EU states can exclude jobseekers from certain non-contributory social security benefits

The German Federal Social Court (Bundessozialgericht) sought to ascertain whether such an exclusion is lawful concerning EU citizens who have gone to a host member state to search for employment and have already worked for a period in that state, where those benefits are granted to nationals of the host member state who are in the same situation.

In response the court held that denying EU citizens whose right of residence in the territory of a host member state arises solely out of the search for employment entitlement to certain ‘special non - contributory cash benefits’, which also constitute ‘social assistance’, does not contravene the principle of equal treatment.

This question arose in proceedings between the Jobcenter Berlin Neukölln and four Swedish nationals: Ms Alimanovic, born in Bosnia, and her three children Sonita, Valentina and Valentino, born in Germany in 1994, 1998 and 1999 respectively.

The Alimanovic family left Germany in 1999 for Sweden and returned to Germany in June 2010. Following their return, Nazifa Alimanovic and her eldest daughter Sonita worked in several temporary jobs lasting less than a year.

Since then they have not been engaged in any occupational activity. The Alimanovic family was subsequently , during the period from 1 December 2011 to 31 May 2012, paid benefits by way of basic provision , namely subsistence allowances for the long - term unemployed (Arbeitslosengeld II) payable to Nazifa Alimanovic and her daughter Sonita and social allowances for beneficiaries unfit to work for the children Valentina and Valentino.

In 2012, the Jobcenter Berlin Neukölln ceased payment of the benefits; taking the view that Ms Alimanovic and her eldest daughter were excluded from entitlement to the allowances concerned as foreign jobseekers whose right of residence arose solely out of the search for employment.

Consequently, that authority also excluded the other children from entitlement to the allowances pertaining to them.

The court noted that the benefits at issue, even if they form part of a scheme which also provides for benefits to facilitate the search for employment, are intended to cover subsistence costs for persons who cannot cover those costs themselves and are not financed through contributions, but through tax revenue. It pointed out that, as in Dano, those benefits are to be regarded as “social assistance”.

In this connection, the court recalled that in order to obtain social assistance such as that at issue in the main proceedings, an EU citizen can claim equal treatment with nationals of the host Member State only if his residence in the territory of the host member state complies with the conditions of the “Free Movement of Citizens” Directive.

The court noted that there are two possibilities for the purposes of granting a right of residence to job – seekers such as those in the present case: where an EU citizen who has enjoyed a right of residence as a worker is in involuntary unemployment after having worked for less than a year and has registered as a job – seeker with the relevant employment office, he retains the status of worker and the right of residence for no less than six months.

During that period, he can rely on the principle of equal treatment and is entitled to social assistance.

Where an EU citizen has not yet worked in the host member state or where the period of six months has elapsed, a job - seeker cannot be expelled from that member state for as long as he can provide evidence that he is continuing to seek employment and that he has a genuine chance of being engaged . However , in this case the host member state may refuse to grant any social assistance.

Lastly, the court pointed out that a member state must take account of the individual situation of the person concerned before it adopts an expulsion measure or finds that the residence of that person is placing an unreasonable burden on its social assistance system.

Nevertheless, it observed that no such individual assessment is necessary in circumstances such as those at issue in the main proceedings, since the gradual system as regards the retention of the status of “worker” provided for in the Free Movement of Citizens Directive (a system which seeks to safeguard the right of residence and access to social assistance) itself takes into consideration various factors characterising the individual situation of the applicant for social assistance.

Furthermore it stated that the issue of whether payment of social security benefits constitutes an “unreasonable burden” for a member state is to be assessed after accumulating all the individual claims submitted.