New referrals to the EU Court of Justice on Directive 2004/38 from Austria, the Netherlands, Sweden and the UK

The Court of Justice has registered a number of requests for a preliminary ruling on the interpretation of Directive 2004/38 on the rights of EU citizens and their family members to reside in the EU.

  • Do Female Workers Lose Their Status as Workers When They Leave Work to Look After Their Children?

In Case C-507/12 Jessy St Prix (2013) OJ C 26/32, the UK Supreme Court has referred the issue of whether a woman who temporarily gives up work to take care of her new born child loses the status of “worker” under Article 7(3) of Directive 2004/38.

Jessy St Prix is a 27 year old French teacher. She came to the UK in 2006 and worked for eleven months as a teaching assistant. She then enrolled on a postgraduate teacher’s course in September 2007. After starting the course, she became pregnant. Her child’s birth was expected in early June 2008. She withdrew from her postgraduate course in February 2008 and started working for an employment agency working in nursery schools. In March 2008, when she was almost six months pregnant, the work became too strenuous for her so she stopped this work and looked for part-time work. As none was available, she sought assistance from the state and lodged a claim for income support from the UK authorities. This was refused on the basis that she did not have a right to reside because she was no longer working and she did not retain the status of “worker” since she voluntarily chose to leave the jobs market in the late stages of her pregnancy. Her child was born prematurely a few months later and, as she had no income, she resumed full-time work three months after giving birth. She appealed against the UK’s decision to refuse her claim for social welfare benefits before the UK courts in late 2008. The case has since progressed all the way to the UK Supreme Court which in October 2012 asked the EU Court of Justice in Luxembourg for a preliminary ruling on the interpretation of the concept of “worker” under EU law.

If the Court of Justice follows it previous case law that has given a wide meaning to the concept of “worker” under Article 45 TFEU (see for example Case C-413/01 Ninni-Orasche), we should expect the Court to extend the notion of worker to female workers who – like Jessy St Prix – voluntarily leave the job market to take care of their new born children.

The original reference from the Supreme Court in Jessy Saint Prix v Secretary of State for Work and Pensions [2012] UKSC 49 is available here.

  • Does the Right to Return Home under the Singh and Eind Cases Extend to Recipients of Services?

The Dutch Raad van State has referred two cases on the interpretation of the right of EU citizens to live with their family members in their home country on the basis of having exercised free movement rights in another EU country.

In Case C-457/12 Minister voor Immigratie, Integratie en Asiel and O & B(2013) OJ C 26/19, the applicants are non-EU family members of EU citizens who have returned to the Netherlands after spending time in Belgium. However, they did not spend a continuous period of time working in another EU country as was the case in Cases C-370/90 Singh and C-291/05 Eind. Instead, applicant B only made regular visits over a period of 16 months to stay with his Dutch partner in Belgium, staying at week-ends and sometimes until the Monday morning. His Dutch partner did not work in Belgium and was only the recipient of services provided in that member state. The Dutch authorities refused B’s application for a residence card as the family member of an EU citizen. The Dutch Ministry of the Interior considered that there was no effective exercise of the right to free movement, since only a continuous period of residence lasting over three months qualifies. Moreover between the time that the Dutch partner returned to the Netherlands and he joined her there, applicant B went to stay for over two years in his native Morocco, during which time the partners married. The Dutch authorities therefore also considered that he has lost any right he might have had to return with his Dutch partner (now wife) to Belgium.

For his part, applicant O claims a right to return home after spending holidays in Spain with his Dutch wife. Although he was issued a residence card by the Spanish authorities, the Dutch courts found that couple were unable to provide evidence of longer stays in Spain. Nonetheless, the referring Court does indicate that O’s wife was only the recipient of services during her holidays in Spain. Again, the Dutch authorities refused to issue O a residence card and considered that there was no effective exercise of the right to free movement, since holidays are not sufficient for this purpose.

It will be interesting to see how the Court answers this tricky reference as it could go either way. On the one hand, the Court is unlikely to hold that a stay of less than three months in another EU country does not consist in the exercise of free movement since it is specifically foreseen by Article 6 of Directive 2004/38. On the other hand, the Court could consider that the right of an EU citizen to return home with his family members only relates to “residence” of over three months rather than a “stay” of less than three months, although no such distinction is made in the Directive. It should be recalled that the rationale behind Singh and Eind was that an EU citizen would  be dissuaded from moving to another EU member state in the first place if he did not have the certainty of knowing that his closest family members would have a right to return with him to his home country and reside there under the same conditions as those that apply to his family when they reside with him in another EU member state. The Court may consider that this dissuasive effect of refusing a right of residence to family members is significantly stronger in respect of residence of over three months rather than short stays of less than three months. In B’s case it is also possible that the Luxembourg judges may choose to side-step the issue altogether by applying Article 16(4) of the Directive by analogy, according to which the right to permanent residence in another EU country is lost after any absence exceeding two years.

With the specific reference to the applicants being recipients of services, the Dutch Court also appears to be inviting the Court of Justice to draw an analogy with Case C-60/00 Carpenter, in which where the Court ruled that EU law granted the right to the Philippine wife of a British provider of cross-border services to live with her husband in the UK.  However, contrary to Mr Carpenter, the applicants in these cases are merely the family members of recipients of services.

For those wanting to read the original reference from the Raad van State in Minister voor Immigratie, Integratie en Asiel and O & B, it is available here.

  •  Does Carpenter Extend to Cross-Border Employees?

In Case C-456/12 Minister voor Immigratie, Integratie en Asiel and S& G (2013) OJ C 26/19, the applicants are non-EU family members of Dutch citizens claiming a right to live in the Netherlands on the basis that their EU relative works in another country as a cross-border worker. Applicant G is the non-EU wife of a Dutch national who works for a Belgian company. He commutes between the Netherlands and Belgium everyday (also known as a “frontier worker”). Applicant S is the mother of a Dutch citizen who works as an employee  for a Dutch company. His work is undertaken mostly in the Netherlands but he also undertakes work in other neighbouring countries at least one day of every working week. In both cases, the Dutch authorities refused to issue a residence card to the applicants on the basis that they were not the family member of an EU citizen who provided cross-border services falling within the scope of the court’s ruling in Case C-60/00 Carpenter, since their EU relatives did not work as self-employed persons but instead worked as employees.

These two cases bear a stronger resemblance to Case C-60/00 Carpenter. In that case the Court had ruled that the EU rules on freedom of establishment provide a right of residence in the UK to the spouse of a British provider of cross-border services.  However, contrary to Mr Carpenter, the EU relatives of the applicants in these cases are employees of companies, not self-employed persons.

The original reference from the Raad van State in  Minister voor Immigratie, Integratie en Asiel and S & G can be found here.

  • Does a special non-contributory benefit under Regulation 883/2004 consist in social assistance within the meaning of Directive 2004/38?

The  Austrian Supreme Court has asked the Luxembourg Court has been asked to explain the concept of “social assistance” under Directive 2004/38. In Case C-140/12 Peter Brey (2012) OJ C 165/12, the CJEU has been asked to confirm whether “Ausgleichszulage” (compensation supplement) is a benefit that falls within the concept of social assistance under Directive 2004/38. In this case, Mr and Mrs Brey who are German nationals decided to permanently relocate to Austria in 2011 because they felt marginalized and mistreated in Germany as a result of their Russian ancestry. Following his move to Austria, Mr Brey continued to receive an invalidity pension of € 862.74 and care allowance of € 225 from the German social security institutions. However, his wife’s income guarantee was withdrawn on account of having moved to Austria. As a result of a reduction in the couple’s income, Mr Brey sought to claim Austrian compensation supplement, which provides a minimum income guarantee to recipients of an old-age pension on a low income. This claim was rejected on the basis that Mr Brey did not benefit from a right of residence in Austria because his income was below the amount needed to be considered as sufficient resources under Article 7(1)(b) of Directive 2004/38.   However, Mr Brey considers that the  payment of Austrian compensation supplement cannot be made conditional upon having a right to reside in Austria. He argues that the supplement is a special non-contributory benefit listed in Annex X of EU Regulation 883/2004 on the coordination of social security and that it is therefore payable to all persons who are “habitually resident” in Austria pursuant to Article 70 of the Regulation.

This case provide a good illustration of a catch 22 situation in which many pensioners of meagre resources who live abroad and depend on support from their country of residence are now finding themselves. Thus Mr Brey cannot claim the Austrian compensatory supplement unless he can demonstrate he has a right to reside; but Mr Brey can only demonstrate a right of residence in Austria if he can show he has sufficient resources, which he would only be able to do if he is granted this compensatory supplement…

The original referral from the Austrian Oberste Gerichtshof can be found here.

*Update* The Advocate General has now issued his opinion in the case.

  • Can Member States require that children over 21 years old demonstrate they have taken all necessary measures not to remain dependent on their EU parents? 

In Case C-423/12 Flora May Reyes (2012) OJ C 355/11, the Court of Justice has again been asked for clarification on the concept of dependence. As in the earlier case dealing with dependence (Case C-1/05 Jia) the reference comes from the Swedish courts. This time the Court is being asked whether an adult child of an EU citizen is required to demonstrate that he has tried to obtain employment or has tried to apply for assistance from his country of origin in order to be considered as the dependent child of an EU citizen having a right to reside under Article 2(2)(c) of the Directive.

New referrals to the EU Court of Justice on Directive 2004/38 from Austria, the Netherlands, Sweden and the UK first appeared on the EU Rights Clinic blog.