Opinion of the Advocate General — ECLI:EU:C:2025:96
Date: 2025-02-13
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-397/23 – 1 
Case C-397/23 
Request for a preliminary ruling 
Date lodged: 
29 June 2023 
Referring court: 
Sozialgericht Detmold (Germany) 
Date of the decision to refer: 
22 June 2023 
Applicant: 
FL 
Defendant: 
Jobcenter Arbeitplus Bielefeld 
  
Sozialgericht Detmold (Social Court, Detmold) 
… 
Order 
In the case of 
FL, … Bielefeld 
applicant 
… 
v 
Jobcenter Arbeitplus Bielefeld … 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 6. 2023 – CASE C-397/23 
 
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defendant 
Stadt Bielefeld Amt für soziale Leistungen – Sozialamt – … 
joined party 
on 22 June 2023, the 35th Chamber of the Sozialgericht Detmold … has made the 
following order: 
I. The proceedings are stayed. 
II. The following question is referred to the Court of Justice of the 
European Union for a preliminary ruling pursuant to the first and 
second paragraphs of Article 267 of the Treaty on the Functioning of 
the European Union (TFEU): 
Is EU law to be interpreted as precluding a national rule under which a 
residence permit for the purpose of care and custody may be granted only to 
the foreign parent of an unmarried minor child resident in national territory 
if the parent has his or her habitual residence in national territory, which 
means that Union citizens of a Member State do not have such entitlement to 
the grant of a residence permit for the purpose of care and custody of a 
Union citizen who is a minor and a national of a Member State other than 
the host country? 
Grounds: 
… 
A. Subject matter and facts of the main proceedings 
I. Subject matter of the main proceedings 
The parties are in dispute as to whether the applicant is entitled to social benefits 
under the Sozialgesetzbuch Zweites Buch (Book II of the Social Code, SGB II) or 
the Sozialgesetzbuch Zwölftes Buch (Book XII of the Social Code, SGB XII) for 
the period from 30 May 2020 to 28 February 2021. For such entitlement, it is 
necessary under the national provisions laid down in point 2(b) of the second 
sentence of Paragraph 7(1) of the SGB II and point 2 of the first sentence of 
Paragraph 23(3) of the SGB XII in the relevant versions that he or she has a right 
of residence which does not arise solely out of the search for employment. 
II. Facts of the main proceedings 
The applicant, who was born on 21 May 1979, is a Polish citizen. On 30 May 
2020, he entered the Federal Republic of Germany from the Netherlands … 
together with his non-marital partner. She had previously entered Germany from 
Poland on 30 August 2015 and stayed with a friend in the Netherlands for only a 
short period on account of an argument with her husband, who died on 25 March 
JOBCENTER ARBEITPLUS BIELEFELD 
 
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2020. [The applicant’s partner] is also a Polish citizen. On 27 November 2020, the 
couple’s son … was born outside marriage in Bielefeld. He too is a Polish citizen. 
The applicant and [his partner and their son] applied to the defendant for benefits 
under the SGB II. By decisions of 3 December 2020 and 21 December 2020, the 
defendant approved [in respect of the partner] benefits under the SGB II for the 
period from entry on 30 May 2020. The defendant approved [in respect of the son] 
benefits for the period from his birth on 27 November 2020. … By rejection 
decision of 21 April 2021, the defendant rejected the applicant’s claim … for the 
period at issue from 30 May 2020 to 28 February 2021. As grounds it stated that 
the applicant was not entitled to benefits under the SGB II because he only had a 
right of residence for purposes of the search for employment. There was no right 
of residence other than for purposes of the search for employment from which an 
entitlement to benefits under the SGB II could be derived. … [explanation, see 
next paragraph] 
The applicant lodged an administrative appeal against that decision in good time. 
By decision of 19 July 2021, the defendant dismissed the administrative appeal as 
unfounded. As grounds, it stated again that a right of residence did not arise from 
point 3 of the first sentence of Paragraph 28(1) of the Aufenthaltsgesetz (Gesetz 
über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im 
Bundesgebiet (Law on the residence, gainful employment and integration of 
foreign nationals in federal territory)). [The partner] had been in the Federal 
Republic of Germany for more than five years and had a right of permanent 
residence. The applicant entered the Federal Republic of Germany for the first 
time on 30 May 2020. … [Under national law the applicant did not have a right of 
residence as a family member or related person of his partner.] Furthermore, the 
right of residence also did not arise from the first sentence of Paragraph 11(14) of 
the Freizügigkeitsgesetz (Gesetz über die allgemeine Freizügigkeit von 
Unionsbürgern (Law on general freedom of movement of Union citizens), which 
refers to the Aufenthaltsgesetz in the provision cited) in conjunction with point 3 
of the first sentence of Paragraph 28(1) of the Aufenthaltsgesetz because the right 
applies solely to minors who are German nationals and the applicant’s son has 
only Polish nationality. Nor did a right of residence arise from the decision of the 
Court of Justice of the European Union in Case C-181/19 or Regulation (EU) 
No 492/2011 because the applicant’s son was not of compulsory school age. 
Paragraph 28 of the Aufenthaltsgesetz could not be interpreted in the light of EU 
law, having regard to Article 4 of Regulation (EC) No 883/2004, as meaning that 
the unmarried father of a Union citizen who is not of compulsory school age must 
also enjoy a right of residence. The partner’s right of freedom of movement and 
residence was not rendered materially impossible by the fact that the unmarried 
father did not receive any social benefits under the SGB II. 
The applicant brought an action against that decision on 12 August 2021. 
In the action, he claims in essence that a right of residence arises from point 3 of 
the first sentence of Paragraph 28(1) of the Aufenthaltsgesetz in conjunction with 
REQUEST FOR A PRELIMINARY RULING OF 22. 6. 2023 – CASE C-397/23 
 
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Article 6 of the Grundgesetz (Basic Law, GG) and Article 8 of the European 
Convention on Human Rights (ECHR). Restricting the right to family 
reunification for the purpose of care and custody to ‘Germans’ is contrary to EU 
law and constitutes an unreasonable disadvantage and a restriction of freedom of 
movement. A right to equal treatment arises from the first sentence of 
Paragraph 11(14) of the Freizügigkeitsgesetz in conjunction with point 3 of the 
first sentence of Paragraph 28(1) of the Aufenthaltsgesetz, Article 6 of the GG and 
Article 8 of the ECHR. 
The defendant and the joined party assert in the action that a right of residence 
cannot arise from point 3 of the first sentence of Paragraph 28(1) of the 
Aufenthaltsgesetz because, according to its wording, that provision is applicable 
only to ‘Germans’ and not to ‘Union citizens’. An inherent characteristic of 
national immigration and residence law is that a distinction is drawn between 
‘Germans’ and ‘foreign nationals’. The provision in question does not infringe EU 
law. The question raised whether the non-grant of a residence permit for a Union 
citizen who lives in federal territory and has rights of care and custody over a 
minor child who enjoys the right of freedom of movement and is a citizen of a 
Member State constitutes discrimination is contentious in the case-law of the 
higher courts. Because of the inconsistent case-law of the higher courts and in the 
absence of a decision by a supreme court, it is not possible to alter the earlier 
decision and give partial recognition of the claim. 
III. National legal framework 
The relevant provisions of national law are as follows: 
Paragraph 28 of the Aufenthaltsgesetz in the version of the Law of 27 July 2015 
(BGBl. I p. 1386) 
(1) 1A residence permit shall be granted to the foreign 
1. spouse of a German, 
2. unmarried minor child of a German, 
3. parent of an unmarried minor German for the purpose of care and custody, 
if the German has his or her habitual residence in federal territory. … 
… 
… [provisions governing specific aspects] 
Paragraph 11 of the Freizügigkeitsgesetz in the version of the Law of 
24 November 2020 (BGBl. I p. 2416), as amended by Article 1 of the Law of 
12 November 2020 
… 
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(14) 1The Aufenthaltsgesetz shall also apply if it establishes a more favourable 
legal status than the present Law. … 
Paragraph 7 of the SGB II in the version of the Law of 30 November 2019 (BGBl. 
I p. 1948), applicable up to 31 December 2020 
(1) 1Benefits granted under this Book shall be received by persons 
1. who have attained the age of 15 years and have not yet reached the age limit 
referred to in Paragraph 7a, 
2. who are fit for work, 
3. who are in need of assistance, and 
4. whose habitual residence is in the Federal Republic of Germany 
(beneficiaries fit for work). 
2The following shall be excluded: 
1. foreign nationals who are not workers or self-employed persons in the 
Federal Republic of Germany and do not enjoy the right of freedom of movement 
under Paragraph 2(3) of the Freizügigkeitsgesetz, and their family members, for 
the first three months of their residence, 
2. foreign nationals 
(a) who do not have a right of residence, 
(b) whose right of residence arises solely out of the search for employment, or 
(c) who derive their right of residence, exclusively or alongside a right of 
residence under point (b), from Article 10 of Regulation (EU) No 492/2011 of the 
European Parliament and of the Council of 5 April 2011 on freedom of movement 
for workers within the Union (OJ 2011 L 141, p. 1), which was amended by 
Regulation (EU) 2016/589 (OJ 2016 L 107, p. 1), 
and their family members, 
… 
… 4In derogation from point 2 of the second sentence, foreign nationals and their 
family members shall receive benefits granted under this Book if they have had 
their habitual residence in federal territory for at least five years; … 
… 
Paragraph 7 of the SGB II, in the version of the Law of 9 December 2020 (BGBl. 
I p. 2855), applicable from 1 January 2021 
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Beneficiaries 
(1) … 
… 
… [identical to the version applicable up to 31 December 2020] 
2The following shall be excluded: 
1. foreign nationals who are not workers or self-employed persons in the Federal 
Republic of Germany and do not enjoy the right of freedom of movement under 
Paragraph 2(3) of the Freizügigkeitsgesetz, and their family members, for the first 
three months of their residence, 
2. foreign nationals 
(a) who do not have a right of residence, or 
(b) whose right of residence arises solely out of the search for employment, 
and their family members, 
… 
… [identical to the version applicable up to 31 December 2020] 
… 
Paragraph 23 of the SGB XII in the version of the Law of 22 December 2016 
(BGBl. I p. 3155), applicable up to 31 December 2020 
(1) 1Subsistence assistance, assistance for sick persons, assistance for pregnant 
women, maternity assistance and care assistance under this Book shall be granted 
to foreign nationals who are actually resident in national territory. 2The provisions 
of the Fourth Chapter shall not be affected. 3Otherwise, social assistance may be 
granted in so far as it is justified in a particular case. 4The restrictions under the 
first sentence shall not apply to foreign nationals holding a permanent residence 
permit or a residence permit of limited duration who anticipate taking up 
permanent residence in federal territory. 5Legal provisions under which social 
assistance other than the benefits referred to in the first sentence must or should be 
granted shall not be affected. 
(2) … 
(3) 1Foreign nationals and their family members shall not receive benefits under 
subparagraph 1 or under the Fourth Chapter if 
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1. they are not workers or self-employed persons in the Federal Republic of 
Germany and do not enjoy the right of freedom of movement under 
Paragraph 2(3) of the Freizügigkeitsgesetz, for the first three months of their 
residence, 
2. they do not have a right of residence or their right of residence arises solely out 
of the search for employment, 
3. they derive their right of residence, exclusively or alongside a right of residence 
under point 2, from Article 10 of Regulation (EU) No 492/2011 of the European 
Parliament and of the Council of 5 April 2011 on freedom of movement for 
workers within the Union (OJ 2011 L 141, p. 1), which was amended by 
Regulation (EU) 2016/589 (OJ 2016 L 107, p. 1), or 
4. they entered in order to obtain social assistance. 
… 
… [limited assistance until departure, as a rule for a maximum of one month] 
7In derogation from points 2 and 3 of the first sentence, foreign nationals and their 
family members shall receive benefits under the first and second sentences of 
subparagraph 1 if they have resided in federal territory for at least five years 
without significant interruption; … 
… 
Paragraph 23 of the SGB XII, in the version of the Law of 9 December 2020 
(BGBl. I p. 2855), applicable from 1 January 2021 
… 
… [identical to the version applicable up to 31 December 2020] 
(3) 1Foreign nationals and their family members shall not receive benefits under 
subparagraph 1 or under the Fourth Chapter if 
1. they are not workers or self-employed persons in the Federal Republic of 
Germany and do not enjoy the right of freedom of movement under 
Paragraph 2(3) of the Freizügigkeitsgesetz, for the first three months of their 
residence, 
2. they do not have a right of residence or their right of residence arises solely out 
of the search for employment, or 
3. they entered in order to obtain social assistance. 
… 
REQUEST FOR A PRELIMINARY RULING OF 22. 6. 2023 – CASE C-397/23 
 
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… [limited assistance until departure, as a rule for a maximum of one month] 7In 
derogation from point 2 of the first sentence, foreign nationals and their family 
members shall receive benefits under the first and second sentences of 
subparagraph 1 if they have resided in federal territory for at least five years 
without significant interruption; … 
… 
Article 8 of the ECHR … 
(1) Everyone has the right to respect for his private and family life … 
… 
Article 6 of the GG … 
… 
… [Protection of marriage and family, equal conditions for children born within 
marriage and children born outside marriage] 
B. Reference and relevance to the decision of the questions referred for a 
preliminary ruling 
It is true that, as a Sozialgericht (Social Court) of first instance, the Chamber is 
not obliged to carry out a preliminary ruling procedure because there are judicial 
remedies against decisions of the Sozialgerichte at the Landessozialgericht 
(Higher Social Court) and at the Bundessozialgericht (Federal Social Court). 
However, the Chamber considers it necessary to refer the proceedings at first 
instance, in order to accelerate the proceedings and to clarify the legal question 
which has been answered differently in the case-law of the higher courts, the 
Landessozialgerichte, so that it can be clarified in EU law whether such a national 
provision infringes Article 18 TFEU, Article 20, Article 21(2) and Article 33(1) of 
the Charter of Fundamental Rights of the European Union (‘the Charter’), 
Regulation (EC) No 987/2009, Directive 2004/38/EC or other provisions of EU 
law taken into consideration by the Court. 
The Chamber points out that there are significant differences in the interpretation 
of this legal question in the case-law of the higher national courts. … [references 
to the case-law of the Sozialgerichte in which unlawful discrimination within the 
meaning of Article 18 TFEU is accepted or rejected; see the references in the 
order of the Bundesverfassungsgericht (Federal Constitutional Court)] The 
Bundesverfassungsgericht (BVerfG) also states that it is contentious in the case-
law of the Landessozialgerichte and in legal literature whether the 11th sentence 
of Paragraph 11(1) of the Freizügigkeitsgesetz in the version applicable up to 
23 November 2020 (since 24 November 2020: the first sentence of 
Paragraph 11(14) of the Freizügigkeitsgesetz) in conjunction with point 3 of the 
first sentence of Paragraph 28(1) of the Aufenthaltsgesetz and the first paragraph 
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of Article 18 TFEU can grant a right of residence to the parent, who has rights of 
care and custody, of a Union citizen who is a minor and enjoys the right of 
freedom of movement by virtue of accompanying the other parent pursuant to the 
first sentence of Paragraph 3(1) of the Freizügigkeitsgesetz (BVerfG, order of 
4 October 2019 – 1 BvR 1710/18, 
[https://www.bundesverfassungsgericht.de/SharedDocs/Downloads/DE/2019/10/r
k20191004_1bvr171018.html] 2019, 27335, paragraph 12). 
I. EU legal framework 
In the view of the Chamber, the relevant provisions of EU law in the case at issue 
are: Article 18 TFEU, Article 20, Article 21(2) and Article 33(1) of the Charter, 
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 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. In so far as the Court considers 
other provisions of EU law to be relevant, they should also be brought within the 
subject matter of the request for a preliminary ruling. 
II. Relevance of the interpretation of European Union law for the main 
proceedings 
The question referred for a preliminary ruling is legally relevant to the outcome of 
the proceedings. If the question were answered in the affirmative, the applicant … 
would be entitled to benefits in principle, at least for the period from the birth of 
the couple’s son on 27 November 2020. A material right of residence would arise 
from point 3 of the first sentence of Paragraph 28(1) of the Aufenthaltsgesetz, 
which constitutes a right of residence within the meaning of point 2(b) of the 
second sentence of Paragraph 7(1) of the SGB II and point 2 of the first sentence 
of Paragraph 23(3) of the SGB XII that does not arise solely out of the search for 
employment. The action in the proceedings at first instance would thus be 
partially successful on the basis of the present state of affairs and of the dispute. If 
the question is answered in the negative, the action would have to be dismissed on 
the basis of the present state of affairs and of the dispute. The dispute also has the 
connection with EU law which is necessary for the request for a preliminary 
ruling, as it concerns the conditions for receipt of social benefits by a Union 
citizen who, after moving to the Federal Republic of Germany, seeks, by relying 
on care and custody, equality with nationals and claims that the national rule is 
contrary to EU law. 
Rights of appeal: 
…