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EU Citizens who exercise their right to free movement, by going in another Member State for the sole purpose of obtaining social assistance, not being economically active, may be excluded from certain social benefits, under EU Law- Judgement in Case- 333/2013, from November 2014, Elizabeta Dani, Florin Dani v. Jobcenter Leipzig.

In fact, two Romanian Nationals, Ms. Dano and her son Florin, referred a case to the Social Court- Leipzig, against Jobcenter Leipzig, related to the latter refusal to grant them benefits, i.e.: subsistence benefit (‘existenzsichernde Regelleistung’) and for her son, social allowance (‘Sozialgeld’), as well as a contribution to accommodation and heating costs. The ECJs’ response to that Court (which referred the matter for a preliminary ruling) was that nationals of EU Member States are entitled to claim equal treatment with nationals of the host Member State when their residence conditions are in accordance with the 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. This means that, beside the fact under the Directive, the host Member State is not obliged to grant social assistance for the first there Months of residence, when an EU citizen is proven to be economically inactive (e.g.: not being trained in a profession, nonexistent previous work experience) he/she must have sufficient resources to provide for themselves (where the period of residence is longer than three months but less than five years). So that the scope of the Directive is to prevent such inactive EU citizens from taking advantage of the host Member States’ welfare system, for funding their means of subsistence. As a consequence, a Member State is entitled to refuse to grant social benefits to the aforementioned EU citizens. Inter alia, the Court points out that each individual case must be assessed on a case by case analysis, with no regard to the amount or nature of the benefits claimed. Finally, the Court ruled that when one doesn’t have sufficient resources for means of subsistence, the principle of non-discrimination on grounds of nationality is not to be relied on, given that a residence right cannot be claimed, according to the above mentioned Directive.

Comments:
Is the ruling fair? Could it be regarded as an impediment to the freedom of movement of persons? To which extent an EU citizen is entitled to claim social benefits, within the EU, according to the principle of equality and non-discrimination (on grounds of nationality)? To be noted, that despite the bluntness of the said Judgment, the Court also stated that a case by case analysis is required regardless of the amount and nature of the social benefit. It is a fact that no Member State wants to receive “parasites” (economically inactive EU citizens), but where can a Member State draw the line, without being in breach of EU Law, with respect to discrimination and equality values? It remains to be seen how Member States, as hosts, will apply this Judgment…

Schempp- Case -C-403/03

August 4th, 2011 | Posted by DUCA LL.M in EU Law - (0 Comments)

Ruling of 12 July 2005 [.of the Court Grand Chamber] in Case [C-403/03] Egon Schempp v Finanzamt München [2005] ECR I-06421

 

Referred by [Bundesfinanzhof – Germany]

 

FACTS:

 

 

Following his divorce, Mr. Schempp, a German national resident in Germany, pays maintenance to his former spouse resident in Austria.

 

Mr. Schempp sought to deduct the maintenance payments, in accordance with the correspondent German law. However, in his income tax assessments for 1994 to 1997, the Finances Authorities  refused him the deduction on the ground that it had not received a certificate from the Austrian tax authorities to show that his former spouse had been taxed in Austria on the maintenance payments.

 

Mr. Schempp was unable to produce such a certificate, as Austrian tax law excludes, in principle, taxation of maintenance payments and does not allow them to be deducted. The documents in the case show, however, that Mr. Schempp would have been able to deduct the total amount of the maintenance payments to his former spouse if she had been resident in Germany. In that case, she for her part would not have paid any tax on the maintenance, as her income is less than the taxable minimum in Germany.

 

ISSUES/QUESTIONS:

 

Citizenship of the Union – Articles 12 EC and 18 EC – Income tax – Deductibility from taxable income of maintenance paid by a taxpayer resident in Germany to his former spouse resident in Austria – Proof of taxation of the maintenance payments in that Member State / Is the first paragraph of Article 12 EC and Article 18(1) EC to be interpreted as precluding a taxpayer resident in Germany from being unable, under the national legislation at issue in the main proceedings, to deduct from his taxable income in that Member State the maintenance paid to his former spouse resident in Austria, where he would have been entitled to do so if she were still resident in Germany?

 

ANSWER of the COURT:

 

The first paragraph of Article 12 EC and Article 18(1) EC must be interpreted as not precluding a taxpayer resident in Germany from being unable, under national legislation such as that at issue in the main proceedings, to deduct from his taxable income in that Member State the maintenance paid to his former spouse resident in another Member State in which the maintenance is not taxable, where he would be entitled to do so if his former spouse were resident in Germany.

 

REASONING of the Court

 

First the Court examined if the case falls under the scope of EU law. In the light of the fact that the applicant did not make use of his rights under Article 18 TEC, now Article 21 TFEU, but his former spouse did, in respect to the effect that this had on his deductibility capacity, the situation is not purely internal, so that it falls under the scope of EU law.

 

As regards the first paragraph of Article 12 EC, now Article 18 TFEU and Article 18(1) EC, now Article 21 TFEU,it must be interpreted as not precluding a taxpayer resident in a Member State from being unable under national legislation to deduct from his taxable income in that Member State the maintenance paid to his former spouse resident in another Member State in which the maintenance is not taxable, where he would be entitled to do so if his former spouse were resident in the same Member State.

Article 12 EC, now Article 18 TFEU is not concerned with any disparities in treatment, for persons and undertakings subject to the jurisdiction of the Community, which may result from divergences existing between the various Member States, so long as they affect all persons subject to them in accordance with objective criteria and without regard to their nationality.

Moreover, the Treaty offers no guarantee to a citizen of the Union that transferring his activities to a Member State other than that in which he previously resided will be neutral as regards taxation. Given the disparities in the tax legislation of the Member States, such a transfer may be to the citizen’s advantage in terms of indirect taxation or not, according to circumstances. The same principle applies a fortiori to a situation in which the person concerned has not himself made use of his right of movement, but claims to be the victim of a difference in treatment following the transfer of his former spouse’s residence to another Member State.

 

Comments:

 

The Court showed no hesitation to examine German tax rules applied to a German citizen residing in Germany. The claimant was placed in a marginally less favourable situation as regards the tax treatment of duly payable alimony, as a result of the fact that his former wife had moved to Austria. The Court considered the case to be far from being purely internal; as his former wife had exercised her free movement rights, there was no bar for him to appeal

to Articles 12 and 18 (1) EC, though the German rules at stake were ultimately found to square with these provisions.

 

Considering that there is no discrimination under Article 18 TFEU, resulting from the existing disparities in the tax regimes of Member states, the Court ruled that there is no difference in treatment, applying the assessement of the principle of equal treatment. The court stated that the payment of maintenance to a recipient resident in Germany cannot be compared to the payment of maintenance to a recipient resident in Austria. The recipient is subject in each of those two cases, as regards taxation of the maintenance payments, to a different tax system. As a consequence, given the fact that there is no breach of the equal treatment principle, there is no discrimination under Article 18 TFEU[1].

 

Under the EU citizenship provisions, namely Article 21 TFEU, the Court followed AGs’ Opinion, as expressed at point 39, and ruled that the disparities between the tax regimes cannot constitute a restriction on the freedom to move and reside within EU, as enshrined by the Treaty, so that no discrimination was found there either.

 

Advocate General in the Case stated at point 34 of his Opinion that the situation is the result of a lack of coordination between the tax systems of the Member States and can only be resolved by the Community legislature. Does that mean that he suggested that maybe a harmonization in the field of taxation at EU level would be welcomed?



[1] C-403/03 Egon Schempp v Finanzamt München [2005] ECR I-06421, paragraph 36

 

Heinz Huber -Case C‑524/06

August 4th, 2011 | Posted by DUCA LL.M in EU Law - (0 Comments)

Ruling of 16 December 2008 [.of the Court Grand Chamber] in Case [C‑524/06Heinz Huber v Bundesrepublik Deutschland [2008] ECR I-09705

 

Referred by [Oberverwaltungsgericht für das Land Nordrhein-Westfalen – Germany]

 

FACTS:

 

German law has established a centralised register which contains certain personal data relating to foreign nationals who are resident in Germany for a period of more than three months. The Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) is responsible for maintaining that register and assists, amongst others, the public authorities who have the duty of implementing the legislation concerning the law relating to foreign nationals. In particular, the register is used for statistical purposes and by the security and police services and by the judicial authorities in exercising their powers in relation to the prosecution and investigation of criminal activities or which threaten public security.

 

Mr. Huber, an Austrian national, moved to Germany in 1996 in order to carry on business there as a self-employed insurance agent. Since he took the view that he was discriminated against because the personal data concerning him are contained in the centralised register and, in particular, because a database of that kind does not exist for German nationals, Mr. Huber requested that those data to be deleted. 

 

ISSUES/QUESTIONS:

 

Protection of personal data – European citizenship – Principle of non-discrimination on grounds of nationality – Directive 95/46/EC – Concept of necessity – General processing of personal data relating to citizens of the Union who are nationals of another Member State – Central register of foreign nationals/Is the processing of personal data of the kind undertaken in the centralised register, under the German legislation, compatible with Community law?

 

ANSWER of the COURT:

 

The processing and storage of those data relating to Union citizens for statistical purposes or with a view to fighting crime is contrary to Community law

 

REASONING of the Court

 

The Court of Justice holds, first of all, that the data in question constitute personal data within the meaning of the Data Protection Directive[1]. The directive provides that such data may lawfully be processed only if it is necessary to do so for the performance of a task carried out in the public interest or in the exercise of official authority.

 

The Court notes that the right of residence of a Union citizen in a Member State of which he is not a national is not unconditional but may be subject to limitations. Thus, it is, in principle, legitimate for a Member State to have relevant particulars and documents relating to foreign nationals available to it and to use a register for the purpose of providing support to the authorities responsible for the application of the legislation relating to the right of residence, provided that there is compliance with the requirement of necessity laid down by the Directive on the Protection of Personal Data.

 

The Court concludes that such a system for processing personal data complies with Community law if it contains only the data which are necessary for the application by those authorities of that legislation and if its centralised nature enables that legislation to be more effectively applied as regards the right of residence of Union citizens who are not nationals of that State.

As regards the storage and processing of those data for statistical purposes, the Court observes that Community law does not exclude the power of Member States to adopt measures enabling the national authorities to have an exact knowledge of population movements affecting their territory. Those statistics presuppose that certain information will be collected by those States. However, the exercise of that power does not, of itself, mean that the collection and storage of individualised personal information of the kind undertaken in the register at issue is, of itself, necessary. Consequently, the Court decides that such processing of personal data does not satisfy the requirement of necessity laid down by the directive.

 

Lastly, as regards the question of the use of the data contained in the register for the purposes of fighting crime, the Court holds, in particular, that that objective involves the prosecution of crimes and offences committed, irrespective of the nationality of their perpetrators. The register at issue does not contain personal data relating to nationals of the Member State concerned. Consequently, use for the purposes of fighting crime is contrary to the principle of non-discrimination and hence contrary to Community law.

 

Comments:

 

The principle of non-discrimination was assessed in this Judgment from two standpoints, that led to two different outcomes.

First, the Court dealt with the requirement of necessity, as enshrined by Directive 95/46/EC, which was interpreted in the light of the principle of non-discrimination on grounds of nationality, as provided by Article 12 TEC, now Article 18 TFEU. In this respect, the Court found the German system which imposes a registration for the application of the law relating to the right of residence (more than three months) to be indirectly discriminatory. As a consequence, the assessment continued with the proportionality test, so that it was left for the national court to ascertain whether the two following conditions can justify the German legislation, in respect to the residence matter: a)it contains only the data which are necessary for the application by those authorities of that legislation and; b) its centralised nature enables the legislation relating to the right of residence to be more effectively applied as regards Union citizens who are not nationals of that Member State.

It must be pointed out that, the Court did not assess the matter of indirect discrimination according to its settled case-law, so that unlike the national court, the Luxembourg Court made no reference to cornerstone Cases like C‑85/96 Martínez Sala [1998] ECR I‑2691, C-184/99 Grzelczyk [2001] ECR I-6193, Case C-209/03 Bidar [2005] ECR I-2119, which concerned the principle of non-discrimination the EU citizenship. One common element would be the recalling of the provisions of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, which indeed stipulates that may require every Union citizen who is a national of another Member State and who wishes to reside in its territory for a period of more than three months to register with the relevant authorities[2]. So it is lawful for national Authorities to require proof from non-nationals that wish to reside on their territory for more than three months, but to have a register only for non-nationals with the objective of providing support for the national Authorities that apply the law related to the right of residence is not necessary for attaining the objective of Directive 95/46[3].

 

Secondly, as regards the processing of personal data relating to Union citizens who are nationals of other Member States for the purposes of fighting crime, the Court assessed the discrimination issue according to its settled case-law, making reference to the landmark Cases aforementioned. The Court recalled that that the principle of non-discrimination, which has its basis in Articles 12 EC and 43 EC, now Article 18 and 49 TFEU, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way. Such treatment may be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the objective being legitimately pursued. The Court applied the principle of equal treatment and found that the fact that comparing the situations of national and non-nationals within that register, where no data of the German citizens is contained, constitutes a case of direct discrimination on grounds of nationality.



[1] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of data and on the free movement of such data

[2] Case [C‑524/06Heinz Huber v Bundesrepublik Deutschland [2008] ECR I-09705 paragraph 57.

[3] Article 1 of Directive 95/46: “In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data”.