Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 14 May 2020 (1)

Case C‑181/19

Jobcenter Krefeld — Widerspruchsstelle

v

JD

(Request for a preliminary ruling from the Landessozialgericht Nordrhein-Westfalen (Higher Social Court, North Rhine-Westphalia, Germany))

(Reference for a preliminary ruling — Freedom of movement of persons — Union citizen who no longer has the status of worker — Right of residence — Principle of equal treatment — Entitlement to social assistance — Social advantages — Former migrant worker who is the primary carer of children who attend school in the host Member State — Right of access to education — Effectiveness — Special non-contributory cash benefits)

Table of contents

I. Legal framework

A. EU law

1. Directive 2004/38/EC

2. Regulation (EC) No 883/2004

3. Regulation (EU) No 492/2011

B. German law

II. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

III. Analysis

A. Preliminary observations on the classification of the benefits at issue

B. Consideration of the questions referred

1. Article 24(2) of Directive 2004/38 does not apply to the situation at issue in the main proceedings

2. The scope of the right of residence based on Article 10 of Regulation No 492/2011

(a) Article 10 of Regulation No 492/2011 in Court's the case-law

(b) Right of residence based on Article 10 of Regulation No 492/2011 and right to equal treatment as regards access to basic social security benefits: the logical consequence

(1) First hypothesis: Article 7 of Regulation No 492/2011 as the basis for JD’s right to equal treatment

(2) Second hypothesis: the right of access to education as the basis for the right to equal treatment as regards access to social assistance

3. Additional observations

IV. Conclusion

1.        As I prepare this Opinion, the European Union is going through an unprecedented public health crisis, to which the Member States have responded by demonstrating equally unprecedented solidarity as regards health-related matters. In the present case, it is the limits of social solidarity which the Court is called upon to clarify as it has been asked to rule on the extent of the social assistance which a host Member State must provide in respect of a former migrant worker seeking employment who is the primary carer of his two children attending school in that State.

I.      Legal framework

A.      EU law

1.      Directive 2004/38/EC

2.        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, (2) is entitled ‘Equal treatment’. It reads 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. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

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), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families.’

2.      Regulation (EC) No 883/2004

3.        Article 3(3) 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), as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 284, p. 43), (3) provides that that regulation ‘shall also apply to the special non-contributory cash benefits covered by Article 70’.

4.        Under Article 4 of Regulation No 883/2004, ‘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’.

5.        Article 70(1) and (2) of Regulation No 883/2004 reads as follows:

‘1.      This Article shall apply to special non-contributory cash benefits which are provided under legislation which, because of its personal scope, objectives and/or conditions for entitlement, has characteristics both of the social security legislation referred to in Article 3(1) and of social assistance.

2.      For the purposes of this Chapter, “special non-contributory cash benefits” means those which:

(a)      are intended to provide either:

(i)      supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned;

…

and

(b)      where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary …;

and

(c)      are listed in Annex X.’

6.        Annex X to Regulation No 883/2004 covers, in respect of Germany, ‘benefits to cover subsistence costs under the basic provision for jobseekers unless, with respect to these benefits, the eligibility requirements for a temporary supplement following receipt of unemployment benefit (Article 24(1) of Book II of the Social Code) are fulfilled’.

3.      Regulation (EU) No 492/2011

7.        Article 7(1) and (2) of 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 (4) is worded as follows:

‘1.      A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.

2.      He shall enjoy the same social and tax advantages as national workers.’

8.        The first paragraph of Article 10 of Regulation No 492/2011 provides that ‘the children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory’. The second paragraph goes on to state that ‘Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions’.

B.      German law

9.        Paragraph 7 of the Sozialgesetzbuch, Zweites Buch (Book II of the Social Code), in the version of 22 December 2016 (BGBl. I, p. 3155), (‘the SGB II’) provides:

‘(1)      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).

² The following are excluded:

…

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, or

(c)      who derive their right of residence — exclusively or alongside a right of residence under point (b) — from Article 10 of Regulation No 492/2011,

and their family members,

…

(2)      Persons who live in the same household (“Bedarfsgemeinschaft”) as beneficiaries who are fit for work shall also receive benefits. …

(3)      The household (“Bedarfsgemeinschaft”) shall include

1.      beneficiaries fit for work,

…

4.      unmarried children who are part of the household of the persons referred to in points 1 to 3, if they have not yet reached the age of 25, provided that they cannot obtain the benefits to enable them to cover their subsistence costs from their own income or assets.’

10.      Paragraph 2 of the Gesetz über die allgemeine Freizügigkeit von Unionsbürgern (Law on general freedom of movement of Union citizens, ‘the FreizügG’) (5) is worded as follows:

‘(1)      Union citizens who are entitled to freedom of movement and their family members shall have the right to enter and reside in federal territory, subject to the provisions of this Law.

(2)      The following are entitled to freedom of movement under EU law:

1.      Union citizens who wish to reside as workers or for the purpose of pursuing vocational training,

1a.      Union citizens seeking employment, for a period of up to six months, and thereafter only in so far as they can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged,

…

6.      family members, subject to the conditions laid down in Paragraphs 3 and 4,

…

(3)      …

The right derived from subparagraph 1 shall be retained for a period of six months in the event of involuntary unemployment confirmed by the relevant employment office after a period of employment of less than one year.’

11.      Paragraph 3 of the FreizügG provides:

‘(1) The family members of the Union citizens referred to in Paragraph 2(2), points 1 to 5, shall enjoy the right under Paragraph 2(1) if they are accompanying or joining the Union citizen. …

(2)      The following are family members:

1.      the spouse, the partner and the descendants of the persons specified in Paragraph 2(2), points 1 to 5 and 7, or of their spouses or partners, who have not yet reached the age of 21 …,

2.      the relatives in the ascending line and descendants of the persons specified in Paragraph 2(2), points 1 to 5 and 7, or of their spouses or partners, whose subsistence costs are covered by those persons or their spouses or partners.

…

(4)      The children of a Union citizen who enjoys freedom of movement and the parent who actually exercises parental authority over the children shall retain their right of residence until they have completed their training even after the death or departure of the Union citizen from whom they derive their right of residence, where the children reside in federal territory and attend an educational or training establishment.’

II.    The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

12.      JD is a Polish national and the father of two children born in 2005 and 2010. He has been separated from his wife, who is also Polish, since 2012 or 2013 — when he arrived in Germany after residing in the Netherlands — and they divorced in January 2019. His wife, who moved from the Netherlands to Germany at the same time as him, returned to Poland in April 2016. The father and his two daughters claim that they have lived together at the same address in Germany since September 2015. The two daughters have attended school in Germany since at least August 2016. In 2016 and 2017, JD continuously received child benefit for both of his daughters and a maintenance payment granted by the family’s city of residence. (6)

13.      With regard to JD’s occupational activity, he was employed in the Netherlands from 2009 to 2011. From January 2013 to March 2015, he was unemployed. From 6 March 2015 to 1 September 2015, he was employed in Germany. From 1 September 2015 to 17 January 2016, he was again out of work. On 18 January 2016, he took up full-time paid employment which was due to end on 31 October 2016. He was declared unfit for work from 4 October 2016 to 7 December 2016 and continued to receive his salary until 29 October 2016. After that date, he was paid a cash sickness benefit by the social security scheme until 7 December 2016. On 31 March 2017, JD was granted unemployment benefit for the period from 23 February 2017 to 24 August 2017. On 13 April 2017, payment of that benefit was terminated on account of the expiry of the period for which JD could be registered as unemployed. On 13 June 2017, a decision was made to grant JD unemployment benefit for the period from 12 June 2017 to 23 October 2017.

14.      JD has been in full-time employment since 2 January 2018.

15.      Between 1 September 2016 and 7 June 2017, JD and his daughters received basic social security benefits under the SGB II. In June 2017, JD requested that those benefits continue to be paid for himself and his daughters. By decision of 13 June 2017, the Jobcenter Krefeld rejected that request, taking the view that the exclusion provided for in point 2(b) of the second sentence of Paragraph 7(1) of the SGB II was applicable since JD was no longer resident in Germany solely in order to seek employment there. The Jobcenter Krefeld also rejected the complaint raised by JD and his daughters against that decision by a decision adopted on 27 July 2017. On 31 July 2017, JD and his daughters therefore brought an action for the annulment of the decision of 13 June 2017 as confirmed by the decision of 27 July 2017 and requested that the Jobcenter Krefeld be ordered to pay basic social security benefits for the period from 8 June 2017 to 31 December 2017 (‘the period at issue’).

16.      By judgment of 8 May 2018, the Sozialgericht Düsseldorf (Social Court, Düsseldorf, Germany) upheld the action and ordered the Jobcenter Krefeld to grant JD and his daughters the benefits claimed for the period at issue. From 7 July 2017 onwards, JD could admittedly no longer rely on a right of residence derived from previous employment on the basis of point 2 of the first sentence, or the second sentence, of Paragraph 2(3) of the FreizügG. However, he derived his right of residence from right conferred on his daughters by Article 10 of Regulation No 492/2011. The Sozialgericht Düsseldorf (Social Court, Düsseldorf) has held that such a right is autonomous and independent of the rights of residence governed by Directive 2004/38. According to that court, the derogation from the principle of equal treatment provided for in Article 24(2) of Directive 2004/38 is therefore applicable only if a right of residence is derived solely from Directive 2004/38. A contrario, that derogation is not applicable where the person concerned derives his right of residence from Article 10 of Regulation No 492/2011. Following that analysis, the court at first instance therefore held that the exclusion provided for in point 2(c) of the second sentence of Paragraph 7(1) of the SGB II had to be regarded as contrary to EU law.

17.      On 4 July 2018, the Jobcenter Krefeld appealed against that judgment before the referring court.

18.      The referring court states that the basic social security benefits are social assistance benefits within the meaning of Article 24(2) of Directive 2004/38 (7) and may also be classified as special non-contributory cash benefits in accordance with Article 3(3) and Article 70(2) of Regulation No 883/2004 (8) since their role is to cover the subsistence costs of children and their parents. According to the referring court, those benefits are also social advantages within the meaning of Article 7(2) of Regulation No 492/2011.

19.      According to the referring court, if it were to confine itself to applying its national law, it would be required to uphold the appeal lodged by the Jobcenter Krefeld. However, it questions whether the exclusion provided for in point 2(c) of the second sentence of Paragraph 7(1) of the SGB II is compatible with EU law. It notes that, although he was not working and did not have sufficient resources to cover his subsistence during the period at issue, and therefore could not claim either a right of permanent residence or worker status, during that period JD had a right of residence derived from that of his daughters on the basis of Article 10 of Regulation No 492/2011. The question as to whether, in such circumstances, the exception provided for in Article 24(2) of Directive 2004/38 may be applied is the subject of debate at national level.

20.      According to the national legislature, the exclusion provided for in point 2(c) of the second sentence of Paragraph 7(1) of the SGB II is compatible with EU law, because otherwise the rules set out in Directive 2004/38 would be rendered meaningless. At the time when that exclusion was introduced into national law, that legislature placed emphasis, inter alia, on recital 10 of Directive 2004/38, that is on the objective pursued by the directive of ensuring that persons exercising their right of residence do not become an unreasonable burden on the social assistance system of the host Member State, and on the objective, which has been alluded to by the Court itself on numerous occasions, of maintaining the financial equilibrium of social security systems. (9) For that reason, it was possible to extend that exclusion to EU nationals whose right of residence is based on Article 10 of Regulation No 492/2011 without the national legislature seeing it as a source of conflict with EU law. It is claimed that there is a line of case-law which follows that logic in finding that the scope of the exception provided for in Article 24(2) of Directive 2004/38 is not confined to that directive and that that article constitutes an exception to Article 18 TFEU even where the right of residence is based on Article 10 of Regulation No 492/2011. This is confirmed in the case-law of the Court, which did not follow the Advocate General’s Opinion in Alimanovic (10) and did not carry out a different examination in the light of the fact that legislation other than Directive 2004/38 formed the basis of the right of residence.

21.      However, it would appear that that view is not shared by all national courts, some of which interpret the judgment in Alimanovic (11) differently, taking the view that the Court applied Article 24(2) of Directive 2004/38 only in the context of a right of residence based on that directive. The question as to whether Article 24(2) of that directive applies to a Union citizen who has a right of residence on the basis of Article 10 of Regulation No 492/2011 was not therefore addressed. Moreover, those courts take the view that Article 24(2) of Directive 2004/38, as an exception to the principle of non-discrimination, should be interpreted strictly, within the scope of that directive alone.

22.      The referring court concurs with that second line of analysis, which, in its view, is supported by the fact that the right of residence deriving from Article 10 of Regulation No 492/2011 is not subject to compliance with the conditions laid down in Directive 2004/38. Furthermore, the benefits claimed by JD must be regarded as social advantages within the meaning of Article 7(2) of Regulation No 492/2011, even though those benefits appear to be unrelated to education or training as such. Equal treatment must be guaranteed in respect of social advantages under that article. Moreover, according to the referring court, the Court has previously held that the scope of Article 10 of Regulation No 492/2011 could not be restricted by Directive 2004/38. (12) Finally, the referring court notes that, although it had the opportunity to do so when it adopted Regulation No 492/2011, the EU legislature did not introduce into that regulation a provision which should have led the Court to alter its case-law based on the previous regulation in order expressly to exclude from entitlement to equal treatment those citizens whose right of residence is based only on Article 10 of Regulation No 492/2011.

23.      It was in those circumstances that the Landessozialgericht Nordrhein-Westfalen (Higher Social Court, North Rhine-Westphalia, Germany) decided to stay the proceedings and, by order lodged at the Registry of the Court on 25 February 2019, referred the following questions to the Court for a preliminary ruling:

‘(1)      Is the exclusion of Union citizens having a right of residence under Article 10 of Regulation No 492/2011 from receipt of social assistance within the meaning of Article 24(2) of Directive 2004/38 compatible with the requirement of equal treatment arising from Article 18 TFEU read in conjunction with Articles 7 and 10 of Regulation No 492/2011?

(a)      Does social assistance within the meaning of Article 24(2) of Directive 2004/38 constitute a social advantage within the meaning of Article 7(2) of Regulation No 492/2011?

(b)      Does the limitation set out in Article 24(2) of Directive 2004/38 apply to the requirement of equal treatment arising from Article 18 TFEU read in conjunction with Articles 7 and 10 of Regulation No 492/2011?

(2)      Is the exclusion of Union citizens from receipt of special non-contributory cash benefits within the meaning of Articles 3(3) and 70(2) of Regulation No 883/2004 compatible with the requirement of equal treatment arising from Article 18 TFEU read in conjunction with Article 4 of Regulation No 883/2004 if those citizens have a right of residence arising from Article 10 of Regulation No 492/2011 and are insured under a social security system or family benefits system within the meaning of Article 3(1) of Regulation No 883/2004?’

24.      Written observations were submitted by the Jobcenter Krefeld, the German and Polish Governments and the European Commission. They also all presented oral argument at the hearing which was held before the Court on 26 February 2020.

III. Analysis

A.      Preliminary observations on the classification of the benefits at issue

25.      As the referring court has noted, this is not the first time that the Court has been called upon to give a ruling on the conditions for granting the benefits provided for in point 2(c) of the second sentence of Paragraph 7(1) of the SGB II, and therefore the Court has already classified those benefits in the light of various rules of secondary legislation which may be relevant for the purpose of resolving the present case.

26.      I would therefore recall that the benefits at issue may be characterised as ‘special non-contributory cash benefits’ within the meaning of Article 70(2) of Regulation No 883/2004 and are, moreover, as such, mentioned in Annex X to Regulation No 883/2004. (13)

27.      The benefits at issue are also covered by the term ‘social assistance’ within the meaning of Article 24(2) of Directive 2004/38, since that term covers all assistance schemes established by the public authorities, whether at national, regional or local level, to which recourse may be had by an individual who does not have resources sufficient to meet his own basic needs or those of his family and who may therefore,, during his period of residence, become a burden on the public finances of the host Member State, which could have consequences for the overall level of assistance which may be granted by that State. (14) The Court also has held that the predominant function of the benefits at issue is to ‘cover the minimum subsistence costs necessary to lead a life in keeping with human dignity’. (15)

28.      The question remains as to whether the benefits at issue may be classified as a social advantage in accordance with Article 7(2) of Regulation No 492/2011. In that regard, it is clear from settled case-law that ‘social … advantages’ within the meaning of that provision must be understood as ‘all advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Union … and, consequently, their integration into the host Member State’. (16) According to the referring court, the benefits at issue, which are intended to cover the subsistence costs of a child and those of the parent who is the child’s primary carer while the child is at school or engaged in vocational training, do indeed constitute such advantages. (17)

29.      As the Commission has rightly pointed out, in my view, the basic social protection afforded by point 2(c) of the second sentence of Paragraph 7(1) of the SGB II, in so far as it presupposes fitness for work, appears to be linked to the fact that the beneficiary has been a worker, is a worker whose income is insufficient, or will be a worker. In the first two cases which I have just listed at least, receipt of the benefit at issue appears to be linked to the person claiming it having the status of worker, even if that status has been lost. Lastly, I note that the Court has previously classified as a social advantage within the meaning of Regulation (EEC) No 1612/68, (18) which preceded Regulation No 492/2011, a social benefit providing a general guarantee of a minimum subsistence allowance. (19) Therefore, in those circumstances, it must be acknowledged that the benefits at issue are also covered by the term ‘social … advantages’ within the meaning of Article 7(2) of Regulation No 492/2011, in particular if account is taken of the inclusive role of that protection, as the Court has done on several occasions, a matter to which I shall return. (20)

30.      With that in mind, I shall now turn to the analysis of the questions referred for a preliminary ruling.

B.      Consideration of the questions referred

31.      The exclusion of JD and his daughters from entitlement to subsistence benefits constitutes discrimination based on nationality. By those questions, which I propose to examine together, the referring court is asking the Court to examine in succession, where appropriate, the various possible bases for the grant of subsistence benefits for the period at issue to JD and his two daughters, that is to say for the recognition, in the context of the dispute in the main proceedings, of a right to equal treatment.

32.      However, such an analysis will not serve any purpose if the Court were to hold that the situation at issue in the main proceedings, in any event, falls under the derogation from equal treatment provided for in Article 24(2) of Directive 2004/38. I must therefore explain at the outset why, in my view, that provision does not apply in the present case, before examining whether the scope of the right of residence recognised in Article 10 of Regulation No 492/2011 is such that it also covers the right to equal treatment as regards the conditions for entitlement to the benefits at issue. In the light of the conclusions that I will draw from my analysis of Article 10 of Regulation No 492/2011, a specific examination of Regulation No 883/2004 should not appear to be necessary.

1.      Article 24(2) of Directive 2004/38 does not apply to the situation at issue in the main proceedings

33.      It is common ground between the parties that, at the time of the period at issue, JD had a right of residence based on Article 10 of Regulation No 492/2011 which derived from that of his two daughters, who were attending school in the host Member State. It is also common ground that, during that period at issue, JD had lost the status of worker and was seeking employment.

34.      Article 24 of Directive 2004/38 is devoted to equal treatment. Paragraph 1 thereof establishes entitlement to equal treatment for ‘all Union citizens residing on the basis of [that] Directive in the territory of the host Member State’ but ‘subject to such specific provisions as are expressly provided for in the Treaty and secondary law’. In that regard, Article 24(2) expressly provides for a derogation from the principle of equal treatment in that the host Member State is not obliged to confer entitlement to social assistance within the periods specified ‘to persons other than workers, self-employed persons, persons who retain such status and members of their families’.

35.      The German Government, whose arguments are shared in part by the Jobcenter Krefeld, submits, in essence, that, irrespective of whether JD’s right of residence in Germany was also based on Directive 2004/38, (21) as he had resided in Germany during the period at issue solely in order to seek employment there, Article 24(2) of that directive operates as a cross-cutting provision, which regulates exhaustively the issue of equal treatment with regard to social assistance benefits and therefore goes beyond the regulatory scope of Directive 2004/38. It is therefore immaterial that the legal basis of JD’s right of residence is Article 10 of Regulation No 492/2011 since Article 24(2) of Directive 2004/38, in any event, excludes Union citizens who no longer have the status of worker from entitlement to equal treatment with regard to social assistance benefits. If the application of Article 24(2) of Directive 2004/38 were excluded in a case such as that of JD, this would render meaningless the limitation laid down in that provision and the discretion which the directive necessarily confers on the Member States, which must protect themselves against benefit tourism by ensuring that economically inactive Union citizens do not become an unreasonable burden on national social security systems. If such citizens were able to rely on the fact that their children may be educated in the host Member State, that would be enough to jeopardise the mechanism which protects those systems: the exception provided for in Article 24(2) of Directive 2004/38. Finally, in the German Government’s view, the issue has already been resolved by the Court in the judgment in Alimanovic. (22) In that judgment, the factual and legal context of which is comparable in every respect to that of the present case, the Court did not rule out the application of Article 24(2) of Directive 2004/38, even though the Union citizens concerned, who did not have the status of migrant worker, also had a right of residence on the basis of Article 10 of Regulation No 492/2011.

36.      I cannot agree with those arguments.

37.      First, from a literal point of view, Article 24(1) of Directive 2004/38 lays down the principle of equal treatment for Union citizens residing in the territory of the host Member State ‘subject to such specific provisions as are expressly provided for in the Treaty and secondary law’. Therefore, the derogation from that principle contained in Article 24(2) of Directive 2004/38 still operates within those same limits. Moreover, that reference in Article 24 to other provisions of primary or secondary law is difficult to reconcile with the argument of exhaustive and cross-cutting harmonisation of the right to equal treatment.

38.      Secondly, from a contextual point of view, at no point can any indication that Article 24 of Directive 2004/38 applies beyond the directive itself be identified. Turning again to the wording of Article 24(2) of that directive, by the references it makes to other provisions of the directive, that paragraph roots the derogation it contains within the scope of the directive itself. The retention, in Regulation No 492/2011, of a provision devoted to equal treatment of workers with regard to social advantages also contradicts the argument that Directive 2004/38 brought about exhaustive and cross-cutting harmonisation of the right to equal treatment.

39.      Lastly, from a teleological point of view, again, it seems to me that the legitimate objective pursued by the EU legislature and then invoked by the German legislature and German Government cannot, by itself, justify transferring a rule of secondary legislation to a different legislative context. Moreover, the German Government’s failure — whether in its written observations or at the hearing before the Court when it was questioned specifically on that point — to provide precise figures capable of illustrating the threat to the German social security system posed by an interpretation of Article 24(2) of Directive 2004/38 to the effect that it does not apply where the Union citizen concerned has a right of residence on a basis other than that of Directive 2004/38, even though the German Government raised the spectre of benefit tourism, has considerably impaired the strength of its argument.

40.      I would add three further sets of comments.

41.      First, the argument that a right of residence cannot exist under Regulation No 492/2011 without it necessarily having been preceded by a right of residence under Directive 2004/38 cannot deprive that regulation of its legislative autonomy. It is sufficient to note, as I shall point out below, that the right of residence under Article 10 of Regulation No 492/2011 is not subject to compliance with the conventional conditions laid down in Directive 2004/38 with regard to economically inactive Union citizens.

42.      Secondly, while all of the foregoing reasons, in themselves, support limiting the scope of the derogation provided for in Article 24(2) of Directive 2004/38 to that directive alone, I would add, as the Commission has rightly pointed out, that, in EU law, all derogating provisions are interpreted restrictively. Moreover, the Court has already used that principle of interpretation with regard to Article 24(2) of Directive 2004/38 itself, as it has previously held that ‘since Article 24(2) is a derogation from the principle of equal treatment provided for in Article 18 TFEU, of which Article 24(1) of Directive 2004/38 is merely a specific expression, it must be interpreted narrowly’. (23)

43.      Thirdly, as regards the value of the judgment in Alimanovic (24) as a precedent for this case, that judgment must be read in the light of paragraph 40 thereof, in which the Court observed that the national court which had brought proceedings before it was of the view ‘that the rights of residence held by Ms Alimanovic and her daughter Sonita [arose] solely out of their status as job-seekers and that it [was] bound by the findings of fact made … in that regard’. By adopting a very formalistic reading of the judgment, it could be argued that paragraph 40 thereof, however, introduces the part of the judgment devoted to classifying the benefits at issue in that case — which are the same as those under consideration here. Nevertheless, it must be acknowledged that the point made in paragraph 40 has no bearing as a matter of law on the classification of the benefits itself, and therefore the conclusions to be drawn from that paragraph are not limited to that part of the judgment alone. (25)

44.      At no point in the judgment in Alimanovic (26) does the Court move away from the premiss set out in paragraph 40 of that judgment. Therefore, at no point does it mention the possibility, which is addressed, albeit only in the alternative, by the Advocate General, (27) that the right of residence held by Ms Alimanovic and her daughter may have been derived from Article 10 of Regulation No 492/2011.

45.      Paragraph 40 of the judgment in Alimanovic (28) therefore has the effect of limiting the scope of that judgment to Union citizens who have a right of residence on the sole basis of Article 14(4)(b) of Directive 2004/38. In that judgment, the Court did not give a ruling on the particular case under consideration here since the questions referred to it in that instance simply did not address that subject. (29)

46.      In any event, it is interesting to note that, in its judgment in Alimanovic, (30) the Court established very clearly a link between the application of the principle of equal treatment provided for in Article 24(1) of Directive 2004/38 and the enjoyment of a right of residence — with the exception of that based on Article 14(4)(b) of Directive 2004/38 (31) — based on Directive 2004/38. (32)

47.      Therefore, if it were simply concluded that JD has a right of residence on the basis of Article 14(4)(b) of Directive 2004/38, he would not be able to rely on the principle of equal treatment. However, as I have endeavoured to demonstrate above, Article 24 of Directive 2004/38 is not intended to govern the application of the principle of equal treatment to a Union citizen who has a right of residence on the basis of Article 10 of Regulation No 492/2011. (33)

2.      The scope of the right of residence based on Article 10 of Regulation No 492/2011

48.       Once the application of Article 24(2) of Directive 2004/38 has been ruled out in the situation at issue in the main proceedings, it remains to be examined whether JD and his daughters are able to rely on a right to equal treatment as regards access to basic social security benefits. Since they have a right of residence under Article 10 of Regulation No 492/2011, it must be determined whether equal treatment in that regard can be derived from the regulation itself, read in conjunction with other rules, if necessary.

49.      After recalling the scope which the Court has given to Article 10 of Regulation No 492/2011, I shall propose two possible ways of establishing that, in the present case, a right to equal treatment must be recognised.

(a)    Article 10 of Regulation No 492/2011 in Court's the case-law 

50.      I note that Article 10 of Regulation No 492/2011 is identical to Article 12 of Regulation No 1612/68 and therefore the Court’s case-law on the interpretation of the latter provision applies mutatis mutandis to the interpretation of the former. (34)

51.      The Court has held that the aim of Regulation No 1612/68, namely freedom of movement for workers, required, ‘for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker’s family in the society of the host Member State’ (35) and has stated that the link between successful integration and the possibility for a child of a migrant worker to go to school and pursue further education in the host Member State (36) is an essential one.

52.      Also to that end, the beneficiaries of the right of access to education enshrined in Article 10 of Regulation No 492/2011 are defined broadly, since the children themselves may not be citizens of the Union and may not be children common to the migrant worker and his spouse. (37) If the migrant worker and his spouse divorce and that worker returns to his State of origin whereas his spouse remains in the host Member State with the children, this does not have the effect of calling into question those children’s right of access to education in the host State. (38) Similarly, if the parent from whom the children initially derived their right of access to education loses the status of worker, this has no effect on the enjoyment of that right. (39)

53.      In order to ensure the effectiveness of the right of access to education provided for in Article 10 of Regulation No 492/2011, that right must necessarily be accompanied by a corresponding right of residence for children. (40)

54.      It follows from the foregoing that it is the possession of the status of worker which gives rise, in respect of the worker’s children, to the right of access to education and therefore to a right of residence deriving from Article 10 of Regulation No 492/2011. However, once the conditions have been met for that right to be recognised, it ‘becomes autonomous’ in order to offer enhanced protection to the legal situation of children who are no longer only required only to reside in the host Member State and attend school there. (41)

55.      That enhanced legal protection of the situation of children will have a knock-on effect on the situation of the parent who cares for them. Accordingly, whilst the child’s right of residence under Article 10 of Regulation No 492/2011 arises from one of the parents possessing, at a given time, the status of worker, the right of residence of the parent who is their carer may continue beyond the loss of the status of worker or, in the absence of such status, as long as the child is in school. To extend a grammatical metaphor, the parent who was the main clause becomes the subordinate clause and the child, who originally formed the subordinate clause, becomes the main clause. Therefore, the Court has held that, where the children enjoy, under Article 10 of Regulation No 492/2011, the right to continue their education in the host Member State, ‘a refusal to allow … parents to remain in the host Member State during the period of their children’s education might deprive those children of a right which has been granted to them by the legislature of the European Union’. (42) After noting that Regulation No 1612/68 had to be interpreted in the light of the requirement of respect for family life laid down in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, (43) the Court ruled that ‘the right conferred by Article 12 of Regulation No 1612/68 on the child of a migrant worker to pursue, under the best possible conditions, his education in the host Member State necessarily implies that that child has the right to be accompanied by the person who is his primary carer and, accordingly, that that person is able to reside with him in that Member State during his studies. To refuse to grant permission to remain to a parent who is the primary carer of the child exercising his right to pursue his studies in the host Member State infringes that right’. (44) The Court also stated that, having regard to its context and the objectives pursued by Regulation No 1612/68 and Article 12 thereof, that provision cannot be interpreted restrictively and must not, under any circumstances, be rendered ineffective. (45) The parent who is the primary carer of a child in education who has the right of access to education under Article 12 of Regulation No 1612/68 therefore has a right of residence which is derived from that of his or her child, even if, as I have already pointed out, that parent does not have the status of Union citizen or does not have, or no longer has, the status of migrant worker in the host Member State. (46)

56.      Finally, in a further development to its case-law on Article 12 of Regulation No 1612/68, the Court held that ‘the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without being required to satisfy the conditions laid down in Directive 2004/38’. (47) In particular, the Court noted that the wording of Article 12 of Regulation No 1612/68 did not make the right of residence of the children and the parent who is their primary carer conditional upon self-sufficiency — that is to say the possession of sufficient resources and comprehensive sickness insurance cover in the host Member State — nor did that requirement follow from the Court’s case-law. (48)

57.      The case-law that I have just described therefore had three stages: first, it was necessary to endorse the notion that the right of access to education provided for in Article 12 of Regulation No 1612/68 necessarily had to be accompanied by the recognition of an independent right of residence for children. Secondly, the requirement that the right of access to education should be effective justified the assertion of a derived right of residence for the parent who is the primary carer of those children. Thirdly, in order to safeguard the legal situation of children attending school, neither the child’s independent right of residence nor the parents’ derived right of residence could be subject to a condition of self-sufficiency.

58.      The present case gives the Court the opportunity to take a further step in establishing the legal status associated with Article 10 of Regulation No 492/2011.

(b)    Right of residence based on Article 10 of Regulation No 492/2011 and right to equal treatment as regards access to basic social security benefits: the logical consequence

59.      As stated, there are, in my view, two possible lines of analysis, depending on whether the view is taken that JD has a right to equal treatment (first hypothesis) or whether the view is taken that it is his two daughters who have that right (second hypothesis).

(1)    First hypothesis: Article 7 of Regulation No 492/2011 as the basis for JD’s right to equal treatment

60.      As stated on more than one occasion above, JD has a right of residence which is derived from that of his daughters under Article 10 of Regulation No 492/2011.

61.      Article 7 of Regulation No 492/2011 contains a specific expression of the principle of equal treatment enshrined in Article 18 TFEU, providing, in paragraph 2 thereof, that a worker who is a national of a Member State is to enjoy, in the territory of another Member State, the same social advantages as national workers.

62.      However, we cannot overlook the fact that Article 7 is at the beginning of Section 2 of Regulation No 492/2011, entitled ‘Employment and equality of treatment’. Nor can we overlook the fact that that article refers expressly to ‘a worker’, and JD no longer has that status.

63.      Nevertheless, a broad interpretation of that provision cannot be ruled out. Admittedly, Article 7 of Regulation No 492/2011 contains no reference, like that in Article 10 of that regulation, to a national of a Member State who is or has been a worker; however it may be inferred from the wording of Article 7(1) of Regulation No 492/2011 that the protection afforded goes beyond that worker’s period of employment alone, and perhaps even beyond the period during which he in fact has that status. As a reminder, Article 7(1) of Regulation No 492/2011 establishes the right to equal treatment ‘in particular as regards … dismissal, and, should he become unemployed, … re-employment’. (49)

64.      Furthermore, although it follows from the Court’s case-law that EU nationals who move solely in search for work may not rely on the principle of equal treatment as provided for by Article 7(2) of Regulation No 1612/68, those who have already entered the employment market may, by contrast, clearly rely on it. (50)

65.      In the present case, the recognition of a right to equal treatment based on the fact that the applicant is a former worker — and not a national who has moved to the host Member State solely in order to seek employment there without ever having actually entered the employment market — means that entitlement to social assistance does not have to be extended to any citizen who might otherwise merely exercise his freedom of movement in another Member State, without ever seeking work there, and then immediately send his children to school there in order to be able to enjoy a right of residence and the social assistance offered in the host Member State until they have completed their studies. (51)

66.      In other words, the proposed interpretation of Article 7 of Regulation No 492/2011 would, admittedly, require the Member States to provide assistance to former workers who suffer from economic inactivity while at the same time preserving their right to refuse such assistance to Union citizens who are making use of their freedom of movement by choosing to remain inactive and who, on that basis, cannot rely on the protection afforded by that provision. Moreover, that interpretation is also supported by virtue of the legislative autonomy between Regulation No 492/2011 and Directive 2004/38.

67.      It is also necessary to ensure that discrimination cannot be justified. (52) In that regard, although there is no doubt that the objective pursued by the German legislature is legitimate, since it is the same as that pursued by the EU legislature, that discrimination fails to pass the proportionality test as point 2(c) of the second sentence of Paragraph 7(1) of the SGB II leads to the systematic exclusion of any national who has a right of residence on the basis of Article 10 of Regulation No 492/2011, with no consideration given whatsoever to the individual situation of that national or, in particular, to the links maintained with the labour market of the host Member State or the nature and extent of the links with the society of that State.

68.      Therefore, it follows from that analysis that Article 7(2) and Article 10 of Regulation No 492/2011 must be interpreted as meaning that a right to equal treatment, as regards access to social advantages such as basic social security benefits, must be conferred on a former migrant worker whose children attend school in the host Member State and have a right of residence on the basis of Article 10 of that regulation.

(2)    Second hypothesis: the right of access to education as the basis for the right to equal treatment as regards access to social assistance

69.      In my view, it is also possible to reach the same conclusion — that JD and his daughters have a right of access to the benefits at issue — by focusing this time on the children’s rights.

70.      In accordance with the Court’s case-law cited above, Article 10 of Regulation No 492/2011 cannot be interpreted restrictively and its effectiveness must be ensured; the regulation must, for its part, be interpreted in the light of the requirement of respect for family life laid down in Article 7 of the Charter of Fundamental Rights of the European Union.

71.      In those circumstances, what would remain of the right of access to education, which all parties agree that JD’s two daughters enjoy, if the daughters and their father were denied the right to access the benefits at issue?

72.      I can readily accept that, conceptually, a right of residence does not necessary coincide with the right to access those benefits. But, finally, from a functional point of view, what actual — effective — scope would be given to the case-law of the Court, which pays particular attention to the situation of the children of migrant workers — and notwithstanding the fact that the right of residence of the parent who is their primary carer is not subject to the condition of having sufficient resources or comprehensive sickness insurance cover — if the Court were to rule today that that parent, who plays an essential role in supporting those children in their education, is not entitled to apply for social assistance from the State?

73.      It would be an illusion, a legal fiction, to take the view that the right of access to education is valid merely because a right of residence is granted to the parent who is the children’s primary carer without that right also being accompanied by social assistance. I therefore specifically ask that the Court takes this step.

74.      Article 10 of Regulation No 492/2011 provides for a right of access to education ‘under the same conditions as the nationals of that [Member] State’. (53) If the indigent parents of a child attending school who are nationals of the host Member State are entitled to access to social assistance in order to ensure that that child and, in turn, his or her family unit, has dignified living conditions and conditions at school, and in so far as indigence is clearly an obstacle to access to education for any child, the right to social assistance should be interpreted as forming part of the ‘conditions’ referred to in Article 10 of Regulation No 492/2011, as otherwise the child would be deprived of a right which has been conferred on him by the legislature. (54)

75.      Such an interpretation therefore ensures the effectiveness of Article 10 of Regulation No 492/2011, as required by the Court’s case-law. Moreover, it appears to be fully consistent with the initial objective of that regulation, which is to ensure freedom of movement for workers. Which worker would leave his country of origin, and endeavour to integrate himself as far as possible into the society of the host Member State, including economically, and to educate his children there if he knows that, if his situation becomes less comfortable, without being able to count on the solidarity of the Member State which welcomed him, he would necessarily have to return to his country of origin and remove his children from the educational and linguistic system into which they had been integrated up until that point? In addition, that interpretation appears to be in line with the Court’s case-law which excludes the right of residence of the children and the parent who is their primary carer from compliance with the condition of self-sufficiency. (55)

76.      For the same reasons as set out above, (56) I do not consider that the discrimination introduced by point 2(c) of the second sentence of Paragraph 7(1) of the SGB II can be justified.

77.      At this stage of the analysis, I am therefore inclined to take the view that Article 10 of Regulation No 492/2011 must be interpreted as meaning that a right of access to basic social security benefits must be conferred on children who have a right of residence on the basis of Article 10 of Regulation No 492/2011 and on the parent who is the primary carer of those children.

3.      Additional observations

78.      The foregoing analysis, which places Article 10 of Regulation No 492/2011 at the heart of the reasoning employed in order to settle the present case, is therefore, in my view, the primary means of settling the case. Nevertheless, for the sake of completeness, I would like to add some further thoughts with regard, first, to Regulation No 883/2004 and, secondly, to Article 18 TFEU. However, since these thoughts are provided only by way of alternative argument, the analysis will inevitably be shorter.

79.      With regard to Regulation No 883/2004, I have already stated that the basic social security benefits at issue fall within the scope of that regulation and that Article 4 thereof confers a right to equal treatment on persons to whom the regulation applies, unless otherwise provided for by the regulation. It follows from the wording of the second question referred for a preliminary ruling that JD must be regarded as being insured under the social security system of the host Member State or its family benefits system within the meaning of Article 3(1) of Regulation No 883/2004. Although it is for the legislation of each Member State to lay down the basic conditions for granting benefits such as those at issue in the main proceedings, (57) the Member States must nevertheless comply with the principle of equal treatment when doing so. The Court has previously acknowledged that Member States may decide to grant social benefits only to Union citizens who fulfilled the conditions for residence under Directive 2004/38 (58) and that those States could exclude from entitlement to benefits Union citizens during the first three months of their residence in the host Member State or citizens whose residence is based only on Article 14(4)(b) of Directive 2004/38. Even if it is possible to infer from that case-law an attempt to bring Article 4 of Regulation No 883/2004 in line with Article 24(2) of Directive 2004/38, in the sense that the effectiveness of the latter would make it necessary to limit the former, there is no need, in any event, for such a structured reading of those provisions in a case such as that of JD, where the right of residence is no longer based on Directive 2004/38, or is no longer based solely on that directive, but is based on Article 10 of Regulation No 492/2011. Equal treatment as regards access to special non-contributory cash benefits such as basic social benefits may therefore, in the case of a Union citizen such as JD who also has a right of residence based on Article 10 of Regulation No 492/2011, also be based on Article 4 of Regulation No 883/2004.

80.      Finally, as I have taken the view that the questions raised by the referring court may be resolved by interpreting Regulation No 492/2011, which contains a precise breakdown of the principle of non-discrimination, which is enshrined as a general principle in Article 18 TFEU, I do not consider it necessary to carry out an independent analysis of the latter provision. (59)

IV.    Conclusion

81.      In the light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Landessozialgericht Nordrhein-Westfalen (Higher Social Court, North Rhine-Westphalia, Germany) as follows:

(1)      Basic social security benefits such as those at issue in the main proceedings constitute social advantages within the meaning of Article 7(2) of 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.

(2)      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, is not intended to govern the application of the principle of equal treatment to a Union citizen who has a right of residence on the basis of Article 10 of Regulation No 492/2011.

(3)      Article 7(2) and Article 10 of Regulation No 492/2011 must be interpreted as meaning that a right to equal treatment as regards access to social advantages such as basic social security benefits must be conferred on a former migrant worker whose children attend school in the host Member State and have a right of residence on the basis of Article 10 of that regulation.

(4)      Article 10 of Regulation No 492/2011 must be interpreted as meaning that a right of access to basic social security benefits must be conferred on children who have a right of residence on the basis of that provision and on the parent who is the primary carer of those children.

1      Original language: French.

2      OJ 2004 L 158, p. 77.

3      ‘Regulation No 883/2004’.

4      OJ 2011 L 141, p. 1.

5      In the version of 2 December 2014 (BGBl. I, p. 1922).

6      It is apparent from the documents before the Court that that maintenance payment was granted to JD for his daughters from 1 October 2015 until his children reached the age of 12.

7      The referring court refers in that regard to the judgments of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358); of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597); and of 25 February 2016, García-Nieto and Others (C‑299/14, EU:C:2016:114).

8      The referring court refers in that regard to the judgments of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358); of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597); and of 25 February 2016, García-Nieto and Others (C‑299/14, EU:C:2016:114).

9      As the Court referred to in its judgments of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358); of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597); and of 25 February 2016, García-Nieto and Others (C‑299/14, EU:C:2016:114).

10      Judgment of 15 September 2015 (C‑67/14, EU:C:2015:597).

11      Judgment of 15 September 2015 (C‑67/14, EU:C:2015:597).

12      The referring court refers here to the judgments of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C‑310/08, EU:C:2010:80), and Teixeira (C‑480/08, EU:C:2010:83).

13      See judgment of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597, paragraph 43).

14      See judgment of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597, paragraph 44 and the case-law cited).

15      Judgment of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597, paragraph 45).

16      Judgment of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others (C‑447/18, EU:C:2019:1098, paragraph 47 and the case-law cited).

17      The German Government did not express a view on the matter, but did not rule out such a classification.

18      Regulation of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, Series I 1968(II), p. 475).

19      See judgment of 27 March 1985, Hoeckx (249/83, EU:C:1985:139), reiterated in paragraph 27 of the judgment of 20 September 2001, Grzelczyk (C‑184/99, EU:C:2001:458).

20      See, for the Court’s classification of various measures as social advantages within the meaning of Article 7(2) of Regulation No 492/2011, with particular emphasis on their inclusive role, judgment of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others (C‑447/18, EU:C:2019:1098, paragraph 48).

21      Under Article 14(4)(b) of Directive 2004/38.

22      Judgment of 15 September 2015 (C‑67/14, EU:C:2015:597).

23      Judgment of 4 October 2012, Commission v Austria (C‑75/11, EU:C:2012:605, paragraph 54).

24      Judgment of 15 September 2015 (C‑67/14, EU:C:2015:597).

25      This is also confirmed by paragraph 41, which is merely a reiteration of the second and third questions referred to the Court for a preliminary ruling in that case and is therefore, as such, unrelated to the process of classifying the benefits, which the Court goes on to carry out in paragraphs 42 to 46 of the judgment of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597).

26      Judgment of 15 September 2015 (C‑67/14, EU:C:2015:597).

27      See Opinion of Advocate General Wathelet in Alimanovic (C‑67/14, EU:C:2015:210, points 117 to 122).

28      Judgment of 15 September 2015 (C‑67/14, EU:C:2015:597).

29      See judgment of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597, paragraph 38).

30      Judgment of 15 September 2015 (C‑67/14, EU:C:2015:597).

31      Since this is expressly excluded by Article 24(2) of Directive 2004/38.

32      See judgment of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597, paragraph 49). See also paragraph 53 of that judgment.

33      I would further note in that regard that, in paragraph 49 of the judgment of 15 September 2015, Alimanovic (C‑67/14, EU:C:2015:597), the Court held that, ‘so far as concerns access to social assistance …, a Union citizen can claim equal treatment with nationals of the host Member State under Article 24(1) of Directive 2004/38 only if his residence in the territory of the host Member State complies with the conditions of Directive 2004/38’ (Emphasis added). Since the right of residence deriving from Article 10 of Regulation No 492/2011 specifically falls outside the scope of compliance with those conditions, Article 24 of Directive 2004/38 is not the provision in the light of which the question as to whether JD may enjoy equal treatment must be examined.

34      In the analysis which follows, I shall use references to both regulations without distinction.

35      Judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 50).

36      See judgments of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 51), and of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C‑310/08, EU:C:2010:80, paragraph 43).

37      See judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraphs 56 and 57).

38      See judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 63).

39      See judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 63).

40      See judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 63).

41      See judgment of 23 February 2010, Teixeira (C‑480/08, EU:C:2010:83, paragraph 49). With regard to the autonomous nature of the right of residence, see judgments of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C‑310/08, EU:C:2010:80, paragraphs 35, 40 and 41), and of 23 February 2010, Teixeira (C‑480/08, EU:C:2010:83, paragraph 46).

42      Judgments of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 71), and of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C‑310/08, EU:C:2010:80, paragraph 30).

43      Signed at Rome on 4 November 1950.

44      Judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 73).

45      See judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 74).

46      See judgment of 17 September 2002, Baumbast and R (C‑413/99, EU:C:2002:493, paragraph 75).

47      Judgment of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C‑310/08, EU:C:2010:80, paragraph 50). Emphasis added.

48      See judgment of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C‑310/08, EU:C:2010:80, paragraphs 52 and 53). As regards the situation of children, the Court had previously held that the status of child of a migrant worker within the meaning of Regulation No 1612/68 implied, ‘in particular, that it is recognised in European Union law that such children must be eligible for study assistance from the State in order to make it possible for them to achieve integration in the society of the host Member State, that requirement applying a fortiori where the persons covered by the provisions of that regulation are students who arrived in that State even before the age at which they had to attend school’ (judgment of 15 March 1989, Echternach and Moritz (389/87 and 390/87, EU:C:1989:130, paragraph 35), reproduced in paragraph 54 of the judgment of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C‑310/08, EU:C:2010:80)).

49      I would point out that the wording of that provision does not expressly limit the enjoyment of the right to equal treatment with respect to the duration of the period of unemployment.

50      See in particular judgment of 23 March 2004, Collins (C‑138/02, EU:C:2004:172, paragraph 31).

51      In that regard, I would like to point out here that the situation of JD and his two daughters differs in every respect from the situation of the applicant in Dano (judgment of 11 November 2014 (C‑333/13, EU:C:2014:2358)), in which the Court held that, on the basis of Directive 2004/38, a Member State could refuse ‘to grant social benefits to economically inactive Union citizens who exercise their right to freedom of movement solely in order to obtain another Member State’s social assistance although they do not have sufficient resources to claim a right of residence’ (judgment of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358, paragraph 78) (emphasis added). As the Commission has pointed out in the present case, JD cannot be accused of having committed fraud or an abuse of rights, and nor has he made use of his freedom of movement solely in order to obtain the benefits at issue.

52      By analogy, see judgment of 14 December 2016, Bragança Linares Verruga and Others (C‑238/15, EU:C:2016:949).

53      Emphasis added.

54      In accordance with the case-law recalled in point 55 of this Opinion.

55      To hold otherwise would, by implication, amount to establishing a condition of self-sufficiency for the effective enjoyment of the right of access to education.

56      See point 67 of this Opinion.

57      See judgments of 19 September 2013, Brey (C‑140/12, EU:C:2013:565, paragraph 41), and of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358, paragraph 83).

58      See judgments of 11 November 2014, Dano (C‑333/13, EU:C:2014:2358, paragraph 83), and of 25 February 2016, García-Nieto and Others (C‑299/14, EU:C:2016:114, paragraph 52).

59      What is more, the national court did not refer any questions which relate solely to Article 18 TFEU. Such an analysis would be necessary only if the Court were to take the view that JD does not fall within the scope of Article 24 of Directive 2004/38, cannot benefit from the principle of equal treatment under Article 7(2) of Regulation No 492/2011 because he does not have the status of worker and does not enjoy direct or indirect protection against discrimination when accessing basic social security benefits under Article 10 of Regulation No 492/2011. JD could then rely only on his status as an economically inactive Union citizen, who is legally resident in the host Member State and claiming entitlement to a basic social security benefit. Such a situation would then be similar to that in the case which gave rise to the judgment of 7 September 2004, Trojani (C-456/02, EU:C:2004:488).

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