1 This request for a preliminary ruling concerns the interpretation of Article 3 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 (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 284, p. 43) (‘Regulation No 883/2004’), of Article 7(2) 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), and of Article 20 TFEU and Article 21(1) TFEU.
2 The request has been made in proceedings between PE, a minor child represented by her parents, and the Städteregion Aachen (metropolitan area of Aachen, Germany) concerning the refusal to grant her integration assistance in the form of school assistance benefits for disabled children.
3 Article 3 of Regulation No 883/2004, which appears in Title I of that regulation, entitled ‘General provisions’, provides: ‘1. This Regulation shall apply to all legislation concerning the following branches of social security: (a) sickness benefits; … 3. This Regulation shall also apply to the special non-contributory cash benefits covered by Article 70. … 5. This Regulation shall not apply to: (a) social and medical assistance or …’
4 Article 70 of Regulation No 883/2004, entitled ‘General provision’, in Chapter 9, entitled ‘Special non-contributory cash benefits’, which appears in Title III of that regulation, entitled ‘Special provisions concerning the various categories of benefits’, provides, in paragraph 2(c) thereof: ‘For the purposes of this Chapter, “special non-contributory cash benefits” means those which:
5 Annex X to that regulation, under the heading ‘Germany’, is worded as follows:
6 Article 7(1) and (2) of Regulation No 492/2011 provides: ‘1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment. 2. He shall enjoy the same social and tax advantages as national workers.’
7 The Neuntes Buch Sozialgesetzbuch (Book IX of the Social Code), entitled ‘Rehabilitation of and participation by people with disabilities’, in the version applicable to the dispute in the main proceedings (‘the SGB IX’), lays down the conditions to which the grant of integration assistance in the form of school assistance benefits for disabled children is subject.
8 Paragraph 101(1) of the SGB IX provides: ‘German nationals who are habitually resident abroad shall not be entitled to integration benefits. Exceptions may be made on a case-by-case basis where there is no alternative owing to a particularly urgent situation, and where it is demonstrated that it is impossible to return to the German territory for one of the following reasons:
9 Paragraph 104(1) of the SGB IX states: ‘The integration assistance benefits shall be determined according to the particularities of each case, including the type of need, personal circumstances, social environment and his or her own abilities and resources …’
10 The applicant in the main proceedings, a German and Irish national born in Germany in 2009, lives with her parents in Belgium close to the German border. Her mother, a German national, is employed as a full-time doctor in Aachen (Germany). Her father, an Irish national, was an EU official serving in Maastricht (Netherlands).
11 The applicant in the main proceedings suffers from a mental disability requiring specific care. Since the 2017/2018 school year, she has attended inclusive schools in Aachen, having previously attended a special education school in Eupen (Belgium). At her request, the metropolitan area of Aachen granted her, in accordance with the provisions of the SGB IX, integration assistance in the form of school assistance benefits for disabled children for the 2017/2018 to 2020/2021 school years, bearing the costs of school assistance benefits at the rate initially of 15 hours, then 35 hours, per week.
12 By decision of 9 June 2021, the metropolitan area of Aachen rejected an application for the grant of that integration assistance for the school year 2021/2022, on the ground that the applicant in the main proceedings, who is habitually resident in Belgium, does not satisfy the residence requirement under Article 101(1) of the SGB IX. By decision of 20 August 2021, that authority rejected, on the same ground, the objection brought by the applicant in the main proceedings against the initial rejection decision.
13 By judgment of 25 January 2022, the Sozialgericht Aachen (Social Court, Aachen, Germany) dismissed, on the same ground, the action brought by the applicant in the main proceedings, represented by her parents, against those decisions. That court also held that entitlement to the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX could not be based on EU law either, since that right does not fall within the scope of the ‘sickness benefits’ referred to in Article 3(1) of Regulation 883/2004, and Article 3(5)(a) of that regulation expressly provides that that regulation does not apply to ‘social and medical assistance’.
14 The applicant in the main proceedings, represented by her parents, brought an action before the Landessozialgericht Nordrhein-Westfalen (Higher Social Court, North Rhine-Westphalia, Germany), which is the referring court, seeking the variation of that judgment and an order that the metropolitan area of Aachen, by amending the decision of 9 June 2021, as confirmed by the decision of 20 August 2021, reimburse her for the costs of accessing school assistance for the period from 1 August 2021 to 30 November 2021, in the amount of EUR 12 782.32, since the German-speaking Community of Belgium had covered the costs of providing school monitoring free of charge for the period from 1 December 2021 to 30 June 2022.
15 The referring court states that, under national law, the action before it should be dismissed. However, it is uncertain as to whether national law is compatible with EU law in that respect.
16 In the first place, that court asks whether the present case falls within the scope of Regulation No 883/2004. As a benefit for educational participation in the form of school assistance for disabled children, the integration assistance at issue in the main proceedings does not appear to constitute a social security benefit falling within the material scope of that regulation, since it is not subject to objective requirements, such as, inter alia, the degree of disability, and it is granted on the basis of the personal needs of the person concerned, on the basis of an individual examination of those needs by the competent national authority.
17 Furthermore, it is doubtful whether the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX can be classified as a ‘sickness benefit’ within the meaning of Article 3(1)(a) of Regulation No 883/2004, since the concept of ‘sickness’, in its usual meaning, implies a temporary change in a person’s state of health, whereas the purpose of that integration assistance is to enable those receiving it to undergo training adapted to their skills and performance, and to promote their participation in society.
18 Therefore, it appears that the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX is instead covered by the concept of ‘social assistance’, which, under Article 3(5)(a) of Regulation No 883/2004, is expressly excluded from the material scope of that regulation. That integration assistance bears no relation to any of the risks referred to in Article 3(1) of that regulation. Furthermore, periods of occupational activity, contribution or affiliation have no bearing on entitlement to integration assistance, which is provided on a case-by-case and subsidiary basis. Nor is that integration assistance a special non-contributory cash benefit within the meaning of Article 70 of Regulation No 883/2004, since it is not listed in Annex X to that regulation.
19 In the second place, the referring court considers that it is necessary to clarify the question whether the exclusion of a Union citizen from the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX is compatible with Article 7(2) of Regulation No 492/2011, according to which any worker who is a national of a Member State is entitled, in the territory of other Member States, to the same social advantages as national workers. Given that the mother of the applicant in the main proceedings has exercised her right to freedom of movement, she is entitled to rely on that provision as against the Member State of which she is a national. However, the Court has not yet ruled on whether integration assistance in the form of school assistance benefits for the disabled child of a frontier worker constitutes a ‘social advantage’ within the meaning of that provision. Due to the broad interpretation that should be given to ‘social advantage’, there is support for including it in that provision. The residence requirement to which the grant of integration assistance in the form of school assistance benefits for disabled children is subject under the SGB IX could therefore constitute indirect discrimination, given that it is liable, by its very nature, to affect frontier workers more than national workers.
20 As regards the justification for such a restriction, the referring court observes that the risk of undermining the financial balance of the social security system may constitute a legitimate aim in the public interest capable of justifying the exclusion of non-residents from entitlement to benefits. In that regard, the exceptions set out in the SGB IX, which exclude non-residents in cases where there are specific difficulties relating, in essence, to the likely provision of benefits in the Member State of residence, prevent any unjustified discrimination. Furthermore, it could be argued that the principle of non-discrimination, which is enshrined in general terms in Article 18 TFEU, was given specific expression in Article 3(5)(a) of Regulation No 883/2004 as regards social assistance, meaning that the integration assistance at issue cannot be granted to individuals who do not reside in the national territory. That exclusion thus confirms the principle of territoriality, based on public international law, according to which tax-funded assistance must be granted only to persons residing in the national territory.
21 That said, it is not certain that the exclusion of non-residents from entitlement to the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX is truly necessary for the proper use of tax revenue. In particular, it is unclear to what extent the Federal Republic of Germany actually saved on expenditure as a result of that exclusion, which was introduced following a tightening of the relevant rules on 1 January 2004. Furthermore, as a result of that exclusion, non-resident German citizens may be forced to return to Germany, leading to increased costs for that Member State. In so far as the national legislature sought, by tightening those rules, to reduce misuse of that integration assistance, that objective also appears doubtful, in particular in the light of the principle of proportionality. The risk of abuse does not arise in respect of benefits in kind provided in the German territory. Nor is there any evidence that the applicant in the main proceedings abused her rights by artificially creating the conditions for obtaining the social advantages referred to in Article 7(2) of Regulation No 492/2011. Finally, in so far as the objective of excluding non-residents is to relieve the competent national authorities from having to conduct a cumbersome examination of the conditions for granting non-resident German citizens, the necessity of such an examination remains questionable since those services are provided in the German territory.
22 In the third place, the referring court asks whether the exclusion of non-residents from the integration assistance in the form of school assistance benefits for disabled children constitutes an objectively justified restriction of the right which Union citizens derive from Article 20 TFEU and Article 21(1) TFEU. The applicant in the main proceedings was placed at a disadvantage simply because she chose to avail herself of her freedom of movement by establishing her habitual residence in Belgium.
23 In those circumstances, the Landessozialgericht Nordrhein-Westfalen (Higher Social Court, North Rhine-Westphalia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
24 By its first question, the referring court asks, in essence, whether Article 3 of Regulation No 883/2004 must be interpreted as meaning that a benefit, such as the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX, falls within the material scope of that regulation.
25 In order to answer that question, it is necessary, in the first place, to ascertain whether such integration assistance constitutes a ‘social security’ benefit within the meaning of Article 3(1) of that regulation.
26 According to settled case-law, the distinction between benefits falling within the scope of Regulation No 883/2004 and those which are outside it is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation (judgment of 11 April 2024, Sozialministeriumservice, C‑116/23, EU:C:2024:292, paragraph 32 and the case-law cited).
27 Accordingly, a benefit may be regarded as a social security benefit, within the meaning of Article 3(1) of Regulation No 883/2004, in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 3(1) of Regulation No 883/2004. These two conditions are cumulative (judgment of 11 April 2024, Sozialministeriumservice, C‑116/23, EU:C:2024:292, paragraph 33 and the case-law cited).
28 It should be recalled that the first of the conditions mentioned in the preceding paragraph is satisfied if a benefit is granted in the light of objective criteria which, if they are met, confer entitlement to the benefit, the competent national authority having no power to take account of other personal circumstances (judgment of 11 April 2024, Sozialministeriumservice, C‑116/23, EU:C:2024:292, paragraph 34 and the case-law cited).
29 In the present case, it is apparent from the order for reference that the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX is not subject to objective criteria, such as a specific rate or level of incapacity or disability, but that it is granted by the competent national authority, in accordance with Paragraph 104(1) of the SGB IX, according to the personal needs of the person concerned, on the basis of an individual and discretionary examination of his or her situation by that authority.
30 In those circumstances, it must be held that the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX does not satisfy the first of the two cumulative conditions set out in paragraph 27 above, with the result that that assistance does not constitute a ‘social security’ benefit within the meaning of Article 3(1) of Regulation No 883/2004.
31 However, it must be borne in mind that Article 3(3) of that regulation extends the scope of that regulation to special non-contributory cash benefits referred to in Article 70. In those circumstances, it is necessary, in the second place, to ascertain whether the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX constitutes such a benefit.
32 In that connection, it is sufficient to note that it is clear from the very wording of Article 70(2)(c) of Regulation No 883/2004 that the special non-contributory cash benefits are to be understood as solely those listed in Annex X to that regulation. However, the integration assistance in the form of school assistance benefits for disabled children provided for in the SGB IX is not included in that annex. It does not therefore constitute such a benefit (see, to that effect, judgment of 12 March 2020, Caisse d’assurance retraite et de la santé au travail d’Alsace-Moselle, C‑769/18, EU:C:2020:203, paragraph 35).
33 Consequently, the answer to the first question is that Article 3 of Regulation No 883/2004 must be interpreted as meaning that a benefit, such as the integration aid in the form of school assistance benefits for disabled children provided for in the SGB IX, does not fall within the material scope of that regulation, since the grant of that benefit is not subject to objective criteria, but is based on an individual assessment by the competent national authority of the needs of the person concerned.
34 By its second question, the referring court asks, in essence, whether Article 7(2) of Regulation No 492/2011 must be interpreted as precluding national legislation which makes the grant of integration aid in the form of school assistance benefits to the disabled child of a frontier worker who is a Union national conditional on that child residing in the national territory.
35 In order to answer that question, it must, in the first place, be recalled that any EU national who, irrespective of his or her place of residence and his or her nationality, exercises the right to freedom of movement for workers and who is employed in a Member State other than that of his or her residence comes within the scope of Article 45 TFEU, a provision which Regulation No 492/2011 is intended to put into concrete terms (judgment of 2 April 2020, PF and Others, C‑830/18, EU:C:2020:275, paragraph 21 and the case-law cited).
36 Accordingly, that regulation equally benefits both migrant workers resident in a host Member State and frontier workers employed in that Member State while residing in another Member State (see, to that effect, judgment of 15 June 2023, Thermalhotel Fontana, C‑411/22, EU:C:2023:490, paragraph 34 and the case-law cited).
37 In the present case, the mother of the applicant in the main proceedings is a German national who works in Germany but resides in Belgium.
38 Since she has exercised her freedom of movement, she is therefore entitled to rely - as against the Member State of which she is a national - on Regulation No 492/2011, and in particular on Article 7(2) of that regulation, which enshrines the principle of equal treatment between workers as regards the receipt of ‘social advantages’ within the meaning of that provision. The members of the frontier worker’s family are the indirect recipients of that equal treatment (see, to that effect, judgment of 2 April 2020, PF and Others, C‑830/18, EU:C:2020:275, paragraphs 25 and 26 and the case-law cited).
39 In the second place, as regards the concept of ‘social advantages’ within the meaning of Article 7(2) of Regulation No 492/2011, it should be borne in mind that, according to settled case-law, that concept encompasses all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers by virtue of the mere fact of their residence in the national territory and the extension of which to workers who are nationals of other Member States seems likely to facilitate the mobility of such workers. The reference made by that provision to ‘social advantages’ cannot be interpreted restrictively (see, to that effect, judgment of 11 April 2024, Sozialministeriumservice, C‑116/23, EU:C:2024:292, paragraph 51 and the case-law cited).
40 The social benefits granted to the dependent child of a migrant worker who must contribute to his or her maintenance thus constitute social advantages (see, to that effect, inter alia, judgments of 20 June 1985, Deak, 94/84, EU:C:1985:264, paragraph 24; of 18 June 1987, Lebon, 316/85, EU:C:1987:302, paragraph 13; and of 20 June 2013, Giersch and Others, C‑20/12, EU:C:2013:411, paragraph 39 and the case-law cited).
41 It follows that integration assistance in the form of school assistance benefits for disabled children, such as that provided for in the SGB IX, constitutes a social advantage within the meaning of Article 7(2) of Regulation No 492/2011.
42 In the third place, it should be noted that that provision is a particular expression, in the specific area of the grant of social advantages, of the principle of equal treatment enshrined in Article 45 TFEU and must be accorded the same interpretation as that provision (judgment of 2 April 2020, PF and Others, C‑830/18, EU:C:2020:275, paragraph 29 and the case-law cited).
43 That principle of equal treatment prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (judgment of 2 April 2020, PF and Others, C‑830/18, EU:C:2020:275, paragraph 30 and the case-law cited).
44 A residence requirement such as that at issue in the main proceedings, to which the legislation of the Member State concerned makes the grant of integration aid in the form of school assistance benefits for disabled children subject, is intrinsically liable to place frontier workers who reside in another Member State at a disadvantage, with the result that it constitutes indirect discrimination falling within Article 7(2) of Regulation No 492/2011 (see, to that effect, judgment of 2 April 2020, PF and Others, C‑830/18, EU:C:2020:275, paragraphs 31 and 32 and the case-law cited).
45 Accordingly, national legislation, such as that at issue in the main proceedings, which places certain workers at a disadvantage solely because they have established their habitual residence in another Member State, constitutes a restriction on the freedom of movement for workers, within the meaning of Article 45 TFEU, in that, even if it is applicable without distinction, it is liable to preclude or deter, inter alia, a national of a Member State from leaving his or her State of origin in order to exercise his or her freedom of movement (see, to that effect, judgment of 2 April 2020, PF and Others, C‑830/18, EU:C:2020:275, paragraphs 36 and the case-law cited).
46 According to the Court’s case-law, such a restriction on freedom of movement for workers is permissible only if it is objectively justified. For that to be the case, it must be appropriate for securing the attainment of a legitimate objective and must not go beyond what is necessary to attain that objective (see, to that effect, inter alia, judgments of 13 December 2012, Caves Krier Frères, C‑379/11, EU:C:2012:798, paragraph 48, and of 2 April 2020, PF and Others, C‑830/18, EU:C:2020:275, paragraph 39 and the case-law cited).
47 In the present case, the German Government submits that the residence requirement at issue in the main proceedings is justified by the objective of ensuring, first, a genuine link between the claimant for integration assistance in the form of school assistance benefits for disabled children and the Member State granting that assistance and, second, the financial balance of the national social security system.
48 In that regard, it should be borne in mind that it is true that objectives of national legislation which seek to establish a genuine link between a claimant to a social benefit and the competent Member State and to preserve the financial balance of the national social security system constitute, in principle, legitimate objectives capable of justifying restrictions on the free movement of workers (see, to that effect, judgment of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 69 and the case-law cited).
49 Nevertheless, a residence requirement such as that at issue in the main proceedings goes beyond what is necessary in order to attain those objectives. According to the Court’s settled case-law, where frontier workers contribute financially to the social policies of the host Member State through the tax and social security contributions which they pay in that State in the course of their employment there, they must be able to enjoy, inter alia, social advantages under the same conditions as resident workers (see, to that effect, in particular, judgment of 16 May 2024, Hocinx, C‑27/23, EU:C:2024:404, paragraph 31 and the case-law cited).
50 To that extent, there is a genuine and sufficient connection between the person claiming the integration assistance in the form of school assistance benefits for disabled children and the competent Member State, which is such as to enable the latter to satisfy itself that the economic cost of paying that benefit does not become unreasonable (see, by analogy, judgment of 25 July 2018, A (Assistance for a disabled person), C‑679/16, EU:C:2018:601, paragraph 71 and the case-law cited).
51 Furthermore, in so far as the German Government stresses the need to take account of the disabled person’s social environment in order to ensure that that integration assistance corresponds precisely to his or her individual specific needs and, therefore, to be able to monitor its effectiveness and its effects, it is sufficient to note that it is apparent from the order for reference that that assistance is a benefit in kind provided in Germany in the context of the disabled child’s schooling, with the result that the German authorities are fully capable of carrying out all the necessary checks for the purposes of such individualisation, even if that child and his or her parents are habitually resident in another Member State. Moreover, and in any event, that government does not explain why residing in the national territory is necessary for the individualisation of such a benefit in kind.
52 Consequently, the answer to the second question is that Article 7(2) of Regulation No 492/2011 must be interpreted as precluding national legislation which makes the grant of integration aid in the form of school assistance benefits to the disabled child of a frontier worker who is a Union national conditional on that child residing in the national territory, since such a requirement goes beyond what is necessary to attain the objectives pursued by that legislation.
53 Having regard to the answer given to the second question, there is no need to answer the third question.
54 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. 1. Article 3 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, as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, 2. Article 7(2) 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