By Associate Professor, PhD. Catherine Jacqueson, Welma – Center for Legal Studies in Welfare and Market, Law Faculty, Copenhagen University, Denmark.
The Alimanovic ruling (C-67/14) on jobseekers’ social rights was long awaited. The legal framework was the same as in Dano (C-333/13), but this time the German subsistence allowance was claimed by two Swedish nationals who had previously been working for 11 months in Germany. In contrast, Mrs Dano had never worked in the country and apparently had no intention and ability to do so. Yet, in Alimanovic, the Court stuck to its restrictive approach to the social rights of Union citizens initiated in Dano. Access to social benefits is indeed narrowly defined and the Residence Directive seems to form the new backbone of Union citizenship. Thus, the Court ruled that the two claimants could be denied access to social assistance after six months of unemployment and that the citizenship provisions could not work as a safety net in this respect.
Retaining the status of worker: loosening the protection?
First, the Court confirmed that citizens who have previously worked in the host country retain their status of worker after ended employment. Yet, it results from Art. 7(3) of the Residence Directive that the protection thus enjoyed might be limited in time. For employment lasting less than a year, Union citizens lose their status of worker after 6 months unemployment. Therefore the German authorities were perfectly entitled to end payment of the subsistence allowance after that period of time. The Court’s ruling is no surprise as the Court’s recent case-law pays lip-service to the provisions of the directive and a strict reading thereof. Yet, the Court’s ruling contrasts with its more citizen-friendly approach in Saint-Prix (C-507/12) where the it had emphasised that the status of worker might be retained in other circumstances than those explicitly listed in the directive.
No help to get from the citizenship provisions
Second, the Court had to assess whether the Alimanovic family could be entitled to the benefit on the basis of the citizenship provisions if they no longer could be considered as workers. The main issue was whether the German subsistence allowance constituted social assistance under Art. 24(2) of the Residence Directive and could thus be denied to jobseekers. The Court had ruled in Vatsouras (C-22 & 23/08) concerning the same benefit that jobseekers enjoyed equal access to benefits which facilitate access to the labour market, and that a condition of being capable of earning a living could constitute an indication thereof. Yet, in Alimanovic, the Court took a different approach and classified the German benefit as social assistance. This was the case even if the scheme had the dual purpose of both (1) covering the minimum subsistence costs for enjoying a life in dignity and (2) facilitating the search for employment. Therefore, Union citizens who were no longer workers could legitimately be excluded from accessing the benefit.
Back to basics
Furthermore, unlike in Brey (C-140/12) there was no need to make an individual assessment of the situation of the claimants. The Court claimed that the provisions of the directive providing for a gradual retention of the status of worker and their social rights already did so and ensured increased legal certainty for the Union citizen. Again, this approach which was initiated in Förster (C-158/07), shows that the Residence Directive has become the new back-bone of Union citizenship. On a final note, it seems to follow from the Court’s freshly handed-down ruling in Commission v UK (C-308/14) that jobseekers may not claim other type of benefits such as family benefits on an equal treatment basis. Dano, Alimanovic and Commission v UK are all evidence that there is not much protection to get from the citizenship provisions. Work is more or less the sole gateway for Union citizens to access social rights. And even this is contested as shown by the Brexit-situation.