Maria Martinez Sala

 

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Mrs Martínez Sala is a Spanish national who has lived in Germany since May 1968. She had various jobs there at intervals between 1976 and 1986 and was in employment again from 12 September 1989 to 24 October 1989. Since then she has received social assistance under the Bundessozialhilfegesetz (Federal Social Welfare Law). Until 19 May 1984, Mrs Martínez Sala obtained from the various competent authorities residence permits which ran more or less without interruption. Thereafter, she obtained only documents certifying that the extension of her residence permit had been applied for. The European Convention on Social and Medical Assistance of 11 December 1953 did not, however, allow her to be deported. In January 1993, that is to say during the period in which she did not have a residence permit, Mrs Martínez Sala applied to Freistaat Bayern for child-raising allowance for her child born during that month. Freistaat Bayern, by decision of 21 January 1993, rejected her application on the ground that she did not have German nationality, a residence entitlement or a residence permit. Subsequently, on 19 April 1994, a residence permit expiring on 18 April 1995 was issued to Mrs Martínez Sala and this permit was extended for a further year on 20 April 1995.

II. Procedure

Following dismissal of her application at first instance Mrs Martínez Sala appealed to the Bayerische Landessozialgericht, a German court of appeal, which took the view that it might be possible for Mrs Martínez Sala to rely on two Community regulations, one on freedom of movement for workers within the Community (No 1612/68) and the other on the application of social security schemes to migrant workers and their families (No 1408/71). The German Court therefore stayed proceedings and referred a number of questions to the Court of Justice on which the Court has given its ruling today.

III. The judgment of the Court

1. The applicability of Community law to German child-raising allowance

German child-raising allowance is a non-contributory benefit forming part of a set of family-policy measures and is granted pursuant to a German law (Bundeserziehungsgeldgesetz) which lays down certain conditions. It also stipulates that "a non-national wishing to receive the allowance must be in possession of a residence entitlement (Aufenthaltsberechtigung) or a residence permit (Aufenthaltserlaubnis)". The Court of Justice has found that a benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which is intended to meet family expenses, falls within the scope of Community law.

2. The status of "worker"

The referring court asked whether a national of one Member State who resides in another Member State, where he is employed and subsequently receives social assistance, has the status of "worker" within the meaning of one of the two Community regulations.

The Court has held that, in the absence of sufficient information to enable it to determine whether a person in the position of Mrs Martínez Sala is a "worker" within the meaning of one of the regulations (by reason, for example, of the fact that she is seeking employment), it is for the national court to undertake that investigation.

3. The requirement of a residence permit for obtaining German child-raising allowance

Finally, the German court sought to ascertain whether Community law precludes a Member State from requiring nationals of other Member States to produce a formal residence permit in order to receive a child-raising allowance. This question was based on the assumption that the appellant in the main proceedings has been authorised to reside in the Member State concerned.

1. The principle
   In its judgment the Court explains that, whilst Community law does not prevent a Member State from requiring nationals of other Member States lawfully resident in its territory to carry at all times a document certifying their right of residence if an identical obligation is imposed upon its own nationals as regards their identity cards, the same is not necessarily the case where a Member State requires nationals of other Member States, in order to receive a child-raising allowance, to be in possession of a residence permit for the issue of which the Member State's administration is responsible. For the purposes of recognition of the right of residence, a residence permit can only have declaratory and probative force. However, it is clear from this particular case that, for the purposes of the grant of the benefit in question, possession of a residence permit is constitutive of the right to the benefit. Consequently, for a Member State to require a national of another Member State who wishes to receive a benefit such as the allowance in question to produce a document which is constitutive of the right to the benefit and which is issued by its own authorities - when its own nationals are not required to produce any document of that kind - amounts to unequal treatment. In the sphere of application of the Treaty and in the absence of any justification, such unequal treatment constitutes discrimination prohibited by Article 6 of the EC Treaty.
2. The right of a "worker" within the meaning of Community law to such equal treatment
   So, if the referring court were to conclude that Mrs Martínez Sala has the status of "worker" within the meaning of one of the regulations, the unequal treatment in question would be incompatible with the provisions of the EC Treaty on freedom of movement for workers.
3. A European citizen's right to such equal treatment
   Were this not to be the case, the German Government argued that the facts of this case did not fall within the scope of the Treaty, so that Mrs Martínez Sala could not rely on Article 6 of the Treaty, whereas the Commission submitted that, since 1 November 1993 when the Treaty on European Union came into force, Mrs Martínez Sala has in any event a right of residence under Article 8a of the EC Treaty, which provides that: "Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect". According to Article 8(1) of the EC Treaty, every person holding the nationality of a Member State is to be a citizen of the Union.
   In its judgment the Court explains that, in a case such as the present, it is not necessary to examine whether the claimant can rely on Article 8a of the Treaty in order to obtain recognition of a new right to reside in the territory of the Member State concerned, since it is common ground that she has already been authorised to reside there, although she has been refused issue of a residence permit.
   As a national of a Member State lawfully resident in the territory of another Member State, Mrs Martínez Sala comes within the scope ratione personae of the provisions of the Treaty on European citizenship.
   Article 8(2) of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article 6 of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.
   It follows that a citizen of the European Union, such as Mrs Martínez Sala, lawfully resident in the territory of the host Member State, can rely on Article 6 of the Treaty in all situations which fall within the scope ratione materiae of Community law, including the situation where that Member State delays or refuses to grant to that claimant a benefit that is provided to all persons lawfully resident in the territory of that State on the ground that the claimant is not in possession of a document which nationals of that same State are not required to have and the issue of which may be delayed or refused by the authorities of that State.
   Since the unequal treatment in question thus comes within the scope of the Treaty, it cannot be considered to be justified: it is discrimination directly based on the claimant's nationality and, in any event, nothing to justify such unequal treatment has been put before the Court.