European Court of Justice, 11 November 2014, Case C 333/13
We have already reported here several times on the legal regulations that govern the Social benefits received by foreigners have as their object. This refers to foreigners who are in Germany with a German residence permit (e.g. visa, residence permit, settlement permit).
However, the question of whether nationals of other member states of the European Union also have the right to receive social benefits from the German state is even more controversial.
There is actually a clear regulation for this in § 7 Para. 1 S. 2 SGB II, particularly with regard to benefits under SGB II (Hartz 4).
According to § 7 Para. 1 S. 2 SGB II
- foreign nationals and their family members who are neither employed or self-employed in the Federal Republic of Germany nor entitled to freedom of movement under Section 2 (3) of the Freedom of Movement Act/EU are not entitled to benefits for the first three months of their stay,
- and foreign nationals and their family members whose right of residence is based solely on the purpose of seeking employment are not entitled to benefits.
However, it has not yet been established whether these regulations are compliant with applicable EU law. In the above-mentioned case, this question was therefore referred to the European Court of Justice in a so-called preliminary ruling procedure.
Facts of the Case The plaintiff in this legal dispute is a Romanian national who has been living with her sister in Leipzig for several years with her underage son, who was born in Germany.
She and her son already receive child benefit of EUR 184 and maintenance advance of EUR 133. During her time in Germany, the applicant did not work and made no effort to find a job. The claimant had not been gainfully employed in Romania either.
In order to receive further benefits, the claimant applied to the relevant job centre in Leipzig for benefits under SGB II (Hartz 4). However, the job centre refused the benefits with reference to § 7 Para. 1 S. 2 SGB II.
As the claimant was not satisfied with this decision, she brought an action before the Leipzig Social Court. Although the Leipzig Social Court followed the Job Centre's opinion, it expressed concern that EU law provisions could possibly conflict with the provision of Section 7 (1) sentence 2 SGB II and therefore referred this question to the European Court of Justice for a preliminary ruling under Article 234 of the EC Treaty.
Prior to the final decision of the European Court of Justice, the Advocate General Melchior Wathelet dealt with the issue. In his Opinion of 20 May 2014, the Advocate General came to the conclusion that legislation which denies basic social security benefits to persons who are far from wanting to integrate into the labour market and who come to Germany with the sole aim of benefiting from the German social welfare system is in line with the will of the EU legislator.
Such legislation could prevent people who make use of their freedom of movement without wanting to integrate from becoming a burden on the social welfare system.
However, as the Advocate General's Opinion is not binding on the European Court of Justice, but merely represents a proposal for a decision, today's decision by the European Court of Justice constitutes the final preliminary ruling.
European Court of Justice: The European Court of Justice has now ruled that nationals of other Member States can only demand equal treatment with nationals of the host Member State with regard to access to certain social benefits (such as German basic social security benefits) if their residence fulfils the requirements of the "Citizens of the Union Directive".
In this respect, the host Member State is not obliged under the Directive to grant social assistance during the first three months of residence.
In the case of a period of residence of more than three months but less than five years (as in the present case), the Directive makes the right of residence dependent, inter alia, on persons who are not gainfully employed having sufficient resources of their own.
This is intended to prevent EU citizens who are not gainfully employed from relying on the social security system of the host Member State to cover their living expenses.
A Member State must therefore be able to refuse social benefits to economically inactive Union citizens who exercise their freedom of movement for the sole purpose of benefiting from the social assistance of a Member State, even though they do not have sufficient resources to claim a right of residence; in this respect, each individual case must be examined without taking into account the social benefits applied for.
The Citizens of the Union Directive and the Regulation on the coordination of social security systems therefore do not preclude national legislation which excludes nationals of other Member States from receiving certain 'special non-contributory cash benefits', while nationals of the host Member State who are in the same situation receive those benefits, provided that the nationals of other Member States concerned do not have a right of residence in the host Member State under the Directive.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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