The ongoing and controversial debate surrounding social assistance rights for economically inactive Union migrants has taken a new turn, as the Court of Justice of the EU recently delivered its judgment in the case of Alimanovic , holding that a German law automatically precluding all jobseekers from claiming social assistance is permissible under EU law. This includes those jobseekers who have previously been in employment, provided that they do not retain ‘worker status’ under Directive 2004/38.
Ms Alimanovic and her 16 year old daughter, both Swedish nationals residing in Germany, had been employed in temporary positions for 11 months before losing their jobs. Whilst under the Directive Ms Alimanovic and her daughter were entitled to keep the status of worker for a minimum of six months, it was held that after this period they could again be refused social assistance as Directive 2004/38 itself sufficiently allows for the retention of ‘worker status’ for those involuntarily unemployed, and takes into account a number of factors related to the individual situation of the person in question. Thus, such a system of automatic refusal, the Court argued, guarantees “a sufficient level of legal certainty and transparency … while complying with the principle of proportionality”.
Whilst certainly ensuring a higher level of legal certainty, placing so much emphasis on this system as laid out in the Directive does open up the Court’s approach to criticism. Firstly, the Directive does not take into account all the relevant factors necessary to determine when an individual retains worker status. For example, recently in the case of Saint-Prix the Court was forced to add pregnancy to the factors to be considered, provided that the individual “returns to work or finds another job within a reasonable period”. Another problem is the arbitrary distinction between more and less than 12 months’ employment, which can have severe consequences for those concerned. Alimanovic demonstrates that after less than 12 months’ employment Directive 2004/38 will only provide for 6 months of retaining worker status, after which the individual will once again be classified as a jobseeker again and can be refused social assistance. Conversely, after a period of over 12 months’ employment, it is suggested that under the Directive they will be entitled to maintain worker status indefinitely, or at least for the five year period necessary to obtain ‘long-term residence status’ under the Directive, which also entitles the individual to social assistance as long as they reside in the country.
Perhaps the most problematic of all, however, is that by systematically denying social assistance from all jobseekers the Court is denying any kind of individual assessment as to the personal circumstances of the individual, and effectively ignoring whether the granting of social assistance would actually constitute an “unreasonable burden” on the Member State’s social assistance system. This is starkly different from the Court’s case-law concerning economically inactive Union citizens who claim a right of residence based on having sufficient resources. In Brey and Dano, the Court held that national authorities must at least assess the individual’s financial position before rejecting social assistance. Consequently, these persons are actually entitled to a higher level of protection under Directive 2004/38, despite the fact that jobseekers such as Ms Alimanovic have already participated in the labour market of the host-society, and may well have also demonstrated a significant level of integration. In coming to this conclusion, the Court completely ignored the Opinion of Advocate General Wathlelet, who considered that it would be contrary to EU law to automatically refuse social assistance without providing the jobseeker with the opportunity to demonstrate a “genuine link” with the host-Member State, considering both family circumstances and previous engagement with the host-society’s labour market.
So what is left for jobseekers seeking to claim social assistance? They may find some basic level of protection within the Charter of Fundamental Rights of the European Union, such as the right to family life or the rights of the child. The circumstances of Alimanovic would have made it much harder for the Court to dismiss the question of the Charter’s applicability, as it did in the case of Dano. The Court explicitly stated that Ms Alimanovic had a right of residence under the Directive, however social assistance could be refused on the basis of the derogation contained in Article 24 (2) thereof. Given that derogations have already been held to constitute the implementation of EU law under Article 51 of the Charter, it would seem undeniable that the Charter is applicable in these situations. However, whether invoking the Charter would have changed the result in Alimanovic is a different story.