C-138/02

Essentially, in issue is whether a citizen of the Union, where he is not considered to be a 'worker' within the meaning of Regula- tion No 1612/68 and does not have a right, pursuant to Directive No 68/360/EEC, to 3. In order to qualify for the benefit, the reside in the Member State in which he is claimant, in addition to being available for seeking work, may rely on any other and actively seeking employment, having provision of Community law in order to entered into a jobseeker's agreement and obtain the income-based jobseeker's allow- not engaging in remunerative work, must ance, the granting of which is subject to a not have earnings in excess of the applic- condition of habitual residence in the State. able amount and his capital must not exceed a specified amount. According to section 4(3) of the 1995 Act, the benefit payable consists of a fixed amount, 4if the 1 — Original language: Spanish. 2 — 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). 3 — Council Directive 68/360/EEC of 15 October 1968 on the 4 — In reply to the question I put to him at the hearing, the Agent abolition of restrictions on movement and residence within for the United Kingdom said that, in 1998, the benefit the Community for workers of Member States and their amounted to GBP 50 per week. It seems that it is paid out families (OJ, English Special Edition 1968 (II), p. 485). until the beneficiary finds work.

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claimant has no income, or otherwise the ...'. amount by which that amount exceeds the claimant's income. Under section 1(2)(i), the only condition relating to residence is that the claimant 'is in Great Britain'.

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studied history and worked as a teacher. I I I— The questions referred for a pre- Upon being refused the right of permanent liminary ruling residence in South Africa, he returned to the United States of America, where he worked for six months part-time in sales and for six months as a history teacher. He then decided to settle in the United Kingdom. In February 1998 he obtained a new Irish 9. Mr Collins appealed to the Social passport. Security Commissioner who, before making a decision on the substance of the case, decided to refer the following questions to the Court of Justice for a preliminary ruling:

7. He arrived in the United Kingdom on 31 May 1998 travelling on a return air ticket as it was cheaper than a single ticket, bringing his personal possessions with him, with the intention of finding work in '1. Is a person in the circumstances of the the social services sector. On 8 June he claimant in the present case a worker for claimed jobseeker's allowance on the the purposes of Regulation No 1612/68...? ground that he lacked financial resources. Following investigations, including an interview with the claimant on 1 July 1998, the competent authorities refused to grant him the allowance because he was not habitually resident in the United Kingdom.

Article 10a of Regulation No 1408/71 8

2. He shall enjoy the same social and tax advantages as national workers.

'1. Notwithstanding the provisions of Arti- cle 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legisla- tion of that State, provided that such benefits are listed in Annex IIa. Such Article 18 EC benefits shall be granted by and at the expense of the institution of the place of residence.

'1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to ..., the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

8 — Regulation (EE C ) No 1 4 0 8 / 7 1on the application or social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated bv Council Regula- tion (LLC) No 2001/85 of 2 June 1983 (OJ 1983 L 230, p. 6). Article !0a was introduced bv Council Regulation ( LLC) No 124 "792 of 30 April 1992 (ÒJ 1992 L 136, p. 1).

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12. Mr Collins claims that, as a person actively seeking employment, he is a 'worker' within the scope of Regulation No 1612/68 and he has the right to stay in the United Kingdom pursuant to Directive 68/360. He is also resident in the United Kingdom for the purposes of Regulation No 1408/71, so that the requirement as to 14. So far as concerns the second question, residence for a lengthy period in that State the two governments and the Commission in order to be eligible for the abovemen- are in agreement that it is under Article 39 tioned allowance constitutes discrimination EC that a national of a Member State may based on nationality, prohibited by Ar- reside in another Member State while ticle 39 EC. He also takes the view that seeking employment for as long as the Articles 12 EC and 17 EC preclude making search continues, rather than under Direct- it a condition for persons who do not have ive 68/360, which applies only to persons British nationality, but who are nationals of who have found employment.

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A — Legal nature of the allowance at issue in Community law 16. The Commission, however, argues that Mr Collins, who is a citizen of the Union, was lawfully resident in the United King- dom in his capacity as a work-seeker and, as such, was entitled to the protection of 17. Before examining the questions Article 12 EC against any discrimination on referred by the Social Security Commis- grounds of nationality in any situation sioner adjudicating on the substance, it is governed by Community law. It maintains appropriate to define the legal nature of the that the allowance at issue constitutes a allowance at issue in Community law. financial benefit granted to those seeking work which must be regarded as a social advantage within the meaning of Article 7 (2) of Regulation No 1612/68 falling within the material scope of Community law. But even if that should not be the case, the right 18. According to the Court's case-law, to move freely in order to seek work whilst the fact that a national law or contributes significantly towards ensuring regulation has not been mentioned in the the effectiveness of the fundamental right of declarations referred to in Article 5 of freedom of movement for workers. The Regulation No 1408/71 is not of itself possibility of acceding to a form of financial proof that that law or regulation does not benefit such as the allowance at issue, fall within the field of application of the which is designed to help work-seekers regulation, the fact that a Member State has

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Income-based jobseeker's allowance is listed in Annex IIa(0)(United Kingdom) (h) 10 of Regulation No 1408/71. 11It must therefore be considered to be a social security benefit falling within the material scope thereof. 20. The allowance is granted to unem- ployed persons resident in the United Kingdom who are available for work, actively seeking employment, have entered into a jobseeker's agreement and whose earnings must not be in excess of a specified 19. This does not preclude its falling within amount. Its characteristics thus correspond the scope, at the same time, of Article 7(2) to the definition for social advantage laid of Regulation No 1612/68. The Court of down in Article 7(2) of Regulation No Justice has defined as a social advantage 1612/68, so that the State of employment within the meaning of that provision all the must grant it to workers who are nationals advantages which, whether or not linked to of another Member State under the same a contract of employment, are generally conditions as for its own nationals, in view granted to national workers primarily of the fact that the Court of Justice, in its because of their objective status as workers case-law, has ruled out as discriminatory or by virtue of the mere fact of their any requirement as to nationality, residence or duration of employment in order to be entitled to it. 13 9 — Case 35/77 Beerens [1977] ECR 2249, paragraph 9; Case C-251/89 Atlianasopmilos and Others [1991] ECR I-2797, paragraph 28; Joined Cases C-88/95, C-102/95 and C-103/95 Martínez Losada and Others [1997] ECR I-869, paragraph 21. 12 — Case 207/78 Ministère Public v Even [1979] ECR 2019, paragraph 22; Case 65/81 Reina v Landeskreditbank 10 — Under Article 5 of Regulation No 1408/71, the Member Baden-Württemberg [1982] ECR 33, paragraph 12; Case States are to specify the legislation and schemes referred to 261/83 Castelii v ONTPS [1984] ECR 3199, paragraph in Article 4(1) and (2), the special non-contributory 11; Case 249/83 Hoeckx [1985] ECR 973, paragraph 20; benefits referred to in Article 4(2a), the minimum benefits Case 122/84 Scrivner v Centre public d'aide sociale de referred to in Article 50 and the benefits referred to in Chastre [1985] ECR 1027, paragraph 24; Case 94/84 Articles 77 and 78 in declarations to be notified and ONEM v Deak [1985] ECR 1873, paragraph 21; Case published in accordance with Article 97. C-310/91 Schmid [1993] ECR I-3011, paragraph 18; Case 11 —As worded in Council Regulation (EC) No 118/97 of 2 C-85/96 Martinez Sala [1998] ECR I-2691, paragraph 25. December 1996 amending and updating Regulation (EEC) 13 — See, among others, Case C-326/90 Commission v Belgium No 1408/71 on the application of social security schemes [1992] ECR I-5517, concerning the guaranteed income for to employed persons, to self-employed persons and to old people and the minimum means of subsistence, Case members of their families moving within the Community C-185/96 Commission v Greece [1998] ECR I-6601, and Regulation (EEC) No 574/72 laying down the concerning benefits for large families; and Case C-299/01 procedure for implementing Regulation (EEC) No Commission v Luxembourg [2002] ECR I-5899, concern- 1408/71 (OJ 1997 L 28, p. 1). ing the grant of a guaranteed minimum income.

24. The Community legislature intended Part I of Title I of Regulation No 1612/68, B — The first question which runs from Article 1 to Article 6, to regulate access of Community nationals to employment in the territory of any of the Member States. That provision, which applies to '[a]ny national of a Member State', confers on the citizens of the Union the right to take up any employment offered 22. The Social Security Commissioner in any Member State under the same seeks to ascertain, first, whether a national conditions as its own nationals and to of a Member State who enters the territory receive the same assistance afforded by the of another Member State with the intention employment offices. of seeking paid employment must be considered to be a worker for the purposes of Regulation No 1612/68. 15 — Case C-369/90 Michelettiand Others [1992] ECR I-4239, paragraph 10. 16 — In reply to a question put to him at the hearing, counsel for M r .Collins confirmed that his client had never lived in 14 — Case C-111/91 Commission v Luxembourg [1993] ECR Ireland, a country which he had visited on three occasions I-817, paragraph 21, and Martínez Sala, paragraph 27. for periods of, at most, 10 days.

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Under those provisions, Mr Collins could return for which he receives remunera- claim the right to receive the same assis- tion. 17 tance as unemployed persons resident in the United Kingdom and to take up, under the same conditions, any of the available jobs which, it would appear, he managed to do after two months of looking for work.

26. Title II, which runs from Article 7 to Article 9, concerns employment and equal- ity of treatment and provides for the rights of 'workers' who are nationals of a 28. That view was taken by the Court in Member State. Lebon, 18in which the question raised was as to whether equal treatment with regard to social and tax advantages, laid down by Article 7(2) of Regulation No 1612/68, also applies to persons who move in search of employment. The Court considered that the The Court has held that the concept of right to equal treatment applies only to 'worker', within the meaning of Article 39 workers since those who move in search of EC and Regulation No 1612/68, has a employment qualify for equal treatment specific Community meaning and must not only in accordance with Article 39 EC be interpreted narrowly. Any person who and Articles 2 and 5 of Regulation No pursues activities which are effective and 1612/68. genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be 17 — Case 66/85 Lawrie-Blum v Land Baden-Württemberg regarded as a 'worker'. The essential feature [1986] ECR 2121, paragraphs 16 and 17; Case 344/87 Bettmy v Staatssecretaris van Justitie [1989] ECR 1621, of an employment relationship is, according paragraphs 11 and 12; Case C-357/89 Raulin [1992] ECR I-1027, paragraph 10; Case C-3/90 Bernini [1992] ECR to that case-law, that for a certain period of I-1071, paragraph 14; Martinez Sala, paragraph 32; and time a person performs services for and Case C-337/97 Meeusen [1999] ECR I-3289, paragraph under the direction of another person in 18 — Case 316/85 Lebon [1987] ECR 2811.

30. Martínez Sala concerned a Spanish national who had lived in Germany since May 1968, when she was 12 years old. She had various jobs there at intervals between 1976 and 1986. She was in employment again from 12 September 1989 to 24 I share the view of the Commission in that October 1989 and, since then, was in that phrase must not be taken out of receipt of social assistance benefits. Until context and that it was not intended to May 1984, she obtained residence permits. overrule earlier decisions. 21 It must also be Thereafter, she obtained only documents borne in mind that just about a year ago the certifying that the extension of her resi- Court pointed out that it had consistently dence permit had been applied for until, in held that the application of Community law April 1994, she was issued with a permit on freedom of movement for workers in for one year, extended for a further year.

At least not yet. The relatively vague and non- origin of the right of residence in national law, Community binding character of the coordination measures adopted in law or international law was irrelevant. In sum, the rights the field of employment policy, pursuant to the new granted to workers by Regulations 1408/71 and 1612/68 provisions introduced by the Amsterdam Treaty, confirms are available to all Union citizens lawfully resident in the this assertion. This case [C-278/94] is a good example of host Member State. It follows that the Court's ruling in the moderate character of the Court's case law on free Lair and Lebon are old history.'; Whelan, A., in Revue des movement of workers. The Court is not willing to impose affaires européennes 1999, pp. 228 to 238, especially on a Member State the duty to finance the integration in its p. 232: '.

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31. The question raised by the national relationship has ended, and, secondly, that court was whether a national of one anyone genuinely seeking work must also Member State who resides in another be classified as a worker. Member State, where he is employed and subsequently receives social assistance ben- efits, has the status of worker within the meaning of Regulation No 1612/68.

33. It may be supposed that, if it had been shown that the person concerned was seeking employment, she would have been considered to be a worker under Article 39 In that context, the Court set out, in EC and Regulation No 1612/68 in view of paragraph 32, the classic definition of the fact that, during the lengthy period in 'worker' for the purpose of Article 39 EC which she resided in Germany, she had held and of Regulation No 1612/68 and pro- various posts, the host State's authorities ceeded to make the controversial statement, had granted her successive residence per- lending support, in the next paragraph, to mits, she had lost her job in that State and the finding in Lebon, that migrant workers' she had received social assistance benefits. descendants do not retain the right to equal As has been said, a migrant worker who treatment under Article 7(2) of Regulation becomes unemployed in the host State does No 1612/68 with regard to a social benefit not lose that status by reason of no longer provided for by the legislation of the host performing services for and under the Member State if they have reached the age direction of another person in return for of 21 and do not have the status of workers. which he receives remuneration.

C — The second question

Under Article 2, all the States of the European Union are to grant Community 36. Next, the Social Security Commis- nationals the right to leave their territory in sioner seeks to ascertain, in the event that order to take up activities as employed the answer to the first question is not in the persons and to pursue such activities in the affirmative, whether a person who arrives territory of another Member State. Article 3 in the territory of a Member State with the requires the national authorities to allow intention of seeking employment has a right such persons to enter their territory simply to reside within its territory pursuant to on production of a valid identity card or Directive 68/360/EEC. passport.

37. That directive, which was adopted at 39. The rights of persons moving to the same time as Regulation No 1612/68, another Member State in search of employ- specifically governs the movement and ment, to whom Part I of Title I of residence within the territory of the Com- Regulation No 1612/68 applies, would munity of persons benefiting from the appear to be restricted to those provided freedom of movement for workers. for in the first three articles of Directive 68/360.

38. According to the preamble to Directive 40. Thus, Article 4, which lays down the 68/360, its purpose is the adoption of obligations incumbent on the Member measures'which conform to the rights and States with regard to the right of residence,

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certain rights benefiting nationals of Mem- 44. Thus, according to the case-law of the ber States in the context of the freedom of Court of Justice, as a national of a Member movement for workers and that that free- State actively seeking employment, Mr dom also entails the right for nationals of Collins had the right to reside in the United Member States to move freely within the Kingdom for that purpose, pursuant to territory of the other Member States and to Article 39 EC, for at least six months. stay there for the purposes of seeking employment. 26

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47. In the order for reference, the Social reason of the fact that it is listed in Annex Security Commissioner discounted that Mr IIa(0)(United Kingdom)(h) of Regulation Collins was intending to establish himself in No 1408/71, governed by the coordination the United Kingdom as a provider of social rules of Article 10a and constitutes a special services and declared himself satisfied that non-contributory benefit within the mean- his intention was to find paid employ- ing of Article 4(2a). 30 ment. 29 For that reason, his application for jobseeker's allowance could fall within the ambit of either Regulation No 1408/71 or Article 18 EC in relation to the principle prohibiting discrimination on the ground of nationality.

Under Article 10a(1) of Regulation No 1408/71, payment of a benefit such as the 48. It is not clear from the information allowance at issue is conditional upon the provided to the Court that Regulation No claimant residing in the territory of the 1408/71 applies to the dispute in the main Member State under whose legislation he is proceedings, although the Social Security entitled to that benefit. 31 Where entitle- Commissioner states that the claimant ment to that benefit is made subject to probably comes within the personal scope completion of a period of residence, thereof. Article 10a(2) requires periods of residence completed in the territory of any other Member State to be taken into account.

Taking that as a starting point, then, I will examine whether that regulation grants someone in Mr Collins' circumstances the right to claim the allowance at issue.

since he cannot demonstrate that he has term 'residence' for the purposes of that completed periods of residence in other regulation means habitual residence and Member States. It remains to consider therefore has a Community-wide meaning. whether, despite that fact, he must be It has also ruled that the phrase 'the granted the allowance. Member State in which they reside' in Article 10a of Regulation No 1408/71 refers to the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found. In that context, account should be taken in particular of the person's family situation; the reasons which have led him to 51. The United Kingdom legislation not move; the length and continuity of his only complies with Article 10a of Regula­ residence; the fact (where this is the case) tion No 1408/71 in not granting the that he is in stable employment; and his allowance to persons not resident in its intention as it appears from all the circum­ territory, it also refuses to grant it to those stances, while the length of residence in the who, even when they firmly intend to live in Member State in which payment of a the country, cannot demonstrate comple­ benefit is sought cannot be regarded as an tion of a period of habitual residence 32 intrinsic element of the concept of residence before claiming the allowance. 33 within the meaning of Article 10a of Regulation No 1408/71. 34

52. The Court has held that, pursuant to Article 1(h) of Regulation No 1408/71, the

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has been developed by Articles 39 EC to 42 58. The Court has recently held that the EC and by acts of the Community institu- right to reside within the territory of the tions adopted on the basis of those articles, Member States under Article 18(1) EC is and in particular by Regulation No conferred directly on every citizen of the 1612/68 and Regulation (EEC) No Union by a clear and precise provision of 1408/71. 39 the EC Treaty, despite the fact that that right is recognised subject to the limitations and conditions laid down by that Treaty and by the measures adopted to give it effect, and that, since it is subject to judicial review, any limitations and conditions imposed on that right do not prevent the provisions of Article 18(1) EC from con- ferring on individuals rights which are 57. According to the recent case-law of the enforceable by them and which the national Court, Article 18 EC, which sets out courts must protect. 41 generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC in relation to the freedom of movement for workers, so that, where a case falls within the scope of the latter provision, it is not necessary to rule on the interpretation of Article 18 EC. 40 Stria observance of that rule would entail suggesting that the Court need not address this matter.

61. I would point out, by way of illustra- tion of the present state of secondary legislation, that Directive 68/360 requires the Member States to allow the family of workers who move in order to pursue activities as employed persons to enter their 60. Among the provisions adopted for the territory and that Directive 73/148 confers application of the Treaty in this field are the the same advantage to persons wishing to abovementioned Regulations Nos 1612/68 establish themselves in a Member State in and 1408/71. They both prohibit discrim- order to pursue activities as self-employed ination on grounds of nationality, the persons. However, such a possibility is not former in Articles 1 and 7 and the latter conferred on a person who moves in search in Article 3. However, as I have said above, of employment. with regard to Regulation No 1612/68, the principle of equal treatment as regards access to employment benefits those who move in order to seek work, while the prohibition of discrimination in working conditions or return to work is restricted to With regard to Article 18(1) EC, the Court those persons in employment or who have has held that, since the entry into force of become unemployed. 44 For its part, Regu- the Treaty on European Union, the right of lation No 1408/71 does not grant entitle- residence, conferred directly by the EC ment to benefits on equal terms to all Treaty, is no longer subject to the condition Community nationals by the mere fact that that the person concerned carry on an they reside in a Member State either, but economic activity within the meaning of only to those who fall within its personal Articles 39 EC, 43 EC and 49 EC, 46 so that the family of a worker seeking employment could join him provided that its members were capable of exercising that right in their 43 — Case 807/79 Cravina [1980] ECR 2205, paragraph 7; Case 41/84 Pinna [1986] ECR 1, paragraph 20; Case 313/86 Lenoir [1988] ECR 5391, paragraph 13; and Case C-68/99 Commission v Germany [2001] ECR I-1865, paragraph 22.

. . ne ment — à travers la citoyenneté de l'Union —Ie champ des pourraient pas bénéficier de l'égalité de traitement. . . en bénéficiaires des avantages sociaux reviendrait. . . à admet- qualité de citoyens de l'Union résidant légalement sur le tre que le contenu d'un texte de droit dérivé, pourtant territoire d'un État membre.

. .), qui serait primaire. On notera aussi que cette évolution affecterait refusé à certains demandeurs sur le fondement des règles de profondément le sens de la définition des avantages coordination, pourrait ainsi être rétabli par le recours à la sociaux, fondée sur un lien entre le bénéficiaire et l'exercice qualité de citoyen de l'Union . . .'. d'une activité professionnelle présente ou passée'. 46 — Baumbast and R, paragraph 81.

47 — Council Directive 90/364/EEC of 28 June 1990 on the right of residence [OJ 1990 1. 180, p. 261. 48 — Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who 63. Following the judgment in Martinez have ceased their occupational activity (OJ 1990 L 180. p. 28). Sola, many authors have taken the view 49 — Council Directive 93/96/EEC of 29 October 1993 on the that, as a result of the recognition in the right of residence for students (OJ 1993 L 317, p. S9Į. That provision replaced Directive 90/366/ĽEC of 28 June 1990 Treaty of the right of citizenship, the (OJ 1990 L 180, p. 30), of identical aim, which was annulled by the Court of Justice in Case C-295/90 Member States are required, in every case, Parliament v Council [1992] ECU I-4193 for failing to be to treat any Community national who is adopted on a proper legal basis. The Court decided to maintain in force provisionally the entire effects of the legally in their territories as they would any annulled directive until such time as the Council replaced it with a new one adopted on a proper legal basis. of their own nationals, including with 50 — Tonnischat, C , in Common Market LAW Review 2000, respect to both social advantages under pp. 449 to 457, especially p. 454: 'It is not without reason that the three directives winch have extended freedom of movement to all other citizens of the Union... have set forth that the groups of persons concerned mav rely on that freedom only if they nave adequate financial resources and are covered by sickness insurance. These conditions and 51 — Case C-257/00 Ghane [2003] ECR I-345. limitations have been constitutionahsed by Article 18. They 52 — The case concerned Indian nationals who were family indicate that Member States have not been willing to admit members of a worker of Portuguese nationality who had foreigners on their territory who, although they are citizens died i n the United Kingdom. The judgment does not, or the Union, may become a burden on the public welfare however, draw a distinction between family members who systems of a receiving State'. are Community nationals and third-country nationals.

53 — Fries, S. and Shaw, J., op. cit., p. 552: 'In fact, by 65. However, that statement must not be employing a novel combination of the principles of ratione taken out of its context, which may be materiae and ratione personae to bring the type of humanitarian issue which Martinez Sala itself in reality characterised as follows: (a) the benefit involves, the ECJ has ended up also restricting another being claimed fulfilled simultaneously the freedom which the Member States still thought they had: to identify, define and deal with a mischief conventionally conditions for granting as a social advan- known as "benefit tourism"'. Jacqueson, C, op. cit., p. 267: 'The [Martinez] Sala ruling entrenched "something tage within the meaning of Article 7(2) of close to a universal non-discrimination right including access to all welfare benefits.

. . the host State for several years, the Court or, at least, on their status of citizens on the Union according to the [Martinez] Sala ruling.'; Whelan, A., did not have sufficient information to op. cit., p. 232: '. . . constitutes a considerable broadening of the rights of free movement of the unemployed which, enable it to determine whether those two combined with Regulation No 1612/68, could substan- provisions were applicable; (c) Ms Martinez tially reduce the effect of the restrictive conditions for residence rights under Directive 90/364/EEC by enabling Sala had arrived in the country at the age of those who are genuinely, if fruitlessly, seeking work to have recourse in the host State to social advantages such as 12, resided 25 years in its territory, had two a minimum subsistence allowance without fear of deporta- children and had been in receipt of social

There is, possibly, raising allowance on the ground that she just one field where equality may be lacking, namely where financial benefits are at stake'. did not possess the nationality of the host State, a residence entitlement or a residence 54 — I am somewhat perplexed by the Commission's argument, permit; and (e) it was made clear, in the in reply to the first question, that Mr Collins, as someone who has moved in search of work, is not entitled to a social course of proceedings, that the national advantage such as the income-based jobseeker's allowance whereas, when analysing the third question, it takes the view that he is entitled to it on the ground that access to a benefit of that type is sufficiently closely linked to the exercise of the right to freedom of movement as to be included within the material scope of Community law. 55 — Cited above.

authorities required foreigners to produce a out any further ado, obtain the benefit. 57 In document which was constitutive of a right, my view, that assessment must be kept issued by its own authorities, when no such within the bounds of the facts in the main document was required of nationals of the proceedings: a French national moved to host State. Belgium to pursue university studies; during the first three years of his studies, he defrayed his own costs of maintenance, accommodation and studies by taking on various minor jobs and by obtaining credit facilities; and at the beginning of his fourth and final year of study, he applied for payment of the minimex because, as a result It is no wonder, then, that the Court should of having to write a dissertation and have resorted to Article 17(2) EC and complete a period of practical training, the Article 12 EC to preclude such discrimin- final year of study would be more demand- ation on grounds of nationality against a ing than the previous years. The competent Community national who had lived in the authority initially granted the benefit for host State for almost all of her life. the period from October 1998 to June 1999, but the ministry subsequently refused it on the ground that the claimant was a national of another Member State who was enrolled as a student. The Belgian court argued that he did not meet the criteria to be considered a worker within the meaning 66. Grzelczyk 56 was a similar case in of Regulation No 1612/68. which the Court ruled that Articles 12 EC and 17 EC preclude entitlement to a non- contributory social benefit, such as the minimex, from being made conditional, in the case of nationals of Member States other than the host State where they are legally resident, on their falling within the scope of Regulation No 1612/68 when no such condition applies to nationals of the 68. The Court has acknowledged that host Member State. Article 1 of Directive 93/96 allows Member States to require of students who are nationals of a different Member State and who wish to exercise the right of residence on their territory that they satisfy the relevant national authority, by means of a declaration, that they have sufficient 67. That broad statement does not mean that, from then on, any Community national could settle in Belgium and, with- 57 — Kessler, F.: 'Conditions d'attribution d'un revenu mini- mum à un étudiant européen' in Revue de jurisprudence sociale 2002, pp. 11 to 13, especially p. 12: '... la Cour s'oblige ... à des contorsions juridiques et notamment à des déductions à contrario des silences de l'article 3 de la 56 — Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph directive 93/96, afin de faire entrer le cas soumis dans le 46. champ d'application de la règle de non-discrimination'.

However, it overcame that difficulty 59 by considering that: (a) a student's financial position may change with the passage of time for reasons beyond his control so that the truthfulness of a student's declaration is therefore to be assessed only as at the time when it is made; (b) any measures which a Member State adopts in order either to 69. It therefore seems unlikely, in the withdraw his residence permit or not to context of that case-law, that Mr Collins renew it can never be the automatic is entitled to the income-based jobseeker's consequence of a student having recourse allowance, since Community secondary to the host Member State's social assistance legislation, subject to which he may exercise system; (c) whilst Article 4 of Directive his right of movement and residence, places him on the same footing as nationals of the relevant Member State as regards access to 58 — Ibidem, paragraphs 38 and 42. job vacancies and the assistance provided 59 — Kessler, F., op. cit., p. 13: '... la Cour en fait trop: à force de by employment offices but not as regards vouloir à tout prix imposer une égalité de traitement sur la the unemployment benefits which the host base des dispositions du traité relatives à la citoyenneté européenne, la cohérence de son raisonnement en souffre'; State provides for persons who not only are Martin, D.: 'A Big Step Forward for Union Citizens, but a Step Backwards for Legal Coherence' in European Journal actively seeking employment and have of Migration and Law 2002, volume 4, pp. 136 to 144, inadequate financial means but can also especially p. 139: '... the Grzelczyk judgment can already be pinpointed as a landmark judgment, the conclusion of prove to have a certain connection with the which is likely to please European Union citizens willing to exercise their right to free movement, and as likely to greatly displease most Member States. Whatever his/her personal feeling as to the conclusion reached by the Court, the lawyer's reaction might be of some perplexity as to the reasoning used'. 60 — Ibidem, paragraphs 29 and 43 to 45.

I would point out that, on 29 June 2001, the Commission submitted a proposal for a European Parliament and Council Directive 70. The Court has confirmed in its case- on the right of citizens of the Union and law that the limitations and conditions their family members to move and reside which are referred to in Article 18 EC are freely within the territory of the Member based on the idea that the exercise of the States,62which has as its legal basis, among right of residence of citizens of the Union others, Articles 12 EC and 18 EC and can be subordinated to the legitimate which seeks to reconsider the sectorial and interests of the Member States, 66 and that fragmented approach of the right of free- those limitations and conditions must be dom of movement and residence, as gov- applied in compliance with the limits erned by secondary legislation. 63 However, imposed by Community law and in accord- I would observe that Regulation No ance with the general principles of that law, 1612/68 is not among the provisions which in particular the principle of proportional- would be repealed with its entry into force ity. That means that national measures and that, in Chapter V, Common provi- sions — Right of residence and right of permanent residence, Article 21(2), which deals with equal treatment, provides that, 64 — Martin, D., op. cit., p. 143: 'If this provision is adopted without modification, it will mean that after the entry into until permanent residence status is force or the directive "another Mr. Grzelczyk" will legally acquired, the host Member State is not be deprived, in the same factual situation, of the benefit of this judgment'. required to accord entitlement either to any 65 — The Council's internet page concerning the co-decision benefit by way of social assistance or procedure, www.consilium.eu. int/codec/en/index.htm, indicates that the Commission will submit an amended sickness insurance to persons who are proposal as a result of the first reading by the European

. . . mais entitled to move to other Member States in search of work les citoyens de l'Union Européenne établis dans un état and receive unemployment benefit from them for a membre dont ils ne sont pas ressortissants demeurent dans maximum of three months could claim, m the United une situation spécifique (obligation de solliciter un titre de Kingdom, payment of the difference between the amount séjour, exposition à des mesures d'éloignement pour des of such unemployment benefit and the allowance at issue, raisons d'ordre public, de sécurité publique ou de santé where the latter is greater. publique, droit de vote limité au niveau municipal, absence d'accès aux emplois comportant une "participation directe 62 — C O M (20011 257 final — 2001/0111(COD).

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adopted on that subject must be necessary of the same treatment in law in the exercise and appropriate to attain the objective of the citizen's freedom to move. 69 pursued. 67

69 — Ibidem, paragraphs 33 to 35. 67 — Baumbast, cited above, paragraphs 90 and 91. 70 — Ibidem, paragraphs 38 and 39. 68 — Cited above. 71 — Cited above, paragraphs 92 and 93.

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by comprehensive sickness insurance in from State to State with the purpose of another Member State of the Union, where taking advantage of non-contributory bene- the only reason for refusing him his right fits, and in order to prevent abuses. 72I do was that the sickness insurance, arranged in not believe that that condition goes beyond accordance with Directive 90/364, did not what is necessary to attain the objective cover the emergency treatment given in the pursued since it is applied after examination host Member State. of claimants' personal circumstances in each case.

72 — Ciosa, C: 'The Concept of Citizenship in the Treaty on European Union' in Common Market Law Review 1992, pp. 1137 to 1169, especially p. 1162: 'Two provisions of this article (18 CE, § 2) are relevant. Firstly, these are not unlimited rights... Secondly, the remission to secondary legislation is based on a preoccupation to ensure an equitable distribution of charges particularly regarding social protection. This reflected the fears of eventual pressures on the more generous social systems which 75. In the present case, however, I take the appeared in the wording of the initial draft. Although this reference was eliminated afterwards, this concern underlies view that a condition as to residence, which the final wording'; and Tomuschat, C, op. cit., p. 455: 'Social welfare benefits arc indeed the crux of the matter, is intended to ascertain the degree of benefits which have not been earned by the claimant on account of his or her participation in the collective work connection with the State and the links process of a given society, albeit sometimes under a which the claimant has with the domestic tenuous linkage... A person who is not actively involved in economic life must take care of his or her vital necessities employment market, may be justified in in a manner congruent with taking his or her own responsibility, without enjoying the right to rely on public order to avoid what has come to be known funds of the State of residence. In this regard, the Treaty as 'benefit tourism', where persons move itself establishes that non-discrimination does not apply'.

(3) Community law as it now stands does not require that an income-based social security benefit, intended for jobseekers, be provided to a citizen of the Union who enters the territory of a Member State with the purpose of seeking employment while lacking any connection with the State or link with the domestic employment market.

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