Equal treatment as an instrument of integration. The CJEU's case law on social rights for third-country nationals under the EU migration directives
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/13882627231185988 |
| Author | Herwig Verschueren |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Equal treatment as an
instrument of integration. The
CJEU’s case law on social rights
for third-country nationals
under the EU migration
directives
Herwig Verschueren
University of Antwerp, Belgium
Abstract
There is a growing tendency for the EU Member States to introduce conditions relating to the
right to social benefits that are mostly disadvantageous to third-country nationals. These condi-
tions are at risk of conflicting with provisions on the right to equal treatment with the nationals
of the host country, as set down in a number of EU migration directives. This is all the more the
case now that the Court of Justice of the European Union (CJEU) has recently given a broad inter-
pretation of these provisions. Consequently, the Member States are to take these provisions as
well as the CJEU’s case law into account when seeking to limit access to social benefits for
third-country nationals. This article examines the content and meaning of these provisions and
the relevant case law of the CJEU. It concludes that it is apparent from this case law that the
main objective of the right to equal treatment in these directives is to promote the integration
of said third-country nationals into the host country and, therefore, the Member States may
not make this right dependent on a prior sufficient level of integration in that host country.
Keywords
Social rights, third-country nationals, EU migration directives, case law CJEU
Introduction
Recently, some Member States have taken initiatives to make the access to social rights subject to
conditions that are disadvantageous to, predominantly, third-country nationals. This was apparent
Corresponding author:
Herwig Verschueren, Professor of International and European Social Law, University of Antwerp, Antwerp, Belgium.
Email: herwig.verschueren@uantwerpen.be
Article
European Journal of Social Security
2023, Vol. 25(3) 243–260
© The Author(s) 2023
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DOI: 10.1177/13882627231185988
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from a number of cases in which the CJEU has had to pass judgment. These cases concerned restric-
tion of the entitlement to a housing benefit for third-country nationals on budgetary grounds
1
;
making the granting of housing assistance to third-country nationals who are long-term residents
conditional on proof of a basic command of the language of that Member State
2
; excluding third-
country nationals from family benefit for children who do not reside in that Member State
3
; exclud-
ing third-country nationals from entitlement to family benefit, childbirth allowance or maternity
allowance
4
; excluding third-country nationals from eligibility for a family card giving access to dis-
counts or price reductions when purchasing goods and services
5
; limitation of social assistance
granted to beneficiaries of international protection
6
; the obligation to reside in a particular region
of the host Member State if they wish to receive social benefits.
7
Another measure that is particu-
larly disadvantageous to newly arriving third-country nationals is the ten-year prior residence
requirement that was introduced in Belgium (Flemish Region) for a basic allowance for elderly
persons, a disability allowance and a long-term care allowance.
8
In addition, people are only
entitled to the Flemish long-term care benefit if they pass a citizenship test consisting of four com-
ponents: knowledge of Dutch, knowledge of Flemish society, economic self-reliance and active
participation in society.
9
Furthermore, Italy has introduced a 10-year residence condition for entitle-
ment to a basic income, intended to ensure a minimum level of subsistence.
10
One of the main justifications for introducing such conditions is the argument that States should
only grant access to social benefits which reflect national solidarity if the beneficiaries have proven
to be sufficiently integrated in the host society, inter alia by having contributed for a certain period
of time to the financing of these benefits or by having proof of a sufficient level of integration.
These types of initiatives risk coming into conflict with Union law and in particular with the
equal treatment provisions laid down in a number of EU migration directives. It is clear from
recent case law of the CJEU that, should Member States wish to restrict social rights for third-
country nationals or introduce conditions for entitlement to social benefits that are particularly
2. Case C-94/20 Land Oberösterreich ECLI:EU:C:2021:477.
4. Case C-449/16 Del Rosario Martinez Silva ECLI:EU:C:2017:485 and Case C-350/20 O.D. v INPS ECLI:EU:
C:2021:659.
8. TheBelgian Constitutional Court has since declared the introduction of this 10-year residence requirement null and void,
as it ruled that this requirement was in conflict with the standstill obligation laid down in the Belgian Constitution. Since
this condition was annulled on the basis of the Belgian Constitution, this court did not further examine whether it was in
line with the equal treatment provisions in EU law, and more specifically with those in the EU migration directives. See
Constitutional Court 23 January 2019, no. 6/2019 and Constitutional Court 12 March 2020, no. 41/2020, to be found at
www.const-court.be . A case on the validity of a 10-year residence condition for the Flemish care allowance is still
pending before the Belgian Constitutional Court (case no 7738).
9. Decreeof 18 June 2021, Moniteur Belge 2021, p. 76269. This condition is meant to contribute to the integration of these
persons into Flemish society; see the explanatory memorandum, Document 710 (2020–2021) no 1 of the Flemish
Parliament (to be found at: https://docs.vlaamsparlement.be/pfile?id=1689573).
10. The question as to whether this measure is in breach of the right to equal treatment as enshrined in a number of EU
migration directives is now pending in two cases before the CJEU: case C-112/22 and case C-747/22. For other exam-
ples of conditions that are detrimental to third-country short-term migrant workers, such as conditions of prior residence
or insurance, see: Bogoeski and Rasnac
̌a (2023).
244 European Journal of Social Security 25(3)
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