Language of document :

OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 6 October 2015 (1)

Joined Cases C‑443/14 and C‑444/14

Kreis Warendorf

v

Ibrahim Alo


and


Amira Osso

v

Region Hannover

(Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany))

(Area of freedom, security and justice — Directive 2011/95/EU — Standards relating to the content of international protection — Refugee status and subsidiary protection status — Articles 29 and 33 — Articles 20 and 21 of the Charter of Fundamental Rights of the European Union — Geneva Convention — Freedom of movement within the host Member State — Obligation to reside in a specific place — Restriction — Justification — Need to ensure an even distribution of the burden of social assistance among administrative authorities — Grounds relating to immigration and integration policy)





1.        This case arises from two orders for reference by which the Bundesverwaltungsgericht (German Federal Administrative Court) raises three questions for a preliminary ruling relating to Articles 29 and 33 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, (2) articles which the Court of Justice is being asked to interpret for the first time. (3)

2.        Both orders for reference, which are almost identical in content, are a consequence of the national court’s doubts regarding the compatibility with the aforementioned Directive of an obligation, laid down by national law, to reside in a specific place (the so-called ‘Wohnsitzauflage’) imposed on beneficiaries of subsidiary protection who receive social assistance.

3.        Put as concisely as possible, this case raises the problem of the level of recognition of the fundamental right freely to choose a place of residence in the case of beneficiaries of subsidiary protection and, in particular, the problem of the lawfulness both of a restriction of that right owing to the receipt of welfare benefits and of a difference in treatment in relation to other legally resident foreign nationals, all on the basis of the aim of distributing geographically the inherent social burdens between local authorities of various levels and of developing an appropriate immigration and integration policy.

I –  Legal framework

A –    International law

1.       Geneva Convention

4.        Article 23 of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (‘the Geneva Convention’), (4) devoted to ‘Public Relief’, provides that ‘[t]he Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals’.

5.        Article 26 of that Convention, under the heading ‘Freedom of movement’ provides that ‘[e]ach Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances’.

2.      International Covenant on Civil and Political Rights

6.        Article 12 of the International Covenant on Civil and Political Rights (5) provides as follows:

‘1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant.

…’

3.      European Convention on Human Rights

7.        Article 2 of Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), (6) under the heading ‘Freedom of movement’ provides as follows:

‘1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

3.      No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.      The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.’

B –    European Union Law

8.        Article 78(1) of the Treaty on the Functioning of the European Union establishes that: ‘[t]he Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.’

9.        Recitals 4, 16, 17, 33, 39 and 45 in the preamble to Directive 2011/95 are worded as follows:

‘(4) The Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees.

(16) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union [“the Charter”]. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of Articles 1, 7, 11, 14, 15, 16, 18, 21, 24, 34 and 35 of the Charter, and should therefore be implemented accordingly.

(17) With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination.

(33) Minimum standards for the definition and content of subsidiary protection status should also be laid down. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention.

(39) While responding to the call of the Stockholm Programme for the establishment of a uniform status for refugees or for persons eligible for subsidiary protection, and with the exception of derogations which are necessary and objectively justified, beneficiaries of subsidiary protection status should be granted the same rights and benefits as those enjoyed by refugees under this Directive, and should be subject to the same conditions of eligibility.

(45) Especially to avoid social hardship, it is appropriate, for beneficiaries of refugee or subsidiary protection status, to provide without discrimination in the context of social assistance the adequate social welfare and means of subsistence. With regard to social assistance, the modalities and detail of the provision of core benefits to beneficiaries of subsidiary protection status should be determined by national law. The possibility of limiting such assistance to core benefits is to be understood as covering at least minimum income support, assistance in the case of illness, or pregnancy, and parental assistance, in so far as those benefits are granted to nationals under national law.’

10.      Article 2 of Directive 2011/95 contains the following definitions in points (b), (f) and (g):

‘(b) “beneficiary of international protection” means a person who has been granted refugee status or subsidiary protection status as defined in points (e) and (g);

(f) “person eligible for subsidiary protection” means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;

(g) “subsidiary protection status” means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection;

...’

11.      Article 20 of Directive 2011/95, which is part of Chapter VII thereof, devoted to the content of international protection, provides:

‘1. This Chapter shall be without prejudice to the rights laid down in the Geneva Convention.

2.      This Chapter shall apply both to refugees and persons eligible for subsidiary protection unless otherwise indicated.

…’

12.      Article 29 of Directive 2011/95, which is headed ‘Social welfare’, reads as follows:

‘1.      Member States shall ensure that beneficiaries of international protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State.

2.      By exception to the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals.’

13.      Article 32 of Directive 2011/95, which relates to access to accommodation, provides:

‘1. The Member States shall ensure that beneficiaries of international protection have access to accommodation under equivalent conditions as other third country nationals legally resident in their territories.

2.      While allowing for national practice of dispersal of beneficiaries of international protection, Member States shall endeavour to implement policies aimed at preventing discrimination of beneficiaries of international protection and at ensuring equal opportunities regarding access to accommodation.’

14.      Article 33 of Directive 2011/95, entitled ‘Freedom of Movement within the Member State’, provides:

‘Member States shall allow freedom of movement within their territory to beneficiaries of international protection, under the same conditions and restrictions as those provided for other third-country nationals legally resident in their territories.’

C –    German law

15.      Paragraph 5(1), point 1, and (3) of the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the residence, employment and integration of foreign nationals in the Federal Territory; ‘AufenthG’), (7) provides as follows:

‘(1) A residence permit shall in general be issued on condition that:

1.      The foreign national has a secure livelihood;

(3) In cases involving the issue of a residence permit under … Paragraph 25(1) to (3) …, subparagraphs 1 and 2 … shall not apply.

16.      Paragraph 12 of the AufenthG provides:

‘(1) The residence permit shall be issued for the territory of the Federal Republic. Its validity under those provisions of the Convention Implementing the Schengen Agreement that apply to residence in the territories of the Contracting Parties shall remain unaffected.

(2) Visas and leave to reside may be granted and extended subject to certain conditions. They may, even ex post facto, have conditions attached to them, in particular a geographical restriction.’

17.      Paragraph 25 of the AufenthG, entitled ‘Residence on humanitarian grounds’, states, in subparagraph 2, that ‘[l]eave to reside shall be granted to a foreign national where the Federal Office for Migration and Refugees has granted refugee status … or subsidiary protection status …’

18.      On the basis of the AufenthG, the Bundesminister des Innern (Federal Minister for the Interior), with the approval of the Bundesrat, adopted the Allgemeine Verwaltungsvorschrift zum AufenthG (General Administrative Instructions concerning the AufenthG of 26 October 2009, ‘the 2009 Instructions’), which are to be taken into account by the competent authorities. Under those instructions, leave to reside granted under international law or on humanitarian or political grounds in accordance with Chapter 2, Section 5, of the AufenthG must, in cases where the beneficiary is in receipt of social security benefits, be made subject to a condition restricting the place of residence (the so-called ‘Wohnsitzauflage’). The relevant points of those Instructions read as follows:

‘12.2.5.2.1          The condition restricting the place of residence represents in particular an appropriate means of ensuring that foreign recipients of social security benefits do not place a disproportionate fiscal burden on individual Länder and municipalities by tying them to a particular region. Such conditions may also help avert the concentration of welfare-dependent foreign nationals in specific areas and the associated emergence of areas of social tensions with the negative effects which they have for the integration of foreign nationals. Such measures are also justified as means of tying foreign nationals in particular need of integration to a specific place of residence so that they can avail themselves of the integration facilities available there.

12.2.5.2.2          Against this background, conditions restricting the place of residence are to be imposed and maintained in the case of holders of leave to reside under Chapter 2, Section 5, of the AufenthG or indefinite leave to reside under Paragraph 23(2), in so far as and so long as they are in receipt of benefits under the Second or Twelfth Book of the Sozialgesetzbuch (Social Security Code) or the Asylbewerberleistungsgesetz (Law on benefits for asylum seekers).’

II –  National proceedings, questions referred for a preliminary ruling and procedure before the Court of Justice

A –    Facts

19.      Mr Alo and Ms Osso are Syrian nationals who travelled, in 1998 and 2001 respectively, to Germany where they both made unsuccessful applications for asylum. Nevertheless, the German authorities allowed both Mr Alo and Ms Osso to remain in Germany. They have both been in receipt of social security benefits from the start of their asylum proceedings.

20.      After both applicants submitted a further application for asylum in 2012, the Bundesamt für Migration und Flüchtlinge ((Federal Office for Migration and Refugees, ‘Bundesamt’) determined in both cases that deportation to Syria was prohibited under Paragraph 60(2) of the AufenthG. On the basis of these decisions Mr Alo and Ms Osso have the status of beneficiaries of subsidiary protection. Consequently, the Kreis Warendorf and Region Hannover granted Mr Alo and Ms Osso, respectively, residence permits, to which were attached place of residence conditions, pursuant to Paragraphs 12.2.5.2.1 and 12.2.5.2.2 of the 2009 Instructions. In particular, Mr Alo had to take up residence in the town of Ahlen, while Ms Osso was required to take up residence in Region Hannover, with the exception of the capital of the Land of Lower Saxony. Both conditions were reiterated in the further residence permits granted in 2014 to both applicants under Paragraph 25(2) of the AufenthG. 

21.      In those circumstances, both Mr Alo and Ms Osso, in February 2013 and July 2012 respectively, brought actions for the annulment of those restrictions on the place of residence, which were dismissed at first instance. However, the appeal courts reached different conclusions. With regard to Mr Alo, by judgment of 21 November 2013, the Oberverwaltungsgericht (Higher Administrative Court) of the Land of North Rhine-Westphalia lifted that condition, considering that it infringed Article 28(1), in conjunction with Article 32 of Directive 2004/83. The Kreis Warendorf has brought an appeal on a point of law (Revision) against that judgment before the referring court. Ms Osso’s appeal was dismissed by the Oberverwaltungsgericht of Lower Saxony, by judgment of 11 December 2013. Ms Osso has brought an appeal on a point of law (Revision) against that decision before the referring court.

B –    Questions referred for a preliminary ruling

22.      Since it considered that the decision to be given in the cases before it depended on the interpretation of Directive 2011/95, the Bundesverwaltungsgericht decided to stay both sets of proceedings and to refer, for each of the cases, the following questions to the Court of Justice for a preliminary ruling:

‘1. Does the condition requiring residence to be taken up in a geographically limited area (municipality, district, region) of a Member State constitute a restriction of freedom of movement within the meaning of Article 33 of Directive 2011/95/EU, where the foreign national can otherwise move freely in the territory of that Member State and remain there?

2. Is a place of residence condition imposed on beneficiaries of subsidiary protection status compatible with Article 33 and/or Article 29 of Directive 2011/95/EU, where it is based on the objective of achieving an appropriate distribution of social assistance burdens among the relevant institutions within the territory of the State?

3. Is a place of residence condition imposed on beneficiaries of subsidiary protection status compatible with Article 33 and/or Article 29 of Directive 2011/95/EU, where it is based on grounds of migration or integration policy, for instance to prevent points of social tension as a result of the accumulated settlement of foreign nationals in certain municipalities or districts? Are abstract migration or integration policy grounds sufficient in this regard or must such grounds be specifically ascertained?’

C –    Procedure before the Court of Justice

23.      By order of the President of the Court of Justice of 23 October 2014 Cases C‑443/14, C‑444/14 and C‑445/14 were joined for the purposes of the written and oral procedure and of the judgment. By decision of 1 April 2015 the Bundesverwaltungsgericht informed the Court of Justice that the questions referred for a preliminary ruling in Case C‑445/14 were being withdrawn since the main proceedings had become devoid of purpose because the competent authorities had granted the party concerned refugee status. That case was removed from the register by order of the President of the Court of 28 April 2015. Written observations have been submitted, pursuant to Article 23(2) of the Statute of the Court of Justice, by Mr Alo, Ms Osso, the Kreis Warendorf, the German Government, the Greek Government and the European Commission, all of which, with the exception of the Greek Government, appeared at the hearing held on 14 July 2015.

III –  Analysis

24.      The three successive questions in which these enquiries referred for a preliminary ruling are formulated are closely connected. Although the first asks whether the place of residence condition which is the subject-matter of these cases constitutes a restriction of the right to freedom of movement laid down in Article 33 of Directive 2011/95, the second and third suggest two possible justifications in case the first question is answered in the affirmative.

25.      These justifications fall to be examined within the sphere of certain rules of secondary legislation which recognise rights by reference to the standard applicable to other subjects, through different statements of the principle of equal treatment. All this has the particularity that the applicable provisions of secondary legislation implement the fundamental rights of beneficiaries of international protection, which are in turn linked to the specific rights recognised in the Geneva Convention. This makes it inevitable that the analysis of the compatibility of the measure at issue with the provisions of secondary legislation cited by the referring court must be carried out without losing sight of the requirements deriving from the fundamental rights.

A –    The first question

26.      By its first question, the Bundesverwaltungsgericht wishes to know whether the condition requiring residence to be taken up in a geographically limited area, such as a municipality, district or region of a Member State, constitutes a restriction of freedom of movement within the meaning of Article 33 of Directive 2011/95, if the person concerned can otherwise move freely throughout the territory of that Member State and remain there.

1.      Observations presented before the Court of Justice

27.      While Mr Alo, Ms Osso the Greek Government and the Commission propose that the first question be answered in the affirmative, the German Government and the Kreis Warendorf, on the contrary, favour a negative reply.

28.      Ms Osso, Mr Alo and the Greek Government all consider that the concept of freedom of movement contained in Article 33 of Directive 2011/95 includes the right to choose the place of residence. Ms Osso considers that the concepts of ‘Bewegungsfreiheit’ and ‘Freizügigkeit’ are not used uniformly in EU law, adding that Article 33 of the directive establishes the same treatment for beneficiaries of subsidiary protection as for refugees, and that, with regard to the latter, national law does not permit the imposition of place of residence conditions on the basis of the distribution of the social assistance burden. (8) Mr Alo relies on Regulation No 1612/68 (9) to support the argument that the concept of freedom of movement also includes the right to choose the place of residence. Also, the Greek Government adds, referring to Article 21(1) TFEU; Article 26 of the Geneva Convention; Article 2(1) of Protocol 4 to the ECHR, and Article 12(1) ICCPR, that freedom of movement comprises two closely linked components: the freedom to move within the territory and the right freely to choose the place of residence.

29.      The Commission considers that, although the wording of Article 33 of Directive 2011/95 is not conclusive, an interpretation in accordance with Article 26 of the Geneva Convention leaves no room for doubt that that article of the directive also includes the freedom to choose the place of residence.

30.      However, both the German Government and the Kreis Warendorf rely, first of all, on the literal wording of the provision, pointing out that it refers only to freedom of movement, and makes no mention of freedom of residence. They submit in this connection that that is relevant since in other provisions of EU law, when the intention has been to include freedom of residence, it has been expressly mentioned. (10) According to the German Government, other provisions in Directive 2011/95 support that conclusion, in particular Article 32, which expressly allows national practices of dispersal with regard to accommodation. Consideration of the provisions of the Geneva Convention does not lead to a different conclusion, since Article 26 also refers expressly to freedom of residence. The German Government also emphasises the fact that Directive 2011/95 does not contain all the provisions of the Geneva Convention. In that regard, the Kreis Warendorf points out that Article 20 of the directive clearly states that the provisions of the directive are to apply without prejudice to the rights laid down in the Geneva Convention, which completes the directive only in relation to recognised refugees where, as in the case of Article 33, the directive provides less protection than that offered by the safeguards of the Convention. Furthermore, both the Kreis Warendorf and the German Government point out that the content of Article 33 of the directive is not the same as that of Article 26 of the Geneva Convention.

2.      Assessment

31.      In order to provide a reply to this question referred for a preliminary ruling it is necessary, first of all, to determine whether the concept of ‘freedom of movement’ contained in that provision also includes the freedom to choose the place of residence, following the criteria of literal, systematic, teleological and historical interpretation and, secondly, whether the measure imposing a place of residence condition constitutes a restriction of that freedom.

a)      Interpretation of the concept of ‘freedom of movement’ in Article 33 of Directive 2011/95

i)      Literal interpretation

32.      As both the referring court and the Commission emphasise, a simple reference to the wording is not sufficient to give a definitive interpretation of the provision with which we are concerned.

33.      In the first place, the fact that in the German version the heading of Article 33 of the directive uses the term ‘Freizügigkeit’ and the text of the article the term ‘Bewegungsfreiheit’ cannot be considered relevant, in the light of other language versions, most of which use a single term, that of ‘freedom of movement’, which is the same as the term generally used within the framework of the fundamental freedoms of the European Union. (11)

34.      It is true that where the provisions of EU law specifically govern the rights of citizens of the Union, they frequently make express reference to the right of residence. (12) However, the concept of ‘freedom of movement’, in particular in EU law, as the German Government also acknowledges in its written observations, is not always used uniformly. Thus, EU law frequently uses the concept of ‘freedom of movement’ broadly to refer generically to a series of closely related rights, among them freedom to move and freedom of residence, (13) and also the freedom to leave one’s own State, all rights which, as Advocate General Mayras eloquently pointed out in his opinion in Rutili, are inextricably linked. (14)

35.      Article 202 TFEU provides a good example of the use of ‘freedom of movement’ as a concept which includes both movement and residence. That article, which is in the chapter dealing with the association of overseas countries and territories, refers to the acts which are to govern ‘freedom of movement within Member States for workers from the countries and territories’, without raising the doubt that those measures would also include provisions relating to the right of residence.

36.      Also, the concept of ‘freedom of movement’ is frequently used as a heading for the various rights of freedom of movement and residence. (15) In the same way, a broad concept of freedom of movement often appears in expressions such as ‘persons enjoying the right of free movement’. (16)

37.      Furthermore, the unambiguous reference by Article 33 of Directive 2011/95 to the concept of freedom of movement, a concept having great significance in EU law, contrasts with the wording of the instruments intended to regulate the status of third-country nationals, which use the expression ‘free access’ to the entire territory of a State. (17)

38.      Furthermore, it cannot be denied that both in specialised literature on EU law and in international law the concept of ‘movement’ is generally used as a complex legal concept with multiple aspects which are by no means limited to freedom to travel or move. (18)

39.      For all of these reasons I consider that the fact that the wording Article 33 of Directive 2011/95 merely refers to ‘freedom of movement’ without express reference to the right of residence is not a sufficient basis for concluding that this latter right has been excluded from the scope of that provision.

ii)     Systematic and teleological interpretation

40.      The above conclusion is confirmed by a systematic and teleological interpretation, in which both the Geneva Convention and fundamental rights are particularly relevant.

41.      In particular, it must be pointed out here that, as is apparent from recitals 4, 23 and 24 in the preamble to Directive 2011/95 — as from the corresponding recitals of its predecessor, Directive 2004/83 —, the directive was adopted to guide the competent national authorities in the application of the Geneva Convention, on the basis of common concepts and criteria, and that that Convention constitutes the cornerstone of the international legal regime for the protection of refugees. (19) Consequently, as the case-law of the Court of Justice reiterates, the provisions of this directive ‘must … be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU’. (20)

42.      It is true that Directive 2011/95 does not incorporate all of the rights laid down in the Geneva Convention (21) and that it applies without prejudice to them. (22) However, and in spite of the fact that the protection of the aforementioned Convention is not fully applicable to beneficiaries of subsidiary protection, the Geneva Convention must be regarded as an instrument which is a compulsory reference point for interpreting those provisions of the directive which contain the same rights as those laid down in the Convention. The requirement that the interpretation should be consistent with the Geneva Convention, which is apparent both from the legal basis and origins of Directive 2011/95, as well as from other provisions thereof, (23) does not disappear because the provisions of the directive — as is the case of the article with which we are concerned — govern without distinction the rights of refugees and those of beneficiaries of subsidiary protection, in accordance with the provisions of Article 20(2) of the directive.

43.      Particularly important in this context is Article 26 of the Geneva Convention, which recognises together, under the heading of freedom of movement, the right to reside and to move freely within the territory of the host State. (24)

44.      Also, recital 16 in the preamble to Directive 2011/95 states that the directive ‘respects the fundamental rights and observes the principles recognised in particular by the Charter …’ and that, in particular, it seeks ‘to ensure full respect for human dignity …’.

45.      There is no doubt that Directive 2011/95 must be interpreted in accordance with the fundamental rights. This obligation extends, as was made clear in the judgment in Kamberaj, (25) to the determination of the scope and content of the provisions of a directive which establish rights for third-country nationals. Indeed, in the judgment the Court of Justice declared that it was necessary to observe the rights laid down in Article 34 of the Charter when determining the social security, social assistance and social protection measures subject to the principle of equal treatment enshrined in Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents. (26)

46.      It should be pointed out that, although Article 45 of the Charter refers only to the right to move freely in the Member States but does not specifically mention the freedom to move and reside inside the territory of a State, (27) the national dimension of freedom of movement constitutes, in accordance with Article 6(3) TEU, a general principle of EU law resulting both from the constitutional traditions of the Member States and from Article 2 of Protocol No 4 to the ECHR. (28) That provision, together with Article 12 ICCPR, supports an interpretation of the concept of freedom of movement which encompasses in an interconnected and indivisible way the various elements relating to human mobility which are thus inextricably linked, with the result that ‘the denial of any one makes the assertion of the others a chimera rather than a reality’. (29)

47.      All these considerations are fundamentally linked to the general perception of freedom of movement as a right which incorporates the components of moving and residence, since, otherwise, it would be difficult to safeguard the practical effect of Article 33 of the directive. In short, the right to move through a given territorial area, as it results from its ‘pre-modern’ precursors, largely serves as a means to an end, in the sense that it entails a right directed in no small measure towards the freedom to choose a place of residence. (30)

48.      The fact that Article 32(2) of Directive 2011/95 has expressly acknowledged the national practice of dispersal of beneficiaries of international protection as regards access to accommodation does not ultimately lead to a different conclusion. In my view, that acknowledgement legitimises a possible practice of dispersal of beneficiaries of international protection only when it is carried out in order to fulfil a Member State’s obligations to implement public policies designed to prevent discrimination with regard to access to accommodation. To put it another way, the opening phrase of Article 32(2) of the directive is to be understood only as a way of protecting the interest which the Member States have in preventing a concentration of beneficiaries of international protection by articulating their own accommodation policy.

iii) Historical interpretation

49.      Finally, although a historical interpretation relating exclusively to the travaux préparatoires for Directive 2011/95 is not conclusive, (31) consideration of the travaux préparatoires for both Directive 2004/23 and Directive 2003/9/EC, laying down minimum standards for the reception of asylum seekers in the Member States, (32) confirms that freedom of residence is included in the concept of freedom of movement of Article 33 of Directive 2011/95.

50.      Indeed, the proposal for a Council directive laying down minimum standards for the reception of applicants for asylum in Member States, which would give rise to Directive 2003/9, (33) was preceded by some Council Conclusions which contained specific guidelines relating to possible restrictions on the freedom of residence of those asylum seekers. (34) On the express basis of those guidelines, the Commission’s proposal already contained significant restrictions in Article 7. However, even though, as is apparent from the wording of that article and the explanations relating to it, (35) those restrictions clearly affected residence, the language used in the proposal referred generically to ‘freedom of movement’. In keeping with this language, the Commission’s proposal, presented a few months later, which would give rise to Directive 2004/83, (36) referred only to freedom of movement, an expression which is repeated without discussion both in Article 32 of Directive 2004/83 and in Article 33 of Directive 2011/95.

51.      Thus, in Article 7 of Directive 2003/9, now Article 7 of Directive 2013/33/EU, (37) the express reference to freedom of movement, on the one hand, and the restrictions on residence, on the other hand, is the result of the complex negotiations in which it was sought to regulate in a precise way the restrictions on the various components of freedom of movement which had been considered together in the Commission’s proposal. (38) On the other hand, the notion of freedom of movement which was used in the directive with which we are concerned was not the subject of a similar debate. Otherwise the Commission, as it pointed out at the hearing, would have had to explain precisely why only one of the components of freedom of movement had been included in its proposal.

52.      Therefore, consideration of the travaux préparatoires for Directive 2003/9 in conjunction with those for Directive 2004/83, which were, moreover, negotiated partly during the same period and on the basis of proposals in which the Commission had used similar language with regard to freedom of movement, supports the view that the freedom of movement in Article 33 of Directive 2011/95 also includes, together with freedom to move, freedom of residence. It is hard to imagine that, in two directives negotiated in the same period and substantively connected, the EU legislature would have decided to exclude without any discussion one of the essential components of freedom of movement for recognised beneficiaries of international protection, which had been widely discussed in relation to asylum seekers.

53.      In short, it may be said, in the light of the previous considerations, that the concept of ‘freedom of movement’ in Article 33 of Directive 2011/95 includes both freedom to move and freedom to choose the place of residence.

b)      Whether the residence condition constitutes a restriction of freedom of movement

54.      Once the scope of Article 33 of Directive 2011/95 has been established, it is not difficult to answer the question whether the condition relating to establishing residence in a specific place constitutes in itself a restriction of freedom of movement as laid down in that provision, irrespective, at this stage, of whether that measure also satisfies the requirement that there should be equal treatment with other third-country nationals who are legally resident, which will be examined in my assessment of the third question.

55.      In this regard it is enough to consider the nature of the measure, and its consequences. The measure in question imposes, as is clear from the order for reference, an obligation to occupy and use a dwelling in a specific place, without restricting the possibility of moving freely throughout the national territory and remaining there. Furthermore, as the German Government explained that the hearing, failure to fulfil that obligation involves penalties which may include the imposition of a fine.

56.      In those circumstances, bearing in mind that the key element of freedom of residence is precisely the liberty to decide freely the place in which to live, it is clear that the obligation to take up residence in a specific place constitutes a restriction of freedom of movement from a substantive point of view, — irrespective of the fact that the measure in question does not prejudice the possibility of travelling or staying for a certain time in other places and of the fact that certain conditions are laid down for varying that obligation. (39)

57.      I therefore propose that the answer to the first of the questions referred for a preliminary ruling by the national court should be that a condition requiring residence to be taken up in a geographically limited area imposed by a Member State constitutes a restriction of freedom of movement as provided for in Article 33 of Directive 2011/95, wholly irrespective of whether the beneficiary of international protection has the freedom to move throughout the territory of the Member State and remain there.

B –    The second and third questions

58.      If the answer to the first question is in the affirmative, the Bundesverwaltungsgericht asks the Court of Justice whether a place of residence condition imposed on beneficiaries of subsidiary protection status is compatible with Article 33 and/or Article 29 of Directive 2011/95/EU, where it is based on the objective of achieving a reasonable distribution of social assistance burdens among the relevant institutions within the territory of the State (second question) or on grounds of immigration or integration policy, for instance to prevent points of social tension as a result of the accumulated settlement of foreign nationals in particular municipalities or districts (third question). As regards the latter, the referring court also wishes to know whether it is sufficient to put forward abstract immigration or integration policy grounds or whether such grounds must be specifically ascertained.

59.      In order better to understand the meaning and implications of these two questions it is necessary to mention the judgment of the referring court itself, the Bundesverwaltungsgericht, of 15 January 2008, (40) in which the court declared that a place of residence condition such as that in issue here cannot be applied in the case of recognised refugees, because it is contrary to Article 23 of the Geneva Convention, if it is justified only by the need to ensure an appropriate territorial distribution of public social assistance burdens. The referring court has doubts, however, whether the same reasoning may be applied to beneficiaries of subsidiary protection, since Article 29 of the directive — which refers to the ‘necessary social assistance as provided to nationals’ — does not have the same wording as Article 23 of the Geneva Convention, which refers to ‘the same treatment’. However, and still according to the case-law of the Bundesverwaltungsgericht, that place of residence condition may be justified on grounds of migration and integration policy, even in the case of recognised refugees, although for that purpose a mere abstract allusion to those grounds is not enough; on the contrary, the competent authorities have to state the reasons why that restriction is actually necessary.

1.      Observations presented before the Court of Justice

60.      Mr Alo, Ms Osso and the Commission all consider that Articles 29 and 33 of Directive 2011/95 preclude the place of residence restriction.

61.      Mr Alo considers that the place of residence condition concerned places a restriction on freedom of movement on the basis of receipt of social assistance, which constitutes an infringement of Article 29 of Directive 2011/95. He also considers that the measure at issue is contrary to Article 12(1) ICCPR, since it constitutes a restriction which is not provided for by law; nor can it be justified according to the criteria in Article 12(3) ICCPR. According to Ms Osso, Article 33 of the directive provides for equal treatment of refugees and beneficiaries of subsidiary protection, so the fact that in Germany, according to the case-law of the Bundesverwaltungsgericht, it is not permitted, in accordance with the Geneva Convention, to impose restrictions on refugees, means that the same treatment must be afforded to beneficiaries of subsidiary protection. Furthermore, bearing in mind that German law does not permit social assistance for its nationals to be linked to a specific place of residence, the place of residence condition imposed on beneficiaries of subsidiary protection is also contrary to Article 29 of the directive. The fact that that provision refers to the ‘necessary social assistance’ does not permit the inference that territorial restrictions are authorised. Ms Osso points out that the immigration and integration grounds included in the 2009 Instructions refer exclusively to foreign nationals accepted on humanitarian or political grounds or under international law, but not to all legal residents, so that there is a difference in treatment which infringes Article 33 of the directive. Moreover, she considers that the competent authorities have not established that the grounds of public interest apply in her case: it has not been shown that her freedom to choose her place of residence may create a disproportionate burden which would threaten certain regions or contribute to the rise of social tensions. Furthermore, Ms Osso emphasises that the allocation of residence in specific areas may cause problems when it comes to finding employment and ‘stigmatise’ the individuals concerned.

62.      The Commission considers that a restriction of freedom of movement imposed on beneficiaries of subsidiary protection status must fulfil two cumulative conditions. In the first place, it cannot involve a difference in treatment between refugees and beneficiaries of subsidiary protection; this is because they are collectively designated as ‘beneficiaries of international protection’. A difference may be made, under the principle stated in Article 20(2) of Directive 2011/95, only in relation to Article 29(2). In the second place, Member States cannot restrict freedom of movement more than they would do in the same circumstances in relation to other legal residents. Although the Commission considers that it is for the national court to examine the national rules in accordance with those two conditions, it considers that it is apparent from the order for reference that the national rules operate a twofold discrimination, which is precluded by Article 33 of the directive. Moreover, it considers that Article 29 is irrelevant for justifying a restriction of freedom of movement. In the event of a restriction not being applicable in a discriminatory manner, the Commission considers that the reasons put forward might constitute lawful objectives and might be permissible provided that they observed the principle of proportionality and were in accordance with the aims of the directive.

63.      According to the Greek Government, the Member State has discretion to determine the grounds on which restrictions of freedom of movement may be based. However, those restrictions must be applied within the limits and objectives of the directive, and also in accordance with the general principles and the principle of proportionality. The place of residence condition is thus, in its view, an appropriate means of avoiding unreasonable burdens for some local authorities and of promoting integration, and is therefore justified.

64.      The German Government and the Kreis Warendorf consider, alternatively, should the reply to the first question be in the affirmative, that the measure relating to residence restrictions is not contrary to Articles 29 and 33 of the directive. They both stress the difference in wording between Article 29 of the directive and Article 23 of the Geneva Convention, which shows that the EU legislature wished to make a distinction. The German Government also points out, in relation to Article 33 of the directive, that Article 12(2) of the AufenthG provides for residence restrictions in respect of all foreign nationals and that the fact that they are not imposed on refugees is not contrary to the directive, since this does not establish the obligation to apply the most-favoured-nation treatment. In any event, fiscal considerations and those relating to migration and integration policy may justify a condition restricting residence, if they pursue a legitimate objective and are in accordance with the principle of proportionality. The German Government also points out that, if it is considered that one of the two aspects is not enough in itself to justify a place of residence condition, it is crucial to consider whether the simultaneous presence of both aspects may nevertheless justify such a measure. The Kreis Warendorf does not express an opinion on the third question in its written observations, since its decision was not based on migration or integration considerations.

2.      Assessment

65.      The second and third questions raise the issue of whether the place of residence condition is compatible with Articles 29 and 33 of the directive, inasmuch as it may be justified by one of the following reasons: the territorial distribution of social assistance burdens, and migration and integration policy considerations.

66.      Before proposing a reply to each of those questions, I think it is necessary to point out that, although the referring court has asked its questions with reference to two different articles of Directive 2011/95, Articles 29 and 33, I shall focus my analysis on the latter provision. Although it is conceivable that the place of residence condition may be construed as a restriction of the right to receive social assistance ‘as provided’ to nationals, it is not apparent from any of the information available to the Court of Justice that the place of residence condition involves a restriction of access to social benefits, in the event, for example, of a possible failure of beneficiaries of subsidiary protection to comply with the condition. Furthermore, bearing in mind that Article 29(2) allows for a difference in treatment for beneficiaries of subsidiary protection with regard to benefits which are not regarded as core benefits, it is clear that that aspect of the provision must remain outside my analysis since it has not been established whether the Member State has made use of that derogation and whether the benefits which provide a reason for the place of residence condition are within the scope of core benefits.

67.      Furthermore, Article 29 does not help us when it comes to examining the compatibility with EU law of the measure justified for the reasons given, since although that provision allows for a difference in treatment of applicants for subsidiary protection as regards access to social benefits which are not considered core benefits, that does not mean that a similar difference in treatment may be introduced in relation to the conditions for exercising the right to freedom of movement provided for in Article 33 of the directive.

68.      As regards Article 33 of the directive, it should be pointed out that the questions referred for a preliminary ruling are raised, furthermore, within the framework of a relative right which is defined by reference to the rights enjoyed by other categories of person. That means that the reasons given must not only be examined as possible justifications for a restriction of freedom of movement within a State from a substantive point of view, but that it is also necessary to consider whether they may justify a difference in treatment.

69.      Even before examining the aforementioned justifications from that dual perspective, I think it is necessary to make a few comments on the right to freedom of movement within a State in relation to the principle of non-discrimination.

70.      In that context, it must not be forgotten that the fundamental right to freedom of movement is clearly connected with the right to free development of personality, (41) under present-day conditions, where mobility is one of the basic elements which permits the realisation of the professional and personal objectives of individuals living in the dynamic societies of the Member States of the European Union. Furthermore, it is hardly necessary to point out the enormous value of personal mobility among the fundamental principles of EU law. In the case of beneficiaries of international protection, who, furthermore, have had to abandon their States, and who are faced, as is emphasised in recital 41 in the preamble to Directive 2011/95, with particular integration challenges, freedom of movement within the host State acquires a particular interest whose significance must not be underestimated.

a)      Concerning the right to non-discrimination in relation to freedom of movement within a State

71.      Irrespective of the complex interaction of refugee law and human rights in international law, there is no doubt that under EU law, as recognised in recital 16 in the preamble to Directive 2011/95, the fundamental rights constitute the basic frame of reference in which the specific status of beneficiaries of international protection is inserted. Furthermore, the provisions of Chapter VII of Directive 2011/95 define the status of beneficiaries of international protection on the basis of the principle of equal treatment, with various formulations. That principle is, moreover, a general principle of EU law, which is now contained in Article 20 of the Charter, of which the principle of non-discrimination laid down in Article 21(1) of the Charter constitutes in turn a specific expression. (42) According to settled case-law, ‘the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified’. (43)

72.      In that context, it is apparent that the present cases raise two different possible situations of unequal treatment according to immigration status: the situation of beneficiaries of subsidiary protection compared with refugees, on the one hand, and that of beneficiaries of international protection as a whole compared with other third-country nationals who are legal residents, on the other.

73.      The difference in treatment with regard to refugees who are in receipt of social benefits and are therefore in a comparable situation, may only be based on the difference in legal status.

74.      Furthermore, as is apparent from the order of reference, although the AufenthG provides, in Paragraph 12(2), that territorial restrictions may be imposed on third-country nationals in general, the 2009 Instructions only establish that the restriction on residence has to be imposed on third-country nationals who are granted residence under international law or on humanitarian or political grounds and who receive social benefits. Therefore, the difference in treatment with other foreigners who, furthermore, are in a comparable situation as regards being in receipt of social benefits, is based exclusively on immigration status. The fact that other foreign nationals are granted entry, according to the AufenthG, on condition that they have sufficient resources, or that the reasons which justify their residence are different, does not affect the possibility of comparing beneficiaries of international protection with other foreign nationals. (44) It is enough to point out that, in that regard, it is Article 33 of the directive, in conjunction with Article 26 of the Geneva Convention, which establishes that the boundary of the comparison is constituted by other legally resident third-country nationals. (45)

75.      The fact that the legal status of migrant as one of the prohibited grounds of discrimination is not in doubt. Firstly, whilst Article 21 of the Charter does not refer to this ground among those expressly given as examples (‘such as’) of prohibited grounds, it is clear that the list contained in that provision is not exhaustive. Secondly, in addition, the fact that immigration status is recognised as a prohibited ground of discrimination is apparent when Article 21 of the Charter is interpreted in conformity with Article 14 ECHR, which is essential given that the two provisions are the same. (46) Also, the ECtHR has recognised that immigration status is one of the categories included in the concept of ‘other status’ envisaged in Article 14 ECHR. (47)

76.      On the other hand, the fact that the situation of beneficiaries of international protection lacks the element of free personal choice which is present in relation to other types of immigration status means that only very strong reasons may be adduced for justifying differential treatment, which requires a strict level of scrutiny in the examination of proportionality. (48)

77.      An interpretation of Article 21 of the Charter in the light of Article 14 ECHR is required inasmuch as the differential treatment in issue arises specifically within the scope of one of the fundamental rights recognised as being within the scope of the Convention, in particular, the right to freedom of movement within a State in Article 2 of Protocol 4 to the ECHR. As I have already pointed out in point 46 of this Opinion, that right is undoubtedly, as a general principle, one of the fundamental rights of the European Union.

78.      It is true that the ECtHR has interpreted the right to freedom of movement within a State as meaning that, since it applies only to persons who are legally resident, it does not apply to foreign nationals who infringe the conditions imposed on their entry to the State in question, which may include a condition relating to the territorial validity of a residence permit. (49) Some clarification must be given, however, concerning how that case-law is to be understood when it comes to determining the content of the fundamental right freedom of movement within a State as a general principle of EU law.

79.      The case-law referred to concerned matters relating always to situations in which foreign nationals had been admitted only on a provisional basis, pending the outcome of their asylum application, or because their expulsion could not be carried out. However, instead of being in a strictly provisional situation, in the cases with which we are concerned both Mr Alo and Ms Osso enjoy the recognised status of beneficiaries of subsidiary protection and hold residence permits granted pursuant to Article 24 of Directive 2011/95, which have been periodically renewed for several years.

80.      An indication that subsidiary protection status is not provisional in nature is the fact that the scope of Directive 2003/109 has been extended in order to make long-term resident status accessible to all beneficiaries of international protection. (50)

81.      These observations having been made, it must at once be recalled, following the settled case-law of the Court of Justice and in keeping with Article 52(1) of the Charter, that a difference in treatment is justified only if it is based ‘on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment concerned’. (51)

82.      The legal basis for the place of residence condition is, first of all, Paragraph 12(2), second sentence, of the AufenthG, with regard to which the 2009 Instructions define the exercise of administrative discretion. (52)

83.      Also, as regards the discretion which in that respect may be granted to the Member States in assessing the measures necessary for pursuing aims of different kinds, the two expressly stated in the 2009 Instructions — namely, to avoid a disproportionate budgetary burden for certain Länder and municipalities and to prevent social tension and its negative consequences for integration — both constitute in themselves legitimate objectives. In particular, the promotion of integration is also an aim expressly recognised by the directive itself, when it provides, in recital 41 in the preamble that, ‘[i]n order to enhance the effective exercise of the rights and benefits laid down in this Directive by beneficiaries of international protection, it is necessary to take into account their specific needs and the particular integration challenges with which they are confronted’.

84.      On the basis of the foregoing, when it comes to examining whether the differential treatment is, in addition, proportionate to those legitimate aims, it is necessary to set out a series of specific considerations in relation to each of the justifications suggested, respectively, by the second and third questions.

b)      Whether the place of residence condition imposed on beneficiaries of subsidiary protection can be justified on the ground that the burden of social assistance should be distributed across the national territory (second question)

85.      It can hardly be maintained that the different treatment, in the imposition of a place of residence condition based on the aim of achieving an even territorial distribution of the burden of social assistance, of beneficiaries of subsidiary protection, on the one hand, and refugees, on the other, who are all in receipt of social benefits, is proportionate.

86.      The view might initially be formed that that reason does not meet the requirements of the principle of proportionality, that is to say, from the point of view of the substantive content of the right to freedom of movement. Indeed, it does not seem unreasonable to suggest that there are less restrictive measures in a federal State, in which it is possible to envisage the creation of mechanisms for redistribution and the evening out of budgetary imbalances across national territory. That consideration alone means that a measure such as the place of residence condition under examination here will not meet the requirements of the principle of proportionality.

87.      Furthermore, a measure with those characteristics, which as a matter of principle applies only to beneficiaries of subsidiary protection and not to refugees who receive the same kind of social benefits, can hardly satisfy the criteria of being appropriate to the aim pursued. Indeed, it has not been established to what extent a correct balance of territorial distribution of social assistance burdens may be achieved where the place of residence condition is imposed, for this reason, only on beneficiaries of subsidiary protection and not on refugees.

88.      Moreover, a difference in treatment justified on grounds which are not acceptable so far as recognised refugees are concerned is incompatible with the specific legislative framework of Directive 2011/95, which significantly limits the Member States’ discretion when establishing any difference in treatment between refugees and beneficiaries of subsidiary protection.

89.      The Court of Justice has given rulings on several occasions in relation to subsidiary protection status, as defined in Directive 2004/38, the precursor of Directive 2011/95, pointing out that, ‘in connection with the concept of “international protection” Directive [2004/83] governs two distinct systems of protection, that is to say, firstly, refugee status and, secondly, subsidiary protection status, in view of the fact that Article 2(e) of the directive states that a person eligible for subsidiary protection is one “who does not qualify as a refugee”’. (53) In that regard, the Court of Justice has declared that ‘the subsidiary protection provided by Directive 2004/83 is complementary and additional to the protection of refugees enshrined in the Geneva Convention’ (54) and that ‘refugee status offers greater protection than that conferred by subsidiary protection’. (55) This is also clear from the statement made in Article 20(1) of the directive, to the effect that the provisions of Chapter VII thereof will not affect the rights laid down in the Geneva Convention.

90.      When this is borne in mind and it is recognised that subsidiary protection, as a particular concept, retains a certain autonomy, the express intention of the EU legislature to make progress in unifying the two statuses acquires special relevance. Article 20(2) of Directive 2011/95 specifically establishes that all the rights contained in Chapter VII of the directive are to apply both to refugees and persons eligible for subsidiary protection unless otherwise indicated, thus establishing equal treatment as a fundamental principle. (56) In this way, the directive expresses the legislature’s clear intention to establish a uniform status for the beneficiaries of international protection, by providing that beneficiaries of subsidiary protection ‘should be granted the same rights and benefits as those enjoyed by refugees under this Directive, and should be subject to the same conditions’, although with ‘derogations which are necessary and objectively justified’. (57)

91.      Those exceptions have been expressly regulated by the EU legislature, which has specified in the relevant articles of Chapter VII of the directive the particular situations in which a difference in treatment is permissible.

92.      Nor should it be forgotten, furthermore, that, in contrast to its predecessor, Directive 2011/95, as Advocate General Bot has pointed out, (58) has to a large extent removed the differences between the rights conferred on refugees and beneficiaries of protection, which subsist only and exceptionally with regard to residence permits and travel documents and in connection with social protection.

93.      Consequently, the content of the provisions of the directive which establish rights without any distinction cannot be split up afresh according to whether or not the beneficiaries of international protection are covered by the Geneva Convention. The uniform interpretation of EU law and the principle of legal certainty require the interpretation given to an article to be the same in relation to the holders of the rights laid down by Chapter VII of the directive, where the relevant provisions do not provide for any differentiation. In the last resort, it cannot be denied that Article 78 TFEU itself establishes that the European Union shall develop ‘a common policy on asylum, subsidiary protection and temporary protection’ which must ‘be in accordance’ with the Geneva Convention, thus recognising the role of the Convention as a common standard of reference. (59)

94.      That being said, it only remains to point out that Article 33 of Directive 2011/95, unlike Article 29 thereof, includes no difference in the treatment granted to refugees and to beneficiaries of subsidiary protection when referring to the ‘beneficiaries of international protection’ as holders of the right it governs.

95.      In conclusion, I consider that the reply to the second question should be that a place of residence condition for persons holding subsidiary protection status such as that provided for in the legislation which is the subject-matter of the main proceedings, which is based on the objective of achieving an appropriate territorial distribution of the burden of social assistance, is not compatible with Article 33 of Directive 2011/95.

c)      Whether the place of residence condition imposed on beneficiaries of subsidiary protection can be justified on grounds relating to immigration and integration policy (third question)

96.      In the substantive assessment of whether a restriction such as that in issue here is, from the point of view of a possible justification based on immigration and integration policy requirements, proportionate in relation to the right to freedom of movement within a State, it may readily be acknowledged both that the place of residence condition is appropriate for the objective pursued and that it is difficult to avoid a concentration of beneficiaries of international protection by means of less restrictive measures. On the latter point, it will be for the national court, which is without a doubt best placed to assess the specific nature of the particular social context, to examine the availability and appropriateness of measures such as encouraging people to take up residence in different places under the aforementioned dispersal policies by providing public housing.

97.      In any event, when it comes to examining the proportionality in the strict sense of a measure having those characteristics with the substantive content of the right to freedom of movement, it will be the task of the referring court to examine the measure at issue taking into consideration, when weighing up the interests at stake, the undeniable importance of the right to freedom of movement within a State for beneficiaries of subsidiary protection, which has already been highlighted in point 70 of this Opinion.

98.      In the light of the weight of individual interest, and of the need to apply a strict level of scrutiny for assessing the principle of proportionality, abstract grounds connected to immigration and integration considerations cannot be enough to justify a measure such as the place of residence condition. Only pressing reasons linked to specific immigration and integration considerations may possibly justify the application to beneficiaries of subsidiary protection of a measure such as that at issue here. Reasons of this importance may, in particular, occur in specific circumstances of obvious social tension, with repercussions for public order, owing perhaps to the concentration of a large number of beneficiaries of international protection in receipt of social benefits.

99.      It is also necessary, when examining the proportionality of a place of residence condition, to take into consideration its duration and also its territorial scope, aspects which will also have to be examined by the national court. As regards the duration of the place of residence condition imposed, a measure which applies for an excessively long time would be unlikely to be compatible with the requirements of the principle of proportionality. Similarly, the territorial scope of the place which may serve as a reference for a place of residence condition — a municipality, a district or even a Land — is undoubtedly relevant.

100. Finally, and without prejudice to the fact that a restriction of the right to freedom of movement such as that at issue here may be acceptable in the circumstances which we have just indicated, justification based on grounds relating to immigration and integration policy must also be examined from the perspective of their compatibility with the principle of non-discrimination.

101. Article 33 of Directive 2011/95 provides, to that end, a specific expression of the principle of equality of treatment in relation to freedom of movement within a State, by stating that it must be established ‘under the same conditions and restrictions as those provided for other third-country nationals legally resident in their territories’ without specifying the possibility of any derogation, unlike other articles in the directive.

102. The difference in treatment with which we are concerned in these cases arises from the fact that, although Paragraph 12 of the AufenthG provides for the possibility of establishing territorial restrictions on the residence of foreign nationals, in general, those restrictions have only been specifically defined in the 2009 Instructions for beneficiaries of international protection.

103. It is for the national court to determine whether, in circumstances comparable to those indicated above, in which a restriction of the right to freedom of movement may be considered justified, the national legal order, examined as a whole, does not limit the scope of the restriction with which we are concerned only to beneficiaries of international protection.

104. Moreover, and contrary to what is indicated in the order for reference, place of residence conditions imposed on immigration and integration policy grounds are not usually supported by a historical interpretation of Article 26 of the Geneva Convention. Indeed, although the need to avoid a concentration of refugees in given areas, in particular in border areas, was highlighted by the delegates of various States, the Committee responsible for drawing up the Convention did not in the end include that possibility. (60) That demonstrates a firm commitment to equate the conditions of freedom of movement of refugees who are legally in the territory of a State to those of other foreign nationals in general. Article 33 of Directive 2011/95 reflects that commitment in relation to beneficiaries of international protection, although it must be borne in mind that the Member States have a broader discretion when it is a question of laying down restrictions on the movement of applicants for that protection. (61)

105. In conclusion, I believe the answer to the third question referred for a preliminary ruling should be that a place of residence condition for persons with subsidiary protection status, such as that provided for in the legislation which is the subject-matter of the main proceedings, which is justified on the basis of immigration or integration policy considerations, is compatible with Article 33 of Directive 2011/95, in accordance with Article 21 of the Charter in relation to the fundamental right to freedom of movement within a State, only if those considerations are sufficiently serious and are linked to concrete situations and if, subject to compliance with the requirements of the principle of proportionality, the national legal order, examined as a whole, does not limit the scope of the restriction at issue exclusively to beneficiaries of international protection, a matter which falls to be determined by the national court.

IV –  Conclusion

106. In the light of the foregoing considerations, I consider that the following reply should be given to the question referred for a preliminary ruling by the Bundesverwaltungsgericht:

1.       A condition requiring residence to be taken up in a geographically limited area imposed by a Member State constitutes a restriction of freedom of movement as provided for in Article 33 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, wholly irrespective of whether the beneficiary of international protection has the freedom to move throughout the territory of the Member State and remain there.

2.      A place of residence condition for persons holding subsidiary protection status such as that provided for in the legislation which is the subject-matter of the main proceedings, which is based on the objective of achieving an appropriate territorial distribution of the burden of social assistance, is not compatible with Article 33 of Directive 2011/95.

3.      A place of residence condition for persons with subsidiary protection status such as that provided for in the legislation which is the subject-matter of the main proceedings, which is justified on the basis of immigration or integration policy considerations, is compatible with Article 33 of Directive 2011/95, in accordance with Article 21 of the Charter in relation to the fundamental right to freedom of movement within a State, only if those considerations are sufficiently serious and are linked to concrete situations and if, subject to compliance with the requirements of the principle of proportionality, the national legal order, examined as a whole, does not limit the scope of the restriction at issue exclusively to beneficiaries of international protection, a matter which falls to be determined by the national court.


1 – Original language: Spanish.


2 – (OJ 2011 L 337, p. 9). This directive repealed and replaced, for the Member States bound by it, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).


3 – The Court of Justice has interpreted Directive 2004/83 in the judgments in Bolbol (C‑31/09, EU:C:2010:351); B (C‑57/09 and C‑101/09, EU:C:2010:661); Y (C‑71/11 and C‑99/11, EU:C:2012:518); X (C‑199/12 to C‑201/12, EU:C:2013:720); A and Others (C‑148/13 to C‑150/13, EU:C:2014:2406); T. (C‑373/13, EU:C:2015:413); Shepherd (C‑472/13, EU:C:2015:117); Abdida (C‑562/13, EU:C:2014:2453); Qurbani (C‑481/13, EU:C:2014:2101), and has also analysed some aspects of subsidiary protection in the judgments in Elgafaji (C‑465/07, EU:C:2009:94); Diakite (C‑285/12, EU:C:2014:39); M’Bodj (C‑542/13, EU:C:2014:2452); M.M. (C‑277/11, EU:C:2012:744); Salahadin Abdulla and Others (C‑175/08, C‑176/08, C‑178/08 and C‑179/08, EU:C:2010:105); Abed El Karem El Kott and Others (C‑364/11, EU:C:2012:826) and N. (C‑604/12, EU:C:2014:302).


4 – UNTS, vol. 189, p. 150, No 2545 (1954), which came into force on 22 April 1954. The Convention was completed by the Protocol relating to the Status of Refugees on 31 January 1967, which came into force on 4 October 1967.


5 – Adopted on 19 December 1966, and which entered into force on 23 March 1976 (UNTS vol. 999, p. 171; ‘ICCPR’).


6 – Protocol No 4, which was opened for signature on 16 September 1963 and entered into force on 2 May 1968, has been ratified by all the Member States except Greece — which has neither signed it nor ratified it — and the United Kingdom — which has signed it but not ratified it.


7 – BGBl. 2004 I, p. 1050, of 30 July 2004, in the version of 25 February 2008, last amended by the Law of 28 August 2013.


8 – Judgment of the Bundesverwaltungsgericht of 15 January 2008, 1 C 17.07, paragraph 20.


9 – Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968 (II), p. 475).


10 – This conclusion is supported by Article 45(3)(b) and (c) TFEU, which refers to the right to move freely, and to the right to choose residence, and also by other provisions of EU law, such as Articles 20(2)(a) and 21(1) TFEU, as well as Article 45 of the Charter of Fundamental Rights, all of which are provisions which distinguish between freedom of movement and the right to choose residence. Also, other provisions of secondary law, such as Article 7 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96), and 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) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).


11 – For example, in the versions in Spanish (libre circulación), French (liberté de circulation), English (freedom of movement), Italian (libertà di circolazione), Dutch (vrij verkeer), Portuguese (liberdade de circulação), Romanian (libertatea de circulație), Danish (Fri bevægelighed), Swedish (fri rörlighet), Bulgarian (Свобода на придвижване), Estonian (Liikumisvabadus), Greek (Ελεύθερη κυκλοφορία), Czech (svoboda pohybu), Slovak (sloboda pohybu), Latvian (pārvietošanās brīvība), Croatian (sloboda kretanja). The terminological difference occurs, as an exception, for example, in Polish (swobodny przepływ / swoboda przemieszczania).


12 – In particular, Articles 45(3)(b) and (c) TFEU, 21(1) and 79(2)(b) TFEU, and also Article 45(1) and (2) of the Charter and Directive 2004/38.


13 – See, for example, A. Olesti Rayo, ‘La libre circulación de personas: desplazamiento y residencia’, in J. Mª Beneyto Pérez (Ed.), Tratado de Derecho y Políticas de la Unión Europea. Tomo VI: Mercado Único Europeo y Unión Económica y Monetaria, Thomson Reuters Aranzadi, 2009, pp. 325-387.


14 – Opinion of Advocate General Mayras in Rutili, 36/75, EU:C:1975:124, in which he referred to the rights of workers to ‘accept offers of employment actually made’ and to the ‘right to move freely within the territory of Member States and to stay there for the purpose of employment’.


15 – We may cite Article 3(2) TEU; the heading of Title IV of Part III of the FEU Treaty; Article 26(2) TFEU; Article 45(1) TFEU; Articles 46 and 48 TFEU.


16 – This expression is often found in provisions relating to the Schengen acquis.


17 – See Article 11(1)(h) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44); Article 14(1)(h) of Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155, p. 17); Article 22(b) of Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers (OJ 2014 L 94, p. 375); and Article 17(b) of Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (OJ 2014 L 157, p. 1).


18 – To cite just a few examples, H. Schermers, Free Movement of Persons in Europe: Legal Problems and Experiences, Springer 1993; E. Spaventa, Free Movement of Persons in the European Union: Barriers to Movement in Their Constitutional Context, Kluwer Law International, 2007; M. Flory and R. Higgins, Liberté de circulation des personnes en droit international, Economica, 1988; C. Beyani, Human Rights Standards and the Movement of People Within States, Oxford University Press, 2000; G. Goodwin-Gill, International law and the Movement of Persons Between States, Oxford University Press 2008.


19 – See, for example, in relation to Directive 2004/83, judgment in X and Others (C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 39 and the case-law cited).


20 – Judgment in H.N. (C‑604/12, EU:C:2014:302, paragraph 28 and the case-law cited).


21 – Judgment in Qurbani (C‑481/13, EU:C:2014:2101, paragraphs 24 and 26).


22 – As expressly stated in Article 20(1) of Directive 2011/95.


23 – See the Opinion of Advocate General Mengozzi in Joined Cases B (C‑57/09 and C‑101/09, EU:C:2010:302, point 42).


24 – This point is illustrated by the UNHCR’s comments on Article 32 of Directive 2004/83, when it states that the ‘UNHCR understands that, in line with Article 26 of the 1951 Convention and Article 2 of Protocol No. 4 to the ECHR, the right to choose the place of residence is included in the right to freedom of movement’, UNHCR, Annotated Comments on the EC Council Directive2004/83/EC, 2005.


25 – C‑571/10, EU:C:2012:233, paragraph 79 et seq.


26 – Council Directive of 25 November 2003 (OJ 2004 L 16, p. 44), as amended by Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 (OJ 2011 L 132, p. 1).


27 –      The importance of the fundamental right to move freely within a State means that that right is subsumed to a certain extent within the right to move freely within the European Union. Thus, Article 22 of Directive 2004/38 provides that Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals. In the judgment in Rutili (36/75, EU:C:1975:137), the Court of Justice declared that ‘in the case of partial prohibitions on residence, limited to certain areas of the territory, persons covered by Community law must, under Article 7 of the Treaty and within the field of application of that provision, be treated on a footing of equality with the nationals of the Member State concerned’ (paragraph 49). This obligation of equal treatment was qualified in the judgment in Oteiza Olazabal (C‑100/01, EU:C:2002:712), in relation to territorial restrictions for serious reasons of public order or public security based on an individual’s conduct, which could otherwise give rise to a measure prohibiting him from residing in, or banishing him from, the whole of the national territory. Freedom of movement within a State is also indirectly protected by EU law in so far as a national measure which restricts it is also capable of affecting freedom of movement within Member States, and is not justified. See the judgment in Libert and Others (C‑197/11 and C‑203/11, EU:C:2013:288).


28 –      It must be pointed out, as noted in the order for reference, that the case-law of the ECtHR on Article 2 of Protocol 4 to the ECHR on occasion classifies place of residence conditions as falling within the concept of freedom of movement (see, for example, the judgments in Luordo v. Italy, no. 32190/96, ECHR 2003-IX; Villa v. Italy, no. 19675/06, 20 April 2010, and Tatishvili v. Russia, no. 1509/02, ECHR 2007-I).


29 – See R. Higgins, ‘The Right in International Law of an Individual to Enter, Stay in and Leave a Country’, International Affairs, Vol. 49, No. 31973, pp. 341-357, p. 342, referring to the right to enter, stay and leave.


30 –      For a detailed historical study of the origins of freedom of movement in Germany, J. Ziekow, Über Freizügigkeit und Aufenthalt, Mohr Siebeck, 1997.


31 – Article 33 of Directive 2011/95 reproduces almost literally the wording of Article 32 of Directive 2004/83 which, in turn, reflects the wording of the Commission’s Proposal (COM(2001) 510 final). In reply to a question put at the hearing, the Commission explained that its intention was to consider freedom of residence included in the concept of freedom of movement. However, neither in the explanations contained in that proposal, nor in the subsequent preparatory documents are there elements which reveal the intention of the EU legislature in relation to the question with which we are concerned.


32 – Council Directive of 27 January 2003 (OJ 2003 L 31, p. 18).


33 – COM(2001) 181 final.


34 – Council Conclusions of 30 November and 1 December 2000, Document 13865/00, the annex to which contains ‘Guidelines for the future Community instrument on conditions for the reception of asylum seekers’.


35 – Mention is also made in those explanations of the need to respect the right to freedom of movement in Protocol No 4 to the ECHR. Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, COM(2001) 181 final, (OJ 2001 C 213 E, p. 286).


36 – COM(2001) 510 final.


37 – Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).


38 – See, for example, Council Documents 11541/01, 6467/02 or 7307/02.


39 – In fact, the 2009 Instructions provide for the withdrawal or review of the residence condition if there is a contract of employment which has certain characteristics — principally, to secure the livelihood of the whole family without recourse to social assistance –, if it promotes the establishment of family life with a spouse, unmarried partner or minor children or the care of family members who are in need owing to age, infirmity or disability, or helps to prevent dangerous situations arising in the family environment.


40 – BVerwG (1 C 17.07).


41 – This is given particular emphasis by the United Nations Human Rights Committee in its General Comment No 27 on Freedom of movement (Art. 12 ICCPR) of 2 November 1999, CCPR/C/21/Rev.1/Add.9, CCPR OB, the text of which opens with the observation that ‘[l]iberty of movement is an indispensable condition for the free development of a person’.


42 – Judgment in Glatzel (C‑356/12, EU:C:2014:350, paragraph 43 and the case-law cited).


43 – Judgment in Akzo Nobel Chemicals and Akcros Chemicals v Commission (C‑550/07 P, EU:C:2010:512, paragraph 55 and the case-law cited).


44 – On this point, see R. Bank, ‘Rechtsstellung von Flüchtlingen und subsidiär geschützten Personen nach der Qualifikationsrichtlinie’ in R. Hofmann and T. Löhr, (eds.), Europäisches Flüchtlings- und Einwanderungsrecht. Eine kritische Zwischenbilanz, Nomos, Baden-Baden, 2008, pp. 169-181, in particular p. 174. Article 6 of the Geneva Convention provides that ‘the term “in the same circumstances” implies that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is incapable of fulfilling’.


45 – This concept, which is not defined in the directive, includes any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU and also satisfies the conditions for residing in a Member State. The generic reference to the other legal residents may be understood to allude to foreign nationals under the general regime, whose residence is not based on exceptional grounds, or international protection.


46 – According to the text of the Explanations relating to the Charter, Article 21.


47 – See the judgments of the ECtHR in Ponomaryovi v. Bulgaria, no. 5335/05, ECHR 2011, and, in particular, in Bah v. the United Kingdom, no. 56328/07, ECHR 2011.


48 – See the aforementioned judgment in Bah v.theUnited Kingdom, § 48.


49 – See Decision of the ECtHR in Omwenyeke v. Germany, no. 44294/04, 20 November 2007. See also the decisions of the European Commission of Human Rights in P. v. Germany, no. 12068/86; U. and S. v.Germany, no. 11825/85 and Aygün v. Sweden, no. 14102/88.


50 – Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection (OJ 2011 L 132, p. 1).


51 – Judgment in Glatzel (C‑356/12, EU:C:2014:350, paragraph 43).


52 – Concerning the interaction between the administrative guidelines which define administrative discretion and the requirements relating to the ‘quality of the law’ when they specifically correct the vagueness of the law on which they are based, see, for example, judgment of the ECtHR in Silver and Others v. the United Kingdom, 25 March 1983, § 88, Series A no. 61. The 2009 Guidelines are accessible to the public. The ECtHR has established that the Convention does not specify the method of publication (judgment in Špaček s.r.o., v. the Czech Republic, no. 26449/95, § 57, 9 November 1999. I have already spoken at length on the question of restrictions provided for by law in my Opinion in Scarlet Extended (C‑70/10, EU:C:2011:255, point 88 et seq).


53 – Judgment in Salahadin Abdulla and Others (C‑175/08, C‑176/08, C‑178/08 and C‑179/08, EU:C:2010:105, paragraph 78).


54 – Judgment in H.N. (C‑604/12, EU:C:2014:302, paragraph 32).


55 – Judgment in H.N. (C‑604/12, EU:C:2014:302, paragraph 34).


56 – H. Battjes, ‘Commentary to Article 20 — Directive 2011/95/EU’, in K. Hailbronner and D. Thym (eds), EU Immigration and Asylum Law. Commentary, 2nd ed. (C.H. Beck, Hart, Nomos, 2016), in press, marginal number 20. See also V. Moreno Lax and M. Garlick, ‘Qualification: Refugee Status and Subsidiary Protection’ in S. Peers et. al. (eds.), EU Immigration and Asylum Law. Text and Commentary, 2nd Ed. Brill, 2014, pp. 65-210, in particular p. 158.


57 – Recital 39 in the preamble to Directive 2011/95.


58 – Opinion of Advocate General Bot in Abdida (C‑562/13, EU:C:2014:2167, footnote 11), and in M’Bdoj (C‑542/13, EU:C:2014:2113, footnote 9). This tendency to remove the differences between the two statuses is also evident in Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60). See point 46 of the Opinion of Advocate General Bot in N. (C‑604/12, EU:C:2013:714).


59 – On this matter, K. Hailbronner and D. Thym, ‘Chapter IV. Asylum. Legal Framework for EU Asylum Policy’, in K. Hailbronner and D. Thym, op. cit., marginal number 9.


60 – See J.C. Hathaway, The Rights of Refugees under International Law, Cambridge University Press, 2005, p. 711 and 719; R. Marx, ‘Article 26 — Freedom of Movement’, in A. Zimmermann (Eds.), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. A Commentary, Oxford University Press, 2011, p. 1160; Division of International Protection of the UNHCR, Commentary on the Refugee Convention 1951, 1997.


61 – This is therefore in accordance with Article 7 of Directive 2013/33, also taking into account that Article 31(2) of the Geneva Convention expressly recognises the possibility of imposing the necessary restrictions on freedom of movement until the status of an asylum seeker has been regularised.