Language of document : ECLI:EU:C:2018:929

Case C713/17

Ahmad Shah Ayubi

v

Bezirkshauptmannschaft Linz-Land

(Request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich)

(Reference for a preliminary ruling — Directive 2011/95/EU — Rules relating to the content of international protection — Refugee status — Article 29 — Social protection — Different treatment — Refuges with temporary right of residence)

Summary — Judgment of the Court (Third Chamber), 21 November 2018

1.        Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Social protection – National legislation granting refugees with a temporary right of residence in a Member State social security benefits which are lower than those paid to nationals of that Member State and to refugees with a right of permanent residence in that Member State — Unlawful

(European Parliament and Council Directive 2011/95, Art. 29)

2.        Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Social protection – National legislation granting refugees with a temporary right of residence in a Member State social security benefits which are lower than those paid to nationals of that Member State and to refugees with a right of permanent residence in that Member State – Possibility to rely on the incompatibility of legislation with European Union law

(European Parliament and Council Directive 2011/95, Art. 29)

1.      Article 29 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, must be interpreted as meaning that it precludes national legislation, such as that at issue in the main proceedings, which provides that refugees with a temporary right of residence in a Member State receive social security benefits which are less than those received by nationals of that Member State and refugees who have a permanent right of residence in that Member State.

It must be stated that the fact that Article 29(1) of that directive provides for the grant of ‘necessary’ social assistance to beneficiaries of international protection does not mean that the EU legislature intended to authorise Member States to grant refugees social security benefits which they consider sufficient to cover their needs, but which are less than the social security benefits paid to their nationals. It follows that the level of social security benefits paid to refugees by the Member State which granted that status, whether temporary or permanent, must be the same as that offered to nationals of that Member State (see, by analogy, judgment of 1 March 2016, Alo and Osso, C‑443/14 and C‑444/14, EU:C:2016:127, paragraphs 48 and 50). The principle that refugees should receive the same treatment as that accorded to nationals of the Member State cannot be called into question by Article 24 of Directive 2011/95 which allows Member States to issue a residence permit limited to three years.

That finding cannot be called into question by the argument that legislation such as that at issue in the main proceedings is compatible with Article 29(1) of Directive 2011/95 as refugees who have resided for a number of years in a Member State are in an objectively different situation from that of refugees who have recently arrived in that Member State, since the latter have a greater need for practical help.

(see paras 21, 25, 26, 30, 35, operative part 1)

2.      A refugee may rely on the incompatibility of legislation, such as that at issue in the main proceedings, with Article 29(1) of Directive 2011/95 before the national courts in order to remove the restriction on his rights provided for by that legislation.

Although Article 29(1) of Directive 2011/95 confers on Member States a certain margin of discretion, in particular as regards the determination of the level of social assistance they consider necessary, the fact remains that that provision imposes on each Member State, in unambiguous terms, an obligation to produce results which is precise and unconditional, consisting in ensuring that every refugee to which it grants its protection enjoys the same level of social assistance as that provided for its nationals.

(see paras 38, 41, operative part 2)