1.Introduction

The preliminary rulings Brey, Dano, Alimanovic, and García-Nieto (the Brey-quartet) saw a shift in the balance between migrating Union citizens and Member States in favour of the latter’s desire to limit the trans-national solidarity to migrating economically active Union citizens.Case C-140/12 Pensionsversicherungsanstalt v Peter Brey [2013] EU:C:2013:565; Case C-333/13 Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] EU:C:2014:2358; Case C-67/14 Jobcenter Berlin Neukölln v Nazifa Alimanovic, Sonita Alimanovic, Valentina Alimanovic, Valentino
Alimanovic [2015] EU:C:2015:597; and Case C-299/14 Vestische Arbeit Jobcenter Kreis Recklinghausen v Jovanna García-Nieto and Others [2016] EU:C:2016:114. This contrasts to the previous generous understanding of Union citizens since Martinez Sala, a groundbreaking case that opened up for a transnational solidarity vis-à-vis a large number of migrating Union citizens.Case C-85/96 María Martínez Sala v Freistaat Bayern [1998] EU:C:1998:217.

In Sala, the CJEU stated that a citizen of a Member State, legally resident in another, was subject to Article 17.2 EC (now Article 20.2 TFEU), to which the right not to be discriminated against on the grounds of nationality is linked under Article 6.1 EC (now Article 18.1 TFEU). The Court refined its holding in Baumbast where it held that Union citizenship is the fundamental status of nationals of the Member States and there was, therefore, no requirement of economic activity as a prerequisite for being able to enjoy or maintain the rights conferred through Union citizenship.Case C-413/99 Baumbast and R [2002] EU:C:2002:493; cf Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] EU:C:2001:458 para 31; and Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] EU:C:2011:124 para 41. However, the CJEU balanced the preliminary ruling by pointing at the limitations that ensue from both primary and secondary law. The Directive in question in Baumbast included a requirement not to become a burden on the host state and the CJEU deemed that such a requirement was reasonable.Council Directive 90/364/EEC of 28 June 1990 on the right of residence, [1990] OJ L 180.

Case law continued to develop Union citizenship, but every preliminary ruling that answered a question on the subject resulted in further questions demanding answers. The legal area started to become difficult to grasp. Therefore, the active approach of the CJEU regarding Union citizenship put pressure on the Member States to compile the case law in the area through legislation. A directive, Directive 2004/38 (the Citizenship Directive) – emanating from free movement directives of the 1990s and the developed case law of the CJEU in the area of Union citizenship – was therefore drawn up and incorporated by the Member States by the end of April 2006.Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC [2004] OJ L 158

The Citizenship Directive strives for a balance between the free movement of persons and the economic interests of the Member States with regard to social assistance: if an economically inactive Union citizen applies and becomes dependent upon social assistance, there is no right to equal treatment, Article 24.2 and the right of residence is waived in line with Article 7.1 (b) and Article 14.2 of the Directive. The Citizenship Directive talks here of a loss of a right to reside when burdening the host state.

The key question here is how to define social assistance as recourse to such assistance that can lead to expulsion. Is social assistance to be understood as merely meeting basic needs or encompassing also social welfare benefits that provide support based on need?

The CJEU embarked upon an answer to that question in Brey. The preliminary ruling in Brey is one of the most important, but also one of the most complex preliminary rulings that the CJEU has given in the area of social security in recent years. The background to Brey was that an increasing number of pensioners (i.e. economically inactive Union citizens) were moving to Austria where they were applying for a social security benefit, a compensatory supplement, to top up rather scant pensions from their respective countries.There was a twofold increase in the number of applicants over three years, albeit from a very low figure: from 498 in 2009 to 940 in 2012. Opinion of the Advocate General Case C-140/12 Brey, [2013] EU:C:2013:337, fn 4. In order to limit payment of the compensatory supplement, Austria introduced a requirement that Union citizens should have the right of residence before the compensatory supplement could be paid.

It was not questioned that the supplement fell under Regulation 883/2004 that coordinates the Member States’ social security systems.Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] OJ L 166. The question was, therefore, irrespective of the supplement being a social security benefit, also could be understood as social assistance. The Court answered this in affirmative and held that social assistance benefits (falling under the Citizenship Directive) should be understood as:

‘…all assistance introduced by the public authorities, whether at national, regional or local level, that can be claimed by an individual who does not have resources sufficient to meet his own basic needs and the needs of his family and who, by reason of that fact, may become a burden on the public finances of the host Member State during his period of residence which could have consequences for the overall level of assistance which may be granted by that State.’Brey (n 1) para 61.

Thus, a social benefit does not have to come under the social assistance legislation in a Member State for it to be regarded as social assistance under Union law; it is the substance of the benefit which is the determining factor. In light of this, the CJEU found that the Austrian social security benefit was, in parallel to Regulation 883/2004, covered by Directive 2004/38 and could therefore be made conditional upon a right to residence. The preliminary rulings Dano, Alimanovic, García-Nieto  confirms the line of reasoning of the CJEU in Brey. A later case, Commission vs UK, has that also recourse to general residence-based social security benefits can be understood as burdening the host state as stated in Article 7.2 of the Citizenship Directive and therefore constitute a ground for expulsion.Case C-308/14 European Commission v United Kingdom and Northern Ireland [2016] EU:C:2016:436; and cf Herwig Verschueren, ‘The Right to Social Assistance for Migrating Union Citizens: A Step Forward in the Case Law of the Court of Justice This Time’ (2021) 23 European Journal of Migration and Law 202, 204.

As to such burdening the Court holds in Dano that:

‘A Member State must …have the possibility, pursuant to Article 7 of Directive 2004/38, of refusing to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence.’Dano (n 1) para 78.

In summary, Brey sees a Court that bridges Regulation 883/2004 and the Citizenship Directive. By doing so, the Court holds that Member States can require a right to reside under the Citizenship Directive before granting social security benefits that economically inactive Union citizens would have been eligible for under Regulation 883/2004 and its equal treatment principle. In Dano, the Court confirms the bridge in Brey. Additionally, the Court holds that one aim of the Citizenship Directive is to prevent economically inactive Union citizens from using the host Member State’s welfare system to support their living. Given this, the Court does a narrow reading of the Citizenship Directive,See Daniel Thym ‘The Elusive Limits of Solidarity: Residence Rights of and Social Benefits for Economically Inactive Union citizens’ (2015) 52 CMLR 17; Niamh Nic Shuibhne, ‘Limits Rising, Duties Ascending: the Changing Legal Shape of Union citizenship’ (2015) 52 CMLR 889;
Rebecca Zahn, ‘”Common sense" or a threat to EU integration? The court, economically inactive EU citizens and social benefits’ (2015) 44 ILJ 573; Steven Peers, ‘Benefits for EU citizens: a U-turn by the Court of Justice?’ (2015) 74 Cambridge L. J., 195. a reading that was confirmed by Alimanovic and García-Nieto.See e.g. Anastasia Iliopoulou-Penot, ‘Deconstructing the former edifice of Union citizenship? The Alimanovic judgment’ (2016) 53 CMLR 1007; and respectively Charlotte O’Brien, ‘Civis capitalist sum: Class as the new guiding principle of EU free movement rights’ (2016) 53 CMLR 937, 950ff.

The first case of the 2020s, Jobcenter Krefeld, sees a Court that upholds the Brey-quartet’s restrictive transnational solidarity approach.Case C-181/19 Jobcenter Krefeld – Widerspruchstelle v JD [2020] EU:C:2020:794. The preliminary ruling Jobcenter Krefeld confirms that the social security benefit at stake in the case (a special non-contributory cash benefit), covered by Regulation 883/2004, continue, in parallel, to be understood as social assistance and thus, fall under the Citizenship Directive.Brey (n 1) para 61; Dano (n 1) para 63; Alimanovic (n 1) para 49; and Jobcenter Krefeld (n 13) para 57. Hence applying for such social security benefits burdens the social assistance system and can lead to the loss of a right to reside according to the Citizenship Directive, despite that Regulation 883/2004 foresees equal treatment for those falling under its personal scope.Brey (n 1) paras 61 and 62; and cf Jaan Paju, ‘On the lack of legal reasoning in case C-308/14, European Commission v United Kingdom’ (2019) 44 ILJ, 117, 117f. More importantly, though, the CJEU sheds, for the first time, light on the interrelationship between the Citizenship Directive, the general EU law instrument on the free movement of persons, and Regulation 492/2011, the instrument that aims at promoting the free movement of workers.Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union [2011] OJ L 141; and cf Kay Hailbronner, ‘Union citizenship and Access to Social Benefits’ (2005) 42 CMLR 1245, 1252ff.

The article focuses on Regulation 492/2011 and its interrelationship to the Citizenship Directive. However, also other points of law will be analysed. The overarching question being asked is if there is, post-Jobcenter Krefeld, transnational solidarity and for whom?

Section 2 gives a short background to Case C-181/19 Jobcenter Krefeld. Section 3 analyses the preliminary ruling regarding the interrelationship between Regulation 492/2022, the Citizenship Directive, and Regulation 883/2004 out of five perspectives. The final section, Section 4, discusses and concludes the ruling in Jobcenter Krefeld but also reflects on the future of Union citizenship in light of the ruling.

2.Case C-181/19 Jobcenter Krefeld

In 2013, Jobcenter Krefeld, a Polish national and the father to two daughters born in 2005 and 2010, relocated his family to Germany. Since September 2015, his two daughters live with him after his divorce from his wife. The two daughters have attended school in Germany since August 2016.Jobcenter Krefeld (n 13) paras 18 and 19.

JD was in employment in Germany between March 2015 and the end of October 2016. Between 31 October 2016 and 2 January 2018, he then became unemployed. Between 1 September 2016 and 7 June 2017, JD and his daughters received German basic social security benefits and in June 2017, JD applied for continued payment of these benefits. Jobcenter Krefeld rejected the application on the ground that JD had not retained the status of a worker according to German law (implementing Article 7.3 (c) of the Citizenship Directive) and that he was in Germany solely to seek employment. JD and his daughters brought an action for the annulment of that decision and asked the Sozialgericht Düsseldorf to order the Jobcenter Krefeld to grant them basic social security benefits for the period from 8 June 2017 to 31 December 2017.ibid paras 20-25.

By judgment of 8 May 2018, the Sozialgericht Düsseldorf upheld the action and ordered Jobcenter Krefeld to grant JD and his daughters the basic social security benefits on the ground that JD had a derived right of residence, and thereby a right to basic social security benefits, from the right to education conferred on his daughters by Article 10 of Regulation 492/2011.ibid para 26.

Jobcenter Krefeld appealed against the judgment. The appellate court, the Landessozialgericht Nordrhein-Westfalen decided to stop the proceedings and referred two questions for a preliminary ruling to the CJEU: firstly, whether a right to equal treatment based on regulation 492/2011 can be claimed despite the Citizenship Directive’s exception of equal treatment in Article 24.2, and secondly, if Article 4 of Regulation 883/2004 hinders discrimination if a citizen has a right of residence based on Regulation 492/2011.ibid para 32.

3.The Judgement of the CJEU

3.1.The Right of Residence for studies, Article 10 of Regulation 492/2011

The free movement of workers was established by the Treaty of Rome in 1957; after a transition period in the 1960s, the implementation of the free movement was brought into effect by Regulation 1612/68, now replaced by Regulation 492/2011.Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community [1968] OJ L 257.

The free movement of workers is characterised by a generous understanding of the personal scope as well as the material scope as seen in numerous cases.See e.g. Catherine Barnard, The Substantive Law of the EU – The Four Freedoms (6^th ed. OUP 2019), chapter 7. Once being seen as a worker, the non-discrimination principle reigns, as enshrined in Article 7.2, Regulation 492/2011, opening up the working state’s welfare state systems for the worker and their family members.

When the Citizenship Directive was adopted, the parts of Regulation 1612/68 that dealt with the right to take up residence in the country of work, the right to take up work for family members, and the right to equal treatment were incorporated into the Directive.Regulation 1612/68 Articles 10 and 11 were repealed through Art 38.1, Directive 2004/38. However, one right regarding migrant workers’ family members was not transferred: the right to education of the child of the migrant worker. Thus, a migrant worker’s or former worker’s child can claim, in parallel, a right of residence (for studies) based on Regulation 492/2011 as well as equal treatment based on Article 24 of the Citizenship Directive.Cf Jobcenter Krefeld (n 13) para 34. These rights, however, differ in a decisive way; the right to equal treatment (and thus a right to education) in the Directive is conditional upon the carer of the child having a right of residence, while the right to education, in accordance with Regulation 492/2011, is a child’s independent right.See Katarina Hyltén-Cavallius, ‘Who cares? Caregivers’ derived residence rights from children in EU free movement law’ (2020) 57 CMLR 399; and Johanna Schiratzki, ‘Children’s rights in the EU – A tool for autonomous citizenship or patriarchy reborn?’ (2011) 14 ERT 70, esp. 82.

In Baumbast, Ibrahim and Teixeira, the CJEU held that the right to education, in accordance with Article 12 of Regulation 1612/68 (now Article 10, Regulation 492/2011), is an independent right enjoyed by the children of migrant workers.Baumbast (n 3); Case C-310/08 London Borough of Harrow v Ibrahim [2010] EU:C:2010:80; Case C-480/08 Teixeira v London Borough of Lambeth [2010] EU:C:2010:83; cf. Baumbast (n 3) paras 63 and 75, Teixeira, para 36 The Court also established that the carer has a derived right of residence in the Member State in order to guarantee the child’s independent right to education.Baumbast (n 3) paras 63, 70 and 75; Ibrahim (ibid) paras 48-50; Teixeira (ibid) paras 37, 46 and 50; cf. the reasoning of the Court of Justice in Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] EU:C:2004:639; and Case
C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] EU:C:2011:124. Thus, the carer becomes the person who guarantees that the child is able to study, irrespective of whether the carer has a right of residence in accordance with Directive 2004/38.

In light of these rulings, the CJEU recalls in Jobcenter Krefeld, as a starting point, that the freedom of workers requires the best possible conditions for a worker’s integration in the working state.Jobcenter Krefeld (n 13) para 36. Therefore, children of a migrating worker, who is or who has been employed, has a right to equal treatment with the nationals of the Member State where they reside as regards access to education.ibid para 34. Such a right entails an independent right of residence in the host Member State. This right also entails a corresponding right for the primary carer.ibid para 35.

In this part, the Court’s interpretation is straightforward. Where the Advocate General discusses a rather complex theory of a “knock-on effect” where the former right bearer (the migrating worker) becomes a subordinate clause (the person that benefit from the right bearer) and the child, the initial subordinate clause, becomes the main clause (the child benefitting from the father, now having a right on his/her own) the Court simply holds, referring to Ibrahim and Teixeira, that the child’s right to residence exists regardless of the current status of the parent.Opinion of the Advocate General, Jobcenter Krefeld, EU:C:2020:377, para 55; and Jobcenter Krefeld (n 13) paras 36 and 37. In other words, if a migrating Union citizen initially has qualified as a migrating worker, the children of the person will become untouchable throughout the duration of the studies according to Article 10, Regulation 492/2011. And… so, will their primary carer.

This is a far-reaching transnational solidarity in the name of free movement of workers. Jobcenter Krefeld sees a right of residence that can last for 10-12 years (depending on when a child starts school) once the generous threshold of being a worker has been reached.

3.2.The Right to Equal Treatment under Article 7 of Regulation 492/2011

The Right to equal treatment regarding social benefits as required by Article 7, Regulation 492/2011 entail two issues: what is the material scope and who benefits from the equal treatment. In essence, is JD eligible for the German social security benefits?

As for the ratione materiae with regard to Article 7.2 of Regulation 492/2011 and the notion of ‘social advantage’, the case law has had a generous understanding of the notion and the Court confirms this case law by referring to UB, the most current case in a long row of cases defining ‘social advantage’ as to:

‘… include all advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Union … and, consequently, their integration into the host Member State.’Case C-447/18 UB v Generálny riaditeľ Sociálnej poisťovne Bratislava [2019] EU:C:2019:1098 para 47.

Given this broad definition, the Court finds that as the German social security benefits cover subsistence costs of the recipients and thereby contribute to the integration of those recipients, the benefits fall under the Regulation’s ratione materiae.ibid para 42.

However, as regards the ratione personae the Court faces the challenge that Article 7.2 is destined to promote workers not former workers or their children. As the Advocate General puts it:

‘… we cannot overlook the fact that Article 7 is at the beginning of Section 2 of Regulation No 492/2011, entitled ‘Employment and equality of treatment’. Nor can we overlook the fact that that article refers expressly to ‘a worker’, and JD no longer has that status.’

The Advocate General discusses two ways how to understand the ratione personae of Article 7.2.Opinion of the Advocate General, Jobcenter Krefeld (n 31) paras 59 – 77. Firstly, understanding Article 7, as a whole, where Article 7.2 corresponds to the ratione personae of article 7.1 that talks of a right for re-employment for migrating workers indicating that the Regulation also covers migrating workers that have become unemployed. Secondly, understanding Article 10 as an independent right to education entailing a right to social advantages.

This latter line of arguing would inevitably extend the ratione personae of the Regulation 492/2011 beyond its telos as the children to a migrating worker would then, in their own capacity, become eligible for social advantages under Regulation 492/2011. The child would have a their own right, independent from the migrating (former) economically active parent, thereby blurring the Internal Market perspective of the Regulation and moving in the direction of a fundamental right to education. A right that could be claimed irrespective of the fact that education rests with the Member States, not EU.cf Article 165 TFEU.

The Court avoids extending the ratione personae by following the Advocate Generals former line of reasoning that former migrating workers are still covered by the Regulation as Article 7.1 indicates that also migrating workers, who have become unemployed, are covered by the Regulation.Jobcenter Krefeld (n 13) para 43. Furthermore, the Court continues, the Regulation needs to be understood in a primary law context where article 45.2 TFEU enshrines the principle of equal treatment of migrating workers.ibid para 44. Thus, the Court holds, the mere fact that JD has become economically inactive does not lead to the result that the principle of equal treatment becomes inapplicable.ibid para 47. The Court is, in light of the above, of the understanding that rights may persist in certain circumstances even after the termination of the employment relationship. This is, especially true when it comes to the right to education for a migrating worker’s children as otherwise the worker would face the risk that losing the status as a worker would be seeing the children being forced to leave school as a right to social subsistence would no longer be possible and forcing the family to move back home.ibid para 48-53.

The Court’s reference to Article 45.2 TFEU in paragraph 44 is somewhat puzzling as the cases referred to, UB and Depesme et al, both deal with migrating workers still in employment.Joined cases C-401/15 to 403/15 Noémie Depesme and Others v Ministre de l'Enseignement supérieur et de la recherche [2016] EU:C:2016:955. The link between the overarching aim and the more precise Regulation 492/2011, in those cases, is obvious. In Jobcenter Krefeld the migrating worker had become economically inactive and the question is rather for how long an economically inactive worker can claim equal treatment. The answer seems to be that the host state’s solidarity, in such cases, are stretched to a maximum as the right to education for children may last for up to twelve, thirteen years. The Court argues that such an independent right including a right to social subsistence is a prerequisite for workers to be willing to move to another Member State to take up work.Jobcenter Krefeld (n 13) para 52. This is certainly a prerequisite that a reasonable man takes into account when considering work in another Member State. However, if a worker in a state becomes unemployed, national unemployment schemes do not rule out that an unemployed person must take up work in another part of the state. The consequences are the same: you might need to move house to be eligible for social subsistence benefits. What is the logic behind that it is possible for a reasonable man to accept to move house within a state but not move house back home to his Member State? The challenge is the same: the schooling of the children will face the risk to be interrupted. True, curriculums differ between Member States and the children might face other problems. Still, the schools differ within a Member State too despite following the same curriculum: the number of students, the socio-economic dimension, etc. This national challenge the reasonable man faces is, however, something that falls outside the competence of the Union.

Summing up, has the migrating man, at some point, been a migrating worker according to Union law, Regulation 492/2011 applies and he is eligible for social benefits as a primary carer of his children attending school.cf The Lawrie-Blum test, Case 66/85 Lawrie Blum v Land Baden-Württemberg [1986] EU:C:1986:284 para 17 ; see also Case 139/85 Kempf v Staatssecretaris van Justitie [1986] EU:C:1986:223; and Case C-14/09 Hava Genc v Land Berlin [2010] EU:C:2010:57.

3.3.The Citizenship Directive v. Regulation 492/2011

As a migrating worker you fall, in parallel, also under the Citizenship Directive. If you are not considered a migrating worker, you solely fall under the Citizenship Directive with, as the Court holds in Jobcenter Krefeld, dramatic consequences.

It follows from Article 24.1 of the Citizenship Directive that migrating Union citizens have a right to equal treatment as regards rights that follow from the Treaties irrespective of whether they are economically active or inactive as long as they have a right of residence in the host state. One such right that follows from the Treaties, as the Court holds in cases such as Martínez Sala, Grzelczyk, Bidar, and the Brey-quartet, is the right to social assistance.Case 184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve [2001] EU:C:2001:458; and Case C-209/03 The Queen, upon the request of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills [2005] EU:C:2005:169.

This right to equal treatment is, however, made dependent upon a right of residence. According to Article 7 of the directive, migrating workers have a right of residence in their capacity as workers from day one. This differs to economically inactive Union citizens who have a right of residence the first three months (Article 6) and a conditional right of residence after three months up to five years dependent upon having sufficient resources and a sickness insurance. If there is no such right of residence, there is no right to equal treatment as regards social assistance. Furthermore, Article 24.2 of the Directive, enables a derogation for a host state from the right to equal treatment as regards Union citizens during the first three months of residence, job-seekers and to students as regards maintenance aid. This derogation applies to the right to social assistance.

It is an undisputable fact that JD was, at the time for application, unemployed and looking for work. The question to be answered is therefore whether Germany can deny the German basic social protection, classified as social assistance by the Court in the Dano, Alminanovic and García-Nieto, referring to Article 24.2 of the Directive.

The Court affirms that derogation from the equal treatment principle in the Directive is possible as to Union citizens looking for work in another Member State. However, the Court finds that Jobcenter Krefeld in parallel to the Citizenship Directive falls under Regulation 492/2011. Thereby, he can rely on an independent right of residence as the primary carer securing his daughters’ right to education that follows from Article 10 of the regulation.Jobcenter Krefeld (n 13) para 69. On basis of this, the Court finds that there is a difference of treatment according to Article 7.2, Regulation 492/2011 as those who have a right of residence under Article 10 are excluded from the German subsistence benefits.ibid paras 73-76. Such a difference in treatment is not possible under Regulation 492/2011.

The question whether JD was to be seen as a job-seeker at the time for applying for the subsistence is not relevant as he was a worker at the time when his daughters started to attend school: Regulation 492/2011 overrules the Citizenship Directive.

As to this the Court holds that the Citizenship Directive is not to be understood as a catch-all regulation as the codification and revision of the, at that time, existing instruments that dealt separately with workers, self-employed, students, and economically inactive Union citizens, was not exhaustive. The right to education for migrating workers’ children remained with Regulation 1612/68 (now Regulation 492/2011) and the Court holds therefore that the Directive was designed to be compatible with the regulation as well as the case law.ibid paras 64-65.

However, in its reasoning, the Court forgets that there is neither a lex-specialis clause in the Directive referring to the Regulation as it is the case between Regulation 492/2011 and Regulation 883/2004, nor that there was, at the time of drafting the Directive, any relevant case law on the interaction between migrating workers, their children’s right to education, and the Union citizenship. Only later, once the Citizenship Directive was in place, Ibrahim and Teixeira sorted out the interaction.

To make things worse, the Court chooses to, in an obiter dictum, further “clarify” the distinction between two categories of job-seekers as well as the crucial distinction between economically active and economically inactive Union citizens. Here, the arguing resembles a roller-coaster with highs and lows.

For a start, the question whether JD currently seeks employment, or not, is of no relevance if the Court’s initial reasoning is to be understood as decisive: JD once qualified for falling under Regulation 492/2011 in his capacity as a migrating worker. His current ‘whatabouts’ are of no importance as seeking employment does not add to his and her daughters’ right to social benefits.

In light of this, it is hard to follow the Court’s reasoning and the importance of the finding that there is an “appreciable distinction” between migrating workers who become unemployed and migrating Union citizens who seek employment.ibid paras 67, 70 and 71. True, the distinction between a Union citizen that becomes unemployed and a person who moves to seek employment is of importance, but not with regard to the interrelationship between Regulation 492/2011 and the Citizenship Directive. The distinction is decisive, though, regarding a right of residence under the Citizenship Directive: a migrating worker, who has become unemployed, remains a worker according to Article 7.3 for a certain period of time thereby earning a right of residence in that capacity as well as earning a right of equal treatment in contrast to a Union citizen that has moved to another Member State to seek employment where the latter has a right of residence but no right to social assistance as follows from Article 14.4. However, this intrarelationship within the Citizenship Directive, will, post-Jobcenter Krefeld, be of no importance as to primary carers' right to social benefits: Article 7.2 of Regulation 492/2011 reigns.

Secondly, as to the crucial distinction between economically active and economically inactive Union citizens’ rights, the Court, in its obiter dictum, confirms the narrow understanding of a right of residence as expressed in the Brey-quartet: economically inactive Union citizens become a burden when seeking recourse to social assistance thereby losing the right of residence.ibid paras 66-68. Here, the Citizenship Directive continue to override Regulation 883/2004 as will be further discussed in section 3.4 below.

Summing up, the ruling in Jobcenter Krefeld points in the direction that economically active Union citizens are in the lead and a free movement for economically inactive Union citizens is not encouraged neither as job-seekers nor as Union citizens “with the sole aim of receiving social assistance”.ibid para 68.

It is painstakingly clear that different standards apply as the Court accepts taking up work with the sole aim of earning a right of residence as in Levin, where Ms Levin took up work in the Netherlands solely to claim a residence right for her and her third-country husband.Case 53/81 D.M. Levin v Staatssecretaris van Justitie [1982] EU:C:1982:105. As well as in L.N. where L.N. deliberately took up work before applying for a national student grant, is in accordance with the idea of promoting the free movement… of workers).Case C-46/12 L. N. v Styrelsen for Videregående Uddannelser og Uddannelsesstøtte [2013] EU:C:2013:97. What becomes decisive is whether a job-seeker succeeds in getting a job, no matter what the motive is for migrating.cf Verschueren (2021), 214. If so, Regulation 492/2011 and equal treatment applies for him and his family, and could do so irrespective of losing work if the children attend school. If not, the Directive applies where derogation from equal treatment is possible.

3.4.The interrelationship between Regulation 492/2011, Regulation 883/2004 and the Citizenship Directive

However, we must not forget that the German basic social protection benefits in Jobcenter Krefeld are listed as “special non-contributory cash benefits” in Annex X, to Regulation 883/2004. The benefits are, thus, social security benefits that fall under Regulation 883/2004 in parallel to Regulation 492/2011 and are as well, post-Brey, bridged to the Citizenship Directive. It is a legal threesome where the three instruments interact and counteract.

Regulation 883/2004 coordinates the social security systems of the Member States in cross-border situations.Social Security benefits include, among others, sickness benefits, parental benefits, unemployment benefits and pensions. The initial underlying idea of the coordination was to dismantle territorial structures of the Member States’ social security systems to promote the free movement of workers.Frans Pennings, European Social Security Law ( 6th edn, Intersentia 2015), chapter 1. Thus, a migrating worker would be assured that they would (always) be covered by a Member State’s social security and that their earned rights would not be lost due to restrictive national rules when moving country.

Whereas Regulation 492/2011 covers migrating workers, Regulation 883/2004 covers, according to Article 2.1, ‘… nationals of a Member State … residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as… the members of their families…’ The latter regulation’s personal scope is far broader: JD as well as his daughters fall under both Regulations.Jobcenter Krefeld (n 13) para 81. Given this, if JD and his daughters would not fall under Regulation 492/2011’s personal scope it would, in theory, still be possible to claim a right to the German social subsistence benefits, under Regulation 883/2004, as residents in Germany. However, JD cannot claim the German social security benefit on basis that he falls under the personal scope of Regulation 883/2004 as German law requires a right to reside before granting the social subsistence; something that is in accordance with the Brey quartet. Such an unequal treatment based on the Citizenship Directive is, however, as seen above, not possible as the Court holds that JD and his daughters have a right to lawful residence based on Article 10 of Regulation 492/2011. Therefore, the Court states, JD and his daughters are, in parallel, entitled to the social subsistence benefits under Regulation 883/2004.ibid., para 84.

In other words, Regulation 492/2011 overrules the Citizenship Directive with regard to the right to reside and, therefore, its equal treatment applies. In addition, Regulation 883/2004 apply in parallel to Regulation 492/2011. However, there is no free-standing right to equal treatment that follows from Regulation 883/2004 as the Citizenship Directive, still, overtakes the Regulation as regards economically inactive Union citizens, despite the fact one would expect the opposite given that Regulation 492/2011 overrules the Directive.As to this see Verschueren (2021), 210.

This is confusing, to say the least. Why take the trouble to add an additional layer with regulation 883/2004 as Regulation 492/2011 overrules the Citizenship Directive and the case is being solved? Most likely the Court seizes, in a Grand Chamber-setting, the opportunity to confirm that Regulation 883/2004 is merely a co-ordination instrument with regard to economically inactive Union citizens. This contrasts to how Regulation 883/2004 is understood in an Internal Market setting where the Court has gone beyond co-ordination and eroded national sovereignty when ruling out additional national residence requirements.Case C-347/10 A. Salemink v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen [2012] EU:C:2012:17; case C-179/13 Raad van bestuur van de Sociale verzekeringsbank v L.F. Evans [2015] EU:C:2015:12; and case C-187/15 Joachim Pöpperl v Land Nordrhein-Westfalen [2016] EU:C:2016:550. This poses challenges on a Member State level.

3.5.Administrative challenges

Jobcenter Krefeld sheds light on the interaction between the three main free movement legislations where Regulation 492/2011 takes the lead, should the Union citizen be regarded as a migrating worker. If that is not the case, the Citizenship Directive reigns. Regulation 883/2004 seems to, post-Jobcenter Krefeld, play a secondary role. This new role is, however, troublesome.

The administrative challenges are, on a Member State level, numerous as Jobcenter Krefeld touches upon migration law, social security law, social assistance as well as gives rise to a general (re)take on the welfare state and transnational solidarity.

The obvious national challenge is, if there is a political wish to curb transnational solidarity, to coordinate the respective authorities as an application to the social security agency for residence based social security benefits indicate that there is no right to residence. The challenges will obviously differ depending on the administrative structures of respective Member State. Still, some overarching questions beg for an answer. Which authority should assess the right to stay? Shall the social security agency go beyond merely denying a benefit as an application indicates that there is no right to reside? If so, can such an assessment be binding upon the migration authority? Given the legislation on personal data and confidentiality, is it possible for the authorities to share information between each other?

On a different note, given the court structure, administrative and migration courts might have parallel competence and the competent authorities will face the risk of diverging case law.

Furthermore, what is the standing of Regulation 883/2004? Does it have a role to play? Given the very broad understanding of the notion social advantage in Article 7.2, Regulation 492/2011 applies in all matters where social security benefits are at stake.cf UB (n 32) para 47. The Court has, in earlier case law, understood the mutual ranking as regulated in Article 36.2 of the Regulation 492/2011, where a situation falls under both regulations, that Regulation 883/2004 take precedence.Case C-206/10 European Commission v Federal Republic of Germany [2011] EU:C:2011:283 para 39. This is no longer the case. True, the outcome is the same: Union law calls for equal treatment. However, Regulation 883/2004, with its detailed co-ordination, is by far better suited for dismantling various national social security eligibility requirements. In addition, Regulation 883/2004 together with Regulation 987/2010,Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems [2009] OJ L 284. regulates in detail the administrative co-operation between the social security agencies in the Member States. Regulation 492/2011 relies simply on the equal treatment-principle that designates that the authorities shall treat equal situations on equal terms. However, this might lead to a person being covered by two Member States, or not at all. This might also lead to situations where social security authorities are being required to apply regulation 492/2011, a legislation they are not familiar with. Blurring the mutual ranking between the two Regulations could, therefore, in the long run, hamper the free movement of persons as the equal treatment-principle in Article 7.2 of Regulation 492/2011 is far too imprecise for the national authorities to apply.

4.Conclusion and Reflections

We are in the midst of a consolidation phase of the Union citizenship where we see a move from a generous understanding of transnational solidarity towards narrower solidarity directed towards “the worthy”, the market citizens.cf Fulvia Ristuccia, ‘The right to social assistance of children in education and their primary carers: Jobcenter Krefeld’ (2021) 58 CMLR 877, 903; and Eleanor Spaventa, ‘Earned citizenship – Understanding Union citizenship through its scope’ in Dmitiri Kochenov (ed) EU Citizenship and Federalism: The Role of Rights (CUP 2017).

Jobcenter Krefeld is, in this respect, just another case that confirms the Brey-quartet’s strict understanding.cf footnote 11 but also, Herwig Verschueren, ‘Preventing ‘Benefit Tourism’ in the EU: A Narrow or Broad Interpretation of the Possibilities Offered by the ECJ in Dano?’ (2015) 52 CMLR 363; and Stefano Giubboni, Free Movement of Persons and European Solidarity: A Melancholic Eulogy: in Herwig Verschueren (ed) Residence, Employment and Social Rights of Mobile Persons: On How EU Law Defines Where they Belong (Intersentia 2016). However, the Court’s reasoning is interesting out of other points of law as in its ruling, it sheds light on the interaction between the three parallel free movement legislations, Regulation 492/2011, Regulation 883/2004, and the Citizenship Directive. However, by doing so, the Court overlooks fundamental differences between these three instruments.

The Court finds that parallel rights of residence may well exist where persons who, in one way or another, fall under Regulation 492/2011 are better off than those falling under the Citizenship Directive. This is in line with the consolidation of the Union citizenship where the Market Citizen is favoured. However, the Market Citizen in Jobcenter Krefeld very much resembles that of an economically inactive Union citizen as JD was not economically active over long periods: the transnational solidarity vis-à-vis economically active Unions citizens are thus, stretched to its maximum.

Ristuccia argues that Jobcenter Krefeld indicates a return to a more humane market citizenship.Ristuccia 904. Perhaps that is the case as the Market Citizen seems, post-Jobcenter Krefeld, to include not merely workers but also unemployed primary carers.

That is, however, not Ristuccia’s point as she argues that the Court has returned to a more humane approach in Jobcenter Krefeld which contrasts to Alimanovic. Though, in doing so, she oversees the fact that there is a fundamental difference between a migrating worker and a job-seeker. In Alimanovic, the status of the migrating persons was not questioned.Alimanovic (n 1) para 40. They were job-seekers according to the Citizenship Directive. Such a Union citizen falls under the Citizenship Directive, not Regulation 492/2011. Hence, equal treatment is possible to deviate from as follows from the Citizenship Directive, Article 24.2. In contrast, a migrating worker, as follows from primary law, secondary law as well as established case law has that the free movement for workers calls for an unrestricted equal treatment. True, at the time for applying for social subsistence he was unemployed. Still, the Court does not deviate from its generous understanding of its definition of a worker and includes JD as he was a migrating worker when his daughters started school, thereby falling under Regulation 492/2011. This is a fundamental difference: JD was, when his daughters started school, a migrating worker, Alimanovic had, when applying for social security benefits, lost the status as migrating worker.

The approach might be humane in the sense that the ruling in Jobcenter Krefeld is generous with regard to migrating workers who have become unemployed and, in this sense, Jobcenter Krefeld is a move away from Alimanovic where the Court stuck to the strict timelines in the Citizenship Directive rather than assessing the situation out of a primary law perspective and Article 45 TFEU.cf Iliopoulou-Penot, 1018. However, as for persons who have moved to another Member State as economically inactive Union citizens, the door, as Verschueren notes, remains closed.cf Verschueren (2021), 213ff. I would argue that Jobcenter Krefeld rather widens the gap between migrating workers and migrating economically inactive Union citizens than returning to a more inclusive and generous approach. Everything comes down to economic activity.

This is also true with regard to the Court’s understanding of Regulation 883/2004. Jobcenter Krefeld confirms the Court’s understanding in Commission v. UK that Regulation 883/2004 is, despite its broad personal scope, exclusively to be understood as an instrument for enhancing the free movement of workers.Paju, 131 f. Accordingly, Regulation 883/2004 and its equality-treatment principle is merely to be applied where there is a right of residence. The argument is that the Regulation coordinates, not harmonises, the Member States’ social security systems and additional national eligibility requirements are, therefore, possible.Jobcenter Krefeld (n 13) para 84; Commission v United Kingdom (n 9) paras 65 and 68. This seems, however, as touched upon in section 3.4 above, not to apply to national eligibility measures that hinder the free movement of workers. Such restrictions are on a regular basis struck down by the Court irrespective of Regulation 883/2004 being a coordination instrument. In other words, migrating workers can claim an extensive reading of the non-discrimination principle in Regulation 883/2004 whereas, economically inactive Union citizens cannot. This, irrespective of the fact that the Regulation makes no distinction between the different categories that fall under its personal scope and irrespective of the fact that Regulation 883/2004 aims to guarantee that no one falls between stools. Clearly, economically inactive Union citizens do fall between stools and will continue doing so until either the Court starts to respect Regulation 883/2004 or the legislator amends the personal scope to better reflect the Court’s understanding and confirms the return of the homo economicus.cf Verschueren (2021), 211ff.

The ruling in Jobcenter Krefeld consolidates that the economically active Union citizens are in the lead and a free movement for economically inactive Union citizens is not encouraged by the Court, be it as job-seekers, migrating persons falling under the scope of Regulation 883/2004, or as Union citizens ‘with the sole aim of receiving social assistance’.Jobcenter Krefeld (n 13) para 68. The challenges remain for the Member States’ administrations to assess the status of the migrating Union citizens. More challenges are ahead as another layer is introduced where the former interaction between Regulation 883/2004 and Regulation 492/2011 is overturned.