Advocate General Wathelet's challenge to the Brey-regime and the rights of migrating Union citizens
It has passed by quite unnoticed in the media even though the opinion, delivered by Advocate General Wathelet on the 20th of May in C-333/13 Dano, introduce a restrictive approach to one of the most controversial political questions in Europe right now; the free movement of Union citizens and their right to social assistance. The Advocate General asserts that host member states may automatically exclude non-economically active persons from social assistance in order to protect the financial balance of the national social assistance system. If followed by the Court it will constitute a change to the Court’s regime established in C-140/12 Brey, a limitation to the right to free movement for Union citizens and a loss for European integration.
Free movement
Firstly, free movement of Union citizens as established in art. 21 TFEU, is one of the core freedoms within the Union and can only be limited by other provisions within the treaty or by provisions enforcing the treaty. The free movement directive (directive 2004/38) is lex specialis to art. 21 TFEU and codifies the general right to free movement.
The Directive establish rights for all Union citizens to reside unconditionally in another member state for three months, a worker or a job-seeker and the family member of such, may reside even longer. In addition, a Union citizen that is economically inactive but enjoy a comprehensive health insurance and possess enough resources so as not to be a burden on the host state's social security system may reside for longer than three months.
Art. 24.1 of the free movement directive oblige member states to provide for equal treatment for EU-migrants in relation to the nationals of the member states but art. 24.2 limits that equal treatment principle, stipulating that member states are not obliged to grant any social assistance for the first three months of residence, or for longer periods of residence for job-seekers. Those who may gain any social assistance are workers, self-employed (people who own their business) and their family members.
By consequence the Directive establish a regime that on the one hand oblige member states to grant social assistance to workers, who generally don´t need social assistance, while on the other hand, the directive provide for tools so that member states may refuse residence for Union citizens without sufficient resources and the possibility to deny job-seekers all social assistance.
This hardline approach established by the Directive, has been supplemented however and the Court has ruled that job-seekers, who can show a genuine connection to the host member state’s labor market, have the right to such assistance that has a clear purpose of providing access to the member state labor market (see to that effect C-22/08 Vatsouras). For the purpose of social assistance however, the rights for Union citizens without sufficient resources is still pending and the small liberalizing steps the Court took in Brey will be dismantled if it chooses to follow the Advocate General Wathelet’s approach.
The conflict of Brey and Dano
In C-140/12 Brey the Court assessed the compatibility of an Austrian legislation with the free movement directive. The Austrian legislation stipulated that the right to social assistance was dependent of whether the applicant was lawfully residing within Austria. Considering that the criteria for lawful residence in art. 7 of the free movement directive is to possess sufficient resources so as not to be a burden on the member state social assistance system, union citizens who applied for social assistance in Austria ended up in a catch-22, which made it impossible to reside lawfully and enjoy social benefits at the same time.
Because EU-law lacks material harmonization for social benefits it is up to the member states to provide for the substantive conditions that must be fulfilled in order to be entitled such a social benefit. Taking that into consideration and by asserting that providing social assistance could be a burden on a member states social assistance system, in conjunction with the free movement right's subordinate position to the interest of the member state to protect the financial balance of the social security system, the Court held that a legislation such as the Austrian is compatible with the free movement directive.
However, while acknowledging the Austrian legislation’s compatibility with Union law, the Court introduced a safeguard for union citizens seeking social assistance, declaring that article 7 of the free movement directive cannot be interpreted restrictively and that national measures which exclude non-economically active persons automatically from gaining social assistance, is incompatible with the Directive. Rather, the Court held that the national authorities must provide for an assessment of whether to furnish social assistance would be a de facto burden on the financial balance of the assistance system. This entails taking into account individual circumstances of the applicant, such as whether the need for assistance is temporary, the length of the applicant’s residence and the amount of the social assistance that has been applied or provided for.
Now looking at the Advocate General’s view in C-333/13 Dano, the Advocate General's position bring's challenge to that safeguarding instrument, declaring that the individual assessment test is not in line with the purpose of the union legislator and that the Brey-regime is paradoxical in relation to the Court’s regime on rights of job-seekers.
Dano concerns a German legislation with the effect of automatically excluding individuals who has moved to Germany for the purpose of finding work or to gain social assistance from social assistance. AG Wathelet argues that it lies within the nature of the demand for efficient resources that it is possible to discriminate and that the purpose of the provision is to prevent non-economically active union citizens to exploit host member states assistance system.
Wathelet continues his argumentation by stating that if a member states can’t exclude social assistance to non-economically active persons, it would have the effect that an individual gaining social assistance would always have enough resources so as not to become a burden on the states social assistance system for the purpose of residence. Furthermore, Wathelet holds that since it is apparent that one application cannot be a burden on the assistance system, the assessment of the burden must be made to the total effect of all applications for social assistance.
Furthermore, according to the Advocate General, the right for a non-economically active person to get an individual assessment for the purpose of establishing whether social assistance, in that specific case would constitute a burden on the national assistance system, creates a situation where a non-economically active person is put in a better position in comparison to job-seekers, who are explicitly excluded from social assistance by the wording of the Directive.
Conclusion
It is apparent that if the Court chooses to follow the Advocate General’s opinion, such a decision will change the regime established in Brey with restrictive consequences for union citizens residing in host member states. The argumentation is inconclusive however. Even though it is clear that a single application for social assistance can’t be considered a burden to the financial balance of the host member state, it is not clear why the assessment must be made to the total effects of all applications. Such an approach inherently undermines the need to look at the subjective circumstances of each individual case, with the effect that it becomes merely impossible for union citizens to obtain social assistance independent of the de facto effect on the social assistance system.
Moreover, AG Wathelet’s argumentation on the paradox of the rights of non-economically active persons and job-seekers does bring up a problematic feature as a consequence of the Brey regime. It is definitely a paradox why a person who is non-economically active should be accorded greater rights than a person who is looking for work, when the situation of such individuals is actually materially the same but their resident is based on different legal status. The Advocate General’s solution to that problem, is to put the non-economically active person in the same situation as the job-seeker, but the fact that the wording of the free movement directive seem to close the door for a liberalizing step for the purpose of job-seekers does not by consequence mean that the only way to go is to limit the rights of non-economically active persons. Rather, if the Union legislator find a need to change the rights of union job-seekers, then that would be a possible and welcoming step within the ordinary legislative procedure, but if not it must not have the consequence that rights and obligations for union citizens, residing in host member states with another legal status, should be limited.
The case however is not only a question about individual assessment or general exclusion but it also bring to the fore a discussion about what the free movement in Europe should entail and to what extent we want to see further integration in Europe. Do the member states have a responsibility to provide for social assistance to people from other member states or not, should we consider subjective circumstances, why is an aspect of integration relevant and what values are we ready to give the union citizenship? Hopefully the Court will be able to resist the extensive political pressure from the member states in these questions when making its assessment.
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