 883/2004 or to the system put in place by Directive 2004/38. 119. On the contrary, it makes it possible, in accordance with Article 7(1)(b) of Directive 2004/38, to prevent a Union citizen from becoming ‘a burden on the social assistance system’ in so far as he does not have sufficient resources to support himself by his own means. 3. Is it possible to distinguish Brey from the case in the main proceedings? 120. In the present case, the argument has centred on the consequences of the judgment in Brey. In the light of the foregoing considerations, should a distinction be drawn between the two cases? 121. In Brey, Austrian law made the grant of the social assistance benefit conditional on the lawfulness of the residence, which requires that, beyond the first three months, as I have already pointed out, the person concerned is either a worker or a self-employed person in the host Member State or has sufficient resources not to become a burden on the social assistance system of the host Member State during his period of residence and has comprehensive sickness insurance cover in the host Member State. (43) 122. In such a situation, an individual examination was required in the light of the general scheme of Directive 2004/38. It would, in fact, be contrary to the directive to authorise automatic exclusion from entitlement to a social benefit by a general and abstract reference to the lawfulness of the residence when, in order to assess that lawfulness, Article 8 of the directive expressly prohibits Member States from laying down a fixed amount which they regard as sufficient resources and requires them to take into account the personal situation of the person concerned, and when Article 14(3) thereof states that an expulsion measure cannot be the automatic consequence of a Union citizen’s recourse to the social assistance system. 123. Conversely, point 2 of the second sentence of Paragraph 7(1) of SGB II and Paragraph 23(3) of SGB XII do not refer to the lawfulness of the applicant’s residence but refuse the grant of social assistance benefits to persons whose right of residence is based on the sole objective of seeking employment or obtaining social assistance. 124. The grant of the social assistance benefit is, with such legislation, independent of the lawfulness of the applicant’s residence in the light of Directive 2004/38. In the words of the judgment in Grzelzcyk, (44) it is not conditional, stricto sensu, on the applicant falling within the ‘scope’ of Directive 2004/38. 125. However, this distinction seems to me to be, if not artificial, at the very least tenuous. Although, as the representative of the German Government confirmed at the hearing, the German legislation does not formally link lawfulness of residence with entitlement to subsistence benefits, it is, however, likely that the residence of the applicants in the main proceedings will be jeopardised in the event of their being excluded from entitlement to subsistence benefits. 4. The legitimate requirement of a genuine link with the host Member State 126. However, a final analysis must, in my view, be carried out in the light of the principle of proportionality. It is necessary to examine the relationship between the general criterion used by the German legislation and the existence of a ‘genuine’ link between the persons falling within its scope and the host Member State. 127. I note that, in the matter of the maintenance costs of students, for example, the Court has accepted on a number of occasions that, although the Member States must, in the organisation and application of their social assistance systems, show a certain degree of financial solidarity with nationals of other Member States, it is permissible for a Member State to ensure that the grant of such assistance to students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State. In this regard, the Court held that it is legitimate for a Member State to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that State. (45) 128. The Court has adopted a similar attitude to tideover allowances for young persons seeking their first job and to jobseekers’ allowances. In such situations, the Court has, in fact, also held that it is legitimate for the national legislature to wish to ensure that there is a genuine link between an applicant for an allowance and the geographical employment market in question. (46) 129. It follows from this case-law that the entitlement of economically inactive Union citizens to social assistance benefits is, in general, dependent on a certain degree of integration in the host Member State. 130. These legitimate concerns are reflected in recitals 10 and 21 in the preamble to Directive 2004/38, referred to above, which state, first, that ‘[p]ersons exercising their right of residence should not … become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence’ and, second, that ‘it should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of jobseekers, to Union citizens other than those who are workers or self-employed persons or who retain that status or their family members’. 131. In the present case, by refusing basic provision benefits to persons who come to Germany solely in order to benefit from the social assistance system of that Member State and who do not seek in any way to integrate themselves into the labour market, the national legislation is consistent, in my view, with the EU legislature’s intention. It serves to prevent persons exercising their right to freedom of movement without intending to integrate themselves from becoming a burden on the social assistance system. It also falls within the discretion accorded to the Member States in the matter. In other words, it serves to prevent abuse and a certain form of ‘benefit tourism’. (47) 132. I also note that the Court has held, admittedly in a different context, that ‘generally speaking, it cannot be insisted that a measure … should involve an individual examination of each particular case …, since the management of the regime concerned must remain technically and economically viable’. (48) It has also accepted that the risk of seriously undermining the financial balance of a social security system may constitute an overriding reason in the public interest capable of justifying barriers to the fundamental freedoms. (49) This is also the idea behind the possibility afforded to the Member States of ensuring that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State. (50) 133. Although the referring court provides no precise information about the existence of such a risk, it none the less refers to the limits of basic provision systems financed from taxation in the light of the amounts involved, amounts which might encourage immigration of Union citizens whose average income is considerably lower. 134. It is also likely that, in circumstances such as those in the main proceedings, recourse to the social assistance system will not be temporary but will be prolonged indefinitely in the absence of any attempt at all to seek employment. 135. To sum up, the criterion chosen by the legislation at issue in the main proceedings, namely entering German territory solely in order to seek employment or benefit from social assistance, is such as to demonstrate the absence of a genuine link with the territory of the host Member State and of integration in it. The criterion serves to ensure that the system is economically viable and that its financial balance is not undermined. The legislation therefore pursues a legitimate objective within the meaning of the abovementioned case-law. 136. Moreover, I consider the condition chosen to be proportionate to the objective legitimately pursued by the national law. 137. In order to refuse the grant of basic provision benefits, the authorities of the Member State must, to a certain extent, examine the applicant’s personal situation for the purpose of determining whether the applicant is covered by the exception provided for in point 2 of the second sentence of Paragraph 7(1) of SGB II or Paragraph 23(3) of SGB XII. 138. The limited scope of this exception also removes the risk of an automatic expulsion measure based solely on an application for a social assistance benefit, which is prohibited by Article 14(3) of Directive 2004/38. 139. Therefore, in the light of the foregoing, I consider that the answer to the second and third questions should be that Regulation No 883/2004 and Directive 2004/38 do not preclude a national legislature from choosing to exclude nationals of other Member States from entitlement to a special non-contributory cash benefit on the basis of a general criterion, such as the reason for entering the territory of the host Member State, which is capable of demonstrating the absence of a genuine link with that State, in order to prevent an unreasonable burden on its social assistance system. 140. I should state again, for the record, that this finding does not affect the possibility for the Member States of granting, if they so wish, benefits such as those provided for by the basic provision at issue in the main proceedings on more favourable conditions. D – The fourth question 141. By its fourth and final question, the referring court asks, in essence, whether Articles 1, 20 and 51 of the Charter require Member States to grant Union citizens non-contributory cash benefits which enable permanent residence. 142. Article 1 of the Charter proclaims that human dignity is inviolable, and Article 20 that everyone is equal before the law. 143. It should be noted that, in the context of a reference for a preliminary ruling under Article 267 TFEU, the Court can interpret EU law only within the limits of the powers conferred on the European Union. (51) 144. According to Article 51(1) of the Charter, its provisions are addressed ‘to Member States only when they are implementing Union law’. Moreover, under Article 6(1) TEU, which confers a binding value on the Charter, the Charter does not establish any new power for the European Union or modify its powers. (52) 145. In the present instance, as the Court confirmed in the judgment in Brey, Article 70 of Regulation No 883/2004, which defines the concept of special non-contributory cash benefits, ‘is not intended to lay down the conditions creating the right [to such benefits]. It is [on the contrary] for the legislation of each Member State to lay down those conditions’. (53) Article 70(4) of Regulation No 883/2004 merely sets out a ‘conflict rule’. (54) 146. If the Member States have competence to determine the conditions for granting special non-contributory cash benefits, they also, in my view, have competence to determine the extent of the social cover provided by that type of benefit. 147. Therefore, when the Member States determine the conditions for and extent of special non-contributory cash benefits, they are not implementing EU law. 148. It follows that the Court’s jurisdiction to answer the fourth question has not been established. 149. Moreover, the principle of equal treatment referred to in Article 20 of the Charter is also laid down in Articles 20 TFEU and 21 TFEU. As I have stated in point 90 of this Opinion, Regulation No 883/2004 and Directive 2004/38 flesh out the meaning and scope of the principle of equality established by those provisions. 150. Under Article 52(2) of the Charter, rights recognised by the Charter for which provision is made in the Treaties are to be exercised under the conditions and within the limits defined by those Treaties. 151. As the second and third questions concern provisions of secondary law defining the conditions and limits of the rights protected by Articles 20 TFEU and 21 TFEU, it seems to me to be sufficient to examine those questions for the purpose of providing the referring court with a useful answer. (55) V – Conclusion 152. In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Sozialgericht Leipzig as follows: (1) Persons claiming a special non-contributory cash benefit within the meaning of Articles 3(3) and 70 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, fall within the scope ratione personae of Article 4 of that regulation. (2) Regulation No 883/2004, as amended by Regulation No 988/2009, and Directive 2004/38/EC 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 do not preclude the national legislature from choosing to exclude nationals of other Member States from entitlement to a special non-contributory cash benefit on the basis of a general criterion, such as the reason for entering the territory of the host Member State, which is capable of demonstrating the absence of a genuine link with that State, in order to prevent an unreasonable burden on its social assistance system. (3) The Court of Justice of the European Union does not have jurisdiction to answer the fourth question referred for a preliminary ruling. 1 – Original language: French. 2 – OJ 2010 L 166, p. 1. 3 – OJ 2009 L 284, p. 43. 4 – OJ 2004 L 158, p. 77, and corrigenda at OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34. 5 – The referring court also states that Ms Dano has been convicted for crimes against property and assets, receiving as maximum sentence a suspended two-year term of imprisonment. However, such factual statements do not, in my view, have any bearing on the answers to be given to the questions referred. 6 – C‑22/08 and C‑23/08, EU:C:2009:344. 7 – OJ 1992 L 136, p. 1. 8 – See, to this effect, the third recital in the preamble to Regulation No 1247/92. 9 – See, inter alia, judgments in Skalka (C‑160/02, EU:C:2004:269, paragraph 25 and the case-law cited) and Commission v Parliament and Council (C‑299/05, EU:C:2007:608, paragraph 55 and the case-law cited). 10 – See, to this effect, judgment in Skalka (EU:C:2004:269, paragraph 28) and, for an example of application, judgment in Jauch (C‑215/99, EU:C:2001:139, paragraph 33). 11 – Judgments in Jauch (EU:C:2001:139, paragraph 21) and Skalka (EU:C:2004:269, paragraph 19). 12 – See, to this effect, judgment in Brey (C‑140/12, EU:C:2013:565, paragraph 36). 13 – C‑140/12, EU:C:2013:337, footnote 8. Emphasis added. 14 – According to the German Government’s written observations, these benefits are granted irrespective of whether the person concerned has previously worked or paid contributions. 15 – See point 45 of this Opinion. 16 – Somewhat paradoxically, the German Government concludes that, although basic provision benefits can be granted to unemployed persons and thus, prima facie, take on the characteristics of the social security legislation referred to in Article 3(1) of Regulation No 883/2004, they are, in reality, special non-contributory cash benefits within the meaning of Article 3(3) of that regulation. 17 – Judgment in Brey (EU:C:2013:565). 18 – Opinion of Advocate General Wahl in Brey (EU:C:2013:337), point 56. 19 – Judgment in Brey (EU:C:2013:565, paragraph 58). 20 – Ibid. (paragraph 60 and the case-law cited). 21 – Ibid. (paragraph 61 and the case-law cited). 22 – EU:C:2009:344, paragraph 45. 23 – Opinion in Vatsouras andKoupatantze (C‑22/08 and C‑23/08, EU:C:2009:150, point 57). 24 – EU:C:2009:344. 25 – EU:C:2013:565, paragraph 60. 26 – See, to this effect, judgment in Brey (EU:C:2013:565, paragraph 61). 27 – Emphasis added. 28 – See to this effect, in connection with Article 21 TFEU and Article 7(1)(b) of Directive 2004/38, judgment in Brey (EU:C:2013:565, paragraphs 46 and 47). 29 – Article 24(2) of Directive 2004/38 refers to Article 14(4)(b) of that directive, which states that an expulsion measure cannot be adopted against Union citizens or their family members (subject to the restrictions on the right of residence on grounds of public policy, public security or public health that are laid down in Chapter VI of the directive) if they entered the territory of the host Member State in order to seek employment as long as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. 30 – EU:C:2013:337. Emphasis added. 31 – Judgment in Brey (EU:C:2013:565). 32 – EU:C:2013:337, point 81. 33 – EU:C:2013:565. 34 – C‑184/99, EU:C:2001:458, paragraph 46. 35 – C‑456/02, EU:C:2004:488, paragraph 46. Although the judgment was delivered after the adoption of Directive 2004/38, both the facts at issue in that case and the request for a preliminary ruling considerably predate its adoption. 36 – This matter has also been debated in the legal literature. In connection with the case-law of the Court relating to Articles 18 TFEU and 21 TFEU and to Directive 2004/38, O. Golynker wrote, inter alia, that ‘[t]he peculiar consequence of this line of reasoning is that once the construct of lawful residence becomes disjointed from the requirement to meet the conditions to which the right of residence is subject, the conditional nature of the right to residence under Art. [21 TFEU] becomes neutralised by the right to equal treatment under Art. [18 TFEU]. As a result, the coherence of the concept of the right to free movement and residence in Community law is called into question. The Court’s generous interpretation of the right to equal treatment for Union citizens lawfully resident in the territory of another Member State seems to be in conflict with the conditional nature of the right to free movement and residence under Art. [21 TFEU]’ (Golynker, O., ‘Jobseekers’ rights in the European Union: challenges of changing the paradigm of social solidarity’, European Law Review, 2005, 30 (1), pp. 111 to 122, especially p. 120). 37 – Article 7(1)(b) of Directive 2004/38. 38 – Article 14(1) of Directive 2004/38 refers, in fact, to Article 6 thereof, which regulates the right of residence for a period of up to three months. 39 – EU:C:2013:337, point 81, emphasis added by Advocate General Wahl. 40 – Essentially prior to the adoption of Directive 2004/38. 41 – On the relationship between Article 24(2) of Directive 2004/38 and the case-law of the Court (in particular the judgment in Collins, C‑138/02, EU:C:2004:172), O. Golynker writes that ‘[t]he above provision is not in tune with the ruling in Collins and shows that the generous interpretation by the Court of Justice of the consequences of Union citizenship for social solidarity in general and the rights of jobseekers in particular does not accord with what the Member States assumed when they signed the Maastricht Treaty’ (Golynker, O., op. cit., p. 119; emphasis added). 42 – Judgment in Brey (EU:C:2013:565, paragraph 61). Emphasis added. 43 – Article 7(1) of Directive 2004/38. 44 – EU:C:2001:458, paragraph 46. 45 – See, to this effect, judgments in Bidar (C‑209/03, EU:C:2005:169, paragraphs 56 and 57) and Förster (C‑158/07, EU:C:2008:630, paragraphs 48 and 49). 46 – See, to this effect, judgments in Collins (EU:C:2004:172, paragraph 67) and Vatsouras and Koupatantze (EU:C:2009:344, paragraph 38). 47 – ‘In essence, this requirement of genuine integration is used by Union institutions to manage tension between the right of migrant citizens to transnational solidarity and the power of Member States to shape their social security system and prevent “abuses of host law” in the form of benefit tourism’ (Sayde, A., ‘One Law, Two Competitions: An Enquiry into the Contradictions of Free Movement Law’, Cambridge Yearbook of European Legal Studies, 2010-11, vol. 13, p. 365 et seq., especially p. 395. 48 – Judgment in Dansk Jurist- og Økonomforbund (C‑546/11, EU:C:2013:603, paragraph 70). That case concerned an availability pay scheme from which civil servants who had reached the age at which a retirement pension became payable were excluded by reason of that fact alone. 49 – See, to this effect, judgment in Kohll (C‑158/96, EU:C:1998:171, paragraph 41). 50 – See, to this effect, judgments in Bidar (EU:C:2005:169, paragraph 59) and Förster (EU:C:2008:630, paragraph 48). 51 – See, to this effect, among countless examples, order in Vino (C‑161/11, EU:C:2011:420, paragraphs 25 and 37). 52 – See, to this effect, judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 17 and 23). 53 – Judgment in Brey (EU:C:2013:565, paragraph 41). 54 – Ibid., paragraph 39. 55 – See, to this effect, with regard to the effect of the establishment of freedom of movement for workers by Article 15(2) of the Charter and Article 45 TFEU on the answer to be given to a request for a preliminary ruling, judgment in Gardella (C‑233/12, EU:C:2013:449, paragraphs 39 and 41).