JUDGMENT OF 15. 9. 2015 — CASE C-67/14
ALIMANOVIC
28
During the period from 1 December 2011 to 31 May 2012, Ms Alimanovic was paid family allowances
for her children Valentina and Valentino and, like her daughter Sonita, basic provision under Book II,
namely subsistence allowances for the long-term unemployed (known as ‘Arbeitslosengeld II’), plus
social allowances for beneficiaries unfit to work, those latter beneficiaries being her other two
children, Valentina and Valentino (together, ‘the benefits at issue’).
29
For the purpose of granting the benefits at issue during that period, the Job Centre took the view that
the exclusion applying to Union citizens seeking employment, set out in the second sentence of
Paragraph 7(1), point 2, of Book II, was not applicable to the Alimanovic family in so far as, since the
members of that family were Swedish nationals, that rule had to be disregarded under the principle of
non-discrimination provided for in Article 1 of the Assistance Convention. In a judgment of
19 October 2010, the Federal Social Court had held that the obligation imposed on the Federal
Republic of Germany under that provision, namely to grant, in the same way as to its own nationals,
social assistance to the nationals of the other contracting parties who are lawfully present in any part
of its territory and without sufficient resources, also covered the grant of a minimum subsistence
income under Paragraph 19 et seq of Book II.
30
However, under the first sentence of Paragraph 48(1) of Book X of the Social Code, an administrative
measure must be annulled with prospective effect when a significant change has occurred in the legal
and factual circumstances which existed when that measure was adopted. In respect of the grant of
benefits on the basis of Article 1 of the Assistance Convention, a change occurred in May 2012, as a
result of the reservation issued by the German Government on 19 December 2011 with regard to that
convention. The Job Centre withdrew the decision on the grant of all the benefits at issue in respect of
May 2012 on that basis.
31
On application by the Alimanovic family, the Social Court, Berlin, (Sozialgericht Berlin) annulled that
decision and held, inter alia, that Ms Alimanovic and her daughter Sonita were entitled to the benefits
at issue which applied to them, under, inter alia, Article 4 of Regulation No 883/2004, which prohibits
any discrimination against Union citizens in relation to the nationals of the Member State concerned,
read in conjunction with Article 70 of that regulation, which concerns special non-contributory cash
benefits such as those at issue in the case before it.
32
In its appeal brought before the referring court, the Job Centre submits, in particular, that the benefits
to cover subsistence costs under Book II constitute ‘social assistance’ within the meaning of
Article 24(2) of Directive 2004/38 and, therefore, job-seekers may be refused the grant of such
benefits.
33
The referring court states in particular that, according to the findings of the Social Court, Berlin, by
which it is bound, Ms Alimanovic and her daughter Sonita could no longer rely on a right of
residence as workers under Paragraph 2 of the Law on freedom of movement. Since June 2010, they
had worked only in temporary jobs lasting less than a year and, since May 2011, they had been
neither workers nor self-employed.
34
With reference to the judgment in Vatsouras and Koupatantze (C-22/08 and C-23/08, EU:C:2009:344),
the referring court states that it follows from the second sentence of Paragraph 2(3) of the Law on
freedom of movement, read in the light of Article 7(3)(c) of Directive 2004/38, that neither
Ms Alimanovic nor her daughter Sonita still have the status of an employee or self-employed worker
and that they must therefore be regarded as seeking employment within the meaning of
Paragraph 2(2), point 1, of the Law on freedom of movement.
10
ECLI:EU:C:2015:597