Case C‑488/21
GV
v
Chief Appeals Officer and Others
(Request for a preliminary ruling from the Court of Appeal)
Judgment of the Court (Grand Chamber) of 21 December 2023
(Reference for a preliminary ruling – Citizenship of the European Union – Articles 21 and 45 TFEU – Right of Union citizens to move and reside freely in the territory of the Member States – Worker having acquired the nationality of the host Member State while retaining his or her nationality of origin – Directive 2004/38/EC – Article 3 – Beneficiaries – Article 2(2)(d) – Family member – Dependent direct relatives in the ascending line of a worker who is a Union citizen – Article 7(1)(a) and (d) – Right of residence for more than three months – Retention of the status of dependant in the host Member State – Article 14(2) – Retention of the right of residence – Regulation (EU) No 492/2011 – Article 7(2) – Equal treatment – Social advantages – Social assistance benefits – Unreasonable burden on the social assistance system of the host Member State)
1. Citizenship of the Union – Right to move and reside freely within the territory of the Member States – Directive 2004/38 – Beneficiaries – Union citizen residing in the Member State of his or her nationality – Family members of the said citizen – Not included
(European Parliament and Council Directive 2004/38, Art. 3(1))
(see paragraphs 42, 43)
2. Citizenship of the Union – Provisions of the Treaty – Right to move and reside freely within the territory of the Member States – Freedom of movement of persons – Workers – Worker who is a Union citizen having exercised his or her freedom of movement by residing and working in the host Member State – Citizen concerned having acquired the nationality of that host Member State while retaining his or her nationality of origin – Family members of that citizen residing in the host Member State – Derived right of residence in the host Member State – Conditions
(Arts 21(1) and 45(1) and (2) TFEU; European Parliament and Council Regulation No 492/2011, Art. 7(2))
(see paragraphs 45-50)
3. Freedom of movement of persons – Workers – Equal treatment – Social advantages – National legislation excluding from the benefit of a disability allowance a direct relative in the ascending line dependent on a worker who is a Union citizen or even withdrawing from him or her the right of residence for more than three months – Not permissible – Whether justified – Family member becoming an unreasonable burden on the national social assistance system – Absence
(Art. 45 TFEU; European Parliament and Council Regulation No 492/2011, Art. 7(2); European Parliament and Council Directive 2004/38, Arts 2(2)(d), 7(1)(a) and (d) and 14(2))
(see paragraphs 54-61, 63-72, operative part)
Résumé
GV, a Romanian national, is the mother of AC, also a Romanian national, who resides and works in Ireland. Moreover, AC has been naturalised as an Irish national.
Since 2017, GV has resided in Ireland with her daughter, on whom she is financially dependent. In September 2017, as a result of the deterioration in her state of health linked to arthritis, GV applied for a disability allowance under a social protection law.
As is apparent from the order for reference, that allowance, which is meant to protect against poverty, is a social assistance payment financed by the general budget, without the person concerned having to make any social security contributions. In addition, entitlement to the allowance is subject to certain criteria, relating in particular to age, means and disability. Moreover, that disability allowance is a ‘special non-contributory cash benefit’ within the meaning of Regulation No 883/2004. (1) Last, it appears that Irish law precludes the payment of that allowance to a person who is not habitually resident in Ireland, such as a person who does not have a right to reside there.
In February 2018, GV’s application for the disability allowance was refused, on the ground that she did not have a right of residence in Ireland.
Tasked with reviewing the refusal of that application, in July 2019, the Appeals Officer (Ireland) concluded that GV, as a dependent direct ascendant of a Union citizen working in Ireland, had a right to reside but was not entitled to receive social welfare assistance. Hearing an application for revision, the Chief Appeals Officer (Ireland) confirmed that reasoning given that, in accordance with the national legislation transposing Directive 2004/38, (2) if she were granted the allowance, GV would become an unreasonable burden on the national social assistance system and, therefore, she would no longer have a right to reside.
By a judgment delivered in July 2020, the High Court (Ireland) annulled the decision taken by the Chief Appeals Officer. That court considers, in particular, that the abovementioned national legislation, to the extent that it makes the right of residence of a family member of an Irish citizen subject to the condition that that family member must not become an unreasonable burden on the social assistance system of the State, is inconsistent with Directive 2004/38, governing the right of Union citizens and their family members to move and reside freely within the territory of the Member States.
Hearing an appeal against that judgment, the referring court decided to ask the Court of Justice, in essence, whether EU law precludes legislation of a Member State which permits the authorities of that Member State to refuse to grant a social assistance benefit to a direct relative in the ascending line who, at the time the application for that benefit is made, is dependent on a worker who is a Union citizen, or even to withdraw from him or her the right of residence for more than three months, on the ground that the grant of the said benefit would have the effect that that family member would no longer be dependent on the worker who is a Union citizen and would thus become an unreasonable burden on the social assistance system of the said Member State.
By its judgment, delivered by the Grand Chamber, the Court rules that the principle of freedom of movement for workers, (3) as implemented by Regulation No 492/2011 (4) on freedom of movement for workers within the Union, read in combination with Directive 2004/38, precludes such national legislation.
Findings of the Court
As a preliminary point, the Court recalls that Directive 2004/38, the interpretation of which was sought by the referring court, governs only the conditions of entry and residence of a Union citizen in Member States other than the one of which he or she is a national. Consequently, it is not intended to confer, in the territory of that Member State, a derived right of residence on family members of that citizen. In this case, since AC’s naturalisation, that directive is no longer intended to govern either her right of residence in Ireland or the derived right of residence that her family members may enjoy.
That being so, the Court has held that the situation of a national of one Member State who has exercised his or her freedom of movement by going to and residing legally in another Member State, cannot be treated in the same way as a purely domestic situation merely because the person concerned has, while resident in the host Member State, acquired the nationality of that State in addition to his or her nationality of origin. Thus, if the rights conferred on Union citizens by Article 21 TFEU and, more specifically, on workers by Article 45 TFEU, are to be effective, a family member of a Union citizen who is a worker who, after having exercised his or her freedom of movement by residing and working in the host Member State, has acquired the nationality of that Member State, must be able to be granted a derived right of residence. Furthermore, the conditions for granting the derived right of residence enjoyed by that family member must not be stricter than those provided for in Directive 2004/38 for the family member of a Union citizen who has exercised his or her right of freedom of movement by settling in a Member State other than that of which he or she is a national, since that directive must be applied by analogy to such a situation. Finally, a worker who is a Union citizen enjoys – including where, as in this case, he or she has acquired the nationality of the host Member State, in addition to his or her nationality of origin – the right to equal treatment under Article 45(2) TFEU, as implemented by Article 7(2) of Regulation No 492/2011. (5)
In that context, in the first place, the Court states that it follows from a combined reading of several provisions of Directive 2004/38 (6) that the direct relatives in the ascending line of a worker who is a Union citizen have a derived right of residence for more than three months where they are ‘dependent’ on that worker. In order for the family member concerned to be able to enjoy that right, that situation of dependence must exist, in the country from which that person comes, at the time when he or she applies to join the Union citizen on whom he or she is dependent. The person concerned will be able to retain the said right as long as he or she remains dependent on that worker, (7) until such time as that relative, having resided lawfully for a continuous period of five years in the host Member State, can claim a right of permanent residence. (8)
In the second place, as regards the abovementioned right to equal treatment enjoyed by a worker who is a Union citizen under Article 7(2) of Regulation No 492/2011, the Court recalls that the concept of ‘social advantages’ provided for in that provision includes all the advantages which, whether or not they are linked to a contract of employment, are granted to national workers generally, primarily because of their objective status as workers or by virtue of the mere fact of their residence in the national territory, and which it therefore appears appropriate to extend to workers who are nationals of other Member States in order to facilitate their mobility within the European Union. That concept may include social assistance benefits which, at the same time, come under the specific scope of Regulation No 883/2004, like the disability allowance. Moreover, a social assistance benefit, such as the disability allowance granted to a direct relative in the ascending line, constitutes for the migrant worker a ‘social advantage’ within the meaning of Article 7(2) of Regulation No 492/2011, since that direct relative in the ascending line is dependent on that worker, within the meaning of Article 2(2)(d) of Directive 2004/38. Furthermore, the said dependent direct relative in the ascending line, as an indirect beneficiary of the equal treatment accorded to the said worker, may rely on Article 7(2) of Regulation No 492/2011 in order to obtain that allowance where, under national law, it is granted directly to such relatives in the ascending line. Having regard to the protection against discrimination that the migrant worker and members of his or her family may suffer in the host Member State guaranteed by that provision, the status of ‘dependent’ relative in the ascending line within the meaning of Article 2(2)(d) of Directive 2004/38 cannot be affected by the grant of a social assistance benefit in the host Member State To decide otherwise would, in practice, preclude that dependent family member from claiming that benefit and would thus undermine the equal treatment accorded to the migrant worker. It is important in that regard to emphasise that, through the taxes which a migrant worker pays in the host Member State in the course of his or her employment, that worker also contributes to the financing of the social policies of that Member State and should, consequently, profit from them under the same conditions as national workers. Therefore, the objective consisting in avoiding an unreasonable financial burden on the host Member State cannot justify the unequal treatment of migrant workers as compared with national workers.