Family benefits may not be refused to a Union citizen who has established his habitual residence in the host Member State during the course of first third the months of his stay, on the grounds that he does not obtain income from his activities in that Member State.
If his stay is legal, he shall in principle enjoy the right to equal treatment with national citizens.
Germany’s approach to benefits
A citizen of the Union from a Member State other than Germany challenged before the German court the decision of the cashier of the Federal Employment Agency for Lower Saxony and Bremen dismissing her application for family benefits for three of her children for first three months since they settled in Germany.
According to the cash register, the applicant does not comply with the German legislation in July 2019 the conditions for the right of Union citizens to apply for such benefits during the first three months of stay because she did not receive "national income" during that period.
Through this requirement, the German legislature intended to avoid the influx of nationals of other Member States into Germany, which could create an unreasonable burden on the German social security system. However, the requirement does not apply to German nationals returning to Germany after their stay in another Member State.
The German court asked the Court of Justice whether such a difference of treatment is compatible with Union law.
Any Union citizen, even inactive, shall have the right to reside in the territory of another Member State for a period not exceeding three months
TEU opinion
In its judgment today, the Court recalls that every citizen of the Union, even inactive, has the right to reside in another Member State for a period not exceeding three months, without fulfilling any conditions and formalities other than the requirement to have a valid identity card or passport until he and his family members become an unreasonable burden on the social assistance system in the host Member State. In such cases, their stay is generally legal.
During this period, citizens of the Union, in the absence of a derogation expressly provided for by the Union legislature, are treated equally with national citizens.
The host Member State may, on the basis of a derogation provided for by Union law, refuse to grant to a Union citizen, who is inactive, social assistance benefits in the course of first three months of his stay (See judgment of the Court of Justice of 25 February 2016, García-Nieto and Others, C 299/14 (see also press release no. 18/16).
However, the family benefits in question do not constitute social assistance benefits within the meaning of that derogation. They are granted regardless of the individual needs of the beneficiary and are not intended to provide him with means of subsistence but to compensate for the cost of living the family.
Since there is no derogation from the principle of equal treatment of national citizens with nationals of another Member State with regard to such family benefits, Union law opposes the different treatment introduced by the German legislature.
However, equal treatment can only be claimed if the Union citizen in question has actually established during the period considered first three months of habitual residence in the host Member State. A stay that is only temporary in this respect is not enough.
Transfer of habitual residence to the host Member State means that the person concerned has expressed his wish to actually establish an ordinary centre of his or her interests there and has shown that his or her presence in the territory of that Member State demonstrates sufficient stability which distinguishes him or her from temporary residence.