EU Case Law

The pending case Hartmann (C-212/05) is based on the refusal of the German Freistaat Bayern to give a child raising allowance for Ms. Hartmann who is an Austrian citizen living in Austria with her German husband and their three children. Ms. Hartmann is a house wife and Mr. Hartmann works in Germany for Deustche Telekom. The refusal was based on the fact that she was no longer living in Germany nor did she had a labor contract anymore in that country.

The Advocate General held in his conclusions of 28 September 2006 that the main purpose of the right to social benefits was to promote the integration of the worker into the country of employment. The situation of the frontier workers is a little bit different. As frontier workers are not living in that state, there is no need to facilitate their integration there. In his view (supported by several intervening Member States) the equal treatment for frontier workers and his family members should be limited to advantages which are closely linked to the objective status of a worker. This is not the case, according to the AG, with family benefits such as the German child raising allowance which is at stake in this case. Such benefits are linked to the purpose of integration of the family into the society and linked to social and demographic policies which are proper to a particular Member State and its territory. The AG concludes in this case that a frontier worker, who cannot invoke the provisions on export of family benefits in Regulation 1408/71 because he is not covered by it, cannot invoke Article 7 of Regulation 1612/68 either in order to claim this export.

The ECJ limits the right to equal treatment for social advantages to these advantages having a close link with the status of worker, only for former workers, whereas the AG proposes in Hartmann case to do it for all frontier workers, including those who are still economically active.

We will now have to wait for the ECJ’s view on the AG’s position, and then we will return with details on this case.

Text of the ECJ judgment
Text of the AG opinion

In this case, Mr Hosse, of German nationality, is a frontier worker employed in Austria as a teacher in the Province of Salzburg. He pays taxes and social security contributions in Austria and is affiliated to sickness insurance in that State. He resides in Germany, near the Austrian frontier, with his daughter Silvia Hosse, who is severely disabled. In those circumstances, an application was made for a care allowance under a law of the Province of Salzburg for Silvia Hosse. The application was refused on the ground that under that law the person reliant on care must have his main residence in the Province of Salzburg in order to receive the care allowance.

The ECJ ruled that the grant of sickness benefits should not be conditional on the residence of the members of the worker’s family in the Member State of the place of employment, so as not to deter Community workers from exercising their right to freedom of movement. It would therefore be contrary to the Regulation 1408/71 to deprive the daughter of a worker of a benefit she would be entitled to if she were resident in that Member State.

The ECJ concluded that, if Silvia Hosse fulfils the other conditions of grant, she can claim from the competent Austrian institution payment of a care allowance such as that at issue, in so far as she is not entitled to a similar benefit under the legislation of the State in whose territory she resides.

Text of the ECJ judgment
Text of the AG opinion

In this case, a number of EU citizens were sentenced to imprisonment in the Netherlands. They complained to the Commission about the measures taken against them by the Dutch authorities declaring them undesirable on public policy grounds.

After examining those complaints, the Commission concluded that the general legislation of the Netherlands relating to foreign nationals, which was equally applicable to nationals of other Member States, made it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion from the territory.

The ECJ started its reasoning by reiterating that EU citizenship was destined to be the fundamental status of nationals of the Member States. After that it ruled that the situation in this case was not consistent with Directive 64/221.

In fact, the ECJ by continuing its reasoning on Article 18 EC Treaty reminded that a national of a Member State might, simply by virtue of being an EU citizen, enjoy a right of residence in another Member State. The ECJ held however that this right was not unconditional. Among the limitations and conditions, Directive 64/221 permitted Member States to expel nationals of other Member States from their territory on grounds of public policy or public security, subject to compliance with the substantive and procedural safeguards laid down by that directive and with the general principles of Community law.

An interpretation to the effect that the provisions of Directive 64/221 applied only to citizens of the Union who were lawfully resident on the territory of the host Member State was not consistent with Community law.

According to the ECJ, EC law also precludes provisions of national law based on a presumption that nationals of other Member States who have received a particular sentence for specific offences must be expelled.

The ECJ conclusion was that the national legislation made it possible to establish a systematic and automatic connection between a criminal conviction and a measure ordering expulsion in respect of EU citizens.The Netherlands thereby failed to fulfill its obligations under Directive 64/221.

Text of the ECJ judgment

As has been stated by the ECJ in its ruling in Olazabal, “article 18 EC … finds specific expression in article 39 EC”. In this case it was held that the right of free movement and residence is subject to limitations and conditions laid down elsewhere in the Treaty and its secondary legislation.

Mr. Oteiza Olazabal, a Spanish national, who worked as an employee in France, was limited his right of residence to a part of French territory. Mr. Olazabal has been sentenced in France to 18 months’ imprisonment and a four-year ban on residence for conspiracy to disturb public order by intimidation or terror. The limitation of his residence right was motivated by the fact that he formed part of an armed and organized group whose activity constitutes a threat to public order in French territory. Prevention of such activity may be regarded as falling within the maintenance of public security.

The ECJ ruled that neither article 39 EC Treaty nor the provisions of secondary legislation which implement the freedom of movement for workers preclude a Member State from imposing on a migrant worker who is a national of another Member State police measures limiting his right of residence to part of the national territory.

Text of the ECJ judgment
Text of the AG opinion

In the Uecker and Jacquet cases, some of the oldest cases where the EU citizenship has been mentioned, two third-country national spouses of German nationals, who had resided and worked in Germany all their lives, attempted to rely on the same rights under EC free movement provisions as third-country nationals married to EU citizens who had previously exercised their right to free movement. With specific regard to the position of EU citizens, the ECJ held that:

“Citizenship of the Union, established by article 17 EC, is not intended to extend the ratione materiae of the Treaty also the internal situations which have no link with the Community”.

It is obvious that EU citizens have no right of free movement within their own Member State given that such a freedom necessarily pertains to wholly internal situations. It would be reluctant to admit that such a right exists.

In conclusion, a national of a Member State does not in effect become an EU citizen or able to exercise the rights that EU citizenship entails until he or she has crossed his or her own border and entered into another Member State. Even then, he or she is seemingly exercising rights of free movement that have always existed within and are dependent upon EC law. Is it any wonder that most fail to realize their status as EU citizens and in the few cases where they do, they question its relevance to their everyday lives? As was pointed out:

“Uecker has to be seen as a reminder not to overestimate the transformative effect of citizenship either.”

Text of the ECJ judgment
Text of the AG opinion