Language of document : ECLI:EU:C:2021:602

Case C709/20

CG

v

The Department for Communities in Northern Ireland

(request for a preliminary ruling, made by the Appeal Tribunal for Northern Ireland)

 Judgment of the Court (Grand Chamber), 15 July 2021

(Reference for a preliminary ruling – Citizenship of the Union – National of a Member State without an activity residing in the territory of another Member State on the basis of national law – First paragraph of Article 18 TFEU – Non-discrimination based on nationality – Directive 2004/38/EC – Article 7 – Conditions for obtaining a right of residence for more than three months – Article 24 – Social assistance – Concept – Equal treatment – Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland – Transition period – National provision excluding Union citizens with a right of residence for a fixed period under national law from social assistance – Charter of Fundamental Rights of the European Union – Articles 1, 7 and 24)

1.        Questions referred for a preliminary ruling – Expedited preliminary ruling procedure – Requirements – Circumstances justifying rapid treatment – Risk of violation of fundamental rights with regard to the applicant in the main proceedings and her children – Admissibility of the use of that procedure

(Charter of Fundamental Rights of the European Union, Arts 7 and 24; Rules of Procedure of the Court of Justice, Art. 105)

(see paragraphs 42-44)

2.        Citizenship of the Union – Right to move and to reside freely within the territory of the Member States – Directive 2004/38 – Social assistance – Concept – Cash subsistence benefit such as Universal Credit – Included – Verification by the referring court

(European Parliament and Council Directive 2004/38, Art. 24(2))

(see paragraphs 68-71)

3.        Citizenship of the Union – Right to move and to reside freely within the territory of the Member States – Directive 2004/38 – Principle of equal treatment – Union citizen with no economic activity and without sufficient resources – Temporary right of residence granted to that citizen on the basis of the law of the host Member State – Legislation of that Member State excluding such a citizen from enjoying social assistance – Benefits guaranteed to nationals of the host Member State in the same situation – Whether permissible

(European Parliament and Council Directive 2004/38, Arts 7 and 24(1))

(see paragraphs 78, 79, 93, operative part)

4.        Citizenship of the Union – Provisions of the Treaty – Scope – Union citizen with no economic activity and without sufficient resources – Temporary right of residence granted to that citizen on the basis of the law of the host Member State – Included – Application for social assistance made in that Member State – Obligation of the competent authorities to examine the observance of the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union – Scope of that examination

(Art. 21(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 1, 7, 24 and 51(1))

(see paragraphs 84, 85, 88, 93, operative part)


Résumé

The British legislation on Universal Credit, which deprives of that benefit Union citizens with a right to reside on the basis of the scheme established in the context of Brexit, without satisfying all the conditions of Directive 2004/38, is compatible with the principle of equal treatment guaranteed by EU law

However, the competent national authorities must confirm that a refusal to grant such social assistance does not expose the Union citizen and his or her children to a risk of violation of their rights enshrined in the Charter of Fundamental Rights of the European Union, in particular the respect for human dignity.

CG, who has dual Croatian and Dutch nationality, has lived in the United Kingdom since 2018, without carrying out any economic activity. She lived there with her partner, a Dutch national, and their two children before moving to a women’s refuge. CG has no resources at all.

On 4 June 2020, the Home Office (United Kingdom) granted her a temporary right of residence in the United Kingdom, on the basis of a new British scheme applicable to Union citizens residing in that country, established in the context of the withdrawal of the United Kingdom from the European Union. The grant of such a right of residence is not subject to any condition as to resources.

On 8 June 2020, CG lodged an application for the social assistance benefit, known as Universal Credit, with the Department for Communities in Northern Ireland. That application was refused, on the ground that the Universal Credit Regulations exclude Union citizens with a right of residence granted on the basis of the new scheme from the category of potential beneficiaries of Universal Credit.

CG challenged that refusal before the Appeal Tribunal (Northern Ireland), alleging, inter alia, a difference in treatment between Union citizens residing legally in the United Kingdom and British nationals. That court decided to refer a question to the Court about the potential incompatibility of the British Universal Credit Regulations with the prohibition of discrimination on grounds of nationality, laid down in the first paragraph of Article 18 TFEU.

The Court, sitting as the Grand Chamber, finds that the British legislation is compatible with the principle of equal treatment laid down by Article 24 of Directive 2004/38, (1) while requiring the competent national authorities to confirm that a refusal to grant social assistance based on that legislation does not expose the Union citizen and her children to an actual and current risk of violation of their fundamental rights, as enshrined in the Charter of Fundamental Rights of the European Union.

Findings of the Court

Since the question of the referring court was referred before the end of the transition period, that is to say, before 31 December 2020, the Court has jurisdiction to give a preliminary ruling on that request, pursuant to Article 86(2) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community. (2)

The Court specifies, first, the provisions of EU law applicable in the present case and concludes that the question whether CG faces discrimination on the grounds of nationality must be assessed in the light of Article 24 of Directive 2004/38, and not of Article 18 TFEU, since the first of those articles gives specific expression to the principle of non-discrimination on the grounds of nationality enshrined among others in the second, in relation to Union citizens who exercise their right to move and to reside within the territory of the Member States.

After finding that the Universal Credit at issue must be categorised as social assistance, within the meaning of that directive, the Court notes that access to those benefits is reserved for Union citizens who meet the requirements set out in Directive 2004/38. In that regard, the Court recalls that, by virtue of Article 7 of that directive, the obligation for an economically inactive Union citizen to have sufficient resources constitutes a requirement in order for the latter to enjoy a right of residence for longer than three months but less than five years.

The Court then confirms its case-law to the effect that a Member State has the possibility, pursuant to that article, of refusing to grant social benefits to economically inactive Union citizens who, like CG, exercise their right to freedom of movement and do not have sufficient resources to claim a right of residence under that directive. It states that, in the context of the specific examination of the economic situation of each person concerned, the benefits claimed are not taken into account in order to determine whether the person in question has sufficient resources.

The Court stresses, moreover, that Directive 2004/38 does not prevent the Member States from establishing more favourable rules than those laid down by that directive, in accordance with Article 37 thereof. A right of residence granted on the basis of national law alone, as is the case in the dispute in the main proceedings, cannot be regarded in any way as being granted ‘on the basis of’ that directive.

Nevertheless, CG made use of her fundamental freedom to move and to reside in the territory of the Member States, laid down by the Treaty, with the result that her situation falls within the scope of EU law, even though her right to reside derives from UK law, which has established more favourable rules than those laid down by Directive 2004/38. The Court holds that, where they grant a right of residence such as that at issue in the main proceedings, without relying on the conditions and limitations in respect of that right laid down by Directive 2004/38, the authorities of the host Member State implement the provisions of the FEU Treaty on Union citizenship, which is destined to be the fundamental status of nationals of the Member States.

In accordance with Article 51(1) of the Charter of Fundamental Rights, those authorities are thus obliged, when examining an application for social assistance such as that made by CG, to comply with the provisions of that Charter, in particular Articles 1 (human dignity), 7 (respect for private and family life) and 24 (rights of the child). In the context of that examination, those authorities may take into account all means of assistance provided for by national law, from which the citizen concerned and her children are actually entitled to benefit.


1      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, and corrigenda OJ 2004 L 229, p. 35 and OJ 2005 L 197, p. 34).


2      OJ 2020 L 29, p. 7.