OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 16 December 2021 ( 1 )

Case C‑411/20

S

v

Familienkasse Niedersachsen-Bremen der Bundesagentur für Arbeit

(Request for a preliminary ruling from the Finanzgericht Bremen (Bremen Finance Court, Germany))

(Reference for a preliminary ruling – Free movement of persons – Citizenship of the Union – Equal treatment – Economically inactive national of a Member State residing in the territory of another Member State for less than three months – Exclusion of that person from entitlement to family benefits – Regulation (EC) No 883/2004 – Article 4 – Equal treatment – Directive 2004/38/EC – Article 6 – Residence for less than three months – Article 24(2) – Derogation from equal treatment – Concept of ‘social assistance’)

Table of contents

I. Introduction II. Le cadre juridique A. European Union law B. German law III. The facts giving rise to the dispute in the main proceedings, the question referred and the procedure before the Court IV. Preliminary observations V. Analysis A. The applicability of Article 24(2) of Directive 2004/38 1. Case-law context (a) The judgments in Dano, Alimanovic and García-Nieto and Others (b) The judgment in Jobcenter Krefeld 2. The specific aspects of the present case 3. Right of residence under Article 6 of Directive 2004/38 (a) Preliminary observations (b) Lawful residence under Article 6 of Directive 2004/38 4. Do the family benefits in question fall within the meaning of ‘social assistance’ under Directive 2004/38? (a) The concept of ‘social assistance’ (b) The German Government’s approach B. Compliance of the legislation at issue in the main proceedings with the right to equal treatment under Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004 1. The relationship between Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004 2. The existence of direct discrimination prohibited by Article 4 of Regulation No 883/2004 C. Interim conclusion D. The existence of discrimination prohibited by Article 24(1) of Directive 2004/38 1. The Commission’s arguments about the comparability of the situations at issue 2. Whether the refusal at issue in the main proceedings is objectively justified (a) The justifications alleged by the German Government: the objective of protecting public finances (b) Assessment (1) The existence of proven risks to public finances (2) The proportionality of the national provision at issue in the main proceedings VI. Conclusion

I. Introduction

1. May a Member State exclude Union citizens who are nationals of another Member State from entitlement to family benefits during the first three months of their residence in that Member State if they are not in receipt of national income during that period, while a national of the Member State concerned who returns to that Member State after having resided in another Member State in accordance with EU law is entitled to such benefits on return without receiving such income?

2. This is the question asked by the referring court in a dispute between S, a Bulgarian national, and the Familienkasse Niedersachsen-Bremen der Bundesagentur für Arbeit (Lower Saxony and Bremen Family Allowances Fund of the Federal Employment Agency, Germany; ‘the Familienkasse’) in relation to a refusal by that agency to grant S family benefits.

3. Against that background, the Court of Justice is being asked to interpret Article 24 of Directive 2004/38/EC ( 2 ) and Article 4 of Regulation (EC) No 883/2004 ( 3 ) and is required to determine whether that question fits fully within the line of case-law established by the judgments in Dano, ( 4 )Alimanovic ( 5 ) and García-Nieto and Others. ( 6 )

4. In this Opinion, I will explain the reasons why I do not consider that the exclusion of economically inactive nationals of other Member States from entitlement to family benefits, such as that at issue in the main proceedings, comes within that line of case-law.

II. Legal context

A. European Union law

5. In addition to certain provisions of primary law – namely Article 21(1) TFEU and Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) – Article 1(z), Article 3(1)(j), Article 4, Article 11(1) and (3) and Article 70 of Regulation No 883/2004, and Article 6, Article 7(1)(b), Article 14(1) and Article 24 of Directive 2004/38 are relevant in the present case.

B. German law

6. Paragraph 62 of the Einkommensteuergesetz (Law on Income Tax; ‘the EStG’), in the version applicable to the facts of the main proceedings, states as follows: ‘(1) 1The following persons shall be entitled to family benefits in respect of children within the meaning of Paragraph 63: 1. persons whose permanent residence or habitual residence is within the national territory … 2To be able to claim family benefits under sentence 1, the person entitled must be identified by means of the identification number allocated to him or her … 3The subsequent allocation of an identification number shall have retroactive effect to the months during which the conditions referred to in sentence 1 are met. (1a) 1If a national of another Member State of the Union or a State to which the Agreement on the European Economic Area applies establishes his or her permanent residence or habitual residence within the national territory, he or she shall not be entitled to claim family benefits for the first three months following establishment of that permanent residence or habitual residence. 2This rule shall not apply if that national proves that he or she is in receipt of national income in accordance with points 1 to 4 of sentence 1 of Paragraph 2(1), with the exception of income referred to in point 2 of sentence 1 of Paragraph 19(1). 3Following expiry of the period referred to in sentence 1, that individual shall be entitled to claim family benefits, unless the conditions laid down in Paragraph 2(2) or (3) of the [Gesetz über die allgemeine Freizügigkeit von Unionsbürgern (Law on freedom of movement of Union citizens)] are not met or only the conditions laid down in point 1a of Paragraph 2(2) of the Law on freedom of movement of Union citizens are met without any of the other conditions laid down in Paragraph 2(2) of that law having been met previously. 4The examination to determine whether the eligibility conditions for family benefits are met in accordance with the second sentence shall be at the sole discretion of the Family Allowances Fund … 5Where, in such a case, the Family Allowances Fund rejects an application for family benefits, it must notify its decision to the competent immigration authority. 6Where the applicant has used falsified or altered documents or deception to suggest that he or she is eligible to claim family benefits, the Family Allowances Fund shall immediately advise the competent immigration authority. …’

III. The facts giving rise to the dispute in the main proceedings, the question referred and the procedure before the Court

7. The applicant in the main proceedings, S, her spouse, V, and their three children, born in 2003, 2005 and 2010, are Bulgarian nationals.

8. In May 2015, S submitted an initial application for family benefits for her three children to the Familienkasse.

9. By decision of 13 May 2015, the Familienkasse granted that application and regularly paid those benefits for the three children from May 2015.

10. On 25 April 2016, the registration authority automatically deregistered S and her three children from their address in Bremerhaven (Germany) on the ground that the dwelling in question was empty. Following that deregistration, the Familienkasse ceased paying family benefits to S from 3 June 2016 and, by decision of that same date, withdrew its decision to grant S her family benefits from May 2016 and demanded that the benefits paid for that month be repaid.

11. In December 2017, S lodged an application for family benefits for two of her children, namely N and A, with the Familienkasse Nordrhein-Westfalen Nord (Family Allowances Fund for North Rhine-Westphalia, Germany), indicating an address in Herne (Germany). Several letters sent by the Familienkasse to that address were returned to that agency with the indication ‘addressee unknown’ affixed by the postal service provider.

12. By decision of 1 August 2018, notified by publication, the Familienkasse rejected that application on the ground, in essence, that S did not have her permanent residence or habitual residence in Germany.

13. On 28 October 2019, S lodged a new application for family benefits for her three children with the Familienkasse.

14. By decision of 27 December 2019, the Familienkasse rejected that application for the period from August 2019. The Familienkasse considered that S, V and their children had resided in Germany since 19 August 2019, the date corresponding to their entry into the territory of that Member State from Bulgaria and their taking up residence in an apartment in Bremerhaven. The Familienkasse considered that S had not received any national income during the first three months after taking up residence in Germany, with the result that S did not meet the conditions laid down in Paragraph 62(1a) of the EStG for entitlement to family benefits for that period.

15. By decision of 6 April 2020, the Familienkasse rejected the complaint made by S and confirmed its refusal decision. It added that S had not been in gainful employment during the period in question and considered that the work undertaken by V during the period from 5 November to 12 December 2019 was minor.

16. On 10 May 2020, S brought an action before the referring court requesting that the decision to reject her family benefits application be annulled and that the Familienkasse be ordered to pay family benefits for her three children for the months of August to October 2019 (inclusive).

17. By order of 13 July 2020, the Finanzgericht Bremen (Bremen Finance Court, Germany) separated the proceedings relating to the family benefits for the period in dispute, namely August to October 2019, from the remainder of the proceedings.

18. In the first place, the referring court finds that family benefits fall within the concept of ‘family benefits’ under Article 3(1)(j) of Regulation No 883/2004, read in combination with Article 1(z) of that regulation. ( 7 ) Family benefits are funded by taxes and are granted to beneficiaries on the basis of a legally defined situation, regardless of parental income and without any individual and discretionary assessment of the applicant’s personal needs. Family benefits have a dual function, in that they serve to exempt from tax, as required by the constitution, what is necessary for the child’s minimum standard of living, and, in so far as they are not required for that purpose, they serve to promote the family under social law.

19. In the second place, the referring court notes, in essence, that Paragraph 62(1a) of the EStG, resulting from a legislative amendment made in July 2019, applies different treatment for a national of a Member State who establishes his or her permanent residence or habitual residence in Germany and a German national who establishes his or her permanent residence or habitual residence in German territory following a period of residence in another Member State. In that regard, the referring court states that, pursuant to that provision, nationals of another Member State, such as S, are refused entitlement to family benefits during the first three months of their residence where they do not provide proof that they are in receipt of national income from gainful employment, while German nationals are entitled to such benefits even where they are not in gainful employment.

20. On that basis, the referring court notes that, in the draft law which led to the addition of subparagraph 1a to Paragraph 62 of the EStG, the German legislature considered that that difference in treatment was compatible with EU law, as it would avoid an influx of nationals from other Member States that would place an unreasonable burden on the German social insurance system. The referring court also states that, according to the German legislature, that difference in treatment could be based on Article 24(2) of Directive 2004/38, given that family benefits received by nationals of another Member State not in gainful employment have the same effect as a social benefit. The legislature did not, therefore, explicitly address any potential effect of Article 4 of Regulation No 883/2004 in that draft law. Lastly, through reference to the judgment in Commission v United Kingdom, ( 8 ) the German legislature justified this unequal treatment by the need to protect the finances of the host Member State.

21. In the third place, the referring court notes, however, that the question whether family benefits fall within the concept of ‘social assistance’, within the meaning of Article 24(2) of Directive 2004/38, is the subject of doctrinal debate. Indeed, some authors argue that family benefits constitute social security benefits in the strict sense of the term since they are not means-tested. The referring court also adds that while, in accordance with Regulation No 883/2004, a Member State is competent to determine the conditions for granting family benefits to nationals of other Member States resident within its territory not in gainful employment, Article 4 of that regulation does, however, lay down an obligation to ensure equal treatment and that regulation does not contain any provision allowing for a difference in treatment such as that at issue in the present case.

22. On that basis, by decision of 20 August 2020, which was received at the Court on 2 September 2020, the Finanzgericht Bremen (Bremen Finance Court) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Must Article 24 of [Directive 2004/38] and Article 4 of [Regulation No 883/2004] be interpreted as precluding legislation of a Member State under which a national of another Member State, who establishes a permanent residence or habitual residence in the Member State concerned and does not prove that he has national income from agriculture and forestry, business, employment or self-employment, has no entitlement to family benefits within the meaning of Article 3(1)(j) of [Regulation No 883/2004], in conjunction with Article 1(z) thereof, for the first three months of establishing a permanent residence or habitual residence, whilst a national of the Member State concerned, who is in the same situation, does have an entitlement to family benefits within the meaning of Article 3(1)(j) of [Regulation No 883/2004], in conjunction with Article 1(z) thereof, without proving national income from agriculture and forestry, business, employment or self-employment?’

23. Written observations were submitted by S, the German, Czech and Polish Governments and the European Commission. No hearing was held. The parties responded in writing to the Court’s questions.

IV. Preliminary observations

24. With regard to the doubts raised by the Commission as to whether the applicant in the main proceedings was actually seeking employment, I note that the referring court has indicated that S was not gainfully employed during the period concerned and that the work undertaken by her husband during the period from 5 November to 12 December 2019 was minor.

25. In any case, it is worth noting that the family benefits in question cannot be classified as ‘benefits of a financial nature’ intended to facilitate access to employment in the labour market of a Member State and that, therefore, the question referred should be examined not, as the Commission suggests, in the light of both Article 4 of Regulation No 883/2004 and Article 45 TFEU, ( 9 ) but solely in the light of the former.

V. Analysis

26. By its sole question, the referring court is asking, in essence, whether Article 24 of Directive 2004/38 and Article 4 of Regulation No 883/2004 are to be interpreted as precluding legislation of a Member State under which Union citizens, who are nationals of another Member State, have no entitlement to family benefits during the first three months of their residence in that Member State unless they are in receipt of national income during that period, while nationals of the Member State concerned, who return to that Member State after having been resident in another Member State in accordance with EU law, do have an entitlement to such benefits on their return, without being subject to any conditions in respect of income.

27. In order to provide the Court with a meaningful answer to that question, I will first examine whether the situation of the applicant in the main proceedings and her children does indeed fall within the scope of Article 24(2) of Directive 2004/38 (Part A below). Since, as will be apparent from what I say below, I consider that not to be the case, I will then consider whether the national legislation at issue in the main proceedings is compatible with the principle of non-discrimination enshrined in Article 18 TFEU and laid down in Article 24(1) of that directive and Article 4 of Regulation No 883/2004 (Part B below).

A. The applicability of Article 24(2) of Directive 2004/38

28. It should be noted at the outset that Article 24(1) of Directive 2004/38 provides that ‘all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty’. Article 24(2) of that directive states that, ‘by way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), … to persons other than workers, self-employed persons, persons who retain such status and members of their families’.

29. As I have indicated, the question that arises in the present case is whether the situation at issue in the main proceedings falls within the exemption laid down in Article 24(2) of Directive 2004/38. The Court has previously had occasion to interpret that provision in the cases resulting in the judgments in Dano, Alimanovic, García-Nieto and Others and Jobcenter Krefeld. ( 10 )

30. In order to assess whether the question posed by the referring court fits within that line of case-law, I believe it would be valuable to first set out the lessons to be learned from those judgments.

1. Case-law context

(a) The judgments in Dano, Alimanovic and García-Nieto and Others

31. In the judgments in Dano, Alimanovic and García-Nieto and Others, the Court determined the conditions under which the host Member State of an economically inactive Union citizen, who is a national of another Member State, may derogate, in relation to social assistance, from the right of such a Union citizen to equal treatment laid down in Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004. The cases which led to those judgments concerned the refusal by the German authorities to grant citizens of other Member States the ‘basic provision’ provided for under German legislation, and in particular ‘subsistence benefits’.

32. In the case that gave rise to the judgment in Dano, Ms Dano had never worked in Germany, there was nothing to indicate that she was seeking employment, and she had exercised her freedom of movement ‘solely in order to obtain another Member State’s social assistance’ in Germany, ( 11 ) where she had resided for more than three months with her infant son. The Court held that, because Ms Dano and her son did not have sufficient resources and thus could not claim a right of residence in the host Member State under Directive 2004/38, they could not invoke the principle of non-discrimination set out in Article 24(1) of that directive. ( 12 ) Following the reasoning of Advocate General Wathelet on that point, ( 13 ) the Court found that to deny the Member State concerned, under such circumstances, the possibility of refusing to grant social security benefits to Union citizens would have ‘the consequence that persons who, upon arriving in the territory of another Member State, do not have sufficient resources to provide for themselves would have them automatically, through the grant of a special non-contributory cash benefit which is intended to cover the beneficiary’s subsistence costs’. ( 14 ) The Court stated that the same conclusion must be reached with regard to Article 4 of Regulation No 883/2004, since the benefits covered are, under that article, provided exclusively in the Member State in which the person concerned resides, in accordance with its legislation ( 15 ) and, therefore, EU law.

33. In the case resulting in the judgment in Alimanovic, ( 16 ) Ms Alimanovic, who had been living in Germany for more than three months, applied for social assistance for herself and her daughter. They had worked in temporary jobs lasting less than a year and no longer enjoyed the status of job seekers under Article 7(3)(c) of Directive 2004/38 on the date when they were refused entitlement to the benefits at issue. ( 17 ) The Court stated that although, according to the referring court, Ms Alimanovic and her daughter were able to establish a right of residence under Article 14(4)(b) of Directive 2004/38, it must nevertheless be observed that the host Member State was able to rely on the derogation set out in Article 24(2) of that directive in order not to grant them the social assistance sought. ( 18 ) The Court held that that possibility of derogation is based on the gradual system as regards the retention of the status of ‘worker’, which seeks to safeguard the right of residence and access to social assistance. Thus, the Court considered that, in so far as it establishes that system, Directive 2004/38 ‘itself takes into consideration various factors characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity’. No individual assessment is therefore necessary for implementation of that derogation by the host Member State, whether to consider the individual situation of the person in question or to determine that the Union citizen concerned is placing an unreasonable burden on the social assistance system because of his or her residence. ( 19 )

34. In the case which led to the judgment in García-Nieto and Others, the applicants in the main proceedings, who had been resident in Germany for less than three months, were job seekers. ( 20 ) The Court held that it follows from the express wording of Article 24(2) of Directive 2004/38 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. ( 21 )

35. In those three judgments, the Court therefore ruled that Article 24 of Directive 2004/38 and Article 4 of Regulation No 883/2004 do not preclude legislation of a Member State under which nationals of other Member States are excluded from the entitlement to social assistance, in so far as those nationals of other Member States do not have a right of residence under that directive in the host Member State, ( 22 ) have a right of residence in that Member State for a period limited to three months on the basis of Article 6(1) of that directive, ( 23 ) or have a right of residence based solely on Article 14(4)(b) of that directive, ( 24 ) even though those benefits are granted to nationals of the Member State concerned who are in the same situation. In the Court’s view, to accept that such persons may claim entitlement to social benefits under the same conditions as those applicable to nationals of the host Member State would run counter to the objective of safeguarding the financial equilibrium of the social assistance system of the Member States by preventing persons exercising their right of residence from becoming an unreasonable burden on the social assistance system of the host Member State, as set out in recital 10 of Directive 2004/38. ( 25 )

(b) The judgment in Jobcenter Krefeld

36. The situation at issue in the case leading to the Jobcenter Krefeld judgment, which concerned a Polish national who was residing with his two minor daughters in Germany, clearly differs from the situations at issue in the three cases described above. JD is a Union citizen who, before he became unemployed in the host Member State, had worked there and had sent his children to school there, and, consequently, enjoyed a right of residence based on 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).

37. The Court found that there was an appreciable distinction to be made, having regard to the objective of safeguarding the financial equilibrium of the social assistance system of the Member States, between the situation of a Union citizen such as JD and the situations of the applicants in the cases leading to the judgments in Dano (absence of any right of residence based on Directive 2004/38), Alimanovic (right of residence based solely on Article 14(4)(b) of Directive 2004/38 for job seeking) and García-Nieto and Others (right of residence based on Article 6(1) of that directive). ( 26 ) In order to make that finding, the Court 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 may continue after the loss of that status. ( 27 ) The Court then ruled 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 benefits, laid down by Regulation No 492/2011, ( 28 ) even where they can no longer rely on the worker status from which they derived their initial right of residence. ( 29 )

38. I believe that certain elements of the case-law emanating from the judgments in Dano, Alimanovic, García-Nieto and Others and Jobcenter Krefeld may be relevant in the analysis of the question raised by the referring court in the present case, specifically those concerning the concept of ‘social assistance’. The following question should therefore be asked: can the lessons learned from that case-law be transposed to the case in the main proceedings? I have some doubts about this.

2. The specific aspects of the present case

39. The common thread between the situation at issue in the main proceedings and the situations at issue in the cases giving rise to the judgments in Dano, Alimanovic, García-Nieto and Others and Jobcentre Krefeld is that the Union citizen was not receiving national income in the host Member State during the period in respect of which the national authority refused the application for family benefits. In addition, as was the situation in the case which gave rise to the judgment in García-Nieto and Others, the residence of S and her children in the host Member State is based on Article 6(1) of Directive 2004/38.

40. However, unlike the applicant in the main proceedings, the Union citizens concerned in the cases that gave rise to the judgments in Dano and Alimanovic had been residing in the host Member State for more than three months and their residence was, in principle, based on Article 7 of Directive 2004/38. ( 30 ) Even more importantly, as I will demonstrate below, the present case does not concern ‘social assistance’, which was at issue in the cases resulting in the judgments in Dano, Alimanovic and García-Nieto and Others, but, rather, family benefits. ( 31 )

41. Under those circumstances, I should express my doubts as to whether, having regard to the facts of the present case, the host Member State can rely on the limitations laid down in Article 24(2) of Directive 2004/38. Before considering that question, we must determine whether S and her children are entitled to equal treatment, under Article 24(1) of that directive, and, to do so, we must verify whether they are legally resident in that Member State. ( 32 )

3. Right of residence under Article 6 of Directive 2004/38

(a) Preliminary observations

42. The Court has ruled on numerous occasions that citizenship of the Union is destined to be the fundamental status of nationals of the Member States. ( 33 ) According to Article 21(1) TFEU, every Union citizen has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. As stated in Article 1 of Directive 2004/38, one of the key purposes of the directive is to lay down the conditions governing the exercise of that right and the limitations on it. ( 34 ) Those limitations and conditions include those listed in Article 3(1) of that directive, relating to the personal scope of the directive, ( 35 ) and, undeniably, those laid down in Article 6 of that directive.

(b) Lawful residence under Article 6 of Directive 2004/38

43. In terms of the personal scope of Article 24 of Directive 2004/38, I note that the Court held, in the judgments in Dano, Alimanovic and García-Nieto and Others, that, for access to ‘social assistance’, Union citizens can claim equal treatment with nationals of the host Member State, under Article 24(1) of that directive, only if their residence in the territory of the host Member State complies with the conditions of that directive. ( 36 ) That requirement is therefore a precondition for enjoying the right to equal treatment under that provision.

44. In its written observations, the Commission asserts that although, during the first three months, Union citizens have a right of residence in the host Member State under Article 6 of Directive 2004/38, they will only be ‘legally resident’ if they meet the conditions laid down in Article 7(1) of that directive. The Commission clarified that assertion, in its written response to the question posed by the Court on that point, indicating that ‘the right of residence of a Union citizen originating from another Member State during the first three months … does not yet constitute … a “right to reside legally under Article 7(1) [of that directive]”’. ( 37 )

45. I do not share the Commission’s view and believe that the terms used may be confusing.

46. First, I note that, under Article 6(1) of Directive 2004/38, ‘Union citizens shall 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’. ( 38 ) That right of residence is therefore granted to all Union citizens, whether they are economically active or inactive. According to Article 14(1) of that directive, that right of residence will continue to apply as long as the Union citizen and his or her family members do not become an unreasonable burden on the social assistance system of the host Member State. Thus, given the lawful nature of the right of residence under Article 6 of that directive within the overall context of that directive, ( 39 ) we cannot deny the fact that, as can be seen from the file submitted to the Court, S and her children can establish their (legal) right of residence in the territory of the host Member State on the basis of Article 6(1) of that directive and, consequently, that they have, under Article 24(1) of that directive, a right to equal treatment with nationals of that Member State in the field of application of the Treaty.

47. Second, the fact that the Commission has interpreted the words ‘right to reside legally’ as referring solely to the right of residence under Article 7(1) of Directive 2004/38 and not to the right under Article 6 of that directive creates confusion, particularly in the eyes of the national authorities of the host Member State, which should be avoided. Those terms suggest that the right of residence under Article 6 of Directive 2004/38 is not a right to reside legally under that directive. However, that is not the case. The Commission’s approach results from neither the scheme nor the terms of that directive. Nor does that approach result from the objective pursued by the directive, namely, as is apparent from settled case-law, to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by Article 21(1) TFEU and to strengthen that right. ( 40 )

48. Furthermore, the Commission relies, to support its argument, on paragraphs 68 and 75 of the judgment in Commission v United Kingdom. ( 41 ) However, it should be noted that the general reference to ‘the necessary requirements for possessing a right to reside lawfully in the host Member State’, ( 42 ) made by the Court in those paragraphs, covers not only the conditions for possessing a right of residence for more than three months, under Article 7 of Directive 2004/38, but also those for possessing a right of residence for up to three months. ( 43 ) I note once again that the gradual system put in place by that directive in relation to the right of residence in the host Member State means that Union citizens and their family members may go through one or more stages in the exercise of their freedom of movement in the host Member State if they meet the conditions laid down in the directive, which vary according to the duration of their stay.

49. That having been clarified, and given the fact that it is clear that S is entitled to claim a right to reside legally under Article 6(1) of Directive 2004/38 during the period concerned by the refusal of her application for family benefits, corresponding to the first three months of her residence in Germany, I will now turn to the substantive scope of Article 24 of that directive and thus to the concept of ‘social assistance’, as defined by the Court in its case-law, to determine whether Article 24(2) of that directive applies to the situation at issue in the main proceedings.

4. Do the family benefits in question fall within the meaning of ‘social assistance’ under Directive 2004/38?

(a) The concept of ‘social assistance’

50. It is apparent from their observations that S, the German, Czech and Polish Governments and the Commission are of the view that the family benefits in question do not fall within the concept of ‘social assistance’, within the meaning of Article 24(2) of Directive 2004/38. Furthermore, the Czech and Polish Governments and the Commission maintain that that provision does not apply in the present case. The question therefore arises as to whether the family benefits in question can be classified as ‘social assistance’ within the meaning of that directive.

51. I should note, first, that the Court has defined the concept of ‘social assistance’ as referring to all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by individuals who do not have resources sufficient to meet their own basic needs and those of their family and who by reason of that fact may, during their period of residence, become a burden on the public finances of the host Member State, which could have consequences for the overall level of assistance that may be granted by that State. ( 44 ) In addition, the Court has also ruled that the subsistence benefits, intended to ensure that their recipients have the minimum means of subsistence necessary to lead a life in keeping with human dignity, must be held to be ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38. ( 45 )

52. Second, I should note that, in the case in the main proceedings, according to the information provided by the referring court, set out in point 18 above, those family benefits are funded by taxes and are granted to beneficiaries on the basis of a legally defined situation which is independent of parental income and does not take into account the applicant’s individual personal needs. It is also apparent from that information that, according to doctrine, family benefits constitute social security benefits in the strict sense of the word since they are not means-tested. In other words, as also emerges from the observations submitted by the German Government, ( 46 ) the granting of those benefits does not depend on parental income or the personal needs of applicants, and neither are they intended to ensure the subsistence of the applicant and his or her family. While those benefits are intended to exempt from tax what is necessary for the child’s minimum standard of living, they also serve, as is clearly stated by the referring court, to promote the family under social law.

53. On that point, I believe it is important to note that, according to the Court’s case-law, benefits that are granted automatically to families that meet certain objective criteria relating in particular to their size, income and capital resources, without any individual and discretionary assessment of personal needs, and which are intended to meet family expenses must be regarded as social security benefits. ( 47 ) If we apply those criteria to the family benefits in question, they must therefore, subject to the checks that it is for the referring court to carry out, be classified as ‘social security benefits’, within the meaning of Article 3(1)(j) of Regulation No 883/2004, read in conjunction with Article 1(z) of that regulation. ( 48 )

54. It follows, in my view, that the family benefits in question cannot be classified as ‘social assistance’, within the meaning of Article 24(2) of Directive 2004/38, and that, therefore, that provision does not apply to the situation at issue in the main proceedings.

(b) The German Government’s approach

55. However, the German Government is of the opinion that the ratio legis of Article 24(2) of Directive 2004/38 should be applied to the family benefits in question. In terms of their effects, those benefits are, in the German Government’s view, similar to a social assistance benefit in the case of economically inactive persons.

56. I do not share that point of view.

57. First, I note that the situation of S and her children is that of a Union citizen who bases her right of residence in the host Member State on Article 6 of Directive 2004/38. Admittedly, the Court has held that, 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. ( 49 ) However, it should be pointed out that that statement refers to the objective of preserving the financial balance of the social assistance system of the Member States pursued by Directive 2004/38 (recital 10), an objective with which the derogation permitted under Article 24(2) of that directive is consistent. It is clear from that provision that it concerns only‘social assistance’.

58. Consequently, to rely, as the German Government does, on Article 24(2) of Directive 2004/38 in order to refuse the family benefits requested would be contrary to the letter of that provision. Indeed, the intention of the EU legislature was not to exclude social security benefits, but to prevent a Union citizen who is a national of another Member State from becoming an unreasonable burden on the social assistance system of the host Member State. Furthermore, the German Government’s interpretation would run counter to the general spirit underlying the gradual system introduced by Directive 2004/38 with regard to the right of residence in the host Member State, in so far as the right of residence under Article 6 of that directive, by virtue of Article 14 of that same directive, continues to apply not as long as the citizen and his or her family members do not become an unreasonable burden on the social security system but as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

59. Second, I should point out that, to the extent that the case-law resulting from the judgments in Dano and Alimanovic is based on the relationship between the principle of non-discrimination of Union citizens and the conditions of residence provided for in Article 7(1)(b) of Directive 2004/38, namely, in particular, the need to have sufficient resources, ( 50 ) I do not see how it would be possible, as the German Government proposes, to transpose that case-law into the context of the right of residence under Article 6(1) of that directive, which does not stipulate such a condition. It should also be noted, as Advocate General Saugmandsgaard Øe has done, that ‘EU law is based on values of solidarity which have been further reinforced since the creation of citizenship of the Union’. ( 51 )

60. On the basis of the above, I consider that the family benefits in dispute do not fall within the concept of ‘social assistance’, within the meaning of Article 24(2) of Directive 2004/38, as defined by the Court. Consequently, the host Member State cannot rely on that provision to derogate, in terms of the granting of these benefits, from the right to equal treatment provided for in Article 24(1) of that directive, which Union citizens enjoy.

B. Compliance of the legislation at issue in the main proceedings with the right to equal treatment under Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004

1. The relationship between Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004

61. As I have indicated, in my view there are grounds for considering that, in so far as S and her children, as Union citizens, are legally resident in Germany under Article 6 of Directive 2004/38, their residence is compliant with EU law. ( 52 ) They therefore enjoy, by virtue of Article 24(1) of that directive, the right to equal treatment with nationals of that Member State in the areas covered by the Treaty.

62. Under those conditions, it follows that, in so far as S and her children are not claiming social assistance but, rather, social security benefits (family benefits), Article 24(1) of Directive 2004/38 may apply ( 53 ) and that, conversely, the derogation from the principle of equal treatment under Article 24(2) of that directive does not apply. ( 54 )

63. The referring court has noted, in essence, that, in application of Article 62(1a) of the EStG, a national of another Member State, such as S, is refused an entitlement to family benefits during the first three months of his or her residence where he or she does not provide proof of receipt of national income from gainful employment, while German nationals are entitled to such benefits even where they have no gainful employment. ( 55 ) That court therefore considers that the national provision at issue introduces unequal treatment based on nationality.

64. On that point, the Czech and Polish Governments consider that the national provision at issue directly discriminates on grounds of nationality, which is prohibited by Article 24(1) of Directive 2004/38 and by Article 4 of Regulation No 883/2004, which cannot be justified by invoking the exception provided for in Article 24(2) of Directive 2004/38. ( 56 )

65. The question now arises whether unequal treatment, such as that pointed out by the referring court, constitutes discrimination prohibited by Article 24(1) of Directive 2004/38 and/or by Article 4 of Regulation No 883/2004.

2. The existence of direct discrimination prohibited by Article 4 of Regulation No 883/2004

66. I should note, from the outset, that Article 24(1) of Directive 2004/38 and Article 4 of Regulation No 883/2004 lay down the principle of non-discrimination, enshrined in Article 18 TFEU. In that respect, the issue that arises in the present case is the relationship between those two provisions.

67. In my view, there are several reasons that justify an analysis of the unequal treatment at issue in the main proceedings solely from the perspective of Article 4 of Regulation No 883/2004.

68. First, as I have explained, ( 57 ) the host Member State cannot rely on the derogation provided for in Article 24(2) of Directive 2004/38. However, while it is true that persons such as S and her children come within Article 24(1) of that directive, on the ground that they enjoy a right of residence based on Article 6 of that directive, the fact remains that, as soon as they claim social security benefits, they also come within Article 4 of Regulation No 883/2004 and enjoy the right to equal treatment under the specific conditions laid down in that provision.

69. Second, with regard specifically to social security benefits, which are not covered by the derogation under Article 24(2) of Directive 2004/38 in so far as it imposes two specific conditions, Article 4 of Regulation No 883/2004 constitutes a lex specialis in relation to Article 24(1) of that directive. Indeed, under Article 4 of that regulation, ‘unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof’ (emphasis added).

70. Third, as Regulation No 883/2004 is not a measure harmonising national social security systems but a measure intended to coordinate those systems, each Member State retains the power to determine in its legislation, in compliance with EU law, the conditions pursuant to which benefits may be granted under a social security scheme. ( 58 )

71. In the present case, although, pursuant to Regulation No 883/2004, a Member State, such as the Federal Republic of Germany, is competent to decide on the conditions for granting family benefits within its borders, Article 4 of that regulation establishes a right to equal treatment and contains no derogation that could justify a difference in treatment such as that at issue in the main proceedings. Consequently, a Member State cannot evade its obligation to ensure equal treatment between nationals of other Member States and its own nationals.

72. It should be noted that the referring court expressed its concern that Article 4 of Regulation No 883/2004 had not been complied with and that, as a result, the legislation in question constituted direct discrimination, with the decisive criterion of distinction being nationality.

73. I am also convinced that the difference in treatment of the two situations at issue does not comply with Article 4 of Regulation No 883/2004. ( 59 ) Under those circumstances, I am of the view that the national provision at issue introduces direct discrimination on grounds of nationality, which, in the absence of a derogation expressly provided for in Regulation No 883/2004, cannot be justified.

74. Consequently, the Commission’s argument that, as regards the granting of the benefits at issue, the situation of Union citizens, such as S, who are not gainfully employed during the first three months of their period of residence, and that of German nationals returning to their country who are not gainfully employed during the same period are not comparable, is not relevant. ( 60 ) Indeed, given the fact that S is legally resident in the host Member State, it follows from application of Article 4 of Regulation No 883/2004 that the situations of nationals of other Member States to which that regulation applies and those of nationals of the host Member State are comparable. The former must therefore enjoy ‘the same benefits’ and be subject to ‘the same obligations’ as the latter.

C. Interim conclusion

75. In the light of all of those considerations, I propose to respond to the question submitted by the referring court that Article 4 of Regulation No 883/2004 should be interpreted as precluding legislation of a Member State under which Union citizens, who are nationals of another Member State, have no entitlement to family benefits during the first three months of their residence in that Member State unless they are in receipt of national income within that period, while nationals of the Member State concerned, who return to that Member State after having been resident in another Member State in accordance with EU law, do have an entitlement to such benefits on their return, without being subject to any conditions in respect of income.

D. The existence of discrimination prohibited by Article 24(1) of Directive 2004/38

76. If the Court accepts my proposal concerning the examination of the unequal treatment in question in the light of Article 4 of Regulation No 883/2004, it will not be necessary to answer the question from the referring court from the perspective of Article 24(1) of Directive 2004/38.

77. The following analysis is therefore provided in the alternative, in the event that the Court adopts a more nuanced solution in examining the unequal treatment at issue.

78. I will first set aside the Commission’s arguments concerning the lack of comparability of the situations at issue and I will then determine whether, as the German Government contends, the refusal of the family benefits in question by the national authorities is justified and proportionate.

1. The Commission’s arguments about the comparability of the situations at issue

79. It is clear from its written reply to a question put by the Court, relating in particular to the justification of the difference in treatment observed by the referring court, that, in the Commission’s view, the two situations at issue are not comparable. In that respect, the Commission argues that the right of residence enjoyed by Union citizens under Article 6(1) of Directive 2004/38 during the first three months of residence, or for a shorter period, does not yet constitute a legal right of residence within the meaning of Article 7(1) of that directive. Only by acquiring a legal right of residence – within the meaning of the latter provision – would a Union citizen be able to rely on the prohibition of discrimination with regard to social assistance.

80. Those arguments cannot succeed.

81. Admittedly, according to the case-law of the Court, there is nothing to prevent, in principle, the grant of social benefits to Union citizens who are not economically active being made subject to the substantive condition that those citizens meet the necessary requirements for possessing a right to reside legally in the host Member State. ( 61 ) However, the considerations set out in points 43 to 49 above lead me to conclude that, in so far as a national of a Member State who is resident in Germany under Article 6 of Directive 2004/38 and a German national returning to that Member State after a period of residence in another Member State both enjoy a legal right of residence in that Member State, they are in situations that are, if not identical, ( 62 ) at least comparable.

82. Thus, it should be considered that even though unequal treatment, such as that found by the referring court, constitutes direct discrimination on grounds of nationality, it is not arbitrary and may be justified. ( 63 ) Consequently, I will now examine the justification for the unequal treatment at issue raised by the German Government.

2. Whether the refusal at issue in the main proceedings is objectively justified

(a) The justifications alleged by the German Government: the objective of protecting public finances

83. The German Government contends that Paragraph 62(1a) of the EStG does not lead to unequal treatment between nationals of other Member States and German nationals. In any event, it takes the view, on the basis, in particular, of the Court’s considerations in paragraph 80 of the judgment in Commission v United Kingdom, ( 64 ) relating to family benefits, that the exclusion of the entitlement to benefits for economically inactive families is justified in the sense that it is suitable, necessary and appropriate to achieve the objective of protecting public finances. That provision, it is submitted, thus aims to prevent inappropriate use of social insurance benefits in Germany, given the risk to public finances posed by the increase in claims for family benefits by nationals of other Member States between 2010 and 2017 and the increase in abusive claims for family benefits. Indeed, the increase in claims amounted to EUR 46.67 billion in 2020, 21.28% of which was paid to foreign nationals. In addition, the number of workers from other Member States has significantly increased over recent years, along with, in certain cases, the number of children from other Member States receiving family benefits. ( 65 ) Moreover, the average number of children in families from other Member States is higher than that of German families and, as a result, the financial cost of benefits paid to families of foreign nationals is about 15% higher than that of benefits paid to German families.

84. First, as regards the ability of the national provision at issue to achieve the objective of protecting public finances, the German Government asserts that excluding economically inactive nationals of other Member States from family benefits during the first three months of residence reduces the incentive for those nationals to settle in Germany. In addition, the requirement for gainful employment leads to a decrease in the number of such benefit claims.

85. Secondly, as regards the need for the national provision at issue, the German Government argues that there are no other means of achieving the objective of protecting public finances. On the one hand, the exclusion in question only applies for the first three months of residence and only concerns inactive persons and job seekers. On the other hand, such an exclusion is accompanied by measures to enable a further investigation of the facts of the case by the administration and, if legitimate doubts exist, the Family Allowances Fund itself examines, under Paragraph 62(1a) of the EStG, in relation to a benefit application, whether the requirements of the Law on freedom of movement of Union citizens are fulfilled, thereby identifying and preventing organised abuse of benefits at an early stage.

86. Thirdly, as regards the appropriateness of the national provision at issue, the German Government submits that, since, under Article 24(2) of Directive 2004/38, the host Member State is not obliged to grant social assistance to inactive Union citizens, neither can that Member State be required to pay other non-contributory benefits, which are granted irrespective of the need for assistance but which, if there is a need for social assistance, are deducted from subsistence benefits and are financed by tax revenue.

(b) Assessment

87. I should note, first and foremost, that the unequal treatment resulting from the provision at issue in the main proceedings can be justified under EU law only if it is based on objective considerations of general interest, is independent of the nationality of the persons concerned, and is proportionate to the objective legitimately pursued by national law. It follows from the case-law of the Court 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 order to attain it. ( 66 ) While that is a matter for the national court to determine, the Court can nevertheless provide guidance for the national court in its decision.

(1) The existence of proven risks to public finances

88. With regard, in the first place, to the existence of proven risks to public finances as a result of the increase in the number of applications for family benefits submitted by Union citizens who are nationals of other Member States, I wish to make two series of observations.

89. First, I am of the opinion that the German Government’s considerations concerning the fact that families from other Member States have a greater number of children than German families are not relevant. ( 67 )

90. Secondly, I note that the German Government only argues that 21.28% of the amount of family benefits for 2020 were paid for the children of foreign nationals, namely the children of Union citizens who are nationals of other Member States and those of third-country nationals. However, in the present case, the amount paid to such individuals is not relevant. As far as Union citizens are concerned, the German Government does not specify the amounts paid for the children of economically inactive citizens and for those of economically active citizens (the latter amount is likewise not relevant in the present case).

91. I am therefore of the opinion that there is no evidence that the increased expenditure on the family benefits in question is caused by nationals of other Member States (or their children). In my view, the fact that an item of expenditure such as family benefits is increasing cannot in itself be a negative indicator of the economic situation of a Member State. I think it is important to recall that, in general, social expenditure can contribute to social cohesion and economic activity, by enabling beneficiaries to be more active and to contribute more on the labour market. Furthermore, the effects on budget revenues and on the dynamism of the economy in the long term should be assessed in a context of labour market integration at EU level. Thus, the fact of receiving nationals from other Member States, with an increase in social expenditure, particularly at the outset, and, where appropriate, expenditure on training, can also meet a need within the Member State’s economy by providing an adequate workforce for certain sectors that are lacking in that respect and, thus, can contribute to improving its competitiveness. ( 68 )

92. In my view, as regards universal social security benefits, which, like the family benefits at issue, concern children, we must base our analysis on precise and accurate data to be able to consider that unequal treatment is justified. To accept, therefore, that vague and imprecise general financial considerations may justify a difference in treatment between nationals of other Member States and one’s own nationals would imply that the application and the scope of a rule of EU law as fundamental as the principle of non-discrimination on grounds of nationality might vary in time and place according to the state of the public finances of the Member States, ( 69 ) without the Member State concerned having presented precise and rigorous evidence establishing the existence of a genuine risk to public finances. ( 70 )

93. In the second place, with regard to the existence of proven risks to the preservation of public finances due to an increase in abuse and fraud committed by Union citizens, nationals of other Member States, in an organised form, I would like to note the following elements.

94. First, it follows from the Court’s case-law that the concept of ‘abuse of rights’ is an autonomous concept of EU law, according to which ‘a finding of an abuse requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the [EU] rules, the purpose of those rules has not been achieved. It requires, second, a subjective element consisting in the intention to obtain an advantage from the [EU] rules by creating artificially the conditions laid down for obtaining it’. ( 71 )

95. Secondly, the Court has made clear that it is for the national court to establish the existence of those two objective and subjective elements, evidence of which must be adduced in accordance with the rules of national law, ‘provided that the effectiveness of [EU] law is not thereby undermined’. ( 72 ) It has also observed that the application of domestic rules on abuse of rights must not prejudice the full effect and uniform application of the EU provisions in the Member States and, in particular, it is not open to national courts, when assessing the exercise of a right arising from an EU provision, to alter the scope of that provision or to compromise the objectives pursued by it. ( 73 )

96. In that respect, I believe, as the Court has held, that the fact that a Member State is faced, as the German Government submits, with a high number of cases of abuse of rights or fraud committed by nationals of other Member States enjoying family benefits through fraudulent means cannot justify the adoption of a national measure, such as that at issue in the main proceedings, founded on considerations of general prevention, to the exclusion of any specific assessment of the conduct of the person concerned. ( 74 )

97. In the present case, it is clear that the evidence adduced by the German Government cannot be regarded as specific evidence linked with the individual conduct of the applicant in the main proceedings. That evidence does not satisfy the objective and subjective conditions required for the purpose of establishing the existence of an abuse of rights in a specific case, as described in points 94 and 95 above. In that respect, the referring court did not find any abuse of rights by the applicant in the main proceedings. In any event, that court does not indicate that the applicant in the main proceedings exercised her freedom of movement ‘solely in order to obtain another Member State’s social assistance’ in Germany. ( 75 )

98. It should also be borne in mind that a general presumption of fraud is not sufficient to justify a measure that compromises the objectives of Directive 2004/38. ( 76 ) In that regard, to accept the implementation of measures of general application by the Federal Republic of Germany would be tantamount to allowing a Member State to circumvent the rights of freedom of movement and equal treatment and would have the consequence that other Member States could also adopt such measures and unilaterally suspend, in particular, the application of Article 24(1) of the directive. ( 77 ) It cannot therefore be considered that S entered Germany for the purpose of ‘social tourism’ with the sole aim of receiving family benefits, which is a matter for the referring court to verify.

99. Consequently, it seems to me that there can be little doubt that the German Government has not adduced evidence of an abuse of rights concerning the applicant in the main proceedings, given that no objective or subjective elements can be clearly identified in the present case.

(2) The proportionality of the national provision at issue in the main proceedings

100. In the event that the referring court nevertheless finds that the German Government has demonstrated the existence of proven risks to public finances, I shall now examine whether, in the light of the evidence provided by the German Government, the national provision at issue in the main proceedings can be regarded as appropriate for securing the attainment of the objective of protecting public finances and does not go beyond what is necessary to attain that objective.

101. First, with regard to the appropriateness of a national provision such as that at issue in the main proceedings, I would point out that the situation of S and her children does not fall within the situations giving rise to the judgments in Dano, Alimanovic and García-Nieto and Others. ( 78 ) The referring court should therefore verify whether the national authorities, in granting family benefits such as those at issue, comply, as regards the right of residence limited to three months, with the requirements of Article 6 of Directive 2004/38 (the conditions of Article 7 of that directive are applicable only in the context of a stay of more than three months). Indeed, in that context, it seems difficult to envisage imposing a condition of residence for a given duration as a tie for integration into the host Member State since, if that condition were to exceed three months’ residence, it would directly contradict the nature and conditions of the right of residence provided for in Article 6 of that directive and would potentially contradict the conditions provided for in Article 7 of the same directive for periods of residence of more than three months.

102. Secondly, as regards the proportionality of a national provision such as that at issue in the main proceedings, the question arises as to whether there are less restrictive measures that would make it possible to achieve the objective of protecting public finances.

103. In that context, to ensure the coherence of Directive 2004/38, the logic inherent in the judgments in Dano, Alimanovic and García-Nieto and Others, whereby an individual examination is not required under Article 24(2) of Directive 2004/38 by the host Member State, ( 79 ) is not relevant in the situation of persons such as S and her children. In so far as their situation does not come within the scope of Article 24(2) of Directive 2004/38, an examination to determine the individual situation of the persons concerned, in relation to the granting of family benefits under the same conditions as nationals, seems to me to be relevant in order to ascertain whether those persons actually reside in the territory of the host Member State ( 80 ) and can therefore no longer claim the right to family benefits in the Member State of which they are nationals.

104. Such an individual examination would therefore make it possible, first, to avoid systematically excluding only economically inactive nationals of other Member States from receiving family benefits, while respecting their fundamental right to free movement, and, secondly, to recognise cases of abuse of rights and fraud committed by nationals of other Member States, including organised abuse and fraud, in order to reduce the number of applicants for those benefits and, therefore, to preserve public finances.

105. In the third place and lastly, I would point out that, in so far as the refusal at issue in the case in the main proceedings concerns family benefits, the referring court must also ascertain whether the national authorities have taken account of the fundamental rights whose observance the Court ensures, in particular the right to respect for private and family life, as laid down in Article 7 of the Charter, read in conjunction with the obligation to take into consideration the child’s best interests, recognised in Article 24(2) thereof. ( 81 )

106. I therefore consider that, if the Court were to examine the referring court’s question in terms of Article 24(1) of Directive 2004/38, the answer would be that that provision precludes the national provision at issue in the main proceedings under which Union citizens, who are nationals of another Member State, have no entitlement to family benefits during the first three months of their residence in that Member State unless they are in receipt of national income within that period, while nationals of the Member State concerned, who return to that Member State after having been resident in another Member State in accordance with EU law, do have an entitlement to such benefits on their return, without being subject to any conditions in respect of income.

VI. Conclusion

107. In view of all of the foregoing considerations, I propose that the Court give the following answer to the question referred by the Finanzgericht Bremen (Bremen Finance Court, Germany): Article 4 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 must be interpreted as precluding legislation of a Member State under which Union citizens, who are nationals of another Member State, have no entitlement to family benefits during the first three months of their residence in that Member State unless they are in receipt of national income within that period, while nationals of the Member State concerned, who return to that Member State after having been resident in another Member State in accordance with EU law, do have an entitlement to such benefits on their return, without being subject to any conditions in respect of income.

( 1 ) Original language: French.

( 2 ) Directive 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 corrigendum OJ 2005 L 197, p. 34).

( 3 ) Regulation 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, and corrigendum OJ 2004 L 200, p. 1).

( 4 ) Judgment of 11 November 2014 (C‑333/13, EU:C:2014:2358, ‘the judgment in Dano’).

( 5 ) Judgment of 15 September 2015 (C‑67/14, EU:C:2015:597, ‘the judgment in Alimanovic’).

( 6 ) Judgment of 25 February 2016 (C‑299/14, EU:C:2016:114, ‘the judgment in García-Nieto and Others’).

( 7 ) Article 1(z) of Regulation No 883/2004 states that, ‘for the purposes of this Regulation … “family benefit” means all benefits in kind or in cash intended to meet family expenses, excluding advances of maintenance payments and special childbirth and adoption allowances mentioned in Annex I’. Article 3(1)(j) of that regulation states that the regulation is to apply to all legislation concerning the branches of social security relating to family benefits.

( 8 ) Judgment of 14 June 2016 (C‑308/14, EU:C:2016:436).

( 9 ) Judgment in Alimanovic (paragraphs 40 to 43 and 46).

( 10 ) Judgment of 6 October 2020 (C‑181/19, EU:C:2020:794, ‘the judgment in Jobcenter Krefeld’).

( 11 ) Judgment in Dano (paragraph 78).

( 12 ) Judgment in Dano (paragraphs 69 and 81).

( 13 ) See the Opinion in Dano (C‑333/13, EU:C:2014:341, point 106).

( 14 ) Judgment in Dano (paragraph 79).

( 15 ) Judgment in Dano (paragraph 83).

( 16 ) Paragraphs 29 and 34.

( 17 ) Judgment in Alimanovic (paragraphs 27 and 55).

( 18 ) Judgment in Alimanovic (paragraphs 56 and 57).

( 19 ) Judgment in Alimanovic (paragraph 60).

( 20 ) Mr Peña Cuevas entered Germany with his son to join Ms García-Nieto, who had previously entered the country with their daughter and had registered as a job seeker, after which she worked as a kitchen assistant. Judgment in García-Nieto and Others (paragraphs 28 and 29).

( 21 ) Judgment in García-Nieto and Others (paragraph 44).

( 22 ) Judgment in Dano (paragraph 84 and operative part).

( 23 ) Judgment in García-Nieto and Others (paragraph 53 and operative part).

( 24 ) Judgment in Alimanovic (paragraph 63 and operative part).

( 25 ) See judgments in Dano (paragraph 74); Alimanovic (paragraph 50); and García-Nieto and Others (paragraph 39).

( 26 ) Judgment in Jobcenter Krefeld (paragraphs 67 and 68).

( 27 ) Judgment in Jobcenter Krefeld (paragraph 50). The Court emphasised, in paragraph 52 of that judgment, that such an interpretation therefore ensures that individuals who intend to leave, with their family, their Member State of origin in order to travel to and work in another Member State are not exposed to the risk that, if they were to lose employment, the schooling of their children would have to be interrupted and they would have to return to their country of origin, because they are not able to claim the social benefits laid down under national legislation that would enable them to have sufficient means of subsistence.

( 28 ) See Article 7(1) and (2) of Regulation No 492/2011.

( 29 ) Judgment in Jobcenter Krefeld (paragraph 54). Furthermore, as highlighted by the doctrine with reference to paragraphs 64 and 65 of that judgment, Article 24(2) of Directive 2004/38 ‘has not fully codified the conditions under which Union citizens making use of their right of free movement enjoy the right to equal treatment with nationals of the host Member State, and the derogation from this principle contained in this provision applies only in situations where the right of residence is based on this Directive’, Lenaerts, K. and Adam, S., ‘La solidarité, valeur commune aux États membres et principe fédératif de l’Union européenne’, Cahiers de droit européen, No 2, 2021, pp. 307 to 417, in particular p. 327. It is also worth noting on this point, as observed by Advocate General Richard de la Tour in his Opinion in the case on The Department for Communities in Northern Ireland (C‑709/20, EU:C:2021:515, point 75 and footnote on page 62), that a right of residence may be based on another provision of EU law (see the judgment in Jobcenter Krefeld, paragraph 90 and operative part), but also on a more favourable provision of national law (see, in particular, judgments of 7 September 2004, TrojaniC‑456/02, EU:C:2004:488, and of 14 June 2016, Commission v United KingdomC‑308/14, EU:C:2016:436).

( 30 ) See points 32 and 33 of this Opinion. Article 7(1)(b) of Directive 2004/38 provides that ‘all Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if 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’. Emphasis added.

( 31 ) Unlike this case, these three cases concerned special non-contributory cash benefits, governed by Article 70(2) of Regulation No 883/2004, falling within the scope of Article 4 of that regulation (judgment in Dano, paragraph 55) and considered to be social assistance for the purposes of Directive 2004/38.

( 32 ) See, in that regard, judgment in García-Nieto and Others (paragraph 40).

( 33 ) See, in particular, judgment of 20 September 2001, Grzelczyk (C‑184/99, EU:C:2001:458, paragraph 31).

( 34 ) See, in particular, judgment of 6 October 2021, A (Crossing maritime borders on board a pleasure boat) (C‑35/20, EU:C:2021:813, paragraphs 49 and 50).

( 35 ) In accordance with Article 3(1) of Directive 2004/38, Union citizens who move to or reside in a Member State other than that of which they are a national, and their family members, as defined in Article 2(2) of that directive, fall within the scope of the directive and are beneficiaries of the rights conferred by it. On that point, see, in particular, judgment of 10 September 2019, Chenchooliah (C‑94/18, EU:C:2019:693, paragraph 54 and the case-law cited).

( 36 ) Judgments in Dano (paragraph 69); Alimanovic (paragraph 49); and García-Nieto and Others (paragraph 38).

( 37 ) Emphasis added.

( 38 ) Emphasis added.

( 39 ) With regard to the overall context of Directive 2004/38, it should be noted that the directive introduced ‘a gradual system as regards the right of residence in the host Member State, which reproduces, in essence, the stages and conditions set out in the various instruments of European Union law and case‑law preceding the directive and culminates in the right of permanent residence’. See, in particular, judgment of 21 December 2011, Ziolkowski and Szeja (C‑424/10 and C‑425/10, EU:C:2011:866, paragraphs 38 and 39).

( 40 ) Judgment of 2 October 2019, Bajratari (C‑93/18, EU:C:2019:809, paragraph 47 and the case-law cited).

( 41 ) Judgment of 14 June 2016 (C‑308/14, EU:C:2016:436).

( 42 ) Judgment of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436, paragraphs 68 and 75): ‘… there is nothing to prevent, in principle, the grant of social benefits to Union citizens who are not economically active being made subject to the requirement that those citizens fulfil the conditions for possessing a right to reside lawfully in the host Member State’. Emphasis added.

( 43 ) On that point, I note that in paragraph 68 of the judgment in Commission v United Kingdom, the Court makes reference to paragraph 44 of the judgment of 19 September 2013, Brey (C‑140/12, EU:C:2013:565), and to paragraph 83 of the judgment in Dano. On the basis of those paragraphs, this is a ‘right of residence under Directive 2004/38 in the host Member State’ (Emphasis added). Consequently, the various types of rights of residence laid down by that directive in Articles 6, 7 and 16 are all legal rights of residence under that directive.

( 44 ) Judgments of 19 September 2013, Brey (C‑140/12, EU:C:2013:565, paragraph 61); Dano (paragraph 63); Alimanovic (paragraph 44); and García-Nieto and Others (paragraph 38).

( 45 ) Judgment in Jobcenter Krefeld (paragraph 57 and the case-law cited).

( 46 ) The German Government itself also admits that the family benefits in question in the main proceedings are not a matter of social assistance, within the strict meaning of Article 24 of Directive 2004/38, but fall under Article 3(1)(j) of Regulation No 883/2004, read in conjunction with Article 1(z) of that regulation. The German Government states that those benefits can be likened to a cash benefit to meet family expenses, which is paid irrespective of the need for assistance.

( 47 ) Judgment of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436, paragraph 60). See, also, judgment of 15 July 2021, A (Public health care) (C‑535/19, EU:C:2021:595, paragraph 29 and the case-law cited).

( 48 ) See the definition of the term ‘family benefits’ in Article 1(z) of Regulation No 883/2004, shown in footnote 7 of this Opinion.

( 49 ) Judgment in García-Nieto and Others (paragraph 45). See, to that effect, the Opinion of Advocate General Wathelet in Dano (C‑333/13, EU:C:2014:341, point 70).

( 50 ) I should note, on this point, that the case-law resulting from the judgments in Dano, Alimanovic and García-Nieto and Others is based on the derogation laid down by the EU legislature in Article 24(2) of Directive 2004/38, in relation to ‘social assistance’. However, in those judgments, it was possible to exclude the Union citizens concerned from receiving those benefits on the basis that they were either resident for more than three months without meeting the residence conditions laid down in Article 7(1)(b) of that directive (judgment in Dano, paragraphs 75 and 76), or only through a right of residence based on Article 14(4)(b) of that directive (judgment in Alimanovic, paragraphs 57 and 58), or were resident for less than three months but applied for social assistance (as in the judgment in García-Nieto and Others).

( 51 ) Opinion in A (Public health care) (C‑535/19, EU:C:2021:114, point 153).

( 52 ) See points 46 to 49 of this Opinion. On that basis, I think it is worth emphasising that the right of residence of the applicant in the main proceedings is in no way based on a right to reside legally under national law, which would not fulfil the residence requirements of Article 7 of Directive 2004/38, as was the situation, in particular, in the case leading to the judgment of 21 December 2011, Ziolkowski and Szeja (C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 47), cited by the Commission in its written response to the questions from the Court, or, again, in the case which led to the judgment of 15 July 2021, The Department for Communities in Northern Ireland (C‑709/20, EU:C:2021:602, paragraph 81). I note, in that regard, that, in paragraph 46 of the judgment in Ziolkowski and Szeja, the Court held that ‘the concept of legal residence implied by the terms “have resided legally” in Article 16(1) of Directive 2004/38 should be construed as meaning a period of residence which complies with the conditions laid down in the directive, in particular those set out in Article 7(1)’ (emphasis added). Consequently, as I have already indicated, a period of residence may be legal, under that directive, if other conditions of the directive are met, such as, in particular, those laid down in Article 6 of the directive. On that point, see points 42 to 49 of this Opinion.

( 53 ) I note that the Court, in the judgment of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436, paragraphs 66 and 68), considered that Directive 2004/38 applies in relation to family benefits, after having stated, in paragraph 61, that those benefits should be classified as social security benefits. However, it should be noted that that case concerned an action seeking to establish that the United Kingdom of Great Britain and Northern Ireland had failed to fulfil its obligations under Article 4 of Regulation No 883/2004 by making the granting of those benefits subject to a condition of legal residence in its territory. It think it relevant to note that, in that judgment, the Court referred directly to the right of residence laid down in Articles 7(1) and 14(2) of Directive 2004/38 as well as in Articles 12 and 13 thereof (paragraphs 81, 82 and 84). Conversely, it made no mention at all of Article 6 of that directive.

( 54 ) See points 57 to 60 of this Opinion.

( 55 ) See point 6 of this Opinion.

( 56 ) Both the Czech Government and the Commission consider that the question whether the national provision at issue discriminates on grounds of nationality should be analysed solely in the light of Article 4 of Regulation No 883/2004.

( 57 ) See points 29 to 60 of this Opinion.

( 58 ) See, by analogy, judgment of 11 April 2013, Jeltes and Others (C‑443/11, EU:C:2013:224, paragraph 59).

( 59 ) Furthermore, the national provision at issue does not comply with the objective of freedom of movement guaranteed by Directive 2004/38 and Regulation No 883/2004.

( 60 ) See point 79 of this Opinion.

( 61 ) Judgment of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436, paragraphs 68 and 75).

( 62 ) It is clear that German nationals reside in their Member State of origin on the basis of their national law.

( 63 ) In particular, the legal doctrine has noted that ‘although most citizenship cases have been decided using the non-discrimination/equal treatment model, the more general shift to a restriction/market access approach observed elsewhere in the Court’s free movement case-law can also be observed in the field of Union citizenship’; see Barnard, C., The Substantive Law of the EU: The Four Freedoms, Oxford University Press, Oxford, 2019 (6th ed.), pp. 352 to 360, in particular p. 357, and, by the same author, ‘Editorial Comments, Two-speed European Citizenship? Can the Lisbon Treaty Help Close the Gap?’, Common Market Law Review, Vol. 45, No 1, 2008, pp. 1 to 8. See, also, Nic Shuibhne, N., ‘What I Tell You Three Times Is True: Lawful Residence and Equal Treatment after Dano’, Maastricht Journal of European and Comparative Law, Vol. 23, No 6, 2016, pp. 908 to 936.

( 64 ) Judgment of 14 June 2016 (C‑308/14, EU:C:2016:436).

( 65 ) To illustrate that point, the German Government mentions Bulgaria, where the amount of family benefits is substantially lower than that in Germany.

( 66 ) See, in particular, by analogy, judgment of 26 October 2006, Tas-Hagen and Tas (C‑192/05, EU:C:2006:676, paragraph 33 and the case-law cited).

( 67 ) See Eurostat document entitled ‘Fertility Statistics’: https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Fertility_statistics.

( 68 ) The notion of an ‘unreasonable burden’ must be assessed taking into account not only the possible additional upfront costs but also the long-term economic benefits. In that respect, it is possible to draw a parallel with expenditure on training, which, in a context of free movement of persons, may tend to increase in certain areas, but is part of a perspective of economic growth and matching the workforce to the needs of the labour market.

( 69 ) See, in particular, by analogy, judgment of 20 June 2013, Giersch and Others (C‑20/12, EU:C:2013:411, paragraph 52 and the case-law cited).

( 70 ) See, on that point, in particular, by analogy, judgment of 13 April 2010, Bressol and Others (C‑73/08, EU:C:2010:181, paragraph 71): ‘Such an objective, detailed analysis, supported by figures, must be capable of demonstrating, with solid and consistent data, that there are genuine risks to public health’. Emphasis added.

( 71 ) See, in particular, judgments of 14 December 2000, Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraphs 52 and 53); of 16 October 2012, Hungary v Slovakia (C‑364/10, EU:C:2012:630, paragraph 58 and the case-law cited); of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135); and of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450).

( 72 ) Judgments of 14 December 2000, Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraphs 52 to 54), and of 16 October 2012, Hungary v Slovakia (C‑364/10, EU:C:2012:630, paragraph 58). Emphasis added.

( 73 ) See, in particular, judgments of 12 March 1996, Pafitis and Others (C‑441/93, EU:C:1996:92, paragraph 68), and of 12 May 1998, Kefalas and Others (C‑367/96, EU:C:1998:222, paragraph 22).

( 74 ) See, to that effect, judgment of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 55).

( 75 ) Judgment in Dano (paragraph 78).

( 76 ) See, to that effect, judgment of 19 December 2012, Commission v Belgium (C‑577/10, EU:C:2012:814, paragraph 53 and the case-law cited). See, also, my Opinion in McCarthy and Others (C‑202/13, EU:C:2014:345, point 134).

( 77 ) See my Opinion in McCarthy and Others (C‑202/13, EU:C:2014:345, point 139).

( 78 ) See point 39 et seq. of this Opinion.

( 79 ) Judgment in Alimanovic (paragraph 59).

( 80 ) I note that Article 11(1) of Regulation No 883/2004 states that ‘persons to whom this Regulation applies shall be subject to the legislation of a single Member State only’. Article 11(3)(a) and (e) of that regulation states that, subject to Articles 12 to 16, a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State and that any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of that regulation guaranteeing him or her benefits under the legislation of one or more other Member States.

( 81 ) Judgment of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 66 and the case-law cited).