Athanasios Vatsouras (C-22/08) and Josif Koupatantze (C-23/08) v Arbeitsgemeinschaft (ARGE) Nürnberg 900.
Date: 2009-06-04
23. Although, as regards the division of jurisdiction between the Community judicature and national courts, it is in principle for the national court to determine whether the factual conditions triggering the application of a Community rule are fulfilled in the case pending before it, the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation (see, to that effect, Case C‑424/97 Haim  [2000] ECR I‑5123, paragraph 58).
26. It must be pointed out in that regard that, according to settled case-law, the concept of ‘worker’ within the meaning of Article 39 EC has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, inter alia, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17, and Case C‑228/07 Petersen  [2008] ECR I‑0000, paragraph 45).
27. Neither the origin of the funds from which the remuneration is paid nor the limited amount of that remuneration can have any consequence in regard to whether or not the person is a ‘worker’ for the purposes of Community law (see Case 344/87 Bettray  [1989] ECR 1621, paragraph 15, and Case C‑10/05 Mattern and Cikotic  [2006] ECR I‑3145, paragraph 22).
28. The fact that the income from employment is lower than the minimum required for subsistence does not prevent the person in such employment from being regarded as a ‘worker’ within the meaning of Article 39 EC (see Case 53/81 Levin  [1982] ECR 1035, paragraphs 15 and 16, and Case C‑317/93 Nolte  [1995] ECR I‑4625, paragraph 19), even if the person in question seeks to supplement that remuneration by other means of subsistence such as financial assistance drawn from the public funds of the State in which he resides (see Case 139/85 Kempf  [1986] ECR 1741, paragraph 14).
29. Furthermore, with regard to the duration of the activity pursued, the fact that employment is of short duration cannot, in itself, exclude that employment from the scope of Article 39 EC (see Case C‑3/90 Bernini  [1992] ECR I‑1071, paragraph 16, and Case C‑413/01 Ninni-Orasche  [2003] ECR I‑13187, paragraph 25).
32. If Mr Vatsouras and Mr Koupatantze had retained the status of workers, they would have had the right to benefits such as those provided for by the SGB II, in accordance with Article 24(1) of Directive 2004/38, during that period of at least six months.
The first question
34. Article 24(2) of Directive 2004/38 establishes 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.
35. Under that provision, the host Member State is not obliged to confer entitlement to social assistance on, among others, job-seekers for the longer period during which they have the right to reside there.
36. Nationals of a Member State seeking employment in another Member State fall within the scope of Article 39 EC and therefore enjoy the right to equal treatment laid down in paragraph 2 of that provision (Case C‑258/04 Ioannidis  [2005] ECR I‑8275, paragraph 21).
37. Furthermore, in view of the establishment of citizenship of the Union and the interpretation of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 39(2) EC a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State (Case C‑138/02 Collins  [2004] ECR I‑2703, paragraph 63, and Ioannidis , paragraph 22).
38. It is, however, legitimate for a Member State to grant such an allowance only after it has been possible to establish a real link between the job-seeker and the labour market of that State (Case C‑224/98 D’Hoop  [2002] ECR I‑6191, paragraph 38, and Ioannidis , paragraph 30).
39. The existence of such a link can be determined, in particular, by establishing that the person concerned has, for a reasonable period, in fact genuinely sought work in the Member State in question ( Collins , paragraph 70).
41. It is for the competent national authorities and, where appropriate, the national courts not only to establish the existence of a real link with the labour market, but also to assess the constituent elements of that benefit, in particular its purposes and the conditions subject to which it is granted.
42. As the Advocate General has noted in point 57 of his Opinion, the objective of the benefit must be analysed according to its results and not according to its formal structure.
44. In any event, the derogation provided for in Article 24(2) of Directive 2004/38 must be interpreted in accordance with Article 39(2) EC.
45. Benefits of a financial nature which, independently of their status under national law, are intended to facilitate access to the labour market cannot be regarded as constituting ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38.
52. That provision concerns situations coming within the scope of Community law in which a national of one Member State suffers discriminatory treatment in relation to nationals of another Member State solely on the basis of his nationality and is not intended to apply to cases of a possible difference in treatment between nationals of Member States and nationals of non-member countries.