Question 6 In France, jobseekers who are in need of assistance may apply for the ‘basic benefits provision’ in order, inter alia, to meet their subsistence needs. The benefits granted thereunder are intended to enable recipients to lead a life in keeping with human dignity and are intended to cover basic subsistence needs, accommodation and heating needs.
Ms Popescu and her infant son, both Romanian nationals, were refused by a local job centre the basic benefits provision. Ms Popescu and her son (who was born in France) have been living in France in the apartment of one of Ms Popescu’s sisters, who provides them with food and lodging. Ms Popescu has no professional qualifications and, up until now, has not pursued any professional activity, either in France or in Romania.
LA3024 EU law 6 Ms Popescu instructs you as a lawyer as to challenge the decision of the national authority to deny her and her son the ‘basic provision’.
Ms Popescu is entitled to this benefits provision since appears to be non contributory. She is there as a worker because she is seeking work. She is a worker even though she has not found work so far.
The sole reason for denying her this is her nationality. As per Grzekczyk this is now allowed. Furthermore, her son is French. Social advantages must be available to citizens of other EU countries. It appears that they do not need this benefit so much since Ms Popescu’s sister provides for her but this makes no odds.
The EU concept of common citizenship as established at the Treaty of Maastricht 1993 is pertinent here. She has the right to live in France. This can only be denied her on limited grounds such as public healthy, public security or public policy. If she fails to find work in 6 months they could remove her but this is very rare.
She can cite the charter of fundamental of rights as well. In Dano on similar facts Germany was able to deny benefits.
The Dereci case was about someone living in Austria. Dereci’s relatives who were Turkish wanted to dwell in Austria with him. This was refused. This is analgous to Popescu’s case.
One of the directives she relies on from 2004. This is contingent on her not being a burden on the state. This undermines her case.
Dano and Dano v Leipzing Socialgericht is the more pertinent. In this case the court held that the couple who were economically inactive citizens of another EU state living in Germany were not entitled to benefits.
In the UK migrants have to work for 6 months before claiming benefits.
The Zambrano case established that the parent of a citizen of EU has the right to reside in an EU member state. This may not seem directly pertinent since the mum is an EU citizen anyway. However, the son is French so this strenghtens the mum;s right even more. Article 20 and 21 of TFEU also work in their favour. The child has the absolute right to live in France and his mother is his main carer. They can therefore avail themselves of the right to family life as provided for in the European Convention on Human Rights likewise the European Charter of Fundamental Freedoms.
The Garcia Avello case shows that EU member states cannot restrict the rights of dual nationals. This relates to changing a name.
Ms Popescu will probably win.
General remarks This question tests your knowledge of free movement of workers and citizenship.
Law cases, reports and other references the examiners would expect you to use Case C-34/09 Zambrano; Case C-434/09 McCarthy; Case C-256/11 Dereci; Case C-333/13 Dano; Directive 2004/38 on the rights of EU citizens; Charter of Fundamental Rights.
Common errors Not referencing citizenship, not using the Directive.
A good answer to this question would… discuss the question both under Treaty provisions of free movement of workers and citizenship and under Directive 2004/38. It is difficult to argue that Ms Popescu should be considered as a worker as she never pursued an occupation in France.
Another problem is that Directive 2004/38 makes the EU rights conditional on proving that the person in question is not a burden on the state.
However, both individuals concerned are EU nationals and thus they benefit from the provisions under Articles 20 and 21 of the Treaty. You can refer to judgments such as Baumbast or Garcia Avello where the court linked the right to residence as citizens with respect for family life.
It would now be necessary to refer also to the Charter of Fundamental Rights, and in particular to the provisions dealing with family life and the protection of children, as both provisions have been employed by the Court in many judgments.
However, very good candidates would be aware of the recent judgment in Dano where the Court, on very similar facts, concluded that Germany was entitled to refuse certain kinds of welfare rights.
Poor answers to this question… limited their discussion to the free movement of workers. Did not use new cases. Were ignorant of the relevance of the Charter of Fundamental Rights.