Case C-138/02

Brian Francis Collins

v

Secretary of State for Work and Pensions

(Reference for a preliminary ruling from the Social Security Commissioner)

(Freedom of movement for persons – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of ‘worker’ – Social security allowance paid to jobseekers – Residence requirement – Citizenship of the European Union)

Summary of the Judgment

1. Freedom of movement for persons – Worker – Definition – National of a Member State seeking paid employment in the territory of another Member State having worked there 17 years earlier – Not a ‘worker’ for the purposes of Title II of Part I of Regulation No 1612/68

(Council Regulation No 1612/68)

2. Freedom of movement for persons – Right of entry and residence of nationals of Member States – National of a Member State seeking paid employment in the territory of another Member State having worked there 17 years earlier – Right of residence solely on the basis of Directive 68/360 – Excluded

(Council Directive 68/360, Arts 4 and 8)

3. Freedom of movement for persons – Workers – Equal treatment – European citizenship – Jobseeker’s allowance – Residence requirement – Permissibility – Conditions

(EC Treaty, Arts 6, 8 and 48(2) (now, after amendment, Arts 12 EC, 17 EC and 39(2) EC))

1. A national of a Member State who enters the territory of another Member State, in which he worked 17 years earlier, with the intention of seeking paid employment there and applies for a jobseeker’s allowance is not a worker for the purposes of Title II of Part I of Regulation No 1612/68 on freedom of movement for workers within the Community, as amended by Regulation No 2434/92.

In that title of Regulation No 1612/68, the term ‘worker’ covers only persons who have already entered the employment market and who therefore may, on the basis of Article 7(2) of the regulation, claim the same social and tax advantages as national workers.

In the absence of a sufficiently close connection with the employment market in the host Member State, the position of the abovementioned person must be compared with that of any national of a Member State looking for his first job in another Member State without having yet entered into an employment relationship there, who benefits from the principle of equal treatment only as regards access to employment.

Where national legislation makes grant of such an allowance to a person conditional on his being a worker for the purposes of Regulation No 1612/68, it is, however, for the national court or tribunal to establish whether the term ‘worker’ referred to by the legislation is to be understood in the sense of Title II of Part I to the regulation.

(see paras 29-33, operative part 1)

2. A national of a Member State who enters the territory of another Member State, in which he worked 17 years earlier, with the intention of seeking paid employment there does not have a right to reside in the host Member State solely on the basis of Directive 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.

The right of residence in a Member State referred to in Articles 4 and 8 of Directive 68/360 is accorded only to nationals of a Member State who are already in employment in the first Member State, to the exclusion of persons seeking employment, who can rely solely on the provisions of that directive concerning their movement within the Community.

(see paras 43-44, operative part 2)

3. The right to equal treatment laid down in Article 48(2) of the Treaty (now, after amendment, Article 39(2) EC), read in conjunction with Articles 6 and 8 of the Treaty (now, after amendment, Articles 12 EC and 17 EC), does not preclude national legislation which makes entitlement to a jobseeker’s allowance conditional on a residence requirement, in so far as that requirement may be justified on the basis of objective considerations that are independent of the nationality of the persons concerned and proportionate to the legitimate aim of the national provisions.

(see para. 73, operative part 3)

JUDGMENT OF THE COURT (Full Court) 23 March 2004 (1)

(Freedom of movement for persons – Article 48 of the EC Treaty (now, after amendment, Article 39 EC) – Concept of ‘worker’ – Social security allowance paid to jobseekers – Residence requirement – Citizenship of the European Union)

In Case C-138/02,

REFERENCE to the Court under Article 234 EC by the Social Security Commissioner (United Kingdom) for a preliminary ruling in the proceedings pending before the Commissioner between

and

on the interpretation of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1), and of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485),

THE COURT (Full Court),

composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, C. Gulmann, J.N. Cunha Rodrigues (Rapporteur) and A. Rosas, Presidents of Chambers, A. La Pergola, J.-P. Puissochet, R. Schintgen, N. Colneric and S. von Bahr, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

after hearing the oral observations of Mr Collins, represented by R. Drabble, of the United Kingdom Government, represented by R. Caudwell, acting as Agent, and E. Sharpston, and of the Commission, represented by N. Yerrell and D. Martin, at the hearing on 17 June 2003,

after hearing the Opinion of the Advocate General at the sitting on 10 July 2003,

gives the following

‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

‘1.

Every person holding the nationality of a Member State shall be a citizen of the Union.

2.…’

‘Any national of a Member State and any employer pursuing an activity in the territory of a Member State may exchange their applications for and offers of employment, and may conclude and perform contracts of employment in accordance with the provisions in force laid down by law, regulation or administrative action, without any discrimination resulting therefrom.’

‘Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies.’

‘… a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is –

…’

On those grounds,

THE COURT

in answer to the questions referred to it by the Social Security Commissioner by ruling of 28 March 2002, hereby rules:

Skouris

Jann

Timmermans

Gulmann

Cunha Rodrigues

Rosas

La Pergola

Puissochet

Schintgen

Colneric

von Bahr

Delivered in open court in Luxembourg on 23 March 2004.

R. Grass

V. Skouris

Registrar

President