ECJ Advocate-General issues opinion on social security benefit

In July 2003, a European Court of Justice Advocate-General issued an opinion stating that Community law does not require a Member State to pay a social security benefit to EU citizens seeking work in a Member State with which they have no connection.

A European Court of Justice (ECJ) Advocate-General, Dámaso Ruiz-Jarabo Colomer, issued his opinion on 10 July 2003 in Case C-138/02, Brian Francis Collins v Secretary of State for Work and Pensions. This case, referred to the ECJ by courts in the UK, concerns the payment of social security benefit to citizens of the EU in a Member State in which they have no roots and with whose labour market they have no connection.

Mr Collins was born in the USA in 1957 and holds dual Irish and US nationality. He spent one semester studying in the UK and returned there in 1980 for around 10 months, during which time he performed casual and part-time work. He then returned to the USA. He went back to the UK on 31 May 1998 with the intention of seeking work and eight days later claimed income-based jobseekers’ allowance. However, his claim was refused because he was not habitually resident in the UK. He then appealed to the UK courts, which then referred a number of questions to the ECJ concerning freedom of movement for workers and the principles of Community law which are applicable in the circumstance of this claimant, particular those concerning rights of European citizenship.

In his opinion, Advocate-General Ruiz-Jarabo Colomer began by stating that Community law gives EU citizens the right to take up any employment offered in any Member State under the same conditions as that Member State’s nationals. However, Community law also requires that a citizen have the status of 'worker' in order to be entitled to the same social and tax advantages in another Member State as that Member State’s nationals. According to ECJ case law, any person who pursues activities which are not 'marginal' but are 'effective and genuine' must be regarded as a worker.

When he applied for the jobseekers’ allowance, Mr Collins was not pursuing any such activities which would allow him to be classed as a worker, according to the opinion. Nevertheless, Mr Ruiz-Jarabo Colomer stated that the provisions of the European Community (EC) Treaty relating to freedom of movement for workers have been interpreted broadly by the ECJ. Further, Mr Collins had the right to reside in the UK for at least six months as a national of one Member State (ie Ireland) seeking work in another (ie the UK).

The Advocate-General then looked at the question of citizenship of the EU and in particular the right to move and reside freely in the territory of the Member States. He examined whether the EC Treaty allows unemployed people seeking work in a Member State with whose employment market they have no connection to claim an income-based benefit. In his view, the UK legislation setting a condition of habitual residence for the payment of the benefit constitutes indirect discrimination on grounds of nationality as it is easier for UK citizens to fulfil that requirement. However, he went on to say that a condition of residence which makes it possible to ascertain the degree of connection with the Member State and the links the claimant has with the domestic employment market may be justified in order to avoid 'benefit tourism', whereby people move around the EU in order to take advantages of non-contributory benefits, and prevent abuses.

The Advocate-General therefore is of the opinion that Community law as it now stands does not require that an income-based social security benefit be provided to a citizen of the EU who seeks work in a Member States with whose employment market they lack any connection or link.

The judges of the ECJ will now begin their deliberations on this case and a judgment will be forthcoming at a later date. Advocate-General opinions offer guidance and are not binding on the ECJ. Nevertheless, full ECJ judgments often – if not necessarily – follow the Advocate-General’s opinion.

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