Freedom of movement- jobseeker’s allowance- principle of equal treatment

Thumb tanel
Apr 11, 2019
0
0

In Neculai Tarola v Minister for Social Protection (C-483/17), Mr Tarola, argued that pursuant to Article 7(3)(c) of Directive 2004/38, he had the right to reside in Ireland as a worker, for a period of six months, after completing two weeks employment.

The High Court of Ireland held that Mr Tarola, could not be regarded as a ‘worker’ and thus as habitually resident in Ireland. Consequently, he could not claim social assistance in that capacity. The period of work completed by Mr Tarola could not be regarded as a fixed-term contract of employment, and thus the applicant would be entitled to jobseeker’s allowance only if he would had been in continuous employment for one year prior to applying for social security assistance.

In the light of settled ECJ’ case law (see inter alia Vatsouras and Koupatantze C‑22/08 and C‑23/08), the Court of Appeal (Ireland) ruled out the doubt in regard to the status of worker and has referred to the ECJ the question whether or not the applicant retains such a status.

The ECJ was called upon to interpret Article 7.3 (c) Directive 2004/38/EC:  

3.    For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances:

(c)  he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first 12 months and has registered as a jobseeker with the relevant employment office. In this case, the status of worker shall be retained for no less than six months;

The second part of that provision could be interpreted as applying to employed or self-employed persons or to both categories. The provision might concern fixed-term contracts of more than a year or contracts of indefinite duration, or eventually, any type of contract or activity. Lastly, the question is whether the 12 months relate to the period of residence or the period of employment of the worker concerned in the host Member State.

The ECJ observes that the provision does not contain any reference to the law of the Member States, and as a consequence, must be given an autonomous and uniform interpretation throughout the European Union.

The ECJ underlines that:

  • the entitlement to retain the worker status on the basis of Article 7(3) Directive 2004/38 and the corresponding right of residence, are regardless the nature of the activity: employment or self-employment (see inter alia Gusa, C‑442/16, EU:C:2017:1004, paragraphs 37 and 38).
  • such a right is based on the assumption that the person is “available and able to re-enter the labour market of the host Member State within a reasonable period” (see inter alia Prefeta, C‑618/16, EU:C:2018:719, paragraph 37).
  • where Article 7(1) Directive 2004/38 guarantees all workers or self-employed persons, inter alia, a right of residence for more than three months in the host Member State, Article 7(3) guarantees the same rights to EU citizens in a position of temporary inactivity. Article 7(3) provides for a graduation with regard to the conditions for retaining such rights.
  • pursuant to Article 7 (3)(c), a EU citizen who has pursued an activity for a period of less than one year, retains the status of worker for no less than six months.

In the light of the above consideration, the ECJ rules that the second part of the provision applies to any Union citizen who has pursued an activity in an employed or self-employed capacity in the host Member State, for a period of less than one year, regardless the type of employment contract entered.

However, with regards to the entitlement to social assistance, the principle of equal treatment with the nationals of the host Member State applies “where national law excludes persons who have worked in an employed or self-employed capacity only for a short period of time from the entitlement to social benefits, that exclusion applies in the same way to workers from other Member States who have exercised their right of free movement.”

 

 

 

Medium tanel

Tanel Feldman

Managing Partner, Immigration Law Associates

Corporate Immigration Law/Employment Law/Social Security Law/European Law

No comments yet.