EN Official Journal of the European Union CE 65/230

(2004/C 65 E/246)

WRITTEN QUESTION E-2841/03

by Ria Oomen-Ruijten (PPE-DE) to the Commission

(25 September 2003)

Subject: Social assistance benefit and right of residence

A problem has arisen with a German family residing in the Netherlands which consists of a single (divorced) mother aged 50 and three children aged 14, 18 and 19. The 19-year-old daughter has a child who has both Netherlands and German nationality. The family has lived in the Netherlands for 5 years. The mother worked in Germany for more than eight years as a frontier worker, after which she was made redundant. She receives Dutch unemployment benefit pursuant to Article 71(1)(a)(ii) of Regulation (EEC) No 1408/71 (1). This benefit is to be terminated very shortly. During her period of unemployment the family has been entitled to Dutch child benefit and social benefits such as rent subsidy, financial assistance to students, etc. The mother's residence permit, which she renewed after she had become redundant, states that she is an ‘economically inactive Community citizen’ and that ‘the right of residence will lapse in the event of any claim being made on public funds’. The Dutch aliens police consider that when the statutory unemployment benefit lapses she will have no entitlement to social assistance benefit in the Netherlands. However, there will be such an entitlement if the mother and oldest daughter apply for a permanent residence permit under the domestic law of the Netherlands. The fee for such a permit is EUR 511 per person (or, for newly arrived EU citizens, EUR 890).

1. Do the German mother and her 19-year-old German daughter (with a Dutch/German child) fall under the scope of Regulation (EEC) No 1251/70 (2) (Articles 4 and 7) and Regulation (EEC) No 1612/68 (3) (Article 7)?

2. If so, can the mother and daughter be denied Dutch social assistance benefit?

3. Is it permissible for the residence permit of a Community citizen to include the statement, ‘the right of residence will lapse in the event of any claim being made on public funds’?

4. Is it permissible for an EU/EEA citizen who has resided in the Netherlands for 15 years to be charged a fee of EUR 511 for a permanent residence permit?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(30 October 2003)

1. and 2. On the basis of the information provided in the written question, neither the German mother nor any of her children are or have been working in the Netherlands. They have not therefore exercised their right to free movement of workers when moving to the Netherlands; they have exercised their right to free movement of persons as provided for in Council Directive 90/364/EEC of 28 June 1990 on the right of residence (4). Therefore, the German mother and her 19-year-old daughter do not fall under the scope of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement of workers within the Community (Article 39 EC) and Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State. Rules on equal treatment of Union nationals provided for on these Regulations are therefore not applicable.

3. As migrant workers and retired workers who fulfil the conditions of Regulation (EEC) No 1251/70 are entitled to equal treatment with nationals of the host Member State in relation to all social advantages (including social assistance), it is not permissible that the residence permits granted to these citizens include the statement, the ‘right of residence will lapse in the event of any claim being made on public funds’. The Commission also considers that the practice of the Dutch authorities is contrary to Council Directive 90/364/EEC. For this reason, it has opened an infringement procedure against the Netherlands, and a reasoned opinion following Article 226 of the EC Treaty has been sent to the Dutch authorities on 3 April 2003.

4. Under current Community law a Member State is only obliged to grant Union citizens residence permits with limited duration (the length depends on the right under which the citizen is living in the other Member State e.g. at least five years for a migrant worker). According to Community law, these residence permits should be issued and renewed free of charge or on payment of an amount not exceeding the dues and taxes charged for the issue of identity cards to nationals. However, the Commission considers that it is the sole competence of the Member States to grant to Union citizens permanent residence permits. As long as the right of Union citizens to be granted the residence permits with limited duration is equally provided for, it is up to the Member State to decide if and under which conditions it will grant permanent residence permits. The Commission therefore considers that the Dutch legislation in question is not violating Community law.

(1) OJ L 149, 5.7.1971, p. 2.

(2) OJ L 142, 30.6.1970, p. 24.

(3) OJ L 257, 19.10.1968, p. 2.

(4) OJ L 180, 13.7.1990.