ECJ musing (O.D. edition)

In an interesting new piece a couple of weeks back on the EU Law Analysis blog, Virginia Passalacqua writes about the case of O.D. and others, C-350/20 referred last year to the European Court of Justice.

On the face of it, it’s a fairly anodyne case about whether Italy can refuse certain maternity benefits to legal residents who are neither EU nationals nor non-EU nationals with official long-term residence status, but instead are covered by the Single Permit Directive for shorter-term resid.

Virginia seems to see it as open and shut on the basis of precedents in the cases of e.g. ‘Reina’ or ‘Commission v Greece’. I’m afraid I don’t buy this at all, as the issue in both was the exclusion of nationals of other Member States from the benefits/advantages in question. In both cases, unsurprisingly, the Court found this inimical to freedom of movement of workers. Thus in ‘Reina’

It should be recalled that Regulation No 1612/68, adopted inter alia pursuant to Article 49 of the EEC Treaty with a view to achieving freedom of movement for workers, provides, in Article 7(1) that a worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work. Paragraph 43(2) of the same article adds that such a worker is to enjoy the same social and tax advantages as national workers

and

Nor does it follow from the demographic objective pursued by means of approval of an appropriation, namely to counteract the falling birth rate, that it is necessary to reserve the advantages to German nationals. Member States may indeed pursue demographic objectives by means of social measures; however they may not assume that this gives them the right to discriminate against nationals of other Member States.

Although as an aside, if in the present case it were accepted that the purpose of the measure is demographic then it might well be seen as objectively justified to deny it to people who have no right of long-term residence. There isn’t direct discrimination on the basis of nationality of course because the benefit is available to foreign nationals if they have long-term status.

Of another previous case UB, Virginia says the ECJ “evaded its obligation to interpret Art. 34.2” but I don’t buy this either. The question put by the referring national court was whether someone was entitled to a benefit under Regulation 883/2004 ‘considered in conjunction with’ Article 34 of the Charter. The ECJ found that the benefit didn’t fall with the Regulation and so there was no need to ‘examine the question in the light of the Charter’. However, it then on its own initiative looked at Regulation 492/11 on the free movement of workers (which hadn’t been mentioned by the referring national court) and decided that the benefit amounted to a social advantage such that by virtue of that Regulation it must be extended to nationals of other Member States in order to achieve the freedom of movement for workers provided for by Art.45 TFEU. While the judgment uses the term ‘migrant workers’ several times it is clear both from the context and the references to other cases (e.g. C-410/18 Aubriet) that these must be nationals of another Member State and ‘migrant’ is used merely to distinguish EU national workers who have moved to another Member State from EU national frontier workers.

Art 34.2 of the Charter undoubtedly has a wider scope than just EU citizens, applying to “Everyone residing and moving legally within the European Union”. But it doesn’t say that everyone residing legally within the EU should have equal access to benefits, instead providing that they are entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. So that just begs the question of what are the relevant Community laws. On the face of it, I’d say not the Community laws that seek to ensure the freedom of movement of workers who are EU citizens, as migrants from outside the EU who while legally resident are not EU citizens are not covered by those laws.

There are relevant Community laws covering the treatment of people who are not EU citizens. In particular for long-term residents there is Directive 2003/109 that provides

and for the shorter-termers who appear to the subjects of this particular ECJ case the Single Permit Directive 2011/98 that provides

The language of the provisions of these two Directives differ in that long-termers get equal treatment in social security, social assistance and social protection, but short-termers equal treatment only in branches of social security as defined in Regulation 883/2004. Also for the latter group, there are exclusions for very short-termers.

So the decisive issue seems simply to be whether the benefit in question falls within Regulation 883/2004. If it doesn’t, then it seems that invoking the Charter won’t get us anywhere because it just directs us back to Community law ‘in accordance with’ which people are entitled to social security benefits and social advantages, which for the purposes of the case in question comprises the Single Permit Directive and Regulation 883/2004. There’s nothing to my mind about either law that makes it not ‘acte claire’ in these circumstances and hence needing some purposive interpretation informed by the fundamental principles of the Charter.

However, as phrased in the official English language version, the question put to the ECJ is a bit weird.

There are two questions here. 1. Whether Article 34(2) is to be interpreted as applying to benefits under Regulation 883/2004. 2. Whether therefore national legislation cannot exclude from entitlement people who hold a Single Permit under Directive 2011/98.

But this seems to put things the wrong way round. Because Directive 2011/98 entitles Single Permit holders to the benefits specified in Regulation 883/2004, Article 3 of which is below, the question is simply whether the Italian benefits in question are such benefits. If so, then it is clear that national law cannot exclude Single Permit holders as such law would not properly implement the Directive.

If instead the individuals in the case were legally residing in the EU but not under the single permit regime then that would be a different matter, and if there were lacunae that meant they weren’t obviously covered by anything specific to their status, then the question might arise as to what entitlements to what benefits are granted by Article 34(2) of the Charter, interpreted purposively.

This it seems a bit of a forlorn hope when Virginia says of the ECJ “This time, it should state clearly that migrants’ equal access to benefits is a fundamental principle of the Union”. Firstly, because it isn’t a fundamental principle of the Union — or at least the Charter doesn’t establish it as one because it provides for entitlement only in accordance with Community law. Secondly, because it appears that the facts of the case don’t require going beyond Community law then the ECJ is surely likely to follow the approach it seems to have taken in all the cases referred to by Virginia, and simply look at what Community law provides.

This isn’t at all a criticism of Virginia or her approach, but simply offered as an alternative analysis.