Article 20 TFEU establishes the concept of EU citizen.
It provides that ‘Every person holding the nationality of a Member State shall
be a citizen of the Union’. And Article 18 specifically prohibits any
discrimination on the ground of nationality. The case law of CJEU extensively
covered the issue of social advantage through number of landmark rulings.
This essay will explore to what extent the EU law on
free movement of persons clearly sets out the entitlement of EU migrants to
social help from their host Member State. The effect of the treaties, and
secondary legislation such as regulation and directives will also be discussed.
There has been number of key findings from the case law which will be explored
to see if the law is clear on the entitlement provided to the migrant workers
and whether the rights are also extended to their families. The entitlement of
non-active nationals, students and job-seekers will be also considered.
The rights conferred by the Treaty Article are further
elaborated by the secondary legislation, and in particular by Regulation
492/2011 and Directive 2004/38. Through these secondary legislations, CJEU
aimed to protect and facilitate the rights given by the Treaty.
Article 24 of Directive 2004/38 covers the principle
of equal treatment as a key aspect of the legislation and confers rights to the
families of the EU national which the Member States are expected to ensure are
EU citizenship has reinforced existing rights of
movement, residence in other Member States and non-discrimination. Non-economically
active citizens in certain circumstances are given rights as long as the for
the state is not unreasonable burden. However, states are given right to limit
access to social assistance to those who do not meet certain conditions. Students
and job-seekers who are sufficiently ‘integrated’ in the host state are given
rights to social assistance.
Even defines entitlements to social
advantages as all advantages “which, whether or not linked to a contract of
employment, are generally granted to national workers primarily because of
their objective status as workers or by virtue of the mere fact of their
residence in the national territory”.
Social advantages are defined differently from social
security benefits and entitlement to social security benefits are governed by
Regulation 883/04. The ECJ held that as long as EU migrant workers not directly
or indirectly discriminated the discretion is left with the Member States to define
the conditions for granting social security benefits. Individual Member State will
decide on what will be classed as social advantages and it will invariably be different
in each Member State.
Provide examples of social advantages for workers
The ECJ ruled in Cristini
that Article 7(2) of Regulation 492/2011 should be read so as to include all
social and tax advantages, regardless of whether it forms part of contract of
employment or not. It covers any advantage to a family member which provides an
indirect advantage to the worker. In Reina,
it was held that an interest-free ‘childbirth loan’ granted under German law to
its nationals was considered to be a social advantage within Article 7(2), and is
available to anyone living and working in Germany.
Article 7(3) gives equal rights to non-national
workers as available to nationals and states that the EU workers shall ‘by
virtue of the same right and under the same conditions as national workers,
have access to training in vocational schools and retraining centres’.
Despite the restrictive interpretation by the ECJ in Lair, of considering vocational school as
linked to an occupation, The Court decided that workers could use the ‘social advantages’ provision of
Article 7(2) to take advantage of opportunity to advance their professional
qualifications and social progression.
The likely reason for
the limits imposed by the ECJ on Article 7(2) and (3) is that the status of
worker carries with it a substantial range of social and other benefits for
workers and their families, and Member States wish to restrict those claiming
such benefits to ‘genuine’ workers. Member States may fear the prospect of
migrants having access to generous educational and other benefits after a short
and purely instrumental period of employment.
Article 10 of Regulation 492/2011 provides that the
‘children of a national of a Member State who is or has been employed in the
territory of another Member State shall be admitted to that State’s general
education, apprenticeship and vocational training courses under the same
conditions as the nationals of that State, if such children are residing in its
With regards to education Article 10 gives the same
right to the children of EU workers residing in a Member State as the children
of nationals of that state and this includes any grants that are available to
the children of nationals to study abroad.
The case of Collins
ECJ held that the rights of
job-seekers should be interpreted in the light of the more general right to
equal treatment of citizens. The ECJ held that although a Member State may require that a job-seeker to
have a genuine link to the job market in the host State in which he claims
job-seeking allowance, a residence condition should not be applied in a
disproportionately and discriminately. In this case the UK need
to show objectively that the grounds for refusal were proportionate and
legitimate and not on the grounds of nationality.
Provide examples of extension to family members
Article 7 of Directive 2004/38 only covers workers and
the family members who can invoke the broad rights provided by the provision.
However, the definition of family includes children under 21 and ECJ has ruled
that once the child reached 21 and are no longer classed as dependant then any
benefit to that child will not be held as an advantage to the worker as stated
in Lebon. Having an unmarried
companion residing with a worker is held to be a social advantage under Article
7 as stated in Reed.