Case C‑333/13

Elisabeta Dano

and

Florin Dano

v

Jobcenter Leipzig

(Request for a preliminary ruling from the Sozialgericht Leipzig)

‛Reference for a preliminary ruling — Free movement of persons — Citizenship of the Union — Equal treatment — Economically inactive nationals of a Member State residing in the territory of another Member State — Exclusion of those persons from special non-contributory cash benefits under Regulation (EC) No 883/2004 — Directive 2004/38/EC — Right of residence for more than three months — Articles 7(1)(b) and 24 — Condition requiring sufficient resources’

Summary — Judgment of the Court (Grand Chamber), 11 November 2014

Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Request for interpretation of the Charter of Fundamental Rights of the European Union — Subject-matter of the national dispute not having any connection with EU law — Lack of jurisdiction of the Court

Citizenship of the Union — Right to move and reside freely within the territory of the Member States — Directive 2004/38 — Principle of equal treatment — Obligation on the host Member State to grant entitlement to social benefits to economically inactive nationals of other Member States — Conditions — Residence in the territory of the host Member State in compliance with the conditions of the directive — Requirement that an economically inactive Union citizen must have sufficient resources for himself and his family members

Regulation No 883/2004 on the coordination of social security systems, as amended by Regulation No 1244/2010, must be interpreted as meaning that ’special non-contributory cash benefits’ as referred to in Articles 3(3) and 70 of the regulation fall within the scope of Article 4 of the regulation. First, it is clear from the wording of Article 3 of Regulation No 883/2004 that the regulation applies to special non-contributory cash benefits. Second, whilst Article 70(3) of that regulation, by way of exception, renders certain of the regulation’s provisions inapplicable to special non-contributory cash benefits, Article 4 is not among those provisions. Finally, it is apparent from the third and seventh recitals in the preamble to Regulation No 1247/92 that the specific provision inserted by that regulation into Regulation No 1408/71 is characterised by non-exportability of special non-contributory cash benefits as the counterpart of equal treatment in the State of residence. (see paras 49, 51-55, operative part 1)

‘[S]pecial non-contributory cash benefits’ as referred to in Article 70(2) of Regulation No 883/2004 on the coordination of social security systems, as amended by Regulation No 1244/2010, fall within the concept of ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. That concept refers to all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by an individual who does not have resources sufficient to meet his own basic needs and those of his family and who by reason of that fact may, during his 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 which may be granted by that State. (see para. 63)

Article 24(1) of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, read in conjunction with Article 7(1)(b) thereof, and Article 4 of Regulation No 883/2004 on the coordination of social security systems, as amended by Regulation No 1244/2010, must be interpreted as not precluding legislation of a Member State under which nationals of other Member States are excluded from entitlement to certain ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of Regulation No 883/2004, although those benefits are granted to nationals of the host Member State who are in the same situation, in so far as those nationals of other Member States do not have a right of residence under Directive 2004/38 in the host Member State. Article 24(1) of Directive 2004/38 provides that all Union citizens residing on the basis of the directive in the territory of the host Member State are to enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. It follows that, so far as concerns access to the abovementioned social benefits, a Union citizen can claim equal treatment with nationals of the host Member State only if his residence in the territory of the host Member State complies with the conditions of Directive 2004/38. To accept that persons who do not have a right of residence under Directive 2004/38 may claim entitlement to social benefits under the same conditions as those applicable to nationals of the host Member State would run counter to an objective of the directive, set out in recital 10 in its preamble, namely preventing Union citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State. Thus, in the case of economically inactive Union citizens whose period of residence in the host Member State has been longer than three months but shorter than five years, it must be examined whether their residence complies with the conditions in Article 7(1)(b) of Directive 2004/38, which include the requirement, intended to prevent economically inactive Union citizens from using the host Member State’s welfare system to fund their means of subsistence, that the economically inactive Union citizen must have sufficient resources for himself and his family members. Pursuant to that provision, a Member State must have the possibility of refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence. In this connection, the financial situation of each person concerned should be examined specifically, without taking account of the social benefits claimed. The same conclusion must be reached in respect of the interpretation of Article 4 of Regulation No 883/2004 as ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of the regulation are, under Article 70(4), to be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. (see paras 68, 69, 74, 76, 78, 80, 83, 84, operative part 2)