Lawful residence as a condition for access to social security benefits

Abstract

The equal treatment provision in Article 4 of the Social Security Regulation does not refer to the conditions for lawful residence in the Citizenship Directive. The CJEU has nevertheless applied lawful residence as a condition for the right to equal treatment in cases concerning economically inactive Union citizens claiming social security benefits in the host Member State. Critics contend that the requirement of lawful residence in respect of claims for social security benefits lacks a legal foundation and was motivated by political concerns about welfare tourism and the sustainability of national welfare systems. This article shows that the application of the requirement of lawful residence in this field is legally justifiable and principled. It is a matter of applying the fundamental principle of equal treatment, which is inherently linked to lawful residence. The article examines the relationship between the Regulation and the Directive, the compatibility of a national condition on lawful residence with the provisions on applicable legislation in the Regulation and the consistency of case law. It argues for a limited scope of the requirement of lawful residence in the field of social security.

Introduction

This article explores the legal rationale for making the right to equal treatment conditional on lawful residence in the field of social security. ¹ The equal treatment provision in Article 4 of the Social Security Regulation reads: ²

‘Equality of Treatment

Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.’

The right to equal treatment guarantees equal access for Union citizens to the social security systems of the legislation to which they are subject. Economically inactive Union citizens are subject to the social security legislation of the Member State where they habitually reside. ³ This implies that economically inactive citizens can claim affiliation to the social security scheme in the Member State of residence and must claim benefits from that scheme. ⁴ Article 4 does not refer to the conditions for lawful residence in the Citizenship Directive. ⁵ In the line of case law starting with Brey, ⁶ the Court of Justice (the Court) nevertheless held that the right to equal treatment for the economically inactive claimants in those cases was dependent on the fulfilment of the conditions for lawful residence in the Citizenship Directive.

The requirement of lawful residence protects the welfare systems of the Member States against so-called ‘welfare tourism’. Lawful residence beyond a period of three months for economically inactive Union citizens is conditional on them having ‘sufficient resources… not to become a burden on the social assistance system of the host Member State’ and comprehensive sickness insurance there. ⁷ Claims from economically inactive Union citizens without sufficient resources are not protected by the principle of equal treatment and may be rejected by the national authorities simply on the basis of the claimant's nationality.

The Citizenship Directive applies to Union citizens who reside in a Member State other than that of their nationality. ⁸ The equal treatment provision in Article 24(1) of the Directive expressly links the right to equal treatment to lawful residence, and thus offers a legal basis for extending the requirement of lawful residence to the field of social security. ⁹ The relationship between Article 4 of the Social Security Regulation and Article 24(1) of the Citizenship Directive is not addressed by the two acts. The Court has approached both as specific expressions of the fundamental principle of equal treatment and has held that the right to equal treatment is conditional upon lawful residence also in situations falling within the scope of Article 4.

In the legal literature, the question of equal treatment for economically inactive Union citizens claiming social security benefits has typically been approached as a matter of choice between Article 4 of the Social Security Regulation and Article 24(1) of the Citizenship Directive. At first, it was suggested that the issue could be resolved by applying the lex specialis principle, which purportedly implies that Article 4 takes precedence over Article 24(1) (Coucheir et al., 2008: 29; Van Overmeiren et al., 2014: 258). Some commentators argued that the absence of a provision governing the relationship between the two acts indicated that the conditions for lawful residence did not apply in the field of social security (Cornelissen, 2013: 102–103; Verschueren, 2014: 162; see also Paju, 2022a: 286–287). The initial application of lawful residence in the Dano line of case law to benefits categorised as social assistance under the Directive was both criticised and praised (e.g. Nic Shuibhne, 2015; Carter and Moritz, 2018, respectively). ¹⁰ In contrast, the extension to family benefits in Commission v United Kingdom has been consistently criticised, also by authors supporting the Dano line of case law (Carter and Moritz, 2018: 1206; Van den Brink, 2019: 304; see also Hailbronner, 2009). ¹¹ Rennuy has pointed to the lack of an express reference to lawful residence in Article 4 (Rennuy, 2023: 206–207). Paju has contended that the application of the conditions for lawful residence in the field of social security is not rationally justifiable and must be understood as a signal to the UK ahead of the British referendum on EU membership (Paju, 2019: 119, 133–135; Paju, 2022a: 289).

This article departs from the leading literature by submitting that the extension of the requirement of lawful residence to the field of social security is underpinned by a legal rationale, whereby a claimant's right to equal treatment is determined by the fundamental principle of equal treatment, and not by a choice between Article 4 of the Social Security Regulation and Article 24(1) of the Citizenship Directive. The requirement is thus applied as a matter of principle and not only when it benefits the host Member State. The article furthermore submits that the requirement of lawful residence has a limited scope. It applies in respect of claims that are brought within the material scope of the principle of equal treatment on the basis of the claimant's exercise of the right to reside. In situations that are brought within the material scope on another basis, the conditions for lawful residence are immaterial.

Section 2 starts by explaining the Court's application of lawful residence as a condition for the right of equal treatment in cases concerning claims for social security benefits. Section 3 sets out the legal rationale for making the right to equal treatment conditional on lawful residence in the field of social security. Section 4 explores whether a national rule making the right to a social security benefit conditional on lawful residence is compatible with the provisions on applicable legislation in Articles 11(3)(e) and 70(4) of the Social Security Regulation. Section 5 discusses the consistency of case law and section 6 concludes.

The Court's application of lawful residence as a condition for the right to equal treatment

Since the adoption of the Citizenship Directive, the Court has held that the right to equal treatment in cases concerning claims for social security benefits from economically inactive Union citizens is dependent on lawful residence under EU law. ¹² While section 3.5 discusses the scope of the requirement of lawful residence, this section shows that, within its field of application, the requirement is a necessary and sufficient condition for the right to equal treatment.

The condition of lawful residence for the right to equal treatment has been expressed in the following principle, initially laid down in paragraph 44 of Brey:

‘… there is nothing to prevent the granting of benefits falling within the scope of Regulation No 883/2004 to economically inactive Union citizens being made subject to the requirement that those citizens fulfil the conditions for possessing a right to reside lawfully under Directive 2004/38 in the host Member State’ ¹³

From the perspective of the Union citizen, the principle implies that the right to equal treatment under Article 4 of the Social Security Regulation is limited to those who fulfil the conditions for lawful residence in the Citizenship Directive. ¹⁴

The application of lawful residence as a condition for the right to equal treatment follows from two of the Court's findings. First, the Court has held that the prohibition of discrimination on the basis of nationality in Article 18 TFEU does not apply independently to situations governed by Article 4 of the Social Security Regulation and Article 24(1) of the Citizenship Directive. This is based on the idea that the two Articles are specific expressions of the principle of equal treatment laid down in Article 18. ¹⁵ Second, the Court has held that lawful residence under the Citizenship Directive is required for a claim to be protected by the right to equal treatment under both Articles 4 and 24(1). ¹⁶

Lawful residence based on national law is not sufficient to trigger the right to equal treatment, either under Article 4 of the Social Security Regulation or Article 24(1) of the Citizenship Directive. This was confirmed in CG. The case concerned an economically inactive Union citizen claiming social assistance in the United Kingdom based on a right to reside under national law. The Court held that the claimant fell within the scope ratione materiae of EU law by exercising her right to reside in another Member State and therefore ‘in principle’ could rely on the Treaty provision on non-discrimination. ¹⁷ Her claim for equal treatment had to be assessed on the basis of Article 24(1), however, and the Court held that without lawful residence under the Citizenship Directive she did not have a right to equal treatment. ¹⁸ The case concerned social assistance, but as will be explained in sections 3 and 5 below, the Court has applied the same approach to both Articles 4 and 24(1), which suggests that the right to equal treatment is triggered by the same circumstances in the field of social security.

However, lawful residence may be based on other EU legal bases than the Citizenship Directive. In Jobcenter Krefeld, the Court held that an economically inactive Union citizen could rely on the right to equal treatment provision in Article 7(2) of Regulation 492/2011 to claim a special non-contributory cash benefit, irrespective of the conditions for lawful residence under Article 7(1)(b) of the Citizenship Directive. ¹⁹ The claimant had initially worked in the Member State, his children had acquired a derived right of residence on the basis of the right to education under Article 10 of Regulation 492/2011, and after becoming unemployed he continued to reside there on the basis of a right of residence derived from his children. ²⁰

The significance of the status of lawful residence under the Citizenship Directive as a necessary condition for the right to equal treatment has been solidified by the decline of the principle of proportionality. Before the enactment of the Directive, the conditions for the right to free movement in secondary law were assessed against primary law and applied in a manner strongly influenced by the principle of proportionality. In Baumbast, the Court held that Mr. Baumbast could exercise a right to reside under Article 21 TFEU despite not fulfilling the condition on health insurance set out in secondary legislation, because the application of that condition would otherwise amount to a disproportionate interference with the former right. ²¹ The case demonstrates that lawful residence under secondary law was not always necessary to trigger the rights in primary law. Since Dano, the proportionality principle has played a more limited role. The Court has accepted refusals of claims from economically inactive Union citizens who do not have lawful residence under the Citizenship Directive, without requiring a broader proportionality assessment. ²² In Commission v United Kingdom, for example, it accepted a national condition of lawful residence for entitlement to family benefits in an infringement action without discussing the need for an assessment of each individual claim. ²³

More recently, it has been clarified that the status of lawful residence under the Citizenship Directive is also a sufficient condition for the right to equal treatment under Article 4 of the Social Security Regulation. This is an implication of the ruling in Familienkasse Niedersachsen-Bremen, which concerned a Union citizen residing in Germany on the basis of the right to reside for a period of up to three months under Article 6(1) of the Directive. Lawful residence under that provision requires only a valid identity card or passport. The Union citizen applied for family benefits in this period, but the claim was rejected because she did not fulfil the condition under national law that economically inactive Union citizens must have a national income. No such requirement applied to German nationals moving from other Member States. In the judgment, the Court ruled for the first time that lawful residence under Article 6(1) is sufficient to trigger the right to equal treatment. ²⁴ It held that the national condition was contrary to Article 4 of the Social Security Regulation.

The ruling concerns only economically inactive Union citizens who establish habitual residence in the host Member State, because this group is subject to the legislation of the Member State of habitual residence. ²⁵ The importance of the judgment stems from the fact that lawful residence for a period of up to three months under Article 6(1) is dependent neither on a specific level of resources nor on the existence of a health insurance. The ruling implies that the formal status of residence under that provision is sufficient to trigger a right to equal treatment, even if the claimant does not fulfil the conditions required to maintain the benefit beyond that period.

The Court could have concurred with the submissions from the Commission or Germany, if it had wanted to appease the Member States. The Commission contended that the conditions for residence beyond a period of three months under Article 7(1)(b) of the Citizenship Directive had to be fulfilled for a right to equal treatment even during the first three months of residence. These conditions were specifically designed to exclude economically inactive Union citizens without resources from the welfare system of the host Member State. ²⁶ The claimant appears to be precisely the type of individual intended to be excluded under the conditions, given that she lacked sufficient resources and had previously claimed benefits without residing at the address reported to the authorities. ²⁷ Germany submitted that Article 24(2) of the Citizenship Directive, which permits the host Member State to refuse claims for social assistance the first three months of residence, had to be applied in the light of its ratio legis. ²⁸ In earlier case law, the Court held that the derogation from the right to equal treatment set out in Article 24(2) is justified as consistent with the objective of maintaining the financial equilibrium of the social assistance system of the host Member State, because lawful residence for a period of up to three months under Article 6(1) neither requires sufficient means of subsistence nor personal medical cover. ²⁹ The submission from Germany was underpinned by similar considerations, because the case concerned a family benefit which was tax-financed and granted irrespective of previous contributions. ³⁰

Instead, the Court chose the legally principled approach according to which the formal status of lawful residence under the Citizenship Directive is sufficient. The Commission's submissions were not addressed at all and Germany's submissions were rejected on the basis of a strict interpretation of Article 24(2) of the Directive. ³¹ The Court neither discussed the purpose of Article 6(1) of the Citizenship Directive, which is hardly intended to govern access to the social security systems of the host Member States, nor the consideration that claims should enjoy more extensive protection as the connection between the claimant and the host Member States increases over time. The Court preferred the legally principled approach over the alternative approaches that could be perceived as more political.

The judgment informs our understanding of previous case law, in which the Court deferred to and loyally applied the conditions set out under Article 7(1)(b). ³² It confirms that the requirement of lawful residence was extended to the field of social security as a matter of legal principle, rather than for political reasons alone. This makes it a crucial piece in the jigsaw of cases that defines the Court's approach to equal treatment.

The rationale for lawful residence as a condition for the right to equal treatment in the field of social security

Introduction

This section sets out the legal rationale for applying lawful residence as a condition for the right to equal treatment in the field of social security. Section 3.2 establishes the context of the discussion by briefly outlining the criticism of the constitutional developments that occurred in case law after the enactment of the Citizenship Directive. Section 3.3 explains the link between the fundamental principle of equal treatment and lawful residence. Section 3.4 interprets the equal treatment provision in Article 4 of the Social Security Regulation. Section 3.5 examines the scope of the requirement of lawful residence.

From the application of primary law to the strict application of lawful residence

The Court's approach to the principle of equal treatment is defined not only by the application of the requirement of lawful residence as such, but also by the relationship between primary law rights and conditions in secondary law. These are closely related, but in principle separate, issues.

Before the enactment of the Citizenship Directive, the Court's approach to primary law rights was influenced by the Union citizenship as the ‘fundamental status’ of nationals of the Member States. ³³ This entailed enhanced protection of primary law rights. ³⁴ The Court adopted a strict approach to the Member States’ enforcement of, and a narrow interpretation of, the conditions on lawful residence. ³⁵ The fulfilment of the conditions in secondary law was not always necessary to trigger primary law rights. ³⁶ Case law shifted after the Directive was enacted. The influence of the status of Union citizenship decreased. The Court took a stricter approach to the conditions in secondary legislation and accepted Member States’ refusals of claims without requiring that they conduct an individual proportionality assessment. ³⁷

The developments in case law have been the subject of extensive criticism (e.g. O’Brien, 2017; Spaventa, 2017; Haag, 2025). The Court's failure to engage with established constitutional principles has resulted in a line of case law marred by unclarities and inconsistencies. Nic Shuibhne writes that the Court ‘poured the content of the primary right to equal treatment into a statement in secondary law’, thereby turning ‘the standard approach to conditions and limits on its constitutional head – the latter no longer temper equal treatment rights; they constitute the rights’ (Nic Shuibne, 2015: 909). It has been suggested that the shift in case law was a response to Article 24 of the Citizenship Directive, which may be understood as a signal from the EU legislature of a need for protection of the welfare systems against claims from economically inactive Union citizens (in this direction Spaventa, 2016; Muir, 2018; Carter and Moritz, 2018; Thym D, 2022; Van den Brink, 2024). However, the lack of a clear and coherent legal rationale has given rise to explanations of a Court acting in response to a changing political climate (e.g. Blauberger et al., 2018). It is in this context that the extension of the requirement of lawful residence to the field of social security has been discussed and explained more broadly as an attempt by the Court to accommodate Member State sensitivities and a politically motivated project of EU citizenship deconstruction (O’Brien, 2017: 240; see also Paju, 2022a). ³⁸

The following sections examine more deeply the extension of the requirement of lawful residence to the field of social security, given these constitutional developments. The aim is to identify the legal rationale for applying the requirement of lawful residence in the field of social security. The constitutional aspects are addressed to the extent necessary for this discussion.

The inherent link between the fundamental principle of equal treatment and lawful residence

The idea behind the link between the fundamental principle of equal treatment and lawful residence is simple and intuitive: Only the lawful act (of residing) can give rise to a legal claim (for welfare benefits). This has always underpinned the Court's case law on the right to equal treatment in respect of welfare benefits. Article 18 TFEU applies within ‘the scope of application of the Treaties’. Union citizens fall within the scope ratione personae. For a claim for benefits to be protected by the right to equal treatment, the situation must also fall within the scope ratione materiae of EU law. The claimant's exercise of the right to reside may bring the situation within the material scope, but only if it complies with the conditions for residence. This has been the approach of the Court since before the enactment of the Directive. ³⁹ Pre-Directive case law concerned lawfully resident Union citizens only. The Court did not expressly discuss claims from Union citizens without lawful residence, but it considered whether the claimants had a right to reside in the Member State. ⁴⁰ This implies that the right to equal treatment is triggered not by Union citizenship alone but by the lawful exercise of the right to free movement. The Court has maintained this approach in later case law. ⁴¹

The existing link between the right to equal treatment and lawful residence was consolidated by the enactment of the Citizenship Directive. The conditions for lawful residence under Article 7(1)(b) of the Directive are underpinned by the idea that the exercise of the right of residence can be made subordinate to the legitimate interests of the host Member State, ⁴² in particular by preventing economically inactive Union citizens from using the host Member State's welfare system to fund their means of subsistence. ⁴³ This is achieved through the equal treatment provision in Article 24(1) of the Citizenship Directive, which according to its wording excludes Union citizens who do not fulfil those conditions from the right to equal treatment. The expansive reach of the Directive follows from the wording of the provision, which is general and not limited to cases concerning claims for social assistance. This implies that Article 24(1) encompasses claims for social security benefits irrespective of how broadly the notion of ‘social assistance’ in Articles 7(1)(b) and 24(2) of the Directive is construed. By contrast, Costamagna and Guibboni (2022: 241) argue that the Court's broad interpretation of this notion has expanded the scope of the Citizenship Directive to the field of social security and granted it a ‘normative super-status’.

Prior to the adoption of the Citizenship Directive, economically inactive Union citizens could rely directly on Article 18 TFEU to claim benefits, even with a right to reside under national law alone. ⁴⁴ The Court could have maintained this approach, ⁴⁵ but in CG, the Grand Chamber held that a claimant who resided on the basis of national law, had to claim equal treatment on the basis of Article 24(1) of the Citizenship Directive. ⁴⁶ As Haag has shown, the textual basis for the approach in CG is weak (Haag, 2022). Furthermore, there is a tension between CG, where the claimant did not have a right to equal treatment despite falling within the material scope of EU law, and Familienkasse Niedersachsen-Bremen, where the Court held that a person falling within the material scope of EU law can rely on the right to equal treatment. ⁴⁷ However, the ruling in CG complies with the idea that the exercise of the right to reside brings a claim for benefits within the material scope of the right to equal treatment only if the EU law conditions for the right to reside are fulfilled.

By linking the right to equal treatment with lawful residence as defined by the Citizenship Directive, a distinction is introduced between the right to lawful residence that is required for the right to equal treatment, and the right to lawful residence that protects against expulsion. The result is that the conditions for lawful residence in the Directive function as a gateway for access to social security benefits, independent of the right not to be expelled. The link between the fundamental principle of equal treatment and lawful residence in the early case law has developed into a link between the right to equal treatment and the specific conditions set out in the Directive.

The interpretation of Article 4 of Regulation 883/2004

The wording of Article 4 of the Social Security Regulation is open to different interpretations. A literal interpretation may suggest that it confers a right to equal treatment on economically inactive Union citizens irrespective of lawful residence. Such a reading would entail a break from case law prior to the Citizenship Directive concerning Article 18 TFEU, where the exercise of the right to reside brings a situation within the scope of the right to equal treatment only if it complies with the conditions for the right to reside. It would imply that Article 4 suffices to bring a claim within the scope ratione materiae of EU law. In that case, the act of residing would trigger the right to equal treatment even if residence is established without a legal basis.

Alternatively, Article 4 can be read as a mere expression of the fundamental principle of equal treatment, which is not intended to extend the material scope of that principle. Such a reading is underpinned by the general character of the provision. It applies to all persons covered by the Social Security Regulation, irrespective of their specific situation.

The objective of Article 4 is to ensure equal treatment within the scope of the Social Security Regulation. There is no indication that the provision was intended specifically to address the significance of lawful residence in respect of economically inactive Union citizens claiming benefits on the basis of residence or that it was intended to depart from the approach in pre-Directive case law. It has been argued that the general aim of the Social Security Regulation to ensure continuous social security protection implies that economically inactive Union citizens should have a right to equal treatment irrespective of lawful residence (Paju, 2019:127 and Costamagna and Guibboni, 2022: 242). However, this aim is general and does not specifically address the material scope of the principle of equal treatment. When the personal scope of the coordination scheme was extended to all economically inactive Union citizens, no changes were made to address the issue. ⁴⁸ Article 4 is therefore better understood as setting out the fundamental principle of equal treatment without specifically governing its material scope in respect of economically inactive claimants.

The EU legislator has not expressly addressed the issue of lawful residence. The scope of the Social Security Regulation was extended to third-country nationals ‘provided that they are legally resident in the territory of a Member State’. ⁴⁹ This extension grew out of a political initiative concerning lawfully resident third-country nationals only, ⁵⁰ and the legal basis for the extension allows for measures for lawfully resident persons only. ⁵¹ The need to specify that the extension applies to lawfully resident persons thus relates to the personal scope of the Regulation and does not support a particular interpretation of Article 4.

The current proposal to amend the Social Security Regulation aims to codify case law only. ⁵² It leaves the question on the scope of the requirement of lawful residence to the Court. The EU legislator has also previously left the issue of lawful residence to the Court. The proposal for what became the current Regulation merely stated that the proposed equal treatment provision ‘sets out one of the fundamental principles underpinning the proposed legislation – equality of treatment’. ⁵³ The issue of lawful residence was not addressed in the proposal to extend Regulation 1408/71 to economically inactive persons either. ⁵⁴ According to a later Commission Staff Working Paper, however, the lawfulness of stay in a Member State was meant to be a prerequisite to benefitting from the scheme, although the equal treatment provision at the time did not mention lawful residence. ⁵⁵

The Citizenship Directive is an important part of the context. It is part of the same legal system as the Social Security Regulation, and the two acts should, whenever possible, be construed as parts of a coherent whole. The differences in their respective subject matters and purposes indicate that they are not in conflict. The Regulation embodies the coordination scheme envisaged by Article 48 TFEU, the purpose of which is to guarantee the effective exercise of the right to free movement by coordinating the social security schemes of the Member States. ⁵⁶ In contrast, the Directive lays down the conditions governing the exercise of and the limits placed on the primary right to free movement, as referred to in Articles 20(2) and 21(1) TFEU. ⁵⁷ There is a close connection between the two acts, which is clear from the purpose of the coordination scheme. The scheme aims to promote the exercise of the very same right for which the Directive lays down conditions. This suggests that it promotes the exercise of the right of free movement which complies with the conditions of the Directive. From this point of view, the Regulation cannot neutralise the conditions laid down by the Directive. ⁵⁸

If the equal treatment provisions under Article 4 of the Social Security Regulation and Article 24(1) of the Citizenship Directive are construed as specific expressions of the fundamental principle of equal treatment, there is no need to prioritise one over the other. The scope and substance of the right to equal treatment are not determined by the specific wording of the two provisions or the relationship between the two acts, but by the fundamental principle of equal treatment. This is the approach of the Court, which cites the pre-Directive case law referred to in section 3.3 above in support of the link between equal treatment and lawful residence. ⁵⁹ As a consequence, the two provisions are interpreted in the same manner and applied simultaneously. ⁶⁰

As mentioned in the introduction, it has been suggested that Article 4 of the Social Security Regulation could be applied in accordance with its literary meaning in the field of social security as a lex specialis in relation to Article 24 of the Citizenship Directive, so that Union citizens have a right to equal treatment irrespective of lawful residence. This interpretation risks undermining the conditions for lawful residence. It would allow an economically inactive Union citizen who is subject to the social security legislation of the Member State of residence to claim social security benefits on the basis of the right to equal treatment, and subsequently rely on those benefits to fulfil, in whole or part, the conditions for lawful residence. ⁶¹

Furthermore, the argument that Article 4 can be applied as lex specialis is not convincing. The argument presupposes that Article 4 is specific relative to Article 24(1), because it addresses the right to equal treatment in the field of social security specifically (Hancox, 2021: 1059). However, an alternative perspective is possible. The equal treatment provision under Article 24(1) specifically addresses the significance of lawful residence. The argument that Article 4 applies as lex specialis in the field of social security could thus be countered by the argument that Article 24(1) applies as lex specialis to Union citizens claiming a right to equal treatment on the basis of their residence in a Member State. It therefore appears impossible to resolve the question around the relationship between the two provisions solely on the basis of the principle of lex specialis.

There seems to be no reason to adopt a distinct rule on equal treatment in the field of social security for economically inactive Union citizens who do not fulfil the conditions for lawful residence, as compared to all other areas. Social security is to some extent based on the idea of insurance where those covered make a contribution in consideration for protection against certain risks. Within an insurance system, a rule mandating equal treatment of everyone covered by the system could be justified on the basis of the members’ contributions. On this basis, it has been argued that the Social Security Regulation alone should apply in respect of claims for social security benefits, to the exclusion of the conditions for lawful residence (Paju, 2019: 134 and Paju, 2022b: 1227). However, the idea that contributions justify equal treatment does not apply to Union citizens who do not have resources to make a contribution. For this group, the question of equal treatment is effectively a matter of solidarity, irrespective of the type of benefit involved. Some Member States offer few and limited social security benefits to economically inactive persons, who must instead rely on social assistance. A differentiated approach would mean that the protection available for the individuals depends on how each Member State classifies the benefits targeting this group.

As a matter of legal interpretation, the wording, objective and context of Article 4 of the Social Security Regulation suggest that the provision refers to the fundamental principle of equal treatment without altering or extending its scope ratione materiae. The conditions for lawful residence thus apply within the scope of the Regulation. This interpretation reconciles the Regulation with the Citizenship Directive in a way that complies with their subject matters and purposes, while maintaining their effectiveness. The two acts may be described as closely connected complementary sets of rules, rather than mutually exclusive sets of rules with no relation to each other. No act is given precedence over the other, because they apply in parallel.

The legal rationale determines the scope of the requirement of lawful residence

The scope of the requirement of lawful residence has not been clarified by the Court, and the question has been raised as to whether it applies to all types of social security benefits (Verschueren, 2015: 377–381; Carter and Moritz, 2018: 1206). The above rationale provides for a clear criterion in principle for identifying the situations in which the right to equal treatment is dependent on lawful residence. The starting point is the scope of the fundamental principle of equal treatment, as explained in section 3.3 above. A situation falls within the scope rationae materiae when it concerns ‘the exercise of the freedom to move and reside within the territory of the Member States conferred by Article 21 TFEU, subject to the limitations and conditions laid down by the Treaties and the measures adopted pursuant to them [emphasis added]’. ⁶² The conditions for lawful residence under the Citizenship Directive must thus be fulfilled whenever the situation is brought within the material scope by an economically inactive Union citizen′s exercise of the right to reside. Conversely, if the situation is brought within the scope on another basis, those conditions are immaterial.

The application of the criterion is straightforward in cases such as Brey, Dano, Commission v United Kingdom and Familienkasse Niedersachsen-Bremen. The two former judgments concerned claims for special non-contributory cash benefits, provided by the Member States of residence. ⁶³ The two latter judgments concerned claims for family benefits in the Member State of residence. ⁶⁴ The situations in all cases fell within the scope ratione materiae of EU law because of the economically inactive claimant's exercise of the right to reside. Lawful residence was therefore required. Equally straightforward is the case of claims falling within the scope ratione materiae of EU law because the claimants have exercised the right to free movement for workers, such as claims for pro rata old-age pensions from previous Member States of employment. In such situations, lawful residence is immaterial for the right to equal treatment under Article 4 of the Social Security Regulation. ⁶⁵

In some situations, the question arises as to whether other provisions of EU law bring the situation within the scope ratione materiae of EU law irrespective of the lawfulness of the claimant's residence. Some of these situations will be outlined in the following paragraphs.

Article 65(5)(a) of the Social Security Regulation prescribes that unemployment benefits must be provided under the legislation of the Member State of residence. The question arises as to what determines the scope ratione materiae in this situation. It seems that the provision itself brings the situation within the material scope, as it requires the claimant to be treated as a worker. The provision reallocates the responsibility for providing the benefit to the Member State of habitual/factual residence. ⁶⁶ It confers a right to receive benefits in that state ‘as if he had been subject to that legislation during his last activity as an employed or self-employed person’. Accordingly, the equal treatment provision under Article 4 must be applied by that state as if the claimant has exercised the right to free movement for workers.

The question of scope furthermore arises in respect of contributory schemes. Can a claim for a contributory benefit fall within the material scope of the right to equal treatment on the basis of the contributions that the economically inactive claimant has made to the scheme? The purpose of the conditions for lawful residence is to protect the Member State of residence. By accepting contributions from a person, it has arguably laid down more favourable provisions that apply instead of the conditions for lawful residence, bringing the situation within the scope of EU law, irrespective of the conditions for lawful residence. ⁶⁷ The Commission has argued, without further explanation, that an economically inactive Union citizen who previously fulfilled, but no longer fulfils, the conditions for lawful residence ‘should be able to rely on the principle of equal treatment with regard to contributory social security benefits, as long as the host Member State has not formally put an end to his right of residence’. ⁶⁸

In some situations, the Social Security Regulation enables economically active persons and pensioners to claim sickness benefits in kind in the Member State of residence. ⁶⁹ The above approach suggests prima facie that the right to equal treatment is conditional on lawful residence if the claimant exercises the right to reside without exercising an economic activity there. However, these situations have certain special characteristics. Habitual/factual residence is not sufficient to trigger a claim in the Member State of residence. In addition, claimants must fulfil the insurance conditions in another Member State. ⁷⁰ A claim exists only to the extent that the benefits are provided on behalf of, and the costs are borne by, the competent institution of a Member State other than the Member State of residence. ⁷¹ A reasonable interpretation is that the Social Security Regulation reallocates the duty to provide the benefits to the Member State of residence and thereby brings such situations within the scope of EU law for the purposes of equal treatment, irrespective of lawful residence.

Another question concerns national rules that make affiliation to residence-based schemes conditional on lawful residence, for example in the case of residence-based pension schemes. This is a different question than that considered in Commission v United Kingdom, which concerned a condition for entitlement to a benefit. The first question is whether such conditions are precluded by Article 11(3)(e) of the Social Security Regulation, which makes the legislation of the Member State of habitual/factual residence applicable. The Court has repeatedly held that national rules on affiliation to a scheme ‘cannot have the effect of excluding from the scope of the legislation at issue persons to whom, pursuant to Regulation No 883/2004, that legislation is applicable’. ⁷² It appears that a rule on lawful residence has such an effect and is precluded. This would enable economically inactive Union citizens who do not fulfil the conditions for lawful residence to claim affiliation and accumulate insurance periods. If such rules are not precluded by Article 11(3)(e), the question arises as to whether an economically inactive Union citizen's claim for affiliation is protected by the right to equal treatment, irrespective of lawful residence. There is no clear answer.

The recent ruling in Jobcenter Arbeitplus Bielefeld implies that an economically inactive parent's claim for social security benefits may in some situations be brought within the scope ratione materiae of EU law by the child's exercise of the right to reside. ⁷³ The case concerned a father's right to reside in Germany, where his child was residing lawfully under the Citizenship Directive as a family member of the mother, who had a permanent right of residence under the Directive. The father's claim for a residence permit was refused solely because the child did not have German nationality. The Court held that the refusal infringed the child's right to equal treatment under Article 24(1) of the Directive, which in turn protected the father's claim for a derived right of residence under national law. ⁷⁴ Since the grant of a residence permit would entitle the father to social benefits under national law, the Court's approach effectively brought his claim for benefits within the scope of EU law. The Court excluded the application of the derogation in Article 24(2) of the Citizenship Directive, provided that the child's right to reside does not fall within its scope. ⁷⁵ The case shows that a parent's claim for benefits may be protected by a child's right to equal treatment.

The approach described in this section significantly limits the scope of the requirement of lawful residence and resolves the question of scope as a matter of principle. The equal treatment provision in Article 4 of the Social Security Regulation does not, in itself, bring a situation within the scope of the principle of equal treatment irrespective of lawful residence, but other and more specific provisions of the Regulation may do so.

Lawful residence and the provisions on applicable legislation in Regulation 883/2004

It follows from the discussion above that the fundamental principle of equal treatment does not always prevent the Member States from making the right to a benefit for economically inactive Union citizens conditional on lawful residence under the Citizenship Directive. This section considers whether such rules are compatible with the provisions on applicable legislation in the Social Security Regulation.

Article 11(3)(e) of the Social Security Regulation contains the main rule on applicable legislation for economically inactive persons, and Article 70(4) of the Social Security Regulation lays down a specific rule for special non-contributory cash benefits. Both make the legislation of the Member State of habitual/factual residence applicable to the persons falling within their respective scopes. The Member States cannot circumvent the rule under Article 70(4) by requiring additional factual links for entitlement to these benefits. ⁷⁶ The question raised in this section is whether national rules that make entitlement to specific benefits conditional on a legal right to reside amount to an unlawful circumvention of the two provisions, since it effectively excludes economically inactive Union citizens from access to benefits under the legislation that they are subject to by virtue of those provisions.

In Commission v United Kingdom, the Court held that Article 11(3)(e) does not preclude a national condition requiring lawful residence for the right to a family benefit. ⁷⁷ In Brey, it reached the same conclusion in relation to Article 70(4) in a case concerning a special non-contributory cash benefit. ⁷⁸ As will be explained below, critics have remained unconvinced by the judgments. This section examines whether the Court's conclusions were well-founded. It will address Article 11(3)(e) first, before turning to Article 70(4).

Article 11(3)(e) provides that any person not covered by Article 11(3)(a) to (d) ‘shall be subject to the legislation of the Member State of residence’. The wording suggests that Article 11(3)(e) merely identifies the applicable legislation. It is silent as to the legality of conditions set out in national law for entitlement to specific benefits. The literal interpretation is supported by the heading of Title II of the Regulation that reads ‘Determination of the legislation applicable’. Article 11(3)(e) allocates responsibilities between the Member States by imposing a duty to apply their legislation to economically inactive Union citizens who have established habitual residence within their territory as a matter of fact.

The purpose of the provision is not frustrated by a national requirement of lawful residence. The rules on applicable legislation aim to ensure that a person falling within the scope of the Regulation is always subject to the social security legislation of a single Member State only. ⁷⁹ From the perspective of the Member State, the rules ensure that Member States have exclusive competence to require affiliation to their social security schemes and prevent the complications that would ensue in the case of overlapping affiliation. ⁸⁰ From the perspective of the individual, they prevent those in cross-border situations being left without social security cover because there is no applicable legislation and individuals being required to be affiliated to two schemes simultaneously. ⁸¹ These aims are achieved irrespective of a national requirement of lawful residence for entitlement to specific benefits.

The scheme of the Social Security Regulation supports the same interpretation. The legality of national conditions for entitlement to benefits is expressly addressed by a number of provisions in Titles I and III of the Regulation, but not by any of the provisions in Title II. The issue of lawful residence is essentially a question of equal treatment. Article 4 already lays down a rule on equal treatment, which should be applied as a matter of consistency to determine the legality of a national requirement on lawful residence.

In case law, the provisions on applicable legislation have been held to preclude certain conditions for affiliation to a scheme, but not to the extent that they undermine the conditions for lawful residence. In A (Soins de santé publics), the Court held that a lawfully resident economically inactive Union citizen can claim affiliation to the public sickness insurance scheme under the legislation applicable under Article 11(3)(e), but cannot claim access free of charge, as the condition on comprehensive sickness insurance cover would otherwise be rendered redundant. ⁸² Furthermore, the provisions on applicable legislation have never been held to preclude national conditions for entitlement to specific benefits. Commission v United Kingdom concerned an infringement action against the United Kingdom for making entitlement to a family benefit conditional on a legal right to reside there. The Commission argued that the national rule was contrary to Article 11(3)(e). The Court ruled in favour of the United Kingdom and held that Article 11(3)(e) is merely a conflict rule for determining the applicable social security legislation and does not preclude a requirement of lawful residence for entitlement to specific benefits. ⁸³

The interpretation of the Court has a solid basis in the Social Security Regulation. It is in conformity with the wording of Article 11(3)(e), the purpose of the provision and the scheme of the Regulation. The logic of the Court is simple and straightforward: Article 11(3)(e) resolves the conflict of laws by determining the applicable legislation, but it does not prescribe equal treatment in respect of the conditions for entitlement to benefits.

Nevertheless, critics remain unconvinced by Commission v United Kingdom. O’Brien considers that there is ‘very little point for Article 11(3)(e) to exist at all, other than to tell us which State's rules of exclusion apply’ (O’Brien, 2017: 223–224). Paju argues that the Court did not respect the ‘overarching aim of the Regulation's rules on applicable legislation […] to prevent migrating persons from not being covered by any social security system’ (Paju, 2019: 127). Essentially, they both consider that the exclusion of a group of economically inactive Union citizens from entitlement to specific benefits undermines the conflict of laws rule in Article 11(3)(e).

The criticism conflates the distinct issues of determining the applicable legislation and establishing whether national conditions for a benefit comply with EU law. The conflict of laws rules address the former, not the latter. They protect individuals against national provisions that exclude the application of the legislation which the rules identify as applicable. However, the question of whether a national condition on lawful residence for a specific benefit is compliant with EU law is a matter of equal treatment. ⁸⁴ It would complicate matters unnecessarily to adopt an expansive interpretation of Article 11(3)(e) to the extent that it confers a right to equal treatment, with an unclear scope, when there is already a special, express provision on equal treatment in article 4 of the Social Security Regulation. The Court has therefore held that a condition on lawful residence must be assessed in the same manner as any other substantive condition for entitlement to a benefit. ⁸⁵

The second provision to consider is Article 70(4), which provides that special non-contributory cash benefits ‘shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation.’ In contrast to Article 11(3)(e), Article 70(4) applies in respect of a single category of benefits - the special non-contributory cash benefits. Similarly to Article 11(3)(e), the wording indicates that Article 70(4) allocates responsibilities between the Member States only. Its purpose is to ensure that a person is always subject to the legislation of the Member State of residence. ⁸⁶ Entitlement to benefits, on the other hand, is governed by the conditions set out in national law. Those conditions must comply with the provision on equal treatment under Article 4 of the Regulation.

In accordance with these observations, the Court held in Brey that Article 70(4) is merely a special conflict rule, which does not prevent Member States from making entitlement to the benefits conditional on lawful residence. ⁸⁷ The case concerned a refusal of a claim for a compensatory supplement to retirement pensions on the ground that Mr. Brey did not fulfil the national condition on lawful residence. The Commission argued unsuccessfully that the condition was precluded by Article 70(4).

Verschueren has argued that the Court overruled the political compromise reached in Regulation 1247/1992, which introduced the special coordination scheme for special non-contributory cash benefits (Verschueren, 2014: 159–164; in the same direction Cornelissen, 2013: 104 and 109). While the regular social security coordination system is based on the principle of exportability, the special coordination scheme provides for the non-exportation of benefits, and instead ensures access to benefits in the Member State of residence. ⁸⁸ It is based on a presumption that claimants enjoy a right to equal treatment and can access special non-contributory cash benefits there. ⁸⁹ Since the EU legislature considered the condition of habitual residence ‘as creating the genuine link between the claimant and the host Member State required for entitlement’ to benefits, Verschueren argues that the application of the conditions of the Citizenship Directive ‘added a supplementary requirement not present in the political agreement on the ‘special non-contributory cash benefits’.’ (Verschueren, 2014: 162)

Verschueren's criticism presupposes that the social security coordination scheme protects Union citizens residing in a Member State in the first place, even if they do not comply with the conditions for establishing lawful residence there. However, there is no indication in Regulation 1247/1992 that the political compromise was intended to address the significance of lawful residence or the controversial issue of equal treatment of economically inactive Union citizens without lawful residence. The social security coordination scheme in Regulation 1408/71 at the time did not apply to economically inactive persons in general. Furthermore, four days after the entry into force of Regulation 1247/1992, the Commission stated, with regard to the proposal to extend Regulation 1408/71 to economically inactive Union citizens in general, ⁹⁰ that if the proposal was adopted, the conditions for lawful residence set out in the Directives on the right of stay would ‘play a preliminary role in the coordination of social security schemes’ and that economically inactive persons would benefit from the coordination scheme only ‘to the extent that they will satisfy the conditions laid down’ by those Directives. ⁹¹ The Commission clearly did not consider that Regulation 1247/1992 precluded the Member States from introducing conditions on lawful residence. The scheme defined the factual links required for access to benefits for Union citizens in general, but also did not address the legal significance of lawful residence for economically inactive Union citizens specifically.

This section has shown that the Court's interpretation of the provisions on applicable legislation in Commission v United Kingdom and Brey was well-founded.

The consistency of the Court's case law

This section examines whether case law since the enactment of the Citizenship Directive consistently reflects the legal rationale set out in section 3 above. The discussion will first address the claim that the Court has not always adopted a unified approach to social assistance and social security benefits, respectively. Next, it will discuss whether the Court has failed to apply the link between equal treatment and lawful residence consistently.

The discussion on the unified approach arose in connection with the principle laid down in Brey. ⁹² O’Brien has argued that the principle was ‘inextricably linked to the nature of the benefits’ in that case, and criticised its application to other types of social security benefits (O’Brien, 2017: 219; supported by Paju, 2019: 125). If this interpretation is correct, the judgment does not comply with the rationale set out in section 3.

Brey concerned a special non-contributory cash benefit. These benefits have more in common with social assistance than other types of benefits covered by the Social Security Regulation, because they are tax financed and targeted at those in need. ⁹³ The special non-contributory cash benefits are not classified as part of the branches of social security under Article 3(1) of the Regulation, but nevertheless, they are covered by the equal treatment provision under Article 4. Within the framework of the Citizenship Directive, the Court classified the benefit as ‘social assistance’. ⁹⁴ This is significant, because lawful residence under the Citizenship Directive requires sufficient resources ‘not to become a burden on the social assistance system of the host Member State’. ⁹⁵ On the basis of the Directive, a distinction could be made between special non-contributory cash benefits and social security benefits which do not amount to ‘social assistance’ under the Directive.

However, a closer examination of Brey reveals that the Court did not make a distinction on the basis of the Citizenship Directive. The Court's reasoning concerned the benefits covered by the Social Security Regulation in general. The Commission submitted that the national condition on lawful residence was indirectly discriminatory and contrary to Article 4 of the Social Security Regulation. In response, the Court posed the general question of whether a Member State may make the grant of ‘a benefit covered by Regulation No 883/2004’ conditional on lawful residence. ⁹⁶ After examining the Regulation, the Court laid down the principle in paragraph 44 for ‘social benefits’. ⁹⁷ The judgment gives the impression that the principle was not limited to special non-contributory cash benefits.

The next question is whether the Court has consistently applied lawful residence as a condition for the right to equal treatment. The question arose in connection with Commission v United Kingdom, which concerned an infringement action against the United Kingdom for making entitlement to family benefits conditional on lawful residence for economically inactive Union citizens. The Commission submitted that the national rule was directly discriminatory and contrary to the equal treatment provision in Article 4 of the Social Security Regulation, since United Kingdom nationals satisfy that test automatically so that it applies to Union citizens from other Member States only. ⁹⁸ The Court referred to the principle laid down in Brey, but also assessed the national condition against Article 4. ⁹⁹ How can the application of Article 4 in the case be reconciled with the principle laid down in Brey? If there is, in principle, nothing to prevent the Member States from introducing a right to reside test for social benefits, why did the Court test the national rule against Article 4?

Commentators have argued that Commission v United Kingdom shows that social security benefits other than special non-contributory cash benefits ‘do not fall under the Citizenship Directive’ but instead fall under the Social Security Regulation, so that national conditions on lawful residence must be assessed under the equal treatment provision under Article 4 of the Regulation (Paju, 2022b: 1227; see also Cousins, 2016: 102–103). If this is correct, the Regulation and Directive are alternative legal bases and the Member States cannot justify differential treatment based on the conditions for lawful residence under Article 7(1)(b) of the Directive in situations governed by Article 4. The problem is that this interpretation conflicts with the principle laid down in Brey, which implies that Article 4 cannot prevent a substantive condition on lawful residence for entitlement to a social security benefit. It also conflicts with the Court's application of the conditions for lawful residence to claims for family and sickness benefits in later case law.

A more convincing interpretation of Commission v United Kindom is available, which reconciles the application of the equal treatment provision in Article 4 with the principle laid down in Brey. The key is to keep in mind that there are two groups of economically inactive Union citizens: those who fulfil the conditions for lawful residence in the Citizenship Directive, and those who do not. The principle laid down in Brey concerns those who do not fulfil those conditions. It states that their claims for social security benefits are not protected under Article 4. ¹⁰⁰ Article 4 cannot, therefore, apply to a national condition on lawful residence with regard to this group. In contrast, the principle in Brey does not affect the position of economically inactive Union citizens who fulfil the conditions for lawful residence. They are still protected under Article 4. A national condition of lawful residence must therefore be assessed under the principle of equal treatment.

The national condition in Commission v United Kingdom was applicable to all economically inactive Union citizens. It excluded Union citizens without lawful residence from entitlement to benefits, but it also imposed a burden on lawfully resident economically inactive Union citizens, who had to undergo checks and procedures to show that they had lawful residence. In comparison, United Kingdom nationals have an automatic right to reside and were not subject to the same checks.

In the light of the above, the application of Article 4 in Commission v United Kingdom is fully compatible with the principle laid down in Brey, as well as later case law. The Court applied Article 4 with regard to the checks and procedures that Union citizens with lawful residence had to undergo. This is apparent in the proportionality assessment, which focuses exclusively on the verification procedures and checks, and leaves out any assessment of the substantive condition. ¹⁰¹ The substantive condition on lawful residence was treated as lawful per se, in accordance with the principle in Brey.

This is not to suggest that Commission v United Kingdom is unproblematic. The Court held that the national condition was indirectly discriminatory, because it ‘is more easily satisfied by United Kingdom nationals… than nationals from other Member States’. ¹⁰² However, as O’Brien has explained, the right to reside test is not ‘more easily’ satisfied by United Kingdom nationals - it is always and automatically satisfied by them (O’Brien, 2017: 225). This normally leads to a finding of direct discrimination. ¹⁰³ The departure from the normal principles may be connected to the fact that EU law lays down conditions that apply to Union citizens from other Member States only, and that their effective application requires the host Member State to ascertain whether they are fulfilled. ¹⁰⁴ Nevertheless, the unusual reasoning of the Court leaves the clear impression of a Court determined to protect the principle in Brey and the possibility of the host Member State to enact conditions requiring lawful residence.

Conclusion

This article has shown that the application of lawful residence as a condition for the right to equal treatment in the field of social security is underpinned by a legal rationale. The issue of lawful residence is determined by the fundamental principle of equal treatment, which is inherently linked to lawful residence, and not by a choice between the Social Security Regulation and the Citizenship Directive. It is based on the idea that residence without a legal basis should not give rise to a legal claim for benefits. The link between the principle of equal treatment and lawful residence was made in case law prior to the enactment of the Citizenship Directive and has been maintained in post-Directive case law.

The article has submitted that the requirement of lawful residence applies in situations which are brought within the scope ratione materiae of EU law on the basis of an economically inactive Union citizen's exercise of the right to reside. This clarifies the scope as a matter of principle and entails a rather limited scope. Within its field of application, lawful residence under the Citizenship Directive is a necessary condition for the right to equal treatment, because neither residence as a matter of fact nor lawful residence under national law suffices, and it is a sufficient condition, because it alone determines the right to equal treatment. The textual basis for excluding lawful residence under national law as a sufficient basis is weak, but the approach of the Court is consistent as a matter of legal rationale.

The requirement of lawful residence in the field of social security is compatible with the provisions on applicable legislation in the Social Security Regulation. The Court has applied a unified approach to social assistance and social security benefits, respectively, in accordance with the principle laid down in Brey. Commission v United Kingdom complies with that principle, as the application of Article 4 of the Social Security Regulation in that case relates exclusively to economically inactive Union citizens with lawful residence.