Free movement of persons in the EU in case of poverty and homelessness Barcelona, 16 November 2012 Rob Cornelissen

I. Legal framework of free movement of persons: primary law Free movement of economically active people: Articles 45, 49 and 56 TFEU: employed and self-employed Free movement of non-economically active persons: Articles 20 and 21 TFEU: European citizens have the right to move and reside freely within the EU, "subject to limitations and conditions laid down in the Treaties and by the measures adopted to give them effect"

Legal framework of free movement of persons: secondary legislation Directive 2004/38 (Residence Directive): lays down conditions governing right of free movement and residence Right of residence for up to three months: without conditions or formalities Right of residence for more than three months: conditions for economically inactive persons: Have sufficient resources: compare with national criteria in host Member state to be granted basic social assistance Have comprehensive sickness insurance Objectives of these conditions: protection of public finances, being a legitimate interest of MS (Zhu judgment, points 32 and 33)

Residence Directive Interpretation Court of condition: "have sufficient resources": Origin of resources is not relevant; e.g. resources from an accompanying family member are also to be taken into account Retention right of residence First three months: as long as person does not become "an unreasonable burden on the social assistance system of host MS" After three months: as long as person meets conditions, which means: being economically active or having sufficient resources and comprehensive sickness insurance In case of reasonable doubt: verification by MS possible

Expulsion No expulsion of economically active persons and jobseekers No expulsion "as long as person does not become an unreasonable burden on social assistance system of host MS", which means: Expulsion measure no automatic consequence of recourse to social assistance system Host MS must examine whether it is case of temporary difficulties, duration of residence, personal circumstances, amount of aid granted Court: condition must be applied in compliance with Union law and in accordance with principle of proportionality: national measures must not go beyond what is necessary to achieve objective of protection of public finances of MS

Notion of "unreasonable burden on social assistance system" Depends on circumstances of each individual case Those who arrive in host MS without fulfilling residence conditions cannot count on same approach as those who have fulfilled conditions and who have acquired right of residence for more than three months, but owing to circumstances are temporarily unable to fulfill conditions

Right of permanent residence Union citizens and members of family: After 5 years of continuous legal residence in a MS No conditions anymore on sufficient resources and health insurance coverage May be lost after 2 consecutive years of absence In some cases right of permanent residence even before completion of 5 years (pensioners, frontier workers)

Residence rights based on other legal instruments Right to reside might be based on instruments other than Directive 2004/38 Ex: Article 10 Reg 492/2011: the children of a Union citizen residing in a MS in which one of the parents is or has been employed as a migrant worker, have access to education in that MS Court (Baumbast) : Article 10 Reg 492/2011 implies that such children are entitled to reside in that MS. The fact that parents of children are meanwhile divorced and fact that parent who exercised rights of residence as migrant worker is no longer economically active in host MS are irrelevant.

Residence rights based on other legal instruments Court: not only the children have right to reside based on Article 10 Reg 492/2011, but also parent who is primary carer of the children. Teixeira case (2010): Portuguese mother (divorced) worked briefly in UK, but did not work there anymore since : application for housing assistance for homeless people. Claim to right of residence based on Article 10 Reg 492/2011. Claim refused. UK: right of residence based on Art. 10 Reg 492/2011 is subject to conditions laid down in Directive 2004/38: having sufficient resources and having comprehensive sickness insurance.

Residence rights based on other legal instruments Teixeira judgment: confirmed Baumbast judgment. Art. 10 Reg 492/2011 must be applied independently of Directive 2004/38. Directive 2004/38 is not sole basis for residence rights. Children have right to reside in host MS based on Art. 10 Reg 492/2011, untill completion of his/her education, even after age of majority. During that period also the mother has right to reside based on Art. 10 Reg 492/2011 Result: Ms Teixeira got her housing assistance

Directive 2004/38. Equal treatment Union citizens residing on basis of Directive 2004/38 in host MS enjoy equal treatment with nationals of that MS within scope of Treaty. "within scope of Treaty" includes access to social assistance and housing benefits Exceptions: MS not obliged to provide social assistance during first three months or during period of jobseekeing No definition of "social assistance" Court: must be interpreted restrictively. Benefits intended to facilitate acces to labour market are not "social assistance"

Impact of coordination Regulations on right of residence under Directive 2004/38 Reg 883/204 applies to all Union citizens insured under legislation of MS, including non-active persons Reg guarantees export of cash benefits acquired in a MS to territory of other MS: impact on "sufficient resources" Reg guarantees access to health care in a MS other than competent MS: impact on "having comprehensive sickness insurance" Separate coordination system for "special non-contributory benefits": benefits aimed at avoiding poverty:minimum subsistance benefits, listed in Annex X of Reg 883/2004

Seperate coordination system for minimum subsistance benefits Examples: minimum income guarantee (ES), supplementary allowances (FR), jobseekers allowance (Ireland), income replacement allowance (BE),basic subsistance income for elderly or handicapped persons (DE), income support, DLA(UK), compensatory supplement (AT) To be granted to persons covered by Reg 883/2004 in MS of "residence" "Residence" in meaning of Reg 883/2004: based on factual (not legal) situation : where is centre of interest? Not necessary to have worked in MS of "residence" in order to be entitled to minimum subsistance benefits

Relationship Directive 2004/38 and Reg 883/2004 Do people claiming "special non-contributory benefits" in sense of Reg 883/2004 put their right of residence under Directive 2004/38 at stake, because they no longer have the right to reside in host MS under Directive 2004/38? Or the opposite? Persons entitled under Reg 883/2004 to "special non-contributory benefits" do they automatically fulfill requirement of having "sufficient resources" under Directive 2004/38?

Relationship dirictive 2004/38 and Reg 883/2004 Commission: entitlement to "special non-contributory benefits"does not depend of having a right to reside under Directive 2004/38. Sole condition for entitlement to such benefits: reside in host MS. Is centre of interest in host MS? If yes, then, persons are entitled to "special non-contributory benefits" in host MS. Once having obtained such benefits, person will most probably fulfill condition of "having sufficient resources" under Directive 2004/38

Relationship Directive 2004/38 and Reg 883/2004 Most MS: do not agree with Commission Infringment procedure against UK New preliminary case (Brey, case C- 140/12)will bring clarification But: judgment in Brey case will not be the end of the story…….

II. Reach and limits of EU's influence on MS' social security and health systems Very limited EU competence to interfere directly in MS' social security systems Art. 5 TEU: principle of conferral: EU legislation only possible if Treaties have provided necessary powers Art. 153 TFEU: competence for EU to legislate in field of social security and social protection of workers. Council acts unanimously. Council never used this right. No political will Result: MS continue to be sovereign to determine their own schemes Lisbon Treaty: no substantial change

Reach and limits of EU's influence on MS' social security schemes EU's competence in combating social exclusion : support and complement activities of MS. How? Open Method of coordination (OMC): soft law More than cooperation: elements of normative character: Adoption of common objectives at EU level Political commitment to achieve goals Adoption of common indicators to measure progress Assessment of progress: national reports and Joint Report Commission/MS Parliament must be informed

Changes under Lisbon Treaty Mainstreaming combat against social exclusion Art.3 (3) TEU: "the Union shall combat social exclusion and discrimination…" Art. 9 TFEU: "In defining and implementing its policies, the Union shall take into account requirements linked to….the guarantee of adequate social protection, the fight against social exclusion…." Provisions are addressed to (the institutions of) the Union Fight against social exclusion is collective task of the Union Reflected in Europe 2020 strategy: smart, sustainable and inclusive growth, fostering economy delivering social cohesion

Changes under Lisbon Treaty Horizontal provision (Art.9 TFEU) provides powerful mandate to mainstream social policy objectives into EU's activities Implementing it requires change in administrative culture (will take time!) Impact assessment: process where Commission services analyse potential future consequences of proposed action Since 1 December 2009: more attention to social impact Guidance for assessing social impacts within Commission Assessment system

Changes under Lisbon Treaty Charter Fundamental rights: same value as Treaties Art. 34 (3) Charter :"In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices" Charter is addressed to institutions of the Union and to MS when they implement Union law

Charter of fundamental rights. Which impact? Art. 6(1) TEU: "the provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted ….with due regard to the explanations referred to in the Charter" Explanations on Art. 34(3) Charter: "Par 3 draws on…Articles 30 and 31 of the revised Social Charter. The Union must respect it in the context of policies based on Article 153 TFEU"(Article 153 TFEU: Union competence limited to support and complement activities of MS)

Charter Fundamental rights. Which impact? Can citizens invoke directly Article 34 (3) Charter? No Charter makes distinction between rights and principles Neither Charter itself nor explanations identify explicitly the provisions which merely contain "principles". However, strong indications that Art. 34(3) contains "principle" rather than "right" (reference to Art 31 revised Social Charter and to Art 153 TFEU) Result: impact of Art.34(3) Charter is limited to controlling the validity of EU legislation implementing this "principle"

III. Relevant policy developments: implement "principle" of Art. 34(3) Charter Commission initiatives aimed at preventing losing housing: Preparation for a mortgage Directive (DG MARKT) Financial services users' group study on debts with mortgage (DG SANCO and DG MARKT) Study on over-indebtedness (DG SANCO) Housing first Housing pilot project in European cities (DG EMPL) : support programm for homeless people with serious mental disorders or addiction ESF support, mainly through counseling and vocational training, but also specialised services (homeless people with HIV), business training for homeless people) Pilot project on protection of right to housing (planned for 2013)

Relevant Policy developments: better monitoring: EU governance In framework Europe 2020 strategy ("smart, sustainable and inclusive growth"), European semester introduced: EU level policy coordination tool. Allow for a joint analysis of MS' economic policies before governments draw up their budgets In July each year European Council makes recommendations to MS as they prepare their budgets for next year. Covers issues such as taxation, pensions, social protection In July 2012 European Council addressed more policy recommendations on poverty than in 2011 (ES,LV,LT,PL, UK)

Relevant policy developments. Facilitate effective exercise of rights Some mobile workers from new MS have become destitute in host MS. Separation from home community, limited access to informal social networks, vulnerable to risks Commission will propose very soon proposal for a Directive on providing support to EU migrant workers (including jobseekers)in the exercise of their right to free movement. Will introduce legal obligations on MS to: Guarantee EU workers with appropriate means of legal redress (Art 47 Charter Fundamental rights) Ensure that associations may act on behalf of workers Set up structures or bodies in support of EU migrant workers

Relevant policy developments 2008: Commission adopted Recommendation on active inclusion. Strategy for social and work integration of people furthest away from labour market. Three strands of action: Adequate income support Active labour market policies Access to enabling services 2013:Social Investment Package. It will tackle: Unsufficient coverage of social protection programmes Inadequacy of income support Lack of comprehensive approaches for social services Preventing and tackling homelessness

Thank you for your attention!