by Alessandra Silveira (Editor) and Nataly Machado (Master's student in EU Law, UMinho)
“This is a time to take part
Time of parted humans (…)
The laws are not enough
The lilies do not arise from the law”[i]
(“Our time”, Carlos Drummond de Andrade, 1902-1987)
In a poem written during the horrors of the Second World War, the Brazilian poet Carlos Drummond de Andrade depicted one of those historic moments in which people and institutions must take up a political position, to take sides[ii]. At a time when the European Union “is going through an unprecedented public health crisis, to which the Member States must answer by demonstrating equally unprecedented solidarity”[iii], in the JD case, the Court of Justice of the European Union (CJEU) was asked about the extent of the social assistance which a host Member State must provide to a former migrant worker seeking employment who is the primary carer of his two children attending school in that State.
This judgment helps us to unravel the public reason of the European Union, i.e., the criteria/standards by which we can seek the legitimacy of the exercise of power. As John Rawls explained, “[t]he idea of public reason specifies at the deepest level the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another. In short, it concerns how the political relation is to be understood”[iv].
The granting of social assistance benefits to economically inactive Union citizens has been the subject of advances and setbacks in the case-law of the CJEU. In the run-up to the Brexit referendum, the CJEU was severely criticized for its case-law on “social tourism” – especially Dano[v] and Alimanovic[vi] judgments –, resulting from indefensible economic-political dynamics, to which European institutions could not be unsusceptible[vii]. However, the interpretative coherence as to the meaning of European citizenship seems to have flourished, considering the most recent judgments of the CJEU on this matter[viii] to which the JD[ix] case now joins.
As we know, Article 7(1) and (2) of Regulation 492/2011 (on freedom of movement for workers within the Union)[x] provide that a worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment. He/she shall enjoy the same social and tax advantages as national workers. And the first paragraph of 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 educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. The second paragraph goes on to state that Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.
It is possible to affirm that in JD judgment the CJEU has taken the path towards the construction of a republican citizenship[xi] in the context of a political Union. Following its Baumbast[xii] and Maria Teixeira[xiii] case-law, in JD case the CJEU decided that the Article 7(2) and Article 10 of Regulation 492/2011 must be interpreted as meaning that a right to equal treatment as regards access to social advantages such as basic social security benefits must be conferred on a former migrant worker whose children attend school in the host Member State and have a right of residence on the basis of Article 10 of that Regulation. It is important to remember that in Maria Teixeira[xiv] the CJEU decided that the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there, i. e., regardless of the residence requirements provided for in Article 7 of Directive 2004/38[xv].
About the facts, JD is a Polish national and the father of two children born in 2005 and 2010. He has been separated from his wife, who is also Polish, since 2012 or 2013 — when he arrived in Germany after residing in the Netherlands — and they divorced in January 2019. His wife, who moved from the Netherlands to Germany at the same time as him, returned to Poland in April 2016. The father and his two daughters claim that they have lived together at the same address in Germany since September 2015. The two daughters have attended school in Germany since at least August 2016.
With regard to JD’s occupational activity, he has been in full-time employment since 2 January 2018, but between 1 September 2016 and 7 June 2017, JD and his daughters received basic social security benefits. In June 2017, JD requested that those benefits continue to be paid for himself and his daughters, but the German authorities rejected that request since JD was no longer resident in Germany solely in order to seek employment there. JD and his daughters brought an action for the annulment of that decision and requested that the German authorities be ordered to pay basic social security benefits for the period from 8 June 2017 to 31 December 2017 (‘the period at issue’).
By judgment of 8 May 2018, the Social Court, Düsseldorf, Germany upheld the action and ordered the German authorities to grant JD and his daughters the benefits claimed for the period at issue. From 7 July 2017 onwards, JD could admittedly no longer rely on a right of residence derived from previous employment. However, he derived his right of residence from right conferred on his daughters by Article 10 of Regulation 492/2011. The Social Court, Düsseldorf has held that such a right is autonomous and independent of the rights of residence governed by Directive 2004/38. According to that court, the derogation from the principle of equal treatment provided for in Article 24(2) of Directive 2004/38 is therefore applicable only if a right of residence is derived solely from Directive 2004/38. According to that derogation the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families. A contrario, that derogation is not applicable where the person concerned derives his right of residence from Article 10 of Regulation 492/2011. Following that analysis, the court at first instance held that the exclusion provided by the national law had to be regarded as contrary to EU law.
On 4 July 2018, the German authorities appealed against that judgment. According to the referring court, if it were to confine itself to applying its national law, it would be required to uphold the appeal lodged by the German authorities. However, it notes that, although JD was not working and did not have sufficient resources to cover his subsistence during the period at issue, and therefore could not claim either a right of permanent residence or worker status, during that period JD had a right of residence derived from that of his daughters on the basis of Article 10 of Regulation 492/2011.
The CJEU decided that the application of Article 10 of Regulation 492/2011 must be carried out independently from the provisions of the Directive 2004/38, which lists the conditions for the exercise of the right of residence in another Member State (recital 38). As the Advocate-General argued in his Opinion, the argument that a right of residence cannot exist under Regulation 492/2011 without it necessarily having been preceded by a right of residence under Directive 2004/38 cannot deprive that Regulation of its legislative autonomy. As regards the value of the judgment in Alimanovic as a precedent for JD case, the Advocate-General argued that the first judgment must be read in the light of paragraph 40 thereof, which has the effect of limiting the scope of that judgment to Union citizens who have a right of residence on the sole basis of Article 14(4)(b) of Directive 2004/38, i. e., job-seekers.
So, the JD judgment does not make up for the negative consequences of the case-law haunted by the ghost of the social tourism, in which the CJEU did not take into account the problems associated with the European citizenship on a global basis, limiting itself to meeting the demands of economically active citizens to the detriment of the most vulnerable ones. But the JD case gave the CJEU the opportunity to take a further step in establishing the legal status associated with Article 10 of Regulation 492/2011. CJEU´s interpretation in JD case prevents a mobile citizen from being exposed to the risk, in the event of losing the status of worker in the host Member State, having to interrupt their children’s education and returning to his country of origin, for example, for not receiving the social benefits that the host Member State guarantees to its own nationals – and that would allow their family to have sufficient means of subsistence in said Member State.
That is why the JD judgment deserves to be positively referenced, as it helps us to unravel the public reason of the “Union based on the rule of law” that we are building[xvi]. At a time when the European Union is being tormented precisely in the area in which it has been most successful – that of its legal integration –, it is important to consider the content of the European Union’s public reason from the perspective of the foundations of the integration process. Does the legal compatibility of the acts of the European institutions and of the Member States with the EU law suffice? (i. e., norms endowed with coherence, generality, clarity, stability, non-retroactivity…)[xvii]. Or does the public reason of the “Union based on the rule of law” imply both legality and social democratization?
[i] Nosso tempo: “Este é tempo de partido/Tempo de homens partidos (…)/As leis não bastam/Os lírios não nascem da lei”. Translation by the Authors.
[ii] Carlos Drummond de Andrade, A Rosa do Povo (Rio de Janeiro/São Paulo: Record, 2000). See Marlene de Castro Correia, «Como Drummond constrói “Nosso tempo”», Alea, v. 11, n. 1, June 2009, 73-86, available at http://www.scielo.br/scielo.php?script=sci_arttext&pid=S1517-106X2009000100007&lng=en&nrm=iso, http://dx.doi.org/10.1590/S1517-106X2009000100007
[iii] Opinion of Advocate General Pitruzzella, delivered on 14 May 2020, Case C-181/19, recital 1, available at http://curia.europa.eu/juris/document/document.jsf?docid=226501&text=&dir=&doclang=EN&part=1&occ=first&mode=lst&pageIndex=1&cid=11258003
[iv] See John Rawls, “The idea of public reason revisited”, The University of Chicago Law Review, vol. 64, No. 3 (Summer 1997): 766, https://chicagounbound.uchicago.edu/uclrev/vol64/iss3/1/
[v]Judgment CJEU Dano, 11 November 2014, Case C-333/13, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=159442&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=10026796
[vi]Judgment CJEU Alimanovic, 15 September 2015, Case C-67/14, available at http://curia.europa.eu/juris/document/document.jsf?docid=167661&doclang=EN
[vii] See in this blog Alessandra Silveira, On the CJEU’s case-law concerning the “social tourism” that preceded the Brexit referendum – between forces of cohesion and fragmentation, October 24, 2016, https://officialblogofunio.com/2016/10/24/on-the-cjeus-case-law-concerning-the-social-tourism-that-preceded-the-brexit-referendum-between-forces-of-cohesion-and-fragmentation/
[viii] See Alessandra Silveira, On the CJEU’s post-Brexit case-law on European citizenship. The recovery of the identity Ariadne’s thread?, UNIO – EU Law Journal, Vol. 3 No. 1 (2017), https://doi.org/10.21814/unio.3.1.8
[ix] Judgment CJEU JB, 6 October 2020, Case C-181/19, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=232081&pageIndex=0&doclang=PT&mode=req&dir=&occ=first&part=1&cid=12107155
[x] Regulation (EU) No. 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union Text with EEA relevance, available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011R0492
[xi] On the republican citizenship see Catherine Barnard, The substantive law of the EU. The four freedoms (Oxford: Oxford University Press, 2007), p. 410.
[xii] Judgment CJEU Baumbast, 17 September 2002, Case C-413/99, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=47668&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=10026611
[xiii] Judgment CJEU Maria Teixeira, 23 February 2010, Case C‑480/08, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=73524&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=10819200
[xiv] Judgment CJEU Maria Teixeira, 23 February 2010, Case C‑480/08, recital 70, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=73524&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=12177009
[xv] 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), available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32004L0038
[xvi] See Sérgio Maia Tavares Marques, A razão pública da União de direito: da juridicidade à democratização social, Prémio Jacques Delors 2019 – Melhor estudo académico sobre temas da União Europeia (Cascais: Princípia, 2019).
[xvii] See J. J. Gomes Canotilho, Estado de direito e internormatividade, in Alessandra Silveira (ed.), Direito da União Europeia e transnacionalidade (Lisboa: Quid Juris, 2010), p. 174.
Picture credits: PublicDomainPictures.