The
posts this week introduced European Union law and the four fundamental
freedoms. 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.
The 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.
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, 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.
There are many other cases that indicate the broad
interpretation of art. 18 TFEU by the European Court of Justice: Bidar
(C-209/03), Ioannidis (C-258/04), Forster (C-158/07), etc.
Wednesday 27th February 2019
Jorge Emilio Núñez
Twitter: @London1701
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