Opinion of Advocate General Saugmandsgaard Øe delivered on 11 February 2021.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:114
• Celex Number: 62019CC0535
• Date: 11 February 2021

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 11 February 2021 (1)

Case C‑535/19

A

in the presence of

Latvijas Republikas Veselības ministrija

(request for a preliminary ruling from the Augstākā tiesa (Senāts), (Supreme Court (Senate), Latvia))

(Reference for a preliminary ruling – Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Economically inactive Union citizen who has left his Member State of origin to settle in a host Member State for family reunification purposes – Refusal to affiliate that Union citizen to the social security system of the host Member State and to provide public health care benefits – Directive 2004/38/EC – Article 7(1)(b) – Condition requiring ‘comprehensive sickness cover’ – Concept of ‘unreasonable burden’ – Article 24 – Right to equal treatment – Regulation (EC) No 883/2004 – Article 3(1)(a) – Concept of ‘sickness benefit’ – Article 4 and Article 11(3)(e) – Scope – Genuine link of integration with the host Member State – Consequences)

I. Introduction

1. The present case concerns the right of an economically inactive Union citizen, who has exercised his right to freedom of movement by moving to a Member State for family reunification purposes, to be affiliated to that State’s social security and to receive health care benefits provided by the State.

2. This case raises once again the question of the interaction between Directive 2004/38/EC (2) and Regulation (EC) No 883/2004, (3) but in a different context. In three earlier cases, (4) the Union citizens concerned did not meet the conditions set out in Directive 2004/38 which they were required to fulfil in order to have a right of legal residence in the host Member States, namely the requirements to have sufficient resources and comprehensive sickness insurance. They did not have such resources and one of them had entered the territory of the host Member State for purposes described as ‘social tourism’, with the sole aim of receiving social benefits in that State. The Court concluded that those Union citizens could be refused social benefits in the host Member State on an equal basis with nationals when they had not been lawfully resident in that State for five years and acquired a permanent right of residence.

3. In the present case, on the contrary, the Union citizen meets both requisite conditions and the question arises whether he is therefore entitled to equal treatment with nationals of the host Member State as regards access to State funded health care.

4. Can the host Member State nonetheless refuse, in the interest of maintaining the financial balance of its social security system, to affiliate the person concerned and to provide him with such health care on the same basis as its own nationals by relying on the condition that he must have comprehensive sickness insurance?

5. That is the main question put by the Augstākā tiesa (Senāts) (Supreme Court (Senate), Latvia) in proceedings between an Italian national and the Latvijas Republikas Veselības ministrija (Ministry of Health of the Republic of Latvia, the ‘Latvian Ministry of Health’). It is a question of great significance both for Member States and for citizens of the Union.

6. After analysing Directive 2004/38 and Regulation No 883/2004, in the light of the Court’s case-law, I shall propose that the Court rule that a Union citizen who is economically inactive but satisfies the conditions set out in Article 7(1)(b) of Directive 2004/38, who moved the centre of all of his interests to a host Member State and who has a genuine link of integration with that State cannot be systematically refused affiliation to the social security of that Member State and health care benefits provided by the State, on the same terms as nationals, on the ground that he is not employed or self-employed in that State.

II. Legal framework

A. European Union law

1. Regulation No 883/2004

7. Article 2(1) of Regulation No 883/2004 provides:

‘This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors.’

8. Article 3 of that regulation, entitled ‘Matters covered’, provides in paragraphs 1 and 5:

‘1. This Regulation shall apply to all legislation concerning the following branches of social security:

(a) sickness benefits;

…

5. This Regulation shall not apply to:

(a) social and medical assistance

….’

9. Article 4 of that regulation, entitled ‘Equality of treatment’, is worded as follows:

‘Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.’

10. According to Article 11 of that regulation:

‘1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.

…

3. Subject to Articles 12 to 16:

(a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;

…

(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him benefits under the legislation of one or more other Member States.

…’

2. Directive 2004/38

11. Directive 2004/38, inter alia, repealed Directives 90/365/EEC, (5) 90/366/EEC (6) and 90/364/EEC, (7) which concerned the rights of residence of, respectively, retired persons, students and other inactive persons.

12. Recitals 9 and 10 of that directive state:

‘(9) Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to jobseekers as recognised by the case-law of the Court of Justice.

(10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions.’

13. Article 7(1) of that directive provides:

‘All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

– have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).’

14. Pursuant to Article 14(1), (2) and (4) of that directive:

‘1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

…

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

…

(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.’

15. Article 24 of Directive 2004/38, entitled ‘Equal treatment’, provides:

‘1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of...