The
posts this week introduced European Union law and the four fundamental freedoms
all European Union citizens have. The focus for the last three posts is on free
movement of persons. So far, European Union treaty law seems to only
acknowledge a set of limited rights. In tune with this, the European Court of
Justice seems to have a very narrow interpretation of these rights. It is time
now to present art. 18 TFEU (principle of non-discrimination) and examine
whether the ECJ is more generous when interpreting this text.
The European Court of Justice, free
movement of persons and citizenship: art. 18 TFEU (principle of
non-discrimination)
The European Court of
Justice has developed a different line of interpretation about equal treatment
for Union citizens lying outside formal terms of arts. 21-24 TFEU.
Martinez Sala (C-85/96): on the basis of Union law
could an unemployed Spanish national, residing in Germany, who was legally
entitled to reside there under a provision of international law (here, the
European Convention on Medical and Social Assistance), claim a child-raising
benefit open solely to German nationals and foreign nationals having a German
residence permit.
1)
Mere fact of her
lawful residence, here under a provision of international law, was sufficient
to attest to exercise of her right to free movement under art. 21 TFEU. This
brought her within the personal scope of the Treaty.
2)
Because of this
she was able to invoke general non-discrimination in art. 18 TFEU in respect of
any situation falling within the material scope of the Treaty.
As a Union citizen, lawfully residing in a Member
State, Martinez Sala was able to claim the benefit because it fell within the
scope of Union law and was, thus, subject to general non-discrimination
principle in art. 18 TFEU.
In Grzelczyk (C-184/99), a French national studying
in Belgium who had previously worked there and applied for minimex, a minimum
subsistence allowance. The benefit was open to all Belgian nationals and to all
Community nationals qualifying as workers. Therefore, the Belgian authorities
refused the application.
The ECJ stated that Grzelczyk was entitled to
minimex based on wider reasoning than that adopted in Martinez Sala. A Union
citizen, lawfully resident in territory of host Member State is able to rely on
art. 18 TFEU in all those situations falling within material scope of E.U. law.
Following Grzelczyk, it seems that a Union citizen
who is lawfully resident in another Member State, either under provisions of
national, European or international law, will be seen to have exercised the
right to free movement under art. 21 TFEU.
As a result, the citizen may rely on art. 18 TFEU,
a general right of non-discrimination in relation to nationals, to claim all
those advantages that fall within the material scope of European Union law.
In Collins (C-138/02), an Irish jobseeker in the
United Kingdom claimed for jobseeker’s allowance. The claim was refused by
British authorities on ground he was not habitually resident in the United
Kingdom.
Collins fell into the personal scope and the
benefit fell into material scope of European Union law. In other words,
lawfully in United Kingdom as jobseeker and the benefit being linked to his
fundamental right to move and reside freely in another Member State (art. 18 TFEU),
was able in principle to enjoy same treatment in law, irrespective of his nationality,
in claiming this benefit intended to facilitate his access to employment
market.
NOTE: “The right to equal treatment…does not
preclude national legislation which makes entitlement to a jobseeker’s
allowance conditional on a residence requirement, in so far as that requirement
may be justified on the basis of objective considerations (i.e. the need to
show a genuine link between the person seeking work and the geographic
employment market of the State) that are independent of the nationality of the
persons concerned and proportionate to the legitimate aim of the national
provisions.”
There are many other cases that indicate the broad
interpretation of art. 18 TFEU by the European Court if Justice: Bidar
(C-209/03), Ioannidis (C-258/04), Forster (C-158/07), etc.
Jorge
Emilio Núñez
Twitter: @London1701 05th July 2018
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