62019CJ0181_RES
Case C‑181/19
Jobcenter Krefeld – Widerspruchsstelle v JD
(Request for a preliminary ruling from the Landessozialgericht Nordrhein-Westfalen)
Judgment of the Court (Grand Chamber), 6 October 2020
(Reference for a preliminary ruling – Free movement of persons – Workers – Regulation (EU) No 492/2011 – Article 7(2) – Equal treatment – Social advantages – Article 10 – Children attending school – Directive 2004/38/EC – Article 24 – Social assistance – Regulation (EC) No 883/2004 – Article 4 – Article 70 – Special non-contributory cash benefits – Migrant worker with dependent children attending school in the host Member State)
Free movement of persons – Workers – Right of residence of family members – Child of a migrant worker or former migrant worker studying in the host Member State – Parent primarily caring for that child – Right of residence solely on the basis of Article 10 of Regulation No 492/2011 –Obligation to meet the criteria defined in Directive 2004/38 – None – Loss by that parent of the status of worker – Irrelevant
(European Parliament and Council Regulation No 492/2011, Art. 10; European Parliament and Council Directive 2004/38)
(see paragraphs 35, 37-39, 49)
Free movement of persons – Workers – Equal treatment – Social advantages – Definition – Social benefits to cover the subsistence costs of their recipients – Included
(European Parliament and Council Regulation No 492/2011, Art. 7(2))
(see paragraphs 41, 42)
Free movement of persons – Workers – Equal treatment – Social advantages – Beneficiaries – Child of a migrant worker or former migrant worker studying in the host Member State – Parent primarily caring for that child – Loss by that parent of the status of worker – Irrelevant
(Art. 45 TFEU; European Parliament and Council Regulation No 492/2011, Arts 7(2) and 10)
(see paragraphs 43-48, 50-55)
Free movement of persons – Workers – Equal treatment – Social advantages – National legislation excluding from the receipt of benefits to cover their subsistence costs a former migrant worker and his or her children, who can rely on an independent right of residence by virtue of the children attending school in the host Member State – Unlawful – Justification – Derogation from the principle of equal treatment of Union citizens in relation to social assistance – Not applicable – Union citizen concerned also enjoying a right of residence as a jobseeker – Irrelevant
(European Parliament and Council Regulation No 492/2004, Arts 7(2) and 10; European Parliament and Council Directive 2004/38, Art. 24(2))
(see paragraphs 55, 58-65, 69-73, 77, 79, operative part 1)
Social security – Migrant workers – Equal treatment within the meaning of Article 4 of Regulation No 883/2004 – Scope –Special non-contributory cash benefits – Included
(European Parliament and Council Regulation No 883/2004, Arts 3(3), 4 and 70(2))
(see paragraph 83)
Social security – Migrant workers – Equal treatment – National legislation excluding from the receipt of special non-contributory cash benefits a former migrant worker and his or her children, who can rely on an independent right of residence by virtue of the children attending school in the host Member State – Unlawful – Justification – Derogation from the principle of equal treatment of Union citizens in relation to social assistance – Not applicable
(European Parliament and Council Regulation No 883/2004, Arts 3(1) and (3), 4 and 70(2) and No 492/2011, Art. 10; European Parliament and Council Directive 2004/38, Art. 24(2))
(see paragraphs 84-89, operative part 2)
Résumé
A former migrant worker and his or her children who have a right of residence by virtue of those children attending school cannot be automatically excluded from entitlement to basic social benefits under national law on the ground that that worker has become unemployed
JD is a Polish national residing since 2013 in Germany with his two minor daughters, who attend school in that State. In 2015 and 2016, JD was in several types of paid employment in that State before becoming unemployed. From September 2016 to June 2017, the family received, inter alia, basic social protection benefits under German law, namely ‘subsidiary unemployment benefits’ for JD (Arbeitslosengeld II) and ‘social allowances’ for his children (Sozialgeld). Since 2 January 2018 JD has again been in full-time employment
JD made an application for the continued payment of those benefits from June to December 2017 to the competent German authority, Jobcenter Krefeld. However, that authority rejected his application on the ground that, during the period at issue, JD had not retained the status of a worker and that he was residing in Germany as a jobseeker. JD brought an action against that decision, which was upheld. Jobcenter Krefeld then brought an appeal against that judgment before the Landessozialgericht Nordrhein-Westfalen (Higher Social Court, North Rhine-Westphalia, Germany).
A request for a preliminary ruling having been made by that court, the Court, in a judgment delivered by the Grand Chamber on 6 October 2020, clarified the rights enjoyed by a former migrant worker who has dependent children attending school in the host Member State, in the light of Regulations Nos 492/2011 (
1
) and 883/2004 (
2
) and Directive 2004/38. (
3
)
In that regard, after having found that the social protection benefits at issue can constitute a ‘social advantage’ within the meaning of Regulation No 492/2011, the Court held, first, that that regulation precludes national legislation which excludes automatically and in all circumstances a former migrant worker and his children from the receipt of such benefits even though they enjoy, under that regulation, (
4
) an independent right of residence by virtue of those children attending school.
In order to make that finding, the Court first recalled that the right of residence granted to the children of a (former) migrant worker in order to guarantee their right to access to education and, secondarily, to the parent caring for those children has its original source in the status of that parent as a worker. However, once acquired, that right becomes independent and can continue after the loss of that status. The Court next considered that persons having such a right of residence also enjoy the right to equal treatment with national citizens in relation to the granting of social advantages, laid down by Regulation No 492/2011, (
5
) even where they can no longer rely on the worker status from which they derived their initial right of residence. Such an interpretation therefore ensures that an individual who intends to leave, with his family, his Member State of origin in order to travel to and work in another Member State is not exposed to the risk that, if he were to lose employment, the schooling of his children would have to be interrupted and he would have to return to his country of origin, because of inability to claim the social benefits laid down under national legislation which would enable them to have sufficient means of subsistence.
Last, the Court held that the host Member State cannot, in a case such as that in the main proceedings, rely on the derogation from the principle of equal treatment in relation to social assistance provided for by Directive 2004/38. (
6
) That derogation allows certain categories of individuals to be refused the grant of assistance benefits, such as individuals who enjoy a right of residence under that directive as jobseekers in the host Member State, in order to ensure that those individuals do not become an unreasonable burden on the social assistance system of the host Member State. That derogation must be interpreted strictly and may apply only to individuals whose right of residence is based on that directive alone. In the present case, the persons concerned do admittedly enjoy a right of residence based on that directive, (
7
) by virtue of the parent concerned seeking employment. However, since they may also rely on an independent right of residence under Regulation No 492/2011, that derogation cannot be relied on against them. Thus, national legislation excluding them from any entitlement to social protection benefits creates a difference in treatment in relation to social advantages as compared with national citizens, which is contrary to that regulation. (
8
)
In the second place, the Court held that a (former) migrant worker and his children enjoying a right of residence under Regulation No 492/2011 and integrated in the social security system in the host Member State also enjoy the right to equal treatment under Regulation No 883/2004. (
9
) The refusal to grant them any entitlement to the social protection benefits at issue therefore constitutes a difference in treatment as compared with national citizens. That difference in treatment is contrary to that regulation, (
10
) as the derogation provided for in Directive 2004/38 (
11
) cannot, for the same reasons as those set out by the Court in the context of Regulation No 492/2011, apply to the situation of such a worker and his children attending school.
(
1
)	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).
(
2
)	Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, corrigendum OJ 2004 L 200, p. 1).
(
3
)	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 (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).
(
4
)	Article 10 of Regulation No 492/2011.
(
5
)	Article 7(2) of Regulation No 492/2011.
(
6
)	Article 24(2) of Directive 2004/38.
(
7
)	Article 14(4)(b) of Directive 2004/38.
(
8
)	Article 7(2) of Regulation No 492/2011 read in conjunction with Article 10 thereof.
(
9
)	Article 4 of Regulation No 883/2004.
(
10
)	Article 4 of Regulation No 883/2004.
(
11
)	Article 24(2) of Directive 2004/38.