Opinion of Advocate General Ćapeta delivered on 16 February 2023.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:115
• Date: 16 February 2023

OPINION OF ADVOCATE GENERAL

ĆAPETA

delivered on 16 February 2023(1)

Case C‑488/21

GV

v

Chief Appeals Officer,

Social Welfare Appeals Office,

Minister for Employment Affairs and Social Protection,

Ireland,

Attorney General

(Request for a preliminary ruling from the Court of Appeal (Ireland))

(Reference for a preliminary ruling – Free movement of persons – Dependent family member of an EU worker – Rights of residence within the territory of the Member States and to special non-contributory cash benefits – Circle of beneficiaries – Right of residence of the direct ascendant subject to the requirement of continuity of dependent status – Unreasonable burden on the social assistance system of the Member State concerned – Equal treatment of family members of the mobile EU worker)

I. Introduction

1. Under EU law, some family members, including dependent parents, may join a mobile EU worker in the Member State in which he or she lives and works. If that parent claims social benefits in the host Member State, does he or she lose a right of residence based on EU law? Can Member States treat such a parent as an unreasonable burden on their social assistance systems? In addition, what does it mean, in the first place, that a parent is dependent on a mobile EU worker?

2. These are, in essence, the main issues raised by the request for a preliminary ruling referred to the Court by the Court of Appeal (Ireland).

3. Although the Court has had several occasions to clarify which rights dependent relatives enjoy under EU law and under what circumstances those rights arise, most of those cases concerned dependent direct descendants (2) or spouses. (3) The present case, therefore, provides an opportunity for the Court to expand on the interpretation of the rights of dependent direct ascendants of the mobile EU worker.

II. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

4. GV is a national of Romania and the mother of AC, a Romanian citizen who resides and works in Ireland. AC is also a naturalised Irish citizen. GV joined her daughter in Ireland in 2017 and has resided there ever since. It is undisputed that she is lawfully resident in Ireland as the dependent parent of an EU mobile worker.

5. GV has resided in Ireland on different occasions, including between 2009 and 2011, after which she returned to Romania. In the period 2011 through 2016, she moved between Ireland, Romania and Spain, where her other daughter lives. She has been separated from her husband for the past 15 years and during that period has been financially dependent on AC, who periodically sent her money.

6. During 2017, GV suffered degenerative changes in her arthritis. On 28 September 2017, GV made an application for Disability Allowance under the Social Welfare Consolidation Act 2005, as amended.

7. The referring court explains that Disability Allowance, which GV claims, aims to protect against poverty. It constitutes a social assistance benefit paid from the general budget, without the person concerned having to make any social insurance contributions. In other words, the benefit is financed by general taxation. Disability Allowance is qualified as a ‘special non-contributory cash benefit’ within the meaning of Regulation No 883/2004. (4) It can therefore be claimed only in the Member State of residence, (5) which means that GV could not claim such a benefit from the state of her nationality, given that she is resident in Ireland.

8. It appears from the order for reference that, to qualify for Disability Allowance in Ireland, the person concerned must satisfy certain requirements relating to age, disability and resources. In particular, the allowance can be granted only to persons who have not reached general retirement age. (6) The other eligibility criteria include medical criteria and a means test. The latter test includes any income that a person receives from a family member.

9. Even more specifically, Irish law precludes the payment of Disability Allowance to a person who is not habitually resident in Ireland. (7) A condition for habitual residence is that a person enjoys a right of residence in that Member State.

10. By decision of 27 February 2018, GV’s application was refused. The appeal against that decision was disallowed on 12 February 2019. On both occasions, the stated reason for the rejection was that GV did not have a right of residence in Ireland.

11. Following an application made on behalf of GV by a non-governmental organisation, the rejection decision of 12 February 2019 was reviewed.

12. By decision of 2 July 2019, the Appeals Officer concluded that GV, as a dependent direct ascendant of a Union citizen employed in Ireland, had a right of residence but was not entitled to social assistance.

13. An application for review of that decision was made to the Chief Appeals Officer (Ireland) (the first respondent before the referring court), who confirmed, by decision of 23 July 2019, that GV was not entitled to Disability Allowance. This was justified by the argument that under the Irish law that transposed the Citizenship Directive, (8) GV must not become an unreasonable burden on the national social assistance system.

14. The relevant Irish law is, as explained by the referring court, the European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548 of 2015) (‘the 2015 Regulations’). Regulation 11(1) of the 2015 Regulations provides for the retention of a right of residence in Ireland in the following way:

‘A person residing in the State under Regulation 6, (9) 9 or 10 shall be entitled to continue to reside in the State for as long as he or she satisfies the relevant provision of the regulation concerned and does not become an unreasonable burden on the social assistance system of the State.’

15. GV sought judicial review of the decision of 23 July 2019 before the High Court (Ireland). By judgment of 29 May 2020, that court annulled the contested decision. It considered that the Irish law, in so far as it makes the right of residence of a family member of a Union citizen subject to the condition that that family member must not become an unreasonable burden on the social assistance system of the State, was incompatible with the Citizenship Directive. Thus, according to the same court, where it is established, at the time when the family member joins the EU worker, that the family member is dependent on that worker, there is no requirement for that family member to remain dependent on the EU worker in order to continue to enjoy a right of residence in the host Member State.

16. The Chief Appeals Officer and the Minister for Employment Affairs and Social Protection (Ireland) appealed against that judgment to the Court of Appeal, the referring court in the present case.

17. On the one hand, according to the Minister for Employment Affairs and Social Protection, the definition of ‘family member’ in Article 2(2)(d) of the Citizenship Directive includes the requirement that the family member concerned remain dependent on the EU citizen for as long as the derived right of residence is invoked. Thus, when the dependency relationship ceases, that family member can no longer enjoy such a right of residence. If GV were granted Disability Allowance, her dependency on her daughter would cease, with the result that GV could no longer enjoy a derived right of residence in accordance with that directive.

18. On the other hand, GV contends, in substance, that Regulation 11(1) of the 2015 Regulations, by imposing the ‘unreasonable burden’ condition on the family members of a Union citizen, whereas such a condition is not contained in Article 7 of the Citizenship Directive, is an invalid provision. According to GV, the case-law of the Court of Justice on the concept of ‘dependency’ confirms her position. Furthermore, she claims that the argument put forward by the Minister for Employment Affairs and Social Protection is contrary to her right to equal treatment under Article 24(1) of the Citizenship Directive.

19. Having doubts as to whether Irish law is compatible with the Citizenship Directive, the Court of Appeal decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the derived right of residence of a direct relative in the ascending line of a Union citizen worker pursuant to Article 7(2) of [the Citizenship Directive] conditional on the continued dependence of that relative on the worker?

(2) Does [the Citizenship Directive] preclude a host Member State from limiting access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of her dependence on that worker, where access to such payment would mean she is no longer dependent on the worker?

(3) Does [the Citizenship Directive] preclude a host Member State from limiting access to a social assistance payment benefit by a family member of a Union citizen worker who enjoys a derived right of residence on the basis of her dependence on that worker, on the grounds that payment of the benefit will result in the family member concerned becoming an unreasonable burden on the social assistance system of the State?’

20. Written observations were submitted to the Court by GV; the Chief Appeals Officer, the Social Welfare Appeals Office (Ireland), the Minister for Employment Affairs and Social Protection, the Attorney General (‘the defendants’); the Czech, Danish and German Governments; Ireland, as well as the European Commission. A hearing was held on 18 October 2022 at which GV, the defendants, the Czech, Danish and German Governments; Ireland as well as the Commission presented oral arguments.

III. Relevant European Union law

A. The Citizenship Directive

21. Article 2(2) of the Citizenship Directive provides that, for the...