Pensionsversicherungsanstalt v Peter Brey.
Date: 2013-09-19
31. In that regard, it should be borne in mind that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it (see, inter alia, Case C‑45/06 Campina  [2007] ECR I‑2089, paragraph 30, and Case C‑243/09 Fuß  [2010] ECR I‑9849, paragraph 39).
34. In that regard, the Court found in paragraph 26 of Skalka  that the Austrian compensatory supplement is classifiable as a ‘special benefit’ as it augments a retirement pension or an invalidity pension, it is by nature social assistance in so far as it is intended to ensure a minimum means of subsistence for its recipient where his pension is insufficient, and entitlement is dependent on objective criteria defined by law.
40. That provision is intended not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by Regulation No 883/2004 are not left without social security cover because there is no legislation which is applicable to them (see, by analogy, Case C‑275/96 Kuusijärvi  [1998] ECR I‑3419, paragraph 28, and Case C‑619/11 Dumont de Chassart  [2013] ECR I‑0000, paragraph 38).
41. On the other hand, that provision is not intended to lay down the conditions creating the right to special non-contributory cash benefits. It is for the legislation of each Member State to lay down those conditions (see, to that effect, Dumont de Chassart , paragraph 39 and the case‑law cited).
43. Regulation No 883/2004 does not set up a common scheme of social security, but allows different national social security schemes to exist and its sole objective is to ensure the coordination of those schemes. It thus allows different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by EU law (Case C‑331/06 Chuck  [2008] ECR I‑1957, paragraph 27, and Dumont de Chassart , paragraph 40).
44. The Court has consistently held that there is nothing to prevent, in principle, the granting of social security benefits to Union citizens who are not economically active being made conditional upon those citizens meeting the necessary requirements for obtaining a legal right of residence in the host Member State (see, to that effect, Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraphs 61 to 63; Case C‑184/99 Grzelczyk  [2001] ECR I‑6193, paragraphs 32 and 33; Case C‑456/02 Trojani  [2004] ECR I‑7573, paragraphs 42 and 43; Case C‑209/03 Bidar  [2005] ECR I‑2119, paragraph 37; and Case C‑158/07 Förster  [2008] ECR I‑8507, paragraph 39).
46. It should be borne in mind that the right of nationals of one Member State to reside in the territory of another Member State without being engaged in any activity, whether on an employed or a self-employed basis, is not unconditional. Under Article 21(1) TFEU, the right of every citizen of the Union to reside in the territory of the Member States is recognised subject to the limitations and conditions laid down in the Treaty and by the measures adopted for its implementation (see, to that effect, Trojani , paragraphs 31 and 32; Case C‑200/02 Zhu and Chen  [2004] ECR I‑9925, paragraph 26; and Case C‑291/05 Eind [2007] ECR I‑10719, paragraph 28).
47. By way of such limitations and conditions, Article 7(1)(b) of Directive 2004/38 provides that a Member State may require nationals of another Member State wishing to have the right of residence on its territory for a period of longer than three months without being economically active to have comprehensive sickness insurance cover in the host Member State and sufficient resources for themselves and their family members not to become a burden on the social assistance system of that Member State during their period of residence (see, to that effect, Case C‑480/08 Teixeira  [2010] ECR I‑1107, paragraph 42).
49. In that regard, it should be stressed at the outset that the need for the uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose pursued (see, inter alia, Case C‑204/09 Flachglas Torgau  [2012] ECR I‑0000, paragraph 37, and Case C‑260/11 Edwards and Pallikaropoulos  [2013] ECR I‑0000, paragraph 29).
51. In that regard, it should be borne in mind that Regulation No 883/2004 seeks to achieve the objective set out in Article 48 TFEU by preventing the possible negative effects that the exercise of the freedom of movement for workers could have on the enjoyment, by workers and their families, of social security benefits (see, to that effect, Chuck , paragraph 32).
53. By contrast, although the aim of Directive 2004/38 is to facilitate and strengthen the exercise of the primary and individual right – conferred directly on all Union citizens by the Treaty – to move and reside freely within the territory of the Member States (see Case C‑127/08 Metock and Others  [2008] ECR I‑6241, paragraphs 82 and 59; Case C‑162/09 Lassal  [2010] ECR I‑9217, paragraph 30; and Case C‑434/09 McCarthy  [2011] ECR I‑3375, paragraph 28), it is also intended, as is apparent from Article 1(a) thereof, to set out the conditions governing the exercise of that right (see, to that effect, McCarthy , paragraph 33, and Joined Cases C‑424/10 and C‑425/10 Ziolkowski and Szeja  [2011] ECR I‑0000, paragraphs 36 and 40), which include, where residence is desired for a period of longer than three months, the condition laid down in Article 7(1)(b) of the directive that Union citizens who do not or no longer have worker status must have sufficient resources.
54. It is apparent from recital 10 in the preamble to Directive 2004/38, in particular, that that condition is intended, inter alia, to prevent such persons becoming an unreasonable burden on the social assistance system of the host Member State ( Ziolkowski and Szeja , paragraph 40).
55. That condition is based on the idea that the exercise of the right of residence for citizens of the Union can be subordinated to the legitimate interests of the Member States – in the present case, the protection of their public finances (see, by analogy, Case C‑413/99 Baumbast and R  [2002] ECR I‑7091, paragraph 90; Zhu and Chen , paragraph 32; and Case C‑408/03 Commission v Belgium  [2006] ECR I‑2647, paragraphs 37 and 41).
56. In a similar vein, Article 24(2) of Directive 2004/38 allows a derogation from the principle of equal treatment enjoyed by Union citizens other than workers, self-employed persons, persons who retain such status and members of their families who reside within the territory of the host Member State, by permitting that State not to confer entitlement to social assistance, in particular for the first three months of residence (see Joined Cases C‑22/08 and C‑23/08 Vatsouras and Koupatantze  [2009] ECR I‑4585, paragraphs 34 and 35).
60. It follows that, for the purposes of Article 7(1)(b) of Directive 2004/38, the concept of ‘social assistance system’ must be defined by reference to the objective pursued by that provision, as recalled in paragraphs 53 to 57 above, and not by reference to formal criteria (see, to that effect, Vatsouras and Koupatantze , paragraphs 41 and 42, and Case C‑571/10 Kamberaj  [2012] ECR I‑0000, paragraphs 90 to 92).
61. Accordingly, that concept must be interpreted as covering all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by that State (see, to that effect, Bidar , paragraph 56; Eind , paragraph 29; and Förster , paragraph 48; see also, by analogy, Case C‑578/08 Chakroun  [2010] ECR I‑1839, paragraph 46, and Kamberaj , paragraph 91).
62. As regards the compensatory supplement at issue in the main proceedings, it is clear from paragraphs 33 to 36 above that that benefit may be regarded as coming under the ‘social assistance system’ of the Member State concerned. As the Court found in paragraphs 29 and 30 of Skalka , that benefit, which is intended to ensure a minimum means of subsistence for its recipient where his pension is insufficient, is funded in full by the public authorities, without any contribution being made by insured persons.
63. Consequently, the fact that a national of another Member State who is not economically active may be eligible, in light of his low pension, to receive that benefit could be an indication that that national does not have sufficient resources to avoid becoming an unreasonable burden on the social assistance system of the host Member State for the purposes of Article 7(1)(b) of Directive 2004/38 (see, to that effect, Trojani , paragraphs 35 and 36).
64. However, the competent national authorities cannot draw such conclusions without first carrying out an overall assessment of the specific burden which granting that benefit would place on the national social assistance system as a whole, by reference to the personal circumstances characterising the individual situation of the person concerned.
65. First, it should be pointed out that there is nothing in Directive 2004/38 to preclude nationals of other Member States from receiving social security benefits in the host Member State (see, by analogy, Grzelczyk , paragraph 39).
68. It follows that, although Member States may indicate a certain sum as a reference amount, they may not impose a minimum income level below which it will be presumed that the person concerned does not have sufficient resources, irrespective of a specific examination of the situation of each person concerned (see, by analogy, Chakroun , paragraph 48).
69. Furthermore, it is clear from recital 16 in the preamble to Directive 2004/38 that, in order to determine whether a person receiving social assistance has become an unreasonable burden on its social assistance system, the host Member State should, before adopting an expulsion measure, examine whether the person concerned is experiencing temporary difficulties and take into account the duration of residence of the person concerned, his personal circumstances, and the amount of aid which has been granted to him.
70. Lastly, it should be borne in mind that, since the right to freedom of movement is – as a fundamental principle of EU law – the general rule, the conditions laid down in Article 7(1)(b) of Directive 2004/38 must be construed narrowly (see, by analogy, Kamberaj , paragraph 86, and Chakroun , paragraph 43) and in compliance with the limits imposed by EU law and the principle of proportionality (see Baumbast and R , paragraph 91; Zhu and Chen , paragraph 32; and Commission v Belgium , paragraph 39).
71. In addition, the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would compromise attainment of the objective of Directive 2004/38, which is, inter alia, to facilitate and strengthen the exercise of Union citizens’ primary right to move and reside freely within the territory of the Member States, and the practical effectiveness of that directive (see, by analogy, Chakroun , paragraphs 43 and 47).
72. By making the right of residence for a period of longer than three months conditional upon the person concerned not becoming an ‘unreasonable’ burden on the social assistance ‘system’ of the host Member State, Article 7(1)(b) of Directive 2004/38, interpreted in the light of recital 10 to that directive, means that the competent national authorities have the power to assess, taking into account a range of factors in the light of the principle of proportionality, whether the grant of a social security benefit could place a burden on that Member State’s social assistance system as a whole. Directive 2004/38 thus recognises a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States, particularly if the difficulties which a beneficiary of the right of residence encounters are temporary (see, by analogy, Grzelczyk , paragraph 44; Bidar , paragraph 56; and Förster , paragraph 48).
74. However, it is settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of EU law. In the event of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part (see Case C‑372/88 Cricket St Thomas  [1990] ECR I‑1345, paragraphs 18 and 19, and Case C‑149/97 Institute of the Motor Industry  [1998] ECR I‑7053, paragraph 16).
78. In particular, in a case such as that before the referring court, it is important that the competent authorities of the host Member State are able, when examining the application of a Union citizen who is not economically active and is in Mr Brey’s position, to take into account, inter alia, the following: the amount and the regularity of the income which he receives; the fact that those factors have led those authorities to issue him with a certificate of residence; and the period during which the benefit applied for is likely to be granted to him. In addition, in order to ascertain more precisely the extent of the burden which that grant would place on the national social assistance system, it may be relevant, as the Commission argued at the hearing, to determine the proportion of the beneficiaries of that benefit who are Union citizens in receipt of a retirement pension in another Member State.