Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto and Others.

• Jurisdiction: European Union
• Celex Number: 62014CJ0299
• ECLI: ECLI:EU:C:2016:114
• Date: 25 February 2016
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-299/14

JUDGMENT OF THE COURT (First Chamber)

25 February 2016 ( *1 )

‛Reference for a preliminary ruling — Freedom of movement of persons — Citizenship of the Union — Equal treatment — Directive 2004/38/EC — Article 24(2) — Social Assistance — Regulation (EC) No 883/2004 — Articles 4 and 70 — Special non-contributory cash benefits — Exclusion of nationals of a Member State during the first three months of residence in the host Member State’

In Case C‑299/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Landessozialgericht Nordrhein-Westfalen (Higher Social Court, North Rhine-Westphalia, Germany), made by decision of 22 May 2014, received at the Court on 17 June 2014, in the proceedings

Vestische Arbeit Jobcenter Kreis Recklinghausen

v

Jovanna García-Nieto,

Joel Peña Cuevas,

Jovanlis Peña García,

Joel Luis Peña Cruz,

THE COURT (First Chamber),

composed of A. Tizzano, Vice-President of the Court, acting as President of the First Chamber, F. Biltgen, E. Levits, M. Berger (Rapporteur) and S. Rodin, Judges,

Advocate General: M. Wathelet,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 22 April 2015,

after considering the observations submitted on behalf of:

— Ms García-Nieto, Mr Peña Cuevas, Jovanlis Peña García and Joel Luis Peña Cruz, by M. Schmitz, Rechtsanwalt,

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

— the French Government, by R. Coesme, acting as Agent,

— the Polish Government, by B. Majczyna, acting as Agent,

— the United Kingdom Government, by M. Holt, acting as Agent, and B. Kennelly, Barrister,

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

after hearing the Opinion of the Advocate General at the sitting on 4 June 2015,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 18 TFEU and Article 45(2) TFEU, 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 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, and corrigenda at OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34).

2 The request has been made in proceedings between the Vestische Arbeit Jobcenter Kreis Recklinghausen (Employment Centre for the district of Recklinghausen, ‘the Employment Centre’) and Mr Peña Cuevas and Ms García-Nieto and their daughter, Jovanlis Peña García, and Mr Peña Cuevas’s son, Joel Luis Peña Cruz (together ‘the Peña-García family’), concerning the refusal by that centre to grant benefits by way of basic provision (‘Grundsicherung’) provided for under German law.

Legal context

International law

3 Article 1 of the European Convention on Social and Medical Assistance, signed in Paris on 11 December 1953 by the members of the Council of Europe and in force since 1956 in Germany (‘the Assistance Convention’), lays down a principle of non-discrimination in the following terms: ‘Each of the Contracting Parties undertakes to ensure that nationals of the other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance … provided by the legislation in force from time to time in that part of its territory.’

4 Under Article 16(b) of the Assistance Convention, ‘[e]ach Contracting Party shall notify to the Secretary General of the Council of Europe any new law or regulation not already included in Annex I. At the time of making such notification a Contracting Party may make a reservation in respect of the application of this new law or regulation to the nationals of other Contracting Parties.’ The reservation issued by the German Government on 19 December 2011 pursuant to that provision is worded as follows: ‘The Government of the Federal Republic of Germany does not undertake to grant to the nationals of the other Contracting Parties, equally and under the same conditions as to its own nationals, the benefits provided for in Book II of the Social Code — Basic Income Support for Jobseekers [(Sozialgesetzbuch Zweites Buch — Grundsicherung für Arbeitsuchende)], in the latest applicable version [(“Book II of the Social Code”)].’

5 That reservation was notified to the other parties to the Assistance Convention in accordance with Article 16(c) of that convention.

EU law

Regulation No 883/2004

6 Article 4 of Regulation No 883/2004, entitled ‘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.’

7 Article 70 of that regulation, entitled ‘General provision’, is included under Title III, Chapter 9 thereof, on ‘[s]pecial non-contributory cash benefits’. That article provides: ‘1. This Article shall apply to special non-contributory cash benefits which are provided under legislation which, because of its personal scope, objectives and/or conditions for entitlement, has characteristics both of the social security legislation referred to in Article 3(1) and of social assistance. 2. For the purposes of this Chapter, “special non-contributory cash benefits” means those which: (a) are intended to provide either: (i) supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned; or (ii) solely specific protection for the disabled, closely linked to the said person’s social environment in the Member State concerned, and (b) where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone, and (c) are listed in Annex X. 3. Article 7 and the other chapters of this Title shall not apply to the benefits referred to in paragraph 2 of this Article. 4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence.’

8 Annex X to Regulation No 883/2004, entitled ‘Special non-contributory cash benefits’, specifies the following benefits as regards the Federal Republic of Germany: ‘… (b) Benefits to cover subsistence costs under the basic provision for jobseekers unless, with respect to these benefits, the eligibility requirements for a temporary supplement following receipt of unemployment benefit (Paragraph 24(1) of Book II of the Social Code) are fulfilled.’

Directive 2004/38

9 Recitals 10, 16 and 21 in the preamble to Directive 2004/38 state: ‘(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. … … (16) As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance scheme of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self-employed persons or jobseekers as defined by the Court of Justice save on grounds of public policy or public security. … (21) However, it should be left to the host Member State to decide whether it will grant social assistance during the first three months of residence, or for a longer period in the case of jobseekers, to Union citizens other than those who are workers or self-employed persons or who retain that status or their family members, or maintenance assistance for studies, including vocational training, prior to acquisition of the right of permanent residence, to these same persons.’

10 Article 6 of that directive, entitled ‘Right...