Elisabeta Dano and Florin Dano v Jobcenter Leipzig.

• Jurisdiction: European Union
• Celex Number: 62013CJ0333
• ECLI: ECLI:EU:C:2014:2358
• Date: 11 November 2014
• Court: Court of Justice (European Union)
• Procedure Type: Cuestión prejudicial - inadmisible
• Docket Number: C‑333/13

JUDGMENT OF THE COURT (Grand Chamber)

11 November 2014 ( *1 )

‛Reference for a preliminary ruling — Free movement of persons — Citizenship of the Union — Equal treatment — Economically inactive nationals of a Member State residing in the territory of another Member State — Exclusion of those persons from special non-contributory cash benefits under Regulation (EC) No 883/2004 — Directive 2004/38/EC — Right of residence for more than three months — Articles 7(1)(b) and 24 — Condition requiring sufficient resources’

In Case C‑333/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sozialgericht Leipzig (Germany), made by decision of 3 June 2013, received at the Court on 19 June 2013, in the proceedings

Elisabeta Dano,

Florin Dano

v

Jobcenter Leipzig,

THE COURT (Grand Chamber),

composed of V. Skouris, President, K. Lenaerts, Vice-President, A. Tizzano, L. Bay Larsen, T. von Danwitz, C. Vajda, S. Rodin, Presidents of Chambers, E. Juhász, A. Borg Barthet, J. Malenovský, E. Levits, M. Berger (Rapporteur) and J.L. da Cruz Vilaça, Judges,

Advocate General: M. Wathelet,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 18 March 2014,

after considering the observations submitted on behalf of:

— Ms Dano, by E. Steffen, Rechtsanwältin,

— the German Government, by T. Henze and J. Möller, acting as Agents,

— the Danish Government, by C. Thorning, acting as Agent,

— Ireland, by M. Heneghan, T. Joyce and E. Creedon, acting as Agents, and C. Toland, Barrister-at-Law,

— the French Government, by D. Colas and C. Candat, acting as Agents,

— the Austrian Government, by G. Hesse, acting as Agent,

— the United Kingdom Government, by S. Behzadi-Spencer, acting as Agent, and J. Coppel QC,

— the European Commission, by F. Schatz, D. Martin, M. Kellerbauer and C. Tufvesson, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 20 May 2014,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 18 TFEU, of point (a) of the first subparagraph, and the second subparagraph, of Article 20(2) TFEU, of Articles 1, 20 and 51 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of Articles 4 and 70 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 at OJ 2004 L 200, p. 1), as amended by Commission Regulation (EU) No 1244/2010 of 9 December 2010 (OJ 2010 L 338, p. 35) (‘Regulation No 883/2004), and of Article 24(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).

2 The request has been made in proceedings brought by Ms Dano and her son Florin against Jobcenter Leipzig concerning the latter’s refusal to grant them benefits by way of basic provision (‘Grundsicherung’) that are envisaged by German legislation, namely, for Ms Dano, subsistence benefit (‘existenzsichernde Regelleistung’) and, for her son, social allowance (’Sozialgeld’), as well as a contribution to accommodation and heating costs.

Legal context

EU law

Regulation No 1247/92

3 The first to eighth recitals in the preamble to Council Regulation (EEC) No 1247/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1992 L 136, p. 1) state as follows: ‘… it is necessary to amend Regulation (EEC) No 1408/71 …, as updated by Regulation (EEC) No 2001/83 …, as last amended by Regulation (EEC) No 2195/91 …; … it is necessary to extend the definition of “member of the family” in Regulation (EEC) No 1408/71 to conform with the case-law of the Court of Justice concerning the interpretation of that expression; … it is also necessary to take account of the case-law of the Court of Justice stating that certain benefits provided under national laws may fall simultaneously within the categories of both social security and social assistance because of the class of persons to whom such laws apply, their objectives and their manner of application; … the Court of Justice has stated that, in some of its features, legislation under which such benefits are granted is akin to social assistance in that need is an essential criterion in its implementation and the conditions of entitlement are not based upon the aggregation of periods of employment or contributions, whilst in other features it is close to social security to the extent that there is an absence of discretion in the manner in which such benefits as are provided thereunder are awarded and in that it confers a legally defined position upon beneficiaries; … Regulation (EEC) No 1408/71 excludes from its scope, by virtue of Article 4(4) thereof, social assistance schemes; … the conditions referred to and their methods of application are such that a system of coordination which differs from that currently provided for in Regulation (EEC) No 1408/71 and which takes account of the special characteristics of the benefits concerned should be included in that Regulation in order to protect the interests of migrant workers in accordance with the provisions of Article 51 of the Treaty; … such benefits should be granted, in respect of persons falling within the scope of Regulation (EEC) No 1408/71, solely in accordance with the legislation of the country of residence of the person concerned or of the members of his or her family, with such aggregation of periods of residence completed in any other Member State as is necessary and without discrimination on grounds of nationality; … it is necessary nevertheless to ensure that the existing system of coordination in Regulation (EEC) No 1408/71 continues to apply to benefits which either do not fall within the special category of benefits referred to or are not expressly included in an Annex to that Regulation; … a new Annex is needed for this purpose’.

Regulation (EC) No 883/2004

4 Regulation No 883/2004 replaced Regulation No 1408/71 from 1 May 2010.

5 Recitals 1, 16 and 37 in the preamble to Regulation No 883/2004 state: ‘(1) The rules for coordination of national social security systems fall within the framework of free movement of persons and should contribute towards improving their standard of living and conditions of employment. … (16) Within the Community there is in principle no justification for making social security rights dependent on the place of residence of the person concerned; nevertheless, in specific cases, in particular as regards special benefits linked to the economic and social context of the person involved, the place of residence could be taken into account. … (37) As the Court of Justice has repeatedly stated, provisions which derogate from the principle of the exportability of social security benefits must be interpreted strictly. This means that they can apply only to benefits which satisfy the specified conditions. It follows that Chapter 9 of Title III of this Regulation can apply only to benefits which are both special and non‑contributory and listed in Annex X to this Regulation.’

6 Article 1 of Regulation No 883/2004, headed ‘Definitions’, provides: ‘For the purposes of this Regulation: … (l) “legislation” means, in respect of each Member State, laws, regulations and other statutory provisions and all other implementing measures relating to the social security branches covered by Article 3(1); …’

7 Article 2(1) of Regulation No 883/2004, relating to the persons covered by the regulation, 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 Regulation No 883/2004, headed ‘Matters covered’, states: ‘1. This Regulation shall apply to all legislation concerning the following branches of social security: … (b) maternity and equivalent paternity benefits; … (h) unemployment benefits; … 2. Unless otherwise provided for in Annex XI, this Regulation shall apply to general and special social security schemes, whether contributory or non‑contributory, and to schemes relating to the obligations of an employer or shipowner. 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 …’

9 Article 4 of Regulation No 883/2004, headed ‘Equality of treatment’, provides: ‘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 Chapter 9 of Title III of Regulation No 883/2004, relating to ‘Special non‑contributory cash benefits’, contains Article 70...