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

OPINION OF ADVOCATE GENERAL

HOGAN

delivered on 30 September 2021(1)

Case C-247/20

VI

v

Commissioners for Her Majesty’s Revenue & Customs

(Request for a preliminary ruling from the Social Security Appeal Tribunal (Northern Ireland) (United Kingdom))

(Reference for a preliminary ruling – Right to move and reside freely within the territory of the Member States – Directive 2004/38/EC – Article 7(1)(b) and Article 16 – Child who is a national of a Member State staying in another Member State – Economically active mother from a third country providing sufficient resources – Mother’s derived right of residence in the host Member State – Entitlement to Child Tax Credit and family allowances (Child Benefit) – Condition requiring ‘comprehensive sickness insurance cover’)

I.      Introduction

1.        This request for a preliminary ruling concerns the interpretation of Articles 7 and 16 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)

2.        The request has been made in proceedings between VI and Her Majesty’s Revenue & Customs (‘HMRC’) concerning the appellant’s entitlement to reside in the United Kingdom for the periods from 1 May 2006 to 20 August 2006 and from 18 August 2014 to 25 September 2016 and to receive, for these periods, Child Tax Credit and Child Benefit.

II.    Legal context

A.      EU law

1.      Directive 2004/38

3.        According to recitals 10 and 18 of Directive 2004/38:

‘(10)      Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions.

…

(18)      In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.’

4.        The right of residence is regulated in Chapter III of Directive 2004/38 entitled ‘Right of residence’. In that chapter, Article 7 deals with the right of residence for more than three months. It provides:

‘1.      All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a)      are workers or self-employed persons in the host Member State; or

(b)      have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

…

(d)      are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).

2.      The right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph l(a), (b) or (c).

…’

5.        Article 8(4) of Directive 2004/38 provides that ‘Member States may not lay down a fixed amount which they regard as “sufficient resources”, but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State’.

6.        In the same Chapter III, Article 12, entitled ‘Retention of the right of residence by family members in the event of death or departure of the Union citizen’, states:

‘1.      Without prejudice to the second subparagraph, the Union citizen’s death or departure from the host Member State shall not affect the right of residence of his/her family members who are nationals of a Member State.

Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1).

2.      Without prejudice to the second subparagraph, the Union citizen’s death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen’s death.

Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. “Sufficient resources” shall be as defined in Article 8(4).

Such family members shall retain their right of residence exclusively on a personal basis.

…’

7.        In the same Chapter III of Directive 2004/38, the first subparagraph of Article 14(2) provides that:

‘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.’

8.        In Chapter IV, entitled ‘Right of permanent residence’, Article 16 provides:

‘1.      Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2.      Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

…’

2.      Regulation No 492/2011

9.        In addition to Directive 2004/38, the EU legislator has adopted a specific text on the free movement of workers: 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. (3)

10.      According to the first subparagraph of Article 10 of Regulation No 492/2011, ‘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’.

B.      United Kingdom law

11.      Directive 2004/38 was transposed into United Kingdom law by the Immigration (European Economic Area) Regulations 2006 (‘the Immigration Regulations 2006’), which were subsequently consolidated by the Immigration (European Economic Area) Regulations 2016 (‘the Immigration Regulations 2016’).

12.      Regulation 4(1) of the Immigration Regulations 2016 defines the different categories of Union citizens set out in Article 7(1)(a) to (c) of Directive 2004/38, namely those of ‘workers’, ‘self-employed persons’, ‘self-sufficient persons’ and ‘students’ respectively. According to Regulation 4(1)(c) of the Immigration Regulations 2016, a ‘self-sufficient person’ means:

‘a person who has—

(i)      sufficient resources not to become a burden on the social assistance system of the United Kingdom during the person’s period of residence; and

(ii)      comprehensive sickness insurance cover in the United Kingdom’.

13.      Regulation 4(3)(b) of the Immigration Regulations 2016 points out that ‘the requirement for the student or self-sufficient person to have comprehensive sickness insurance cover in the United Kingdom is only satisfied if such cover extends to cover both the student or self-sufficient person and all their relevant family members’.

14.      Regulation 15 of the Immigration Regulations 2016 is entitled ‘Right of permanent residence’. It provides:

‘(1)      The following persons acquire the right to reside in the United Kingdom permanently—

(a)      an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b)      a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

…’

15.      Regulation 16 of the Immigration Regulations 2016 is entitled ‘Derivative right to reside’. It corresponds to Regulation 15a of the Immigration Regulations 2006 and provides:

‘(1)      A person has a derivative right to reside during any period in which the person—

(a)      is not an exempt person; and

(b)      satisfies each of the criteria in one or more of paragraphs (2) to (6).

(2)      The criteria in this paragraph are that—

(a)      the person is the primary carer of an EEA national; and

(b)      the EEA national—

(i)      is under the age of 18;

(ii)      resides in the United Kingdom as a self-sufficient person; and

(iii)      would be unable to remain in the United Kingdom if the person left the United Kingdom for an indefinite period.

…’

III. The facts of the main proceedings

16.      The description of the factual circumstances by the referring court is particularly succinct.

17.      It can nevertheless be concluded from the request for a preliminary ruling that VI is a Pakistani national residing in Northern Ireland (United Kingdom) where her son was born in 2004. Her child is an Irish citizen by virtue of the provisions of Article 2 of the Irish Constitution which were applicable at the time of his birth. Those provisions (which have since been significantly amended) provided that a person born on the island of Ireland is a natural-born Irish citizen.

18.      It appears also that the parties to the main proceedings agree that, at least during the period from 17 August 2006 to 16 August 2014, VI and her family had a right to reside for benefits purposes when she had comprehensive sickness insurance cover for herself and her family.

19.      Her derivative right of residence arose pursuant to Regulation 15a(1) and (2) of the Immigration Regulations 2006 on the basis that she is the primary carer of an EEA-national child who is self-sufficient.

20.      It is also common ground between those parties that, by virtue of his lawful residence in the United Kingdom for a continuous period of five years, VI’s son acquired a right of permanent residence in the United Kingdom.

21.      By contrast, the parties to the main proceedings disagree as to VI’s entitlement, for the periods from 1 May 2006 to 20 August 2006, and from 18 August 2014 to 25 September 2016, to Child Tax Credit, on the one hand, and Child Benefit, on the other.

22.      According to HMRC, such a right is lacking since VI was not covered by comprehensive sickness insurance for the whole of those periods. Consequently, she was not entitled to either Child Tax Credit or Child Benefit for those periods. However, HMRC now concedes that the amount of the money overpaid cannot be recovered from VI as she neither misrepresented nor failed to disclose any material facts.

23.      The two related actions pending before the national court were joined by it for the purposes of the present reference for a preliminary ruling on the ground that they share the same subject matter, namely VI’s right of residence in the United Kingdom during the periods in question.

IV.    The request for a preliminary ruling and the procedure before the Court

24.      It is in those circumstances that, by decision of 11 March 2020, received at the Court on 7 April 2020, the Social Security Appeal Tribunal (United Kingdom) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is a child EEA permanent resident required to maintain comprehensive sickness insurance in order to maintain a right to reside, as s/he would as a self-sufficient person, pursuant to Regulation 4(1) of the [Immigration Regulations 2016]?

(2)      Is the requirement, pursuant to Regulation 4(3)(b) of the [Immigration Regulations 2016] (that comprehensive sickness insurance cover in the United Kingdom is only satisfied for a student or self-sufficient person, with regard to Regulation 16(2)(b)(ii) of the [Immigration Regulations 2016], if such cover extends to both that person and all their relevant family members), illegal under EU law in light of Article 7(1) of Directive 2004/38 and the jurisprudence of the Court of Justice of the European Union in paragraph 70 of [the judgment of 23 February 2010, Teixeira (C-480/08, EU:C:2010:83)]?

(3)      Following the decision in paragraph 53 of Ahmad v. Secretary of State for the Home Department [2014] EWCA Civ 988, are the Common Travel Area reciprocal arrangements in place regarding Health Insurance cover between the United Kingdom and the Republic of Ireland considered “reciprocal arrangements” and therefore constitute comprehensive sickness insurance for the purposes of Regulation 4(1) of the [Immigration Regulations 2016]?’

25.      Written observations were submitted by VI, the Norwegian Government, and the Commission. Pursuant to Article 76(2) of its Rules of Procedure, the Court decided not to hold a hearing. By a measure of organisation of procedure of 2 July 2021, the Court put questions for a written response to the appellant in the main proceedings and all interested parties. The written observations on the questions forming the subject of those measures of organisation of procedure were lodged by VI and the Commission within the time limit prescribed.

26.      As requested by the Court, this Opinion will focus on the first two questions asked by the referring court.

V.      Preliminary remark on the jurisdiction of the Court

27.      On 1 February 2020, the date on which the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (4) entered into force, that State withdrew from the European Union, thus becoming a third State. It follows that the courts and tribunals of the United Kingdom, as from that date, can no longer be regarded as courts of a Member State.

28.      That agreement provides, however, in Article 126, for a transition period between the date of its entry into force on 1 February 2020 and 31 December 2020. Article 127 of that agreement provides that, during that period, unless otherwise provided in that agreement, EU law is to be applicable in the United Kingdom and in its territory, produce the same legal effects as those which it produces within the Union and its Member States, and is to be interpreted and applied in accordance with the same methods and general principles as those applicable within the European Union.

29.      Article 86(2) of the Agreement on the withdrawal of the United Kingdom also provides that the Court is to continue to have jurisdiction to give preliminary rulings on requests from courts and tribunals of the United Kingdom made before the end of the transition period. Moreover, under Article 86(3) of that agreement, a request for a preliminary ruling is to be considered as having been made, within the meaning of paragraph 2, on the date on which the document initiating the proceedings was registered by the Court Registry.

30.      The present request for a preliminary ruling was submitted to the Court by a UK court on 7 April 2020, that is to say, before the end of the transition period, in the context of a dispute concerning VI’s right of residence and her entitlement to certain State benefits.

31.      It follows, first, that the situation at issue in the main proceedings falls within the scope ratione temporis of EU law, pursuant to Articles 126 and 127 of the Agreement on the withdrawal of the United Kingdom and, secondly, that the Court has jurisdiction to give a preliminary ruling, at least, on the first two questions referred by the referring court, pursuant to Article 86(2) of that agreement.

VI.    Analysis

A.      The first question

32.      By its first question, the referring court asks whether a child who is an EEA permanent resident is required to maintain comprehensive sickness insurance cover in order to maintain a right to reside, as he or she would as a self-sufficient person, pursuant to Regulation 4(1) of the Immigration Regulations 2016.

33.      Formulated in that way, one may wonder whether the question is admissible, or even whether the Court has jurisdiction to answer it. Indeed, it must be borne in mind that the system of cooperation established by Article 267 TFEU is based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice, and the Court has no jurisdiction to rule on the compatibility of rules of national law with EU law. However, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to determine whether those national rules are compatible with EU law. (5)

34.      To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts. (6) It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation in view of the subject matter of the dispute. (7)

35.      In the light of that case-law and given the information in the request for reference, it seems clear that, by the first question submitted, the referring court asks, in essence, whether Article 16 of Directive 2004/38 requires a child who is an EEA national to have comprehensive sickness insurance cover in order to retain his or her right of permanent residence as required during the period of temporary residence under Article 7(1)(b) of Directive 2004/38.

36.      Understood in this sense, the question calls for a very clear and negative answer. Indeed, while it is rare for the wording of a rule of law to be unambiguous, it can happen: Article 16(1) of Directive 2004/38 is an example of this. This provision expressly states that ‘Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III’. (8)

37.      However, the requirement of comprehensive sickness insurance cover is included in one of the provisions of that chapter, namely Article 7(1)(b). As such, this condition is therefore no longer required for an EU citizen who has legally resided for five years in the host Member State.

38.      If it were necessary to refer to this, one could also refer to recital 18 of Directive 2004/38, which unambiguously confirms the intention of the EU legislature to exempt Union citizens who have acquired a right of permanent residence from any conditions. Indeed, according to this recital, ‘in order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions’.

39.      In other words, once the status of permanent residence is acquired, EU citizens no longer need to comply with the conditions of Article 7 of Directive 2004/38. (9)

40.      This interpretation of Article 16(1) of Directive 2004/38 has, moreover, already been stated by the Court in similar circumstances. It follows from the judgment of 13 September 2016, Rendón Marín (C-165/14, EU:C:2016:675), that where the child of a third-country national has acquired a right of permanent residence in a Member State under Article 16(1) of Directive 2004/38, the right of residence of that child is ‘not [to] be subject to the conditions provided for in Chapter III of the directive, in particular those laid down in Article 7(1)(b)’. (10)

41.      Finally, I would add that Article 16(2) of Directive 2004/38 stresses that this rule also applies to family members who are not nationals of a Member State and who have legally resided with the Union citizen concerned by Article 16(1) of Directive 2004/38 in the host Member State for a continuous period of five years.

42.      Consequently, in accordance with the foregoing considerations, it is clear that Article 16 of Directive 2004/38 must be interpreted as meaning that a child who is an EEA resident who has acquired a right of permanent residence under that provision is not required to have comprehensive sickness insurance cover in order to retain his or her right of permanent residence.

B.      The second question

43.      By its second question, the referring court asks, in substance, whether Article 7(1) of Directive 2004/38 must be interpreted as meaning that the requirement of comprehensive sickness insurance cover is only satisfied for an economically inactive person if such cover extends to both that person and all their relevant family members. The referring court also refers in its question to paragraph 70 of the judgment of the Court of 23 February 2010, Teixeira (C-480/08, EU:C:2010:83; ‘Teixeira’). I will examine these two points in turn. I will conclude with a remark on the notion of ‘comprehensive sickness insurance cover’.

1.      The persons subject to the requirement to have comprehensive sickness insurance cover under Article 7(1)(b) of Directive 2004/38

44.      According to Article 7(1)(b) of Directive 2004/38, all Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months ‘if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’.

45.      In reality, if the wording in the English-language version of that provision could have been a source of doubt as to the scope of the obligation to have comprehensive sickness insurance cover under Article 7(1)(b) of Directive 2004/38, it must be noted that the Court has recently interpreted that provision and answered the question asked by the referring court.

46.      Indeed, in its judgment of 15 July 2021, A (Public health care) (C-535/19, EU:C:2021:595), the Court ruled that ‘it is apparent from Article 7(1)(b) of Directive 2004/38, read in the light of recital 10 thereof, that Member States may require Union citizens who are nationals of another Member State and who wish to have the right of residence in their territory for a period of longer than three months without being economically active to have, for themselves and their family members, comprehensive sickness insurance cover in the host Member State and sufficient resources not to become a burden on the social assistance system of that Member State during their period of residence’. (11)

47.      As explained in that judgment, it appears that, under Article 14(2) of Directive 2004/38, the right of Union citizens and their family members to reside in the host Member State on the basis of Article 7 of that directive continues only as long as those citizens and family members meet the conditions laid down in the latter provision. It thus follows from Article 7(1)(b) of Directive 2004/38, read in conjunction with Article 14(2) thereof, that, throughout the period of residence in the host Member State of more than three months and less than five years, economically inactive Union citizens must, inter alia, have comprehensive sickness insurance cover for themselves and their family members so as not to become an unreasonable burden on the public finances of that Member State. (12)

48.      Despite the potential ambiguity in the wording of Article 7(1)(b) in its English-language version, this interpretation is fully in line with the other language versions of the provision. (13) However, according to the settled case-law of the Court, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions. (14)

49.      Furthermore, the interpretation of Article 7(1)(b) of Directive 2004/38 adopted by the Court is also consistent with the general scheme and the purpose of the rules of which it forms part. In that regard, I can refer, respectively to Articles 12(2) and 14(2) of Directive 2004/38 and to recital 10 of that directive.

50.      In those circumstances, I can only confirm that Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that, throughout the period of residence in the host Member State of more than three months and less than five years, economically inactive Union citizens must have comprehensive sickness insurance cover for themselves and their family members.

2.      The scope of the interpretation given in Teixeira

51.      In paragraph 70 of Teixeira, the Court ruled that the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (15) is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there.

52.      It must be recalled that, although Article 12 of Regulation No 1612/68 has been repealed and replaced by Article 10 of Regulation No 492/2011, the wording of those two provisions is identical and the Court’s case-law in relation to the former therefore remains relevant for the interpretation of Article 10 of Regulation No 492/2011. (16)

53.      There is therefore no doubt that children of a national of a Member State who works or has worked in the host Member State, together with the parent who is their primary carer, may rely, in the latter State, on an independent right of residence on the sole basis of Article 10 of Regulation No 492/2011, without their being required to satisfy the conditions laid down by Directive 2004/38, including the condition that the persons concerned have sufficient resources and comprehensive sickness insurance cover in that State. (17)

54.      The reference for a preliminary ruling did not contain any information in this respect. However, in her response to the questions for written reply sent to the Court, VI stated that her husband, who is the father of the child concerned by the litigation, is, like her, a Pakistani national. In her reply, VI herself acknowledges that she therefore does not contend that the situation falls within the scope of Article 10 of Regulation No 492/2011. (18)

55.      In those circumstances, Article 10 of Regulation No 492/2011 cannot have any bearing on the answer to the second question referred.

3.      A last remark on the notion of ‘comprehensive sickness insurance cover’

56.      One cannot, I think, ignore the fact that another fundamental question underlying the dispute between the parties to the main proceedings is probably whether the entitlement to use health care provided by a public healthcare scheme (namely the National Health Service, ‘NHS’) is a ‘comprehensive sickness insurance cover’ within the meaning of Article 7(1)(b) of Directive 2004/38. (19) It appears, besides, from the request for a preliminary ruling, that the need for a question covering the issue of comprehensive sickness insurance cover was expressly raised in the debate before the referring court.

57.      However, it must be admitted that, on the one hand, the appellant’s representative clearly replied that ‘question 2 does not require to be reframed or broken down to ask what is “Comprehensive Sickness Insurance”’ (20) and, on the other hand, that the referring court did not find it necessary to ask the Court about this issue. Indeed, the second question referred does not concern the ‘nature’ or the material scope of the ‘sickness insurance’ requirement.

58.      Furthermore, the request for a preliminary ruling does not contain any further information in this respect, except for the reference to a decision of the Court of Appeal (England & Wales) (Civil Division) (United Kingdom) (21) in the wording of the third question relating to the Common Travel Area reciprocal arrangements between the United Kingdom and Ireland.

59.      Finally, I can only regret that the United Kingdom has not seen the merit of submitting written observations or requesting a hearing in order to explain to the Court the functioning and scope of its public healthcare system. (22)

60.      In those circumstances, it seems to me that it would be particularly inopportune to address this issue, notwithstanding the fact that the referring court will no longer have the opportunity to question the Court on this matter in view of the fact that the United Kingdom has chosen to leave the European Union.

61.      Consequently, the only things that could be said in this respect are, first, that the EU legislature was attentive to the fear of Member States that their public finances might be affected by the exercise of freedom of movement, (23) but, second, it did not go so far as to require that the requirement of ‘comprehensive sickness insurance cover’ be provided by a private operator and, third, that it preferred the term ‘comprehensive sickness insurance cover’, whereas Article 1(1) of Directive 90/365 previously required sickness insurance covering ‘all the risks in the host Member State’. (24)

62.      On the other hand, while Directive 2004/38 does not give any guidance on how the term ‘comprehensive’ is to be understood, the directive does not contain any reference to national laws as regards the meaning of this term either. It follows that this term must be regarded, for the purposes of application of the directive, as designating an autonomous concept of EU law which must be interpreted in a uniform manner throughout the Member States. (25) In addition, in view of the context of Directive 2004/38 and the objectives that it pursues, its provisions cannot be interpreted restrictively and must not in any event be deprived of their practical effect. (26) That means, a contrario, that a condition likely to impact adversely upon freedom of movement – such as that relating to the comprehensive sickness insurance provided for in Article 7(1)(b) of Directive 2004/38 – must be interpreted restrictively.

63.      In those circumstances, I consider that a sickness insurance cover must be regarded as being ‘comprehensive’ within the meaning of Article 7(1)(b) of Directive 2004/38 where the cover enjoyed by the EU citizen corresponds to that provided free of charge by the host Member State to its own nationals – all the more so as Member States may provide that access to their sickness insurance system is not free of charge (27) – or to that which a Member State requires its own nationals to subscribe to, in particular where EU citizens contribute to the tax base from which the health system is financed in the same way as the nationals of the Member State concerned.

64.      This interpretation is not of a nature as might place an excessive burden on public finances, and, to that extent, it is consistent with an underlying objective of Directive 2004/38. In addition, it corresponds, mutatis mutandis, to what is required for the condition relating to sufficient resources also required by Article 7(1)(b) of Directive 2004/38. Indeed, according to Article 8(4) of Directive 2004/38, the amount regarded as ‘sufficient resources’ cannot be higher than the threshold below which nationals of the host Member State become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host Member State. It is therefore consistent that sickness coverage is considered ‘comprehensive’ when it corresponds to what is given or required of nationals of the host Member State.

VII. Conclusion

65.      Accordingly, in the light of the foregoing considerations, I propose that the Court should answer the first two questions referred by the Social Security Appeal Tribunal (Northern Ireland) (United Kingdom) as follows:

(1)      Article 16 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 meaning that a child who is an EEA resident who has acquired a right of permanent residence under that provision is not required to have comprehensive sickness insurance cover in order to retain his or her right of permanent residence.

(2)      Article 7(1)(b) of Directive 2004/38 must be interpreted as meaning that, throughout the period of residence in the host Member State of more than three months and less than five years, economically inactive Union citizens must have comprehensive sickness insurance cover for themselves and their family members.

1      Original language: English.

2      OJ 2004 L 158, p. 77 and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34.

3      OJ 2011 L 141, p. 1.

4      OJ 2020 L 29, p. 7 (‘the Agreement on the withdrawal of the United Kingdom’).

5      See, to that effect, judgment of 18 November 2020,  Syndicat CFTC (C-463/19, EU:C:2020:932, paragraph 29).

6      See, to that effect, judgment of 13 September 2016, Rendón Marín (C-165/14, EU:C:2016:675, paragraph 33).

7      See, to that effect, judgment of 13 September 2016, Rendón Marín (C-165/14, EU:C:2016:675, paragraph 34).

8      Emphasis added.

9      See Mantu, S. and Minderhoud, P., ‘Exploring the Links between Residence and Social Rights for Economically Inactive EU Citizens’, European Journal of Migration and Law, 2019 (21), pp. 313-337, esp. p. 327.

10      Paragraph 47.

11      Paragraph 53, emphasis added.

12      See, to that effect, judgment of 15 July 2021, A (Public health care) (C-535/19, EU:C:2021:595, paragraphs 54 and 55). It can be noted that this interpretation was already present in earlier judgments on the previous relevant provision – that is to say Article 1(1) of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26) – or in a formulation that may appear ambiguous in the English-language version. See, to that effect, respectively, judgment of 17 September 2002, Baumbast and R (C-413/99, EU:C:2002:493, paragraph 87), and judgment of 19 September 2013, Brey (C-140/12, EU:C:2013:565, paragraph 47). Although the review does not claim to be exhaustive, the academic commentaries consulted share this interpretation. See, to that effect, among others, Sarolea, S., ‘De Strasbourg à Luxembourg, quels droits pour les familles migrantes?’, Revue Québecoise de Droit International, 2020, 33(Special Issue), pp. 439-464, esp. p. 444; de Mars, S., ‘Economically inactive EU migrants and the United Kingdom’s National Health Service: unreasonable burdens without real links?’, E.L. Rev., 2014, 39(6), pp. 770-789, esp. p. 772; and Sokol, T., ‘Comprehensive Sickness Insurance as a Condition for EU Citizens’ Residence in Other Member State: a Need for a Reform?’, European Journal of Social Security, 2016, vol. 18, pp. 380-398, esp. p. 381 and p. 394.

13      Compare, for example, the English-language version of Article 7(1)(b) of Directive 2004/38 with the German-language version (‘für sich und seine Familienangehörigen über ausreichende Existenzmittel verfügt … und er und seine Familienangehörigen über einen umfassenden Krankenversicherungsschutz im Aufnahmemitgliedstaat verfügen’), the Spanish-language version (‘dispone, para sí y los miembros de su familia, de recursos suficientes … así como de un seguro de enfermedad que cubra todos los riesgos en el Estado miembro de acogida’), the French-language version (‘s’il dispose, pour lui et pour les membres de sa famille, de ressources suffisantes … et d’une assurance maladie complète dans l’État membre d’accueil’) or the Italian-language version (‘di disporre, per se stesso e per i propri familiari, di risorse economiche sufficienti … e di un’assicurazione malattia che copra tutti i rischi nello Stato membro ospitante’).

14      See, to that effect, judgment of 20 December 2017, Gusa (C-442/16, EU:C:2017:1004, paragraph 34).

15      OJ, English Special Edition 1968 (II), p. 475, as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1).

16      See, to that effect, judgment of 6 October 2020, Jobcenter Krefeld (C-181/19, EU:C:2020:794, paragraph 34).

17      See, to that effect, judgments of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C-310/08, EU:C:2010:80, paragraphs 50 and 59), and of 6 October 2020, Jobcenter Krefeld (C-181/19, EU:C:2020:794, paragraph 39).

18      See paragraph 14 of the appellant’s response to the questions for written reply.

19      This question is therefore distinct from the question whether the host Member State is required to grant, to an economically inactive Union citizen residing in its territory on the basis of Article 7(1)(b) of Directive 2004/38, affiliation free of charge to its public sickness insurance system. As we know, the Court answered this question in the negative in its judgment of 15 July 2021, A (Public health care) (C-535/19, EU:C:2021:595, paragraphs 56 and 58).

20      Record of proceedings of the Appeal Tribunal held on 28 February 2020 at the Spires Centre, Belfast (United Kingdom), sent as a request for a preliminary ruling in the present case.

21      Ahmad v. Secretary of State for the Home Department [2014] EWCA Civ 988. In that case, the Court of Appeal held that NHS coverage does not constitute comprehensive sickness insurance. According to VI, the issue would be discussed. See, in that regard, de Mars, S., ‘Economically inactive EU migrants and the United Kingdom’s National Health Service: unreasonable burdens without real links?’, E.L. Rev., 2014, 39(6), pp. 770-789.

22      Nor does it seem to me that any conclusion can be drawn from the fact that the Court stated, in the statement of facts of the judgment of 23 February 2010, Ibrahim and Secretary of State for the Home Department (C-310/08, EU:C:2010:80, paragraph 20), that Ms Ibrahim ‘[did] not have comprehensive sickness insurance cover and relie[d] on the National Health Service’.

23      See recital 10 of Directive 2004/38 and, to that effect, judgment of 15 July 2021, A (Public health care) (C-535/19, EU:C:2021:595, paragraphs 55 and 62).

24      Emphasis added.

25      See, to that effect, judgment of 21 December 2011, Ziolkowski and Szeja (C-424/10 and C-425/10, EU:C:2011:866, paragraph 33).

26      See, to that effect, recently, judgment of 11 April 2019, Tarola (C-483/17, EU:C:2019:309, paragraph 38 and the case-law cited).

27      See, to that effect, judgment of 15 July 2021, A (Public health care) (C-535/19, EU:C:2021:595, paragraphs 58 and 62).

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