The reach of jobseeker rights to free movement: On the complementary relationship between primary and secondary law

1.1 Jobseeker rights to free movement

The Treaty of Rome required the ‘abolition, as between Member States, of the obstacles to the free movement of persons, services and capital’.¹ Title III of the Treaty, headed The Free Movement of Persons, Services and Capital, set out the operative principles. Article 48 EEC stipulated that ‘free movement of workers shall be ensured within the Community’. This included a right to accept offers of employment actually made and to move freely for that purpose within the territory of Member States.² Some 34 years later, in its landmark ruling in Antonissen (1991), the Court of Justice of the European Union (CJEU) observed that ‘freedom of movement for workers forms one of the foundations of the Community and, consequently, the provisions laying down that freedom must be given a broad interpretation’.³ It established that the free movement of workers

also entails the right for nationals of Member States to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment.⁴

The Court interpreted Article 48 EEC in conjunction with Regulation 1612/68 on freedom of movement for workers within the Community.⁵ It observed that Articles 1 and 5 of the Regulation presupposed that Community nationals were entitled to move in order to look for employment, and to stay in another Member State for that purpose. Later in the paper, we refer to this methodological approach as the ‘adding up’ technique.

Today, free movement of workers is provided for by Article 45 of the Treaty on the Functioning of the European Union (TFEU),⁶ which stipulates:

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

The wording of the provision has remained practically unchanged since the enactment of the Treaty of Rome. Its reach has constantly evolved. Antonissen made clear that the list in the third paragraph is ‘non-exhaustive’ and must be interpreted ‘in the context of free movement of workers’.⁷ The judgment demonstrates that the reach of jobseekers’ right to free movement depends on the construction and understanding of the interplay between primary and secondary law. In the 30 years that have passed, this relationship has grown increasingly complex. An array of rights and instruments that strengthen and complement each other must be taken into account.

The interpretation of the acquis that affords rights to jobseekers must also cohere with the constitutional status of persons. Within the context of the European Economic Community the fundamental status of a person was described using the notion of ‘worker’. The archetypical worker was an economically active citizen who was currently working. The protection of jobseekers in Antonissen followed from this status. Today, Article 20 TFEU establishes that the fundamental status of a person is that of a Union citizen.⁸ Article 21.1 TFEU stipulates that:

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

The Treaty right is directly applicable⁹ and is subject to further operationalisation by the Citizens’ Directive and Regulation 883/2004 on the coordination of social security systems, both enacted on 29 April 2004.¹⁰

The constitutional protection of Union citizens is reinforced by the increasingly broad application of the fundamental freedoms. The dynamic interpretation of Article 48 EEC in Antonissen has matured into the interpretative principle that the aim of Articles 45 and 48 TFEU is to provide for the ‘greatest possible freedom of movement’.¹¹ In addition, Article 56 TFEU affords citizens a right to go to the host state, to receive services there.¹² That right can be invoked by everyone, including workers and jobseekers and is in this sense a complementary legal basis for free movement.¹³

The reach of the freedom to receive services has been particularly visible within the framework of the Agreement on the European Economic Area (EEA).¹⁴ The EEA Agreement extends the internal market of the European Union so as to include the EEA EFTA States.¹⁵ An EU citizen can ‘rely’ directly on the acquis that has been incorporated into the EEA Agreement, such as Regulation 883/2004.¹⁶ The legal protection of a national of an EEA EFTA State is ‘objectively comparable with that of an EU citizen’.¹⁷ The reach of free movement is identical within the EU and the EEA, but the EEA Agreement lacks provisions similar to Articles 20 and 21 TFEU. To achieve homogeneity, the CJEU has relied on Article 36 EEA (which is identical to Article 56 TFEU) to its fullest extent.¹⁸ The EFTA Court has adopted the same approach. Its seminal ruling in Criminal Proceedings against N concerned the so-called Social Security Scandal in Norway.¹⁹ The EFTA Court confirmed that Article 36 EEA affords recipients of social security benefits a general right to free movement that complements the exportation rights granted by Regulations 1408/71 and 883/2004.²⁰

The aim of this paper is to explore the reach of jobseekers’ right to free movement within the current constitutional framework. A plausible hypothesis would be that jobseekers have more extensive movement rights today than before.²¹ While this is certainly true, our ambition is not to adopt a traditional approach describing how things have developed in a dynamic yet linear fashion. We will argue that a more fundamental shift has taken place and that it affects the methodological and practical approach to the legal norms that exist at different levels of the legal hierarchy.²²

1.2. Union citizens’ right to choose from a range of complementary rights

Before the introduction of Union citizenship, the constitutional status of persons tended to coincide with their rights: status and rights were practically synonymous. Those who had workers’ rights had the status of ‘worker’, those who had jobseekers’ rights had the status of ‘jobseeker’, and so on. Further, rights were often under-developed. The dynamic relationship between rights belonging to different levels of the norm-hierarchy was, at least on occasion, an exercise in ‘adding up’, as the judgment in Antonissen perfectly illustrates.

We proceed on the assumption that today, the fundamental legal status of Union citizens exists independently of the different rights that are available to them. We do not engage in ‘adding up’ exercises similar to the type adopted in Antonissen and will not focus on the mapping of sources that pull in the same direction, strengthen each other, can be applied in conjunction and so on. Our main interest is to explore the way in which different rights that are available to Union citizens who also happen to be jobseekers complement each other, and how the rights apply independently of each other. We shall show how this allows Union citizens to further their interests through the combined invocation and non-invocation of different rights provided by primary and secondary law.

A Union citizen can choose from a range, or even a plethora of rights. The ability of a person to choose across a hierarchy, and to combine complementary rights in the way that best suits the individual’s interests and personal situation, marks the difference between being a mere ‘right-holder’ and being a citizen. As will become clearer further on in the paper, the actual choices that are being made, break the immediate hierarchical link between different sources of law. Put simply: Rights that are not invoked by the Union citizen do not apply and should not necessarily affect the legal assessment. Courts and other judicial decision makers must make sense of the actual right that has been chosen rather than its place in the legal hierarchy.

The current paper advances a practical complementarity approach to free movement rights rather than a hierarchical approach. It claims that the traditional approach²³ suffers from a confirmation bias. A core question in areas that are exposed to secondary legislation is the extent to which the field has been subject to harmonisation, perhaps reaching full harmonisation. A hierarchy relies on system, coherence, consistency, or in short: harmony. Due to the values that are inherent to the approach, those who aim to construct a hierarchy will more readily conclude that some kind of harmonisation has been carried out. The streamlined system that is revealed is later used to construct the will of the lawmaker. By reference to legislative intent, the proponents of the hierarchical approach tend to construct a tension between lawmakers and courts which allegedly restrains the latter. One important consequence is that the hierarchical approach tends to favour broad antitheses over court review of proportionality.

We accept that an institutional tension may occur when the Court assesses the validity of secondary legislation. Outside this very specific situation, our simple assumption is that the centrality of free movement and Union citizenship has produced a ‘bunch of principles and rules’. These have been enacted at different times, in different instruments, and by different constituents and institutions. With regard to free movement of persons, we doubt that there can be harmony in the hierarchical, streamlined and academically sophisticated sense. The area has developed and continues to develop in a dynamic fashion. Further, it seems practically impossible to subject free movement of persons to (full) harmonisation by secondary law, because:

a) There exists no single legal free movement principle or rule that can be made subject to full harmonisation. Instead, there are several fundamental freedoms: of citizens, of workers, to receive services, and so on. At most, secondary legislation can aim to make a specific freedom operational in a particular context.

b) The Treaty provisions on free movement are directly effective. The provisions have derogation clauses for general good exceptions. Case law allows for further mandatory requirements. Directives and regulations give effect to free movement, and normally limit the freedom of the Member State to derogate and make exceptions. Secondary legislation promote the reach of free movement by identifying the floor, not by introducing a ceiling.

c) There is no general tension between lawmakers and courts in the way assumed by the proponents of the hierarchical approach. These institutions do not do the same things. Lawmakers make general rules. Courts interpret and apply them, and most importantly, review the proportionality of the outcomes in concrete cases. The practical complementarity approach that is advocated further on in the paper, is a guarantor of the effectiveness of the principle of proportionality.²⁴

A common claim of those who apply the hierarchical approach is that the way in which the CJEU copes with the relationship between primary and secondary law is inconsistent and unpredictable.²⁵ Such conclusions are dependent on criteria taken from outside EU law, including a set of constitutional arguments not established or recognised in the jurisprudence of the Court. Our practical complementary approach supports that the case law in the areas explored in this paper is entirely coherent.

1.3. Outline

In Section 2, we analyse the right to stay and reside in a host state for the purpose of seeking employment there, with a particular emphasis on how rights that flow directly from Article 45 TFEU or that are provided for by Directive 2004/38, complement each other. Through the combined invocation and non-invocation of complementary rights, Union citizens who travel for the purpose of seeking work may optimise their legal position.

In Section 3, we analyse the reach of the right of Union citizens to export unemployment benefits for the purposes of seeking work in a host state. Regulation 883/2004 grants a right to export such benefits for a period of three months. Again, we show that Article 45 TFEU complements secondary legislation by according a right to export unemployment benefits for an extended period.

In Section 4, we turn to the free movement rights of recipients of unemployment benefits that travel to another Member State without the intention of seeking work there. According to the judgment of the CJEU in Testa, the specific export right provided for by Regulation 883/2004 is ‘an optional system which applies only to the extent to which such application is requested by a worker, who thereby foregoes his right of recourse to the general system applicable to workers’.²⁶ We explore the right of Union citizens to avail themselves of this discretionary choice not to invoke the export regime, and instead rely directly on the fundamental Treaty right to free movement that still complements the Regulation.

In Section 5, we summarise the main findings of the paper. A practical complementarity approach focuses on how lawmakers and courts complement one another in the protection of the right to free movement, rather than on institutional tension and restraints resolved by conflict rules based on hierarchy. The approach underpins the fundamental status of Union citizenship, and assesses the principle of coherence from the point of view of the individual.

2.1 The effectiveness of Article 45 TFEU

The judgment in Antonissen concerned the deportation of a Belgian jobseeker from the UK. Two questions arose. The first was whether jobseekers should be regarded as workers pursuant to Article 45 TFEU. The second question was about how long a jobseeker is entitled to reside in the host Member State for the purposes of seeking employment there.

Without much difficulty, the CJEU confirmed that jobseekers are afforded protection by Article 45 TFEU.²⁷ The Court noted that the opposite position would jeopardise the chances of finding a job and render Article 45 ineffective.²⁸ The generally applicable ratio decidendi of the judgment is that jobseekers’ free movement rights extend as far as necessary to secure the effectiveness of Article 45.²⁹

Effectiveness remains a vague formula when compared with the technical criteria laid out in Directive 2004/38 and Regulation 883/2004. The Court provided important guidelines on how the reach of jobseekers’ right to stay or reside in a host state is to be assessed in practice. First, as observed by Johnson and O’Keeffe, the Court invoked ‘the concept of reasonableness’.³⁰ It noted that jobseekers must be given

a reasonable time in which to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged.³¹

In the absence of more detailed community legislation, the Court did not attempt to positively and precisely establish what ‘a reasonable time’ amounts to. Still, the reasoning provides several clear conditions. A period of three months would not be sufficient. The Court dismissed the argument of the UK, which relied on the limits to the right to export unemployment benefits pursuant to Regulation 1408/71 Article 69.³² The export rule stipulates that an unemployed person who goes to another Member State to seek employment there, retains benefits for a maximum period of three months. The Court disregarded the comparison by noting that ‘there is no necessary link between the right to employment benefit in the Member State of origin and the right to stay in the host State’.³³ As we shall show in Section 3, this observation is unconvincing. The link between the export right and the residence right is obvious, first because the right to export unemployment benefits provides the means with which to finance job-seeking activities in another Member State. Second, the two rights relate to the notion of ‘effectiveness’ in an identical manner. For the jobseekers who must return to the home state after three months, it does not matter whether this is because the host state forces them to leave, or whether the home state requires them to come home. It seems, therefore, that the CJEU rejected the parallel drawn with the export rules mainly because it considered that a right to reside for only three months would be insufficient and unreasonable.

Instead the Court turned to the national legislation on which the contested deportation decision rested. Community nationals that entered the territory of the UK to seek employment there, were granted a right to reside for a period of six months. The Court observed that a period of six months did not ‘appear in principle to be insufficient’, and that the national legislation at issue was not contrary to the free movement of workers.³⁴ The careful and somewhat reluctant terms used by the Court seem to indicate that even if the legislation of the UK was in conformity with EU law, it was only narrowly so. If that understanding is correct, Article 45 TFEU provides jobseekers with a right to stay in a host state for approximately six months.

Another important clarification provided by the Court is that

if after the expiry of that period [of six months] the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State.³⁵

The Court did not support this conclusion with further reasons. Still, the rationale is clear. If a jobseeker is continuing to seek employment, and can provide evidence that he has genuine chances of being employed, forcing the Union citizen to leave the host state would jeopardise the effectiveness of Article 45.

2.2 Recent clarifications in GMA

The main question in GMA (2020) was the same as in Antonissen (1991): How long, and under what conditions, is a jobseeker entitled to reside in the host state? The case concerned a Greek jobseeker who had applied for a certificate of registration in Belgium in order to obtain a right of residence for more than three months. Belgian law required that Union citizens who entered Belgium to seek employment provide evidence that they would continue to seek employment and had a genuine chance of being engaged. Belgian authorities rejected the application to stay for more than three months on the grounds that the documents produced by the Greek jobseeker did not prove that he had a genuine chance of gaining employment. About two weeks after the rejection of his application for a right of residence for more than three months he was recruited by the European Parliament as a probationer.³⁶

The CJEU restated the interpretation of Article 45 TFEU in Antonissen. This was not surprising, as Article 14.4 of Directive 2004/38 codifies that judgment and reproduces its terms. The Court repeated that the effectiveness of Article 45 TFEU must be ensured and that jobseekers must be afforded a ‘reasonable period of time’ to take the necessary steps in order to be employed.³⁷

With regard to the length of the ‘reasonable period of time’ both the Commission in its written observations and Advocate General (AG) Szpunar argued in favour of a clarification: the time period should be at least six months.³⁸ One observer has noted that the Court did not accept the invitation but ‘simply confirmed the finding in Antonissen, that six months would not appear to be insufficient’.³⁹ Our understanding of the judgment in GMA is different. While the Court reapplied the language of Antonissen,⁴⁰ in substance it followed the suggestion of the Commission and the AG.

To understand the subtle reasoning of the Court, it is important to recall that Belgium had no six-month time period that was subject to review.⁴¹ Instead, the Court carefully recalled that Antonissen had simply clarified that a time period of six months, ‘such as that at issue in the case which gave rise to that judgment’ (as laid down in the national legislation of the UK) would suffice to preserve the effectiveness of Article 45 TFEU.⁴² Then, in a second move, the Court observed that the introduction of the concept of citizenship had strengthened the ‘primary and individual right of movement and residence’.⁴³ Finally, the Court observed:

In the light of those considerations, it must be held that a period of six months from the date of registration does not appear, in principle, to be insufficient and does not call into question the effectiveness of Article 45 TFEU.⁴⁴

In the absence of a six-month rule in Belgian law, the CJEU’s reasoning was premised on the fact that the fundamental status of a jobseeker is that of Union citizen. A period of six months appears to be a minimum standard that derives from EU primary law.

There was another reason for clarifying the length of the time period. Time is decisive with regard to the conditions that the host states can impose. Referring to Antonissen, the CJEU restated that after the expiry of the reasonable period of time, jobseekers are shielded from expulsion if they are ‘continuing to seek employment and …[have] genuine chances of being engaged’.⁴⁵ The Court inferred from the term ‘continuing’ that the host state may require jobseekers to seek employment in the ‘reasonable period’ of six months. Conversely, a requirement such as in Belgian law, that the jobseeker must provide evidence that he has ‘genuine chances’ of being engaged can only be imposed if the jobseeker intends to prolong his stay after expiry of the ‘reasonable period’.⁴⁶

The CJEU repeated that after expiry of the reasonable period, it is for the authorities and courts of the host Member State to undertake an individual assessment of the evidence provided by the jobseeker.⁴⁷ National authorities must conduct an overall assessment of the ‘genuine chance’ that takes into account factors such as:

By contrast, the fact that a jobseeker has refused offers of employment which did not correspond to his or her professional qualifications cannot be taken into account.

2.3 The complementary right of citizens to stay and reside in the host state

Jobseekers have, as shown, a right to reside in the host state for a ‘reasonable period of time’, that is, for at least six months. GMA resolved a second crucial question: when does the ‘reasonable period’ begin? The Court’s answer to this central question clarifies that the general right of free movement and specific jobseeker rights are indeed complementary.

The question arose because Article 6 of Directive 2004/38 grants Union citizens a right of residence in the territory of another Member State for a period of up to three months without any conditions. As observed by the Court, this right ‘applies without distinction to all Union citizens, irrespective of the intention with which those citizens enter the territory of the host Member State’.⁴⁸ In addition, jobseekers have specific residence rights that derive directly from Article 45 TFEU. In this respect, the Court defined jobseekers as Union citizens ‘who leave their Member State of origin with the intention of seeking employment in the host Member State’.⁴⁹

The two rights can be harmonised in several different ways. One approach, which seems to have been applied by at least some Member States, is that the ‘reasonable time’ of six months runs from when a person enters the country with the intention of seeking work there. The general residence rights of Union citizens and the specific residence rights of jobseekers will then apply simultaneously during the first three months. It is common that different rights apply at the same time: for a person to benefit from double protection so to speak. Within this particular context it appears illogical, though, if the host state may impose conditions on the jobseeker during the ‘reasonable period’, while the residence rights of Union citizens are unconditional. This would mean that jobseekers are worse off than ordinary citizens. AG Szpunar therefore suggested that the hierarchy of rules be constructed in an even more sophisticated manner. Jobseekers should benefit from a right of residence of ‘three months, from the end of the initial three-month period of legal residence’.⁵⁰ The practical effect of the AG’s suggestion would have been a six-month right of residence, starting on the day of entry. But only the latter three months of that period would count as the ‘reasonable period’, during which the host state could impose conditions.

The Court opted for a third solution, treating the rights as complementary in the true sense. It ruled that the ‘reasonable time period’ runs from the time the ‘Union citizen concerned has decided to register as a jobseeker in the host Member State’.⁵¹ Only after expiry of the general residence right (of up to three months) and the additional rights of jobseekers to another six months would the host state be entitled to impose requirements on jobseekers, as Belgium did, to provide evidence of a genuine chance of finding work.

2.4 Optimisation through the invocation and non-invocation of rights

At the beginning of this paper we referred to the CJEU’s approach in Antonissen as an ‘adding up’ technique. The Court applied Article 48 EEC (now Article 45 TFEU) in conjunction with Regulation 1612/68 on freedom of movement for workers. Read as a whole, these sources were sufficient to conclude that both workers and jobseekers could benefit from the right to free movement. At that time, the status of a person and the rights of a person were two sides of the same coin. A person would benefit from the ‘fundamental’ status of worker because that would provide him with worker’s rights.

The judgment in GMA is entirely coherent with the judgment in Antonissen. At the same time, it is a re-reading that adapts to a new constitutional context in which the fundamental status of a person is that of a Union citizen. In contrast to the ‘adding up’ approach of Antonissen, the judgment in GMA twice emphasises that the right that jobseekers derive directly from Article 45 TFEU, and that has been codified in Article 14.4 litra b of Directive 2004/38, ‘relates specifically to jobseekers’.⁵² The emphasis on specificity made it possible for the Court to distinguish the specific residence right of jobseekers from the general right of residence that is granted to any Union citizen – and to lay out these rights as complementary. The approach corresponds to the ABC (the points listed as a, b and c) introduced in Section 1.2: if harmonisation occurs, it is specific; it creates a floor not a ceiling, and; the invocation of complementary rights will allow for further review of proportionality.

The right to selectively invoke complementary rights remains with Union citizens. They invoke jobseeker rights by choosing to register as jobseekers.⁵³ Such discretion implies that citizens that enter the territory of the host state to seek employment there, may optimise their legal position through the combined invocation and non-invocation of complementary rights.⁵⁴ Rights and status are no longer identical. The possibility to choose from a plethora of rights confirms that the fundamental status of a person is that of Union citizen.

3.1 The link between the right of residence and the right to export unemployment benefits

We have discussed the residence rights of a citizen/jobseeker within the host state. In the current section we study the export rights of a citizen/jobseeker against his/her home state (‘the competent state’).⁵⁵ In spite of the Antonissen postulate to the contrary,⁵⁶ there is a strong link between the two. While jobseekers are not necessarily unemployed, those who avail themselves of the right to free movement, and who look for work abroad, might often be. From the perspective of the jobseeker the substantive question is for how long he or she can reside in another state. Whether restrictions are imposed by the home state or the host state, is a mere bureaucratic technicality.

Article 64 of Regulation 883/2004 stipulates that wholly unemployed persons who go to another Member State ‘in order to seek work there’ retain their entitlement to unemployment benefits for a period of three months. During this period the migrant jobseekers cease to be available to the employment services of the competent state. In the words of Frans Pennings:

The rule that unemployment benefits can be used as a means of income support when seeking work in another Member State is also relevant for promoting free movement; this is known as the export of unemployment benefit.⁵⁷

The details of the export regime will not be further discussed here. Instead, we shall turn our attention to the time limitation of three months. The question is whether Article 45 TFEU provides complementary rights. May a Union citizen claim that the export period is extended from three to (approximately) six months, or even more, if the citizen can provide evidence that he has ‘a genuine chance of being engaged’?⁵⁸

The discussion explores an important difference between Regulation 883/2004 and its predecessor. Article 69 of Regulation 1408/71 fixed the time period of the export right to three months.⁵⁹ When Regulation 883/2004 was prepared, the Commission proposed to increase the export period to six months, which would have aligned it with the length of the residence right.⁶⁰ The Member States rejected the proposal. The compromise is that Article 64.1(c) and 64.3 stipulate that the competent services or institutions of the Member States ‘may’ extend the export period to a maximum of six months. What we discuss below is the extent to which national administrative bodies are obliged to make use of this power to provide for the effectiveness of Article 45 TFEU.

3.2 Combining the export right of Regulation 883/2004 and primary law

3.3 A system that provides for either general or individual extension must be in place

The next question is how the complementary relationship between Regulation 883/2004 and primary law works in practice. One possibility is that the three-month period afforded by the Regulation guides the application of primary law. Alternatively, it may be that the Regulation and primary law have distinct areas of application. In the latter case, the sources are autonomous and complement each other in the true sense.

The issue was addressed by the CJEU in Schiphorst. The case concerned a Dutch national who intended to make use of the exportation right. The Dutch authorities approved his request for a period of three months. Before the expiry of that period, Mr. Schiphorst applied for an extension. Dutch authorities rejected the application on the grounds that, as a matter of principle, they did not make use of the power available to the competent services or institutions under Article 64.1(c) of Regulation No 883/2004. The restrictive policy rested on the assumption that, in general, the chances of finding work would be greater in the Netherlands than in other countries.⁶⁸

In its reply, the CJEU first clarified the obvious. The word ‘may’ in Article 64.1(c) of Regulation No 883/2004 empowers the Member States to enact legislation that extends the export period to six months. In itself, it does not require them to do so.⁶⁹ This is confirmed by the travaux préparatoires that led to the adoption of that provision. The Commission’s initial proposal to make the six-month export period compulsory failed to win the endorsement of the Council. The provision that was finally enacted is a more flexible compromise.⁷⁰

In the absence of national legislation that provides for a general extension of the export period, the pressing question is whether and when national administrative bodies are under a duty to make use of the power that they derive directly from Article 64.1(c) and 64.3 of Regulation 883/2004. In the first place, such a duty would not prescribe a specific outcome. It would simply mean that national administrative bodies would be required to consider applications for extension. There are four arguments in support of the idea that the Member States must ensure that a system of individual application and authorisation is in place in the absence of legislation that provides for a general extension of the export period.

First, the wording of Article 64.3 of Regulation 883/2004 is clear: ‘the competent services or institutions may extend the period of three months up to a maximum of six months’. In Schiphorst, the Commission and the Czech and Polish governments recalled that according to Article 288 TFEU, regulations are directly applicable. They submitted that the Member States are under a duty not to interfere with the discretion that the Regulation accords to the national administrative authorities.⁷¹ Much of the opinion of AG Mengozzi was concerned with this argument. The AG counter-argued that although regulations apply ‘as such’, they are still subject to interpretation and may leave it to the Member States themselves to adopt the necessary legislative, administrative and financial measures to ensure the effective application of its provisions.⁷² As we shall return to, the judgment of the CJEU confirms this view.⁷³ It would be contra legem, however, if a Member State enacts a rule opposed to that in Article 64.1(c) and 64.3 of Regulation 883/2004: such that national administrative bodies may not extend the export period of three months up to a maximum of six months.

Second, a rejection of any system of extension would not make it possible to ensure that the effectiveness of Article 45 TFEU is being respected. Free movement is an individual right. Applications should be assessed on individual terms and must take the concrete facts into account.⁷⁴

Third, the Dutch policy that negates the Regulation appears legally unconvincing. It counters the right to free movement simply by stating disbelief in it. Persons who choose to make use of the export right, and who apply for an extension of the export period, might find themselves in a better position to get work abroad than the average jobseeker.

Fourth, in Schiphorst, the Court observed that

when, as in the present case, the Member State concerned has exercised the power provided for in the second limb of Article 64(1)(c) of Regulation No 883/2004, it is for that Member State, failing any criteria laid down in that regulation, to adopt, in accordance with EU law, national measures regulating the competent institution’s discretion, in particular by specifying the conditions on which extension of the unemployment benefit export period beyond three months and up to a maximum of six months is or is not to be granted to an unemployed person who goes to another Member State in order to seek work there.⁷⁵

The power that had been exercised ‘in the present case’ was minimal. Dutch authorities rejected the individual application simply by reference to the general policy that extensions should never be granted. The Court’s observation implies that even blunt rejections are an application of the power granted by Article 64.1(c) and 64.3. The finding that EU law requires that the Member States lay down clear criteria in advance is premised on this understanding. If a Member State chooses not to enact legislation that extends the exportation period in general, but opts for a system of individual applications, it must ascertain that general principles of good administration are being respected.

3.4 The complementary function of primary law

The complementary relationship between Regulation 883/2004 and primary law can be summarised as follows: the Regulation creates a floor by granting jobseekers a right to export unemployment benefits for a period of three months. Further, it empowers the competent services or institutions of the Member States to extend the exportation period to six months. The way in which national administrative bodies exercise the power conferred upon them is subject to the scrutiny of EU primary law. In Schiphorst, the CJEU reiterated that the Regulation

does not set up a common scheme of social security, but allows different national social security schemes to exist, and its sole objective is to ensure the coordination of those schemes in order to guarantee that free movement of persons can be exercised effectively. That regulation thus allows different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by EU law.⁷⁶

The main question in Schiphorst is against which standard the execution of discretion at the national level is to be assessed. The Commission claimed that because regulations apply ‘as such’, the competence vested in the competent national bodies by Article 64.1(c) is unfettered.⁷⁷ It submitted that the national administration should be able to exercise its discretion according to the formula ‘yes, unless’ rather than the formula ‘not unless’.⁷⁸ The AG disagreed and argued that a Member State remains within the limits permitted by EU law if it adopts supplementary measures that introduce conditions that guide the discretion vested in the competent national bodies. According to the AG, it would be legitimate to require that the person concerned must be in a process likely to lead to actual employment.⁷⁹

The Court reiterated that the ‘sole objective’ of the regulation is to ‘guarantee that free movement of persons can be exercised effectively’.⁸⁰ This is an obvious reference to the fundamental requirement of Article 45 TFEU. The Court ruled that Regulation 883/2004 does not preclude

a national measure, such as that at issue in the main proceedings, that requires the competent institution to refuse, as a matter of principle, any request to extend the unemployment benefit export period beyond three months, provided the institution does not consider that refusing that request would lead to an unreasonable result (emphasis added).

The ruling implies, first, that the national institutions and services are under a duty to ‘consider’ and to assess individual applications for extension. It is common ground that when national bodies apply a power that they derive directly from EU law, they are bound by principles of good administration, and the duty to state reasons in particular.⁸¹

Second, like in Antonissen, the Court invoked ‘the concept of reasonableness’.⁸² While a restrictive ‘not unless’⁸³ policy is not in itself a violation of EU law, national administrative bodies must use the power to grant individual extensions if the opposite outcome would lead to a disproportionate outcome.

The Court’s review in Schiphorst was limited to negative control. It observed that initially, the Dutch authorities had declined to exercise the power offered by the second limb of Article 64.1(c) due to the general policy enacted by the Minister for Social Affairs. However, in conformity with the principle of good administration, national courts ruled that administrative decisions denying individual requests to extend the export period needed to be supported by reasons. Subsequently, the national administrative body decided that the particular circumstances of the case justified that the application was approved. It considered that an extension of the export period should be granted if the person concerned is involved in a process likely to lead to actual employment, or if the person concerned has submitted a declaration of intent from an employer offering a genuine prospect of employment in that Member State.⁸⁴ The CJEU noted that a Member State ‘remains within the limits permitted by EU law’ if extensions are provided ‘in such circumstances’.⁸⁵

The analysis shows that the relationship between primary and secondary law is complementary in the true sense. A Union citizen can combine sources at the different levels of the legal hierarchy to optimise and strengthen his legal position. The CJEU’s negative review in Schiphorst has obvious similarities with its reasoning in Antonissen and GMA. In our view, the substantive requirements imposed by primary law are more or less the same, whether the case concerns the length of the time period for which the jobseeker is entitled to reside in the host state, or for the period during which he is entitled to export unemployment benefits.

4.1 Introduction

We have set out the complementary relationship between primary and secondary law when a Union citizen registers as a jobseeker in a state other than the home state / competent state, with the intention of seeking work there.⁸⁶ We examined the reach of jobseekers’ free movement rights against the host state (the right to reside) and against the home state (the right to export unemployment benefits). We showed that the plethora of available rights implies that Union citizens can optimise their legal position through the combined invocation and non-invocation of the rights that exist at different levels.

The purpose of this Section is to undertake a comparison with case law that concerns the free movement rights of jobseekers who receive unemployment benefits, and who stay or reside in another state than the competent state, without any intention to seek employment there. The export right of Article 64 (883/2004) does not apply to this situation. But the judgments of the CJEU in De Cuyper and Petersen confirm that recipients of unemployment benefits continues to be protected by EU primary law and benefit from the right to free movement.⁸⁷ As observed by Dougan, ‘the Court uses the Treaty free movement provisions to treat the coordination regime … as a floor – the bare minimum of exportation which individuals are entitled to expect under Community law’.⁸⁸ The immediate effect is that any restriction on free movement is subject to further review of proportionality, even if a policy or decision of a Member State complies with Regulation 883/2004.

4.2 The judgments in De Cuyper and Petersen

The De Cuyper case concerned a Belgian receiving unemployment benefits. He intended to move to France, not for the purpose of seeking work, but simply to live there. He did not invoke the export right in Article 69 of Regulation 1408/71, nor could he. The Court ruled that Article 18 EC (now Article 21 TFEU) applies in a complementary fashion. The short and convincing reason provided by the Grand Chamber is that the right to reside within the territory of the Member States is conferred directly on every citizen of the Union.⁸⁹ It is duly established that national legislation restricts free movement if it places individuals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State.⁹⁰

The judgment in De Cuyper confirms that the fundamental status of a person is that of Union citizen. Its rationale is coherent with that of GMA (see the analysis in Section 2). In GMA, the Court defined jobseekers as Union citizens who leave their Member State of origin with the intention of seeking employment in the host Member State, and who claim this status by registering as a jobseeker there.⁹¹ Just like the Greek national in GMA, Mr De Cuyper could choose not to invoke the more specific right, and not to register as a jobseeker, but to rely on the complementary right of citizenship.

The judgment in Petersen applies a practical complementarity approach, similar to that in De Cuyper. Mr Petersen, a German national, had transferred his residence to Austria to work there. After obtaining unemployment benefits and having been exempt from the obligation to continue to seek work, Mr Petersen intended to return to Germany, to live there. Paraphrasing Antonissen,⁹² the Court reiterated that ‘according to settled case-law, the concept of “worker” … must not be interpreted narrowly’.⁹³ It found that because Mr Petersen had moved to Austria as a worker in the first place, he retained that status when he intended to return to his country of origin, albeit for other purposes than to seek employment there.⁹⁴ He could thus rely on Article 45 TFEU.

Two considerations explain why the CJEU applied primary and secondary law in a complementary fashion. First, the Court reiterated that the sole purpose of Regulation 883/2004 is to ensure the coordination.⁹⁵ ‘[I]n the absence of harmonisation’, that is outside the scope of the coordination rules, the Member States retain the power to organise their social security schemes, subject to the scrutiny of EU primary law.⁹⁶ It flows directly from the construction of this system that primary and secondary law are ‘parallel source[s] of rights’:⁹⁷ they are complementary in the true sense.⁹⁸

Second, the Court observed that unemployment benefits represent the ‘counterpart of contributions’ that the worker has paid.⁹⁹ Such contributions provide the necessary link between the right-holder and the welfare system of the competent state, irrespectively of residence and nationality. If a worker loses his or her economic advantages due to the exercise of the right to free movement, the proportionality of the restrictive measures must be made subject to review.

For Mr Petersen the status of ‘worker’ meant that he could invoke an additional right compared to Mr De Cuyper: the prohibition against discrimination. The Court observed that:

a residence condition such as the one to which the grant of the benefit at issue in the main proceedings is subject, which can be more easily met by national workers than by those from other Member States, since the latter workers above all, particularly in the case of unemployment or invalidity, tend to leave the country in which they were formerly employed to return to their countries of origin.¹⁰⁰

While the constitutional context has changed, and while both citizens and workers benefit from the fundamental right to free movement, Mr Petersen could benefit from the stronger protection as a ‘worker’. After a concrete assessment, the Court found that the restriction on Mr Petersen’s right to free movement was disproportionate.

4.3 Non-invocation of the export right

Adopting the traditional hierarchical approach, Hancox criticises the Court’s resort to primary law in cases such as Petersen. She claims that the judgment ‘directly contradicted a legislative choice to leave a certain issue to the Member States’. She suggests that a better approach would have been for the CJEU to either invalidate the overlapping secondary norm of Regulation 883/2004 as incompatible with the treaties, or, instead, to refrain from substituting its own decisions for those of the Union legislature.¹⁰¹ We disagree with this suggestion. A more citizen-oriented approach is to ask: does the citizen have the right not to invoke the right in Article 64 of Regulation 883/2004)? If a citizen (i) has the right not to invoke the exportation right, and (ii) has chosen not to invoke it, no norms overlap. Because the citizen has chosen not to invoke the Regulation, it does not apply.

The wording of Article 64 strongly suggests that a recipient of unemployment benefits may choose not to invoke it. The lex specialis right therein only applies if a recipient of unemployment benefits goes to another Member State in order to seek work there and registers for that purpose. The opposite view would be that Article 64 should be interpreted antithetically. On an antithetical interpretation, citizens who receive unemployment benefits will not benefit from the right to free movement unless they move to another Member State with the intention to seek work and register as a jobseeker there. The choice of the citizen disappears.

The arguments against an antithetical interpretation coincide with our criticism of the hierarchical approach. It transforms the coordination measure into a full-harmonisation measure. It supposes that Regulation 883/2004 regulates freedom of movement as such rather than making a specific freedom operational in a specific manner. The antithetical interpretation assumes that secondary legislation not only introduces a floor, but also a ceiling. Finally, it asserts that, indeed, this was the intention of the legislator so that courts must show restraint. We are not convinced that the legislator has considered the reach of free movement not only in situations positively covered by the rule, but in every other situation. Apart from job seeking, there are many reasons why unemployed persons may want to travel to another member state, including to see their family, to find affordable housing or to look after their second home. If they do, and assuming they choose not to register as a jobseeker in the host state, they continue to be available to the employment authorities of the competent state, and must comply with the conditions imposed by the legislation of that state. It is difficult to identify the interest of the Union legislator in restricting free movement under such circumstances.

The CJEU has not tried to construct a systemic hierarchy. It has avoided speculations about the legislative intent on which such system could rest. Instead, it has made crystal clear that recipients of unemployment benefits have the right not to invoke the exportation right. In Testa, the Court clarified

that the system set up by Article 69 [today Article 64 of Regulation 883/2004] is an optional system which applies only to the extent to which such application is requested by a worker, who thereby foregoes his right of recourse to the general system applicable to workers in the state in which he became unemployed.¹⁰² 

If a Union citizen chooses not to invoke the export right, the ‘general system’ applies, that is national law under the scrutiny of EU primary law.

4.4 The complementary character of primary law

The next question is the extent to which the existence of secondary law (Regulation 883/2004) should influence the interpretation and application of primary law. If the legal instruments co-existing at different levels overlap in the sense that they apply at the same time and regulate the same issues, it may be regarded as incoherent if they prescribe different outcomes. Conversely, if the norms at the different levels complement each other and do not aim to regulate the same issues, coherence is not a concern.

A jobseeker who chooses to invoke the export right ‘cease[s] to be available to the employment services of the Member State which he/she left’,¹⁰³ and becomes subject to the conditions laid down under the legislation of the Member State to which he/she has gone and to the control procedure organised there. Conversely, as shown by the judgments in De Cuyper and Petersen: if a recipient of unemployment benefits goes to another Member State in the absence of any intention to look for employment, and does not register as a jobseeker there, Regulation 883/2004 does not apply. In this case, the Union citizen will remain subject to the legislation and control procedures of the home state. There is no overlap between a situation in which the Union citizen who moves ceases to be available to the competent state (Regulation 883/2004 applies), and a situation in which the Union citizen continues to be available to the competent state (national law subject to the scrutiny of EU primary law applies).

Recalling the ABC set out in Section 1.2 (the points listed there as a), b) and c), we observe the following:

Specificity: Article 48 TFEU (free movement of workers) constitutes the legal basis for Regulation 883/2004. Outside their scope, the positive rules on export of unemployment benefits do not aim to affect the interpretation and application of other free movement rights. In the words of AG Ruiz-Jarabo Colomer:

It is immaterial that the particular circumstances of Mr Petersen are not included in the cases set out in Regulation No 1408/71, since the aim of that legislation is not to exclude all the other cases but rather to implement Article 39 EC.¹⁰⁴

Neither logically, nor systematically can it be inferred from the fact that recipients of unemployment benefits have the right to export such benefits for a period of three months that they lose any other free movement right.

Floor versus ceiling: In his otherwise brilliant account, Dougan submits that when the coordination regime was adopted, ‘one may safely assume that the Community legislature believed itself to have established the ceiling [and not the floor] for how much of the national welfare systems the Member States were prepared to export between their territories’.¹⁰⁵ We are not willing to construct such assumptions. A straightforward interpretation of the Regulation is that its exportation rules afford a right to free movement that must be complied with unless exceptions are provided for by the Regulation itself.¹⁰⁶ This creates only a floor. If one were to make assumptions, it would be that the scope of the rights that flow directly from the Regulation is drafted with some care, because they bar the application of the mandatory requirements doctrine. In the first place, the legislative intent of limiting the scope of the rules in Regulation 883/2004 is not to restrict free movement, but to provide some flexibility to the Member States by preserving the availability of the general goods exception that relates to primary law.

Proportionality: The individual situation of citizens is unknown to the legislator and is not covered by its intentions. Consider the judgment in Petersen. Had the legislator taken the situation of migrant workers into account? Probably not. If it had, would it have intended to enact a rule that was blatantly discriminatory? Probably not. Arguably, the non-application of the rules of Regulation 883/2004 and the complementary use of primary law contributed not only to protecting the individual, but also to realising the intentions of the legislator.

We agree that if the facts of an individual case fully coincide with a situation truly envisaged by the lawmaker, judicial scrutiny should be lax. A straightforward interpretation of Regulation 883/2004 is that the legislator intended for recipients of unemployment benefits not to be able to permanently move to another Member State while retaining these benefits.¹⁰⁷ Deference to this legislative choice may explain the soft review of proportionality in De Cuyper, described by Dougan as ‘disappointingly weak’.¹⁰⁸ It is, however, impossible to argue that the legislative intent of Articles 7 and 63 is that recipients of unemployment benefits should not be allowed to travel at all. Imagine a recipient of unemployment benefits who stays outside the competent state for a month, a week, a weekend or perhaps a single day, and who remains subject to the legislation of the competent state throughout that period. The legislative intent does not cover this. It would seem disproportionate if a recipient loses all entitlement to benefits if he complies with the conditions of the competent state but stays abroad for only a short period of time. At least, the Court has an important role to play in providing for efficient judicial protection of proportionality.