Directive 2004/38/EC (the "Free Movement Directive") stipulates that EU citizens entitled to freedom of movement have a right to receive equal treatment (Article 24 (1)). However, as set out in Article 24 (2), Member States are not obliged to confer entitlement to tax-funded social benefits during the first three months of residence, or for a longer period in the case of jobseekers, to people other than those who are workers or self-employed persons or who retain that status. This is to ensure that an unreasonable burden is not placed on the Member States' social protection systems. The Directive thus touches again on the spectrum of residence rights (see Legal framework).
Germany has set out circumstances in which people are not eligible for benefits in Section 7 of Book II of the Social Code (Sozialgesetzbuch) and Section 23 of Book XII of the Social Code.
The European Court of Justice recently confirmed this principle in various preliminary ruling procedures, providing far-reaching clarifications at EU level about exceptions to the principle of equal treatment with regard to access to social benefits.
- In the case "Dano v Jobcenter Leipzig" (C-333/13), the European Court of Justice found, in reference to economically inactive EU citizens (who are not seeking employment), that the equal treatment of EU citizens with regard to access to social benefits requires these EU citizens to be lawfully resident in accordance with Directive 2004/38/EC (the "Free Movement Directive"). The Court found that this condition is not met in the case of a person who is not gainfully active, is not seeking employment, and also lacks the sufficient resources of his or her own and health insurance cover required after three months of residence.
- In the case "Jobcenter Berlin Neukölln v Alimanovic" (C-67/14), the European Court of Justice decided that EU citizens who only have a right of residence in order to seek employment are not entitled to benefits provided in the framework of basic income support for jobseekers under Book II of the Social Code. The European Court of Justice confirmed that EU citizens who are jobseekers may in principle, even if they have previously engaged in short-term periods of employment of less than one year in Germany, be excluded from receiving benefits to ensure an adequate subsistence level under Book II of the Social Code after a six-month period. According to the Court, EU citizens’ rights to equal treatment are limited by the arrangements for the right to free movement enshrined in Directive 2004/38/EC (the "Free Movement Directive"); under this Directive, the Member States are not obliged to confer entitlement to social assistance benefits to EU citizens who are jobseekers and their family members.
- In the case "Jobcenter Recklinghausen v Garcia-Nieto" (C-299/14), the European Court of Justice confirmed the admissibility in principle of the exclusion from entitlement to benefits under Book II of the Social Code during the first three months of residence.
Further information on entry and residence for EU citizens is available on the Federal Ministry of the Interior’s website.
Further information on the Office for the Equal Treatment of EU Workers is available here.