Case C- 456/02 Trojani [2004] ECR I-7573

• Trojani, a French national, was undergoing a reintegration programme in Belgium and applied for the minimum subsistence allowance but was refused.

  • NB he was not a worker within meaning of Directive 1612/68.

• ECJ held that a person has a right to free movement/residence under Article 18 as a citizen (even if not under Article 39 or 43 as a worker).

  • This right is only subject to limitations that are in accordance with EC law and proportionality.

  • Once the right to residence under Article 18 is established the right to equal treatment under Article 12 is triggered.

  • Here, it was unequal / discriminatory treatment to say that Trojani can’t have the allowance purely because he is a foreign national from another Member State (MS). 

ECJ

• It is acceptable for the MS to limit the Article 18 right to require (in accordance with Directive 90/364) the foreign MS national and his family to have illness insurance and to have sufficient resources to avoid becoming a burden on the social assistance system of the state during their residence.

• Making a claim for an allowance doesn’t automatically show that a person has become a burden (it may be a temporary period between jobs).

• In this case such an inference, however, would be justified and thus a refusal to recognise his right to residence (and hence to equal treatment) would be proportionate.

• HOWEVER even where a person’s residency is made subject to his being able to support himself, and he breaches this condition, he still can claim equal treatment during his lawful residency.

  • Thus a person can rely on Article 12 when he has a residency permit or has been lawfully resident in the MS for a certain period of time.

  • Thus national legislation that does not grant the social assistance benefit to citizens of the European Union, non-nationals of the Member State, who reside there lawfully even though they satisfy the conditions required of nationals of that Member State, constitutes discrimination on grounds of nationality prohibited by Article 12 EC.

  • I.e. residency must actually be revoked to prevent that person from losing their rights to social assistance on the same terms as nationals under Article 12 EC.