Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

1 August 2025 ( * )

( Reference for a preliminary ruling – Citizenship of the Union – Free movement of persons – Article 18 TFEU – Prohibition of discrimination based on nationality – Directive 2004/38/EC – Article 24 – Principle of equal treatment – Minor child who is a Union citizen with a right of residence under that directive – Grant of a national residence permit to the parent of that child so that the parent can exercise parental authority over that child – Distinction based on the nationality of the child – Parent with a right of residence as a job-seeker – Derogation from the principle of equal treatment as regards entitlement to social assistance – Scope )

In Case C‑397/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sozialgericht Detmold (Social Court, Detmold, Germany), made by decision of 22 June 2023, received at the Court on 29 June 2023, in the proceedings

FL

v

Jobcenter Arbeitplus Bielefeld,

joined party:

Stadt Bielefeld

THE COURT (Fifth Chamber),

composed of M.L. Arastey Sahún, President of the Chamber, D. Gratsias, E. Regan (Rapporteur), J. Passer and B. Smulders, Judges,

Advocate General: J. Richard de la Tour,

Registrar: R. Șereș, Administrator,

having regard to the written procedure and further to the hearing on 14 November 2024,

after considering the observations submitted on behalf of:

– the German Government, by J. Möller and R. Kanitz, acting as Agents,

– the European Commission, by B.-R. Killmann and E. Montaguti, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 13 February 2025,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of EU law on the right of Union citizens and their family members to move and reside freely within the territory of the Member States.

2 The request has been made in proceedings between FL and the Jobcenter Arbeitplus Bielefeld (Bielefeld Job Centre, Germany; ‘Jobcenter Bielefeld’) concerning the latter’s refusal to grant FL social benefits provided for under German legislation.

Legal context

European Union law

Directive 2004/38/EC

3 Recitals 3, 4 and 6 of 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77 and corrigendum OJ 2005 L 197, p.34), state as follows:

‘(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

(4) With a view to remedying this sector-by-sector, piecemeal approach to the right of free movement and residence and facilitating the exercise of this right, there needs to be a single legislative act to amend [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)] and to repeal the following acts: …

…

(6) In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’

4 Article 2 of that directive, headed ‘Definitions’, provides:

‘For the purposes of this Directive:

…

(2) “Family member” means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

…’

5 Article 3 of that directive, headed ‘Beneficiaries’, provides:

‘1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

…

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.’

6 Article 6 of that directive, headed ‘Right of residence for up to three months’, provides, in paragraph 1:

‘Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.’

7 Article 14 of Directive 2004/38, headed ‘Retention of the right of residence’, provides, in paragraphs 2 and 4 thereof:

‘2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

…

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

…

(b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.’

8 Article 24 of that directive, headed ‘Equal treatment’, is worded as follows:

‘1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. …

2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), … to persons other than workers, self-employed persons, persons who retain such status and members of their families.’

Regulation (EC) No 883/2004

9 Article 4 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), headed ‘Equality of treatment’, provides:

‘Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.’

German law

In the field of residence

10 Paragraph 28 of the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the residence, occupational activity and integration of foreign nationals on federal territory) of 30 July 2004 (BGBl. 2004 I, p. 1950), as amended by the Law of 27 July 2015 (BGBl. 2015 I, p. 1386) (‘the AufenthG’), headed ‘Family reunification to join a German national’, provides, in the first sentence of subparagraph 1, as follows:

‘A residence permit shall be issued to

1. a foreign spouse of a German national;

2. a foreign unmarried minor child of a German national;

3. a foreign parent of an unmarried minor German national so that the parent can exercise parental authority over that child

if the German national is habitually resident on the federal territory. …’

11 The first sentence of Paragraph 11(14) of the Gesetz über die allgemeine Freizügigkeit von Unionsbürgern (Law on the general freedom of movement of Union citizens) of 30 July 2004 (BGBl. 2004 I, p. 1986), as amended by the Law of 12 November 2020 (BGBl. 2020 I, p. 2416) (‘the FreizügG/EU’), is worded as follows:

‘The [AufenthG] shall also apply if it establishes a more favourable legal status than this Law.’

In the field of social assistance

12 Paragraph 7 of Book II of the Sozialgesetzbuch (Social Code), in the version in force until 31 December 2020 (‘SGB II’), headed ‘Recipients of benefits’, provided in subparagraph 1:

‘Benefits granted under this book shall be received by persons:

1. who have attained the age of 15 years and have not yet reached the age limit referred to in Paragraph 7a,

2. who are fit for work,

3. who are in need of assistance, and

4. whose ordinary place of residence is in the Federal Republic of Germany (beneficiaries fit for work).

The following shall be excluded:

1. foreign nationals who are not workers or self-employed persons in the Federal Republic of Germany and do not enjoy the right of freedom of movement under Paragraph 2(3) of the [FreizügG/EU], and their family members, for the first three months of their residence,

2. foreign nationals

(a) who do not have a right of residence,

(b) whose right of residence arises solely as a result of the objective of seeking employment, …

…

and their family members,

…

By way of derogation from point 2 of the second sentence, foreign nationals and their family members shall receive benefits granted under this Book if they have been habitually resident in the federal territory for at least five years …’

The dispute in the main proceedings and the question referred for a preliminary ruling

13 FL, the applicant in the main proceedings, who is a Polish national, entered Germany on 30 May 2020 from the Netherlands. His partner, who is also a Polish national, had entered Germany earlier, namely on 30 August 2015, from Poland. The child of the couple was born on 27 November 2020 in Germany, and he is also of Polish nationality.

14 FL, his partner and the child of the couple made an application to the Jobcenter Bielefeld asking to be granted basic social welfare benefits under the SGB II. By decisions of 3 and 21 December 2020, the Jobcenter Bielefeld granted those benefits to FL’s partner and also to the child of the couple, backdating the grants to 30 May 2020 and to the date of the child’s birth respectively. However, by decision of 21 April 2021, FL’s application was refused for the period from 30 May 2020 to 28 February 2021, on the ground that he had no right of residence in Germany which would entitle him to social benefits under the SGB II, since his right of residence was contingent on him seeking employment.

15 By decision of 19 July 2021, the Jobcenter Bielefeld rejected as unfounded the complaint which FL had lodged against that refusal decision on the same grounds, in essence, as those on which its initial decision was based.

16 In particular, the Jobcenter Bielefeld reached the conclusion that FL did not have any right of residence in Germany which could give rise to an entitlement to social benefits under the SGB II on the basis of its assessment, in the first place, that FL could not claim, under national law, a right of residence as either a family member or intimate acquaintance of his partner who enjoyed a right of permanent residence.

17 In the second place, it assessed that FL was also not entitled to a residence permit to allow him to exercise his parental responsibility in respect of his minor child, under point 3 of the first sentence of Paragraph 28(1) of the AufenthG, taken either in isolation or in conjunction with the first sentence of Paragraph 11(14) of the FreizügG/EU, given that the issue of such a residence permit was subject to a condition that the child be of German nationality, whereas FL’s child was of Polish nationality.

18 In the third place, according to the Jobcenter Bielefeld’s assessment, FL also had no right of residence under either Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1) or Article 4 of Regulation No 883/2004, as interpreted by the Court in the judgment of 6 October 2020, Jobcenter Krefeld (C‑181/19, EU:C:2020:794). In the case which gave rise to that judgment, the minor children were required to attend school, which is not the case with FL’s child.

19 On 12 August 2021, FL brought an action before the Sozialgericht Detmold (Social Court, Detmold, Germany), which is the referring court, against the decision of the Jobcenter Bielefeld of 19 July 2021. In support of that action, FL submits, in essence, that a right of residence must be granted to him under the combined provisions of point 3 of the first sentence of Paragraph 28(1) of the AufenthG, Paragraph 6 of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal Republic of Germany), which provides, inter alia, for the protection of the family and equality between children born to parents who are married and to parents who are unmarried, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, on the right to respect for private and family life. According to FL, it is contrary to EU law to limit family reunification for the purposes of exercising parental authority to situations in which that authority is exercised over a minor child who is a German national, since that constitutes not only a restriction on freedom of movement, but also an infringement of the right to equal treatment.

20 The Jobcenter Bielefeld submits that a residence permit cannot be granted to FL on the basis of point 3 of the first sentence of Paragraph 28(1) of the AufenthG, since, according to its specific wording, that provision covers only minor children who are German nationals. The fact that a national provision on immigration and residence draws a distinction between nationals of that country and foreign nationals is inherent in that type of legislation, without the provision concerned being contrary to EU law.

21 The referring court states that, in Germany, there is disagreement in both academic writing and case-law as to whether the first sentence of Paragraph 11(14) of the FreizügG/EU, read in conjunction with point 3 of the first sentence of Paragraph 28(1) of the AufenthG and the first paragraph of Article 18 TFEU, might give rise to a right of residence in favour of the parent exercising parental responsibility over a Union citizen who is a minor and who, although not a German national, does have a right of residence in Germany derived from the right of his or her other parent. In those circumstances, the referring court considers it necessary, in order to resolve the dispute before it, to make a reference to the Court of Justice for a preliminary ruling in order to examine whether the relevant German legislation is compatible with EU law.

22 Indeed, if FL were to be granted a right of residence in Germany for a reason other than that connected with seeking employment, he would, in principle, also have a right to be paid social benefits under the SGB II.

23 Under those circumstances, the Sozialgericht Detmold (Social Court, Detmold) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is EU law to be interpreted as precluding a national rule under which a residence permit for the purpose of care and custody may be granted only to the foreign parent of an unmarried minor child resident in national territory if the child has his or her habitual residence in national territory, which means that Union citizens of a Member State do not have such entitlement to the grant of a residence permit for the purpose of care and custody of a Union citizen who is a minor and a national of a Member State other than the host country?’

Consideration of the question referred

24 As a preliminary point, the Court observes, first, that the European Commission raised the possibility of the applicant in the main proceedings relying on a right of residence in Germany as a ‘partner’ of the mother of their shared child, within the meaning of Article 3(2)(b) of Directive 2004/38, stating that, were he to have such a right, it would no longer be necessary to answer the question referred for the purposes of resolving the dispute in the main proceedings.

25 In that regard, the Court notes that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of a rule of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 10 April 2025, Amilla , C‑723/23, EU:C:2025:262, paragraph 38 and the case-law cited).

26 In the present case, the applicant in the main proceedings is not claiming a right of residence under Article 3(2)(b) of Directive 2004/38, but a right of residence provided for by national law for the purposes of exercising parental responsibility, with the assessment of the merits of that claim requiring, in the view of the referring court, an interpretation of EU law. The mere possibility that the person concerned may, where appropriate, also have another right of residence is not such as to make it obvious that the provisions of EU law whose interpretation is sought bear no relation to the actual facts of the main proceedings or that the problem raised by that question is hypothetical.

27 Second, the referring court’s questions concern, specifically, whether it is possible for a Polish national who is the father of a minor child, who is also of Polish nationality and is habitually resident in Germany, to be issued a national residence permit for the purposes of exercising parental responsibility over that child, where that child is residing in Germany pursuant to Directive 2004/38, as a family member of his mother, who is also a Polish national and has a permanent right of residence there pursuant to that directive. Furthermore, it follows from the request for a preliminary ruling that that question is based on the premise that FL does not have a right of residence in Germany other than the right based on his status as a job-seeker under Article 14(4)(b) of Directive 2004/38.

28 It is also common ground that the residence permit which FL is seeking for the purposes of exercising parental authority gives him the right to social benefits, whereas, under German law, the right of residence in Germany for the sole purpose of seeking employment does not entitle him to those benefits. That is why, as is apparent from the request for a preliminary ruling, FL makes the submission before the referring court that he must be issued such a national residence permit and, consequently, be granted social benefits under the SGB II.

29 In those circumstances, it is for the Court also to rely on the premiss set out in paragraph 27 of the present judgment in order to answer the question referred.

30 Third, it should be recalled that, according to the case-law of the Court, where a question referred for a preliminary ruling merely refers to EU law, and does not state which provisions of EU law are in issue, the Court must extract from all the factors provided by the referring court, and in particular from the statement of grounds contained in the order for reference, the provisions of EU law requiring an interpretation, having regard to the subject matter of the dispute (judgment of 12 February 2015, Surgicare , C‑662/13, EU:C:2015:89, paragraph 17 and the case-law cited).

31 In the present case, although the referring court mentions, in the grounds of the order for reference, several provisions of EU law, it is only with regard to Article 18 TFEU that it provides the reason, set out in paragraph 21 of the present judgment, why it raises the question whether the national legislation at issue in the main proceedings infringes EU law, bearing in mind, as is apparent from paragraph 27 of this judgment, that that court is setting out from the premiss that Directive 2004/38 is also applicable in the present case.

32 In those circumstances, the Court holds that, by its question, the referring court asks, in essence, whether Article 18 TFEU and/or Directive 2004/38 must be interpreted as precluding legislation of a Member State under which a residence permit, provided for by national law for the purposes of allowing the exercise of parental authority, cannot be issued to a Union citizen who has parental responsibility for his or her minor child, solely on the ground that that minor child, although also a Union citizen and residing on the territory of that Member State under that directive, does not hold the nationality of that Member State.

33 In that regard, the Court notes, at the outset, that it follows from the information in the file before the Court that the conditions for granting the national residence permit at issue in the main proceedings create a difference in treatment on grounds of nationality amongst minor children residing in Germany. Specifically, under German legislation, a residence permit for the purposes of exercising parental authority may be granted to a national of another Member State only if that authority is exercised in respect of a single minor child who is habitually resident in Germany and who has German nationality. Consequently, in the case of a minor child who is a Union citizen and who is not a German national, such a national residence permit could not be granted to his or her parent who is a national of another Member State, even if the child concerned also has his or her habitual residence in Germany.

34 It should be observed that Article 20(1) TFEU confers on any person holding the nationality of a Member State the status of citizen of the Union and that that status is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to enjoy, within the scope ratione materiae of the FEU Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for in that regard (judgment of 15 July 2021, The Department for Communities in Northern Ireland , C‑709/20, EU:C:2021:602, paragraph 62).

35 Every Union citizen may therefore rely on the prohibition of discrimination on grounds of nationality laid down in Article 18 TFEU in all situations falling within the scope ratione materiae of EU law. These situations include those relating to the exercise of the right to move and reside within the territory of the Member States conferred by point (a) of Article 20(2) TFEU and Article 21 TFEU (judgment of 15 July 2021, The Department for Communities in Northern Ireland , C‑709/20, EU:C:2021:602, paragraph 63).

36 Since the child of the applicant in the main proceedings is a Union citizen who is residing in a Member State other than the Member State of his nationality, his situation falls within the scope ratione materiae of EU law, with the result that he may, in principle, rely on the prohibition of discrimination on grounds of nationality contained in Article 18 TFEU (see, by analogy, judgment of 15 July 2021, The Department for Communities in Northern Ireland , C‑709/20, EU:C:2021:602, paragraph 64).

37 However, in accordance with settled case-law, the first paragraph of Article 18 TFEU is intended to apply independently only to situations governed by EU law with respect to which the FEU Treaty does not lay down specific rules on non-discrimination (judgment of 15 July 2021, The Department for Communities in Northern Ireland , C‑709/20, EU:C:2021:602, paragraph 65).

38 In that regard, the principle of non-discrimination is given specific expression in relation to Union citizens who exercise their right to move and reside within the territory of the Member States in Article 24 of Directive 2004/38 (see, to that effect, judgment of 15 July 2021, The Department for Communities in Northern Ireland , C‑709/20, EU:C:2021:602, paragraph 66).

39 In accordance with Article 3(1) of Directive 2004/38, Union citizens who move to or reside in a Member State other than that of which they are a national, and their family members, as defined in Article 2(2) of that directive, who accompany or join them come within the scope of the directive and are beneficiaries of the rights conferred by it. That is the case for a person such as the child of the applicant in the main proceedings, who, as is apparent from paragraph 27 of the present judgment, is a Polish national and resides in Germany as a family member of his mother, who is also a Polish national and enjoys a right of permanent residence on the territory of the Member State concerned.

40 In those circumstances, it is necessary to interpret Article 24 of Directive 2004/38.

41 Accordingly, as regards Article 24, in the first place, paragraph 1 of that article provides that all Union citizens residing on the basis of that directive in the territory of the host Member State are to enjoy equal treatment with the nationals of that Member State within the scope of the TFEU.

42 In that regard, first, as is apparent from paragraph 39 of the present judgment, in the present case, the child of the applicant in the main proceedings is a Union citizen residing in German territory ‘on the basis of’ Directive 2004/38, within the meaning of Article 24(1) of that directive.

43 Second, the grant of a national right of residence to a parent of a minor child who is a Union citizen who has exercised his or her freedom of movement and residence comes within the ‘scope of the TFEU’, within the meaning of Article 24(1), in so far as the grant of such a right is such as to facilitate the exercise, by the minor child concerned, of his or her right to move and reside freely in the host Member State.

44 As the Court has held previously, it is apparent from recitals 3 and 4 of Directive 2004/38 that that directive aims to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States which is conferred directly on Union citizens by Article 21(1) TFEU and to strengthen that fundamental right. The protection of the family life of those citizens and, in particular, measures promoting the integration of their families in the host Member State form part of the pursuit of that objective (judgment of 2 September 2021, État belge (Right of residence in the event of domestic violence) , C‑930/19, EU:C:2021:657, paragraphs 81 and 82 and the case-law cited). The grant of a national residence permit to the parent of a child who is a Union citizen who is habitually resident in a Member State meets those objectives, in that it makes it possible to preserve that child’s family life on the territory of that Member State and to facilitate the integration of his or her family in that Member State, particularly where such a residence permit is intended to enable the exercise of parental responsibility for that child, and therefore, in principle, for as long as the child remains subject to that authority.

45 Accordingly, the principle of equal treatment given specific expression in Article 24(1) of Directive 2004/38, which requires that persons in comparable situations be treated in the same legal manner, applies in a situation such as the situation at issue in the main proceedings.

46 In the case in the main proceedings, it is common ground that the residence permit sought by FL was not granted to him solely because his child does not have German nationality, while FL did satisfy the other conditions laid down by German law for the grant of a permit on the basis of point 3 of the first sentence of Paragraph 28(1) of the AufenthG. It follows that the national legislation at issue in the main proceedings gives rise to direct discrimination on the basis of the child’s nationality and is therefore contrary to Article 24(1) of Directive 2004/38, in that it does not grant his parent, who is a national of another Member State, a right of residence for the purpose of enabling that parent to exercise parental responsibility over that child, whereas a German child in such a situation may benefit from the presence in Germany of his or her parent who is a national of another Member State for the same purposes.

47 That finding is not called into question by the line of argument put forward by the German Government at the hearing that the right of residence provided for in point 3 of the first sentence of Paragraph 28(1) of the AufenthG is intended to protect the constitutional right of German citizens to reside and live freely in Germany, an objective which seeks to prevent a German child from having to leave his or her country of origin, as the case may be, if his or her foreign parent does not have a right of residence and in relation to which Union citizens who are not German nationals are in a different situation, since a failure to grant that right of residence cannot mean that they must leave their country of origin.

48 Even if a Union citizen who does not hold German nationality does not enjoy such a constitutional right and must, in order to benefit from a right of residence under Directive 2004/38, satisfy the conditions for the exercise of that right laid down by that directive, the fact remains that, as long as those conditions are satisfied, that citizen enjoys, like a Union citizen of German nationality, the right to reside freely in Germany, with the result that their situations are comparable, it being noted that, for the purposes of applying the principle of equal treatment, the requirement relating to the comparability of situations does not require that the situations be identical, but only that they be similar (see, to that effect, judgment of 26 June 2018, MB (Change of gender and retirement pension) , C‑451/16, EU:C:2018:492, paragraph 41).

49 Accordingly, where there is legislation such as that referred to in paragraph 46 of the present judgment, the parent of a child who does not have German nationality has, on the basis of Article 24(1) of Directive 2004/38, a right to obtain a residence permit for the purposes of exercising parental authority over his or her child that is subject to the same conditions as those applicable, under that legislation, to foreign parents of children who do have German nationality.

50 In the present case, the residence permit sought by FL is intended, ultimately, as is apparent from paragraphs 43 and 44 of the present judgment, to enable him, in his capacity as a non-national parent of the host Member State, to exercise parental authority over his child who is habitually resident there and, as a result, to preserve the family life of that child in Germany and his freedom to move and reside in German territory, since that child does not have German nationality either, but the nationality of another Member State. If the parent of such a child could not be granted the national residence permit which the parents of a national may claim, the equal treatment of that child would thereby be infringed (see, by analogy, judgment of 21 December 2023, Chief Appeals Officer and Others , C‑488/21, EU:C:2023:1013, paragraphs 66 to 69).

51 Moreover, discrimination such as that referred to in paragraph 46 of the present judgment is not capable of being justified in the light of the derogation provided for in Article 24(2) of Directive 2004/38, in so far as the right of residence of the child concerned is not covered by the situations referred to in that provision.

52 In the second place, as regards the consequences resulting from the grant of a residence permit solely on the basis of national law, the Court noted in paragraph 28 of the present judgment that, in the present case, under German law, the holder of a residence permit granted pursuant to point 3 of the first sentence of Paragraph 28(1) of the AufsenthG can, on that basis, also claim social benefits under the SGB II. However, FL’s application to be paid those benefits was refused on the ground that he did not have a right of residence in Germany other than the right that he could claim as a job-seeker.

53 It is true that FL himself resides on the territory of that Member State ‘pursuant to Directive 2004/38’ and, more specifically, under Article 14(4)(b) thereof, as a job-seeker. Article 24(2) of that directive does expressly allow Member States to derogate from the principle of equal treatment and to refuse to grant social benefits to a claimant whose right of residence is based on Article 14(4)(b).

54 However, if FL is granted the residence permit which he is seeking on the basis of point 3 of the first sentence of Paragraph 28(1) of the AufenthG, the considerations set out in the preceding paragraph are not, however, such as to call into question his right to be granted social benefits under the SGB II.

55 Although, in his capacity as holder of a right of residence on national territory solely for the purpose of seeking employment there, those benefits may be refused to FL by the national legislature on the basis of the derogation provided for in Article 24(2) of Directive 2004/38, the fact remains that FL may, in some circumstances, claim payment of those benefits on another basis (see, to that effect, judgment of 6 October 2020, Jobcenter Krefeld , C‑181/19, EU:C:2020:794, paragraph 70).

56 Effectively, the scope of that derogation is limited, as regards social assistance, to persons who have a right of residence in the host Member State on the basis, first, of Article 6(1) of that directive, for a maximum period of three months, and on the basis, second, of Article 14(4)(b) of that directive, for a longer period, for the purposes of seeking employment.

57 It follows that that derogation does not apply where the child of the person concerned has a right of residence under Directive 2004/38 other than those referred to in the preceding paragraph.

58 In the light of the foregoing considerations, the answer to the question raised is that Article 24 of Directive 2004/38 must be interpreted as precluding legislation of a Member State under which a residence permit, provided for by national law for the purposes of allowing the exercise of parental authority, cannot be issued to a Union citizen who has parental responsibility for his or her minor child, solely on the ground that that minor child, although also a Union citizen and residing on the territory of that Member State under that directive, does not hold the nationality of that Member State.

Costs

59 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 24 of 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC

must be interpreted as precluding legislation of a Member State under which a residence permit, provided for by national law for the purposes of allowing the exercise of parental authority, cannot be issued to a Union citizen who has parental responsibility for his or her minor child, solely on the ground that that minor child, although also a Union citizen and residing on the territory of that Member State under that directive, does not hold the nationality of that Member State.

[Signatures]

* Language of the case: German.