Court of Appeal: EU national’s status as a “worker” to be considered by the CJEU



A man who sought to claim job-seeker’s allowance based on his employment as a casual labourer for two weeks in the State has had his appeal adjourned pending the outcome of the Court’s reference to the Court of Justice of the European Union.

Finding that there were a variety of interpretations of the relevant provisions of the Citizenship Directive, Mr Justice Gerard Hogan found that it was appropriate to refer the question of whether the man was a “worker” to the CJEU.

Background

The applicant, Mr Neculai Tarola, a Romanian citizen, first arrived in Ireland in May 2007. Following his arrival in the State he was employed intermittently, and left the State in December 2007.

After returning in May 2013, Mr Tarola was again intermittently employed, his longest period of employment lasting 8 weeks.

Mr Tarola had applied for job seekers allowance in September 2013, which was refused because he was not habitually resident in the State.

In November 2014, Mr Tarola sought job seeker’s allowance for the second time, and this application was refused – The Minister for Social Protection concluded that since coming to Ireland, the applicant had not worked for more than a year and the evidence produced was insufficient to establish Ireland as his habitual residence.

Thereafter, the applicant sought a statutory review of the decision pursuant to the provisions of the Social Welfare (Consolidation) Act 2005.

The Minister replied by pointing out that the only difference between the applicant’s circumstances between September 2013 and November 2014 was that he had worked for two weeks in July 2014, that this short period of employment was not sufficient to revise the decision that the applicant was not habitually resident in the State.

Seeking a second review, the applicant argued that he had a right to reside as a worker for the period of six months after his employment in July 2014 for the purposes of Article 7(3)(c) of Directive 2004/38/EC (the Citizenship Directive), as transposed into Irish domestic law by Article 6(2)(c)(iii) of the European Communities (Free Movement of Persons) Regulations (No.2) 2006 (S.I. No. 656 of 2006).

Both Article 7 of the Citizenship Directive and the 2006 Regulations set out the conditions under which a EU-national exercising free movement rights is entitled to stay in a host country beyond an initial three-month period and to be treated as a worker for all purposes – including social security payments – by that host State.

The Minister rejected this application, saying that:

“Since Mr Tarola came to Ireland he has not worked for more than a year and he did not have sufficient independent resources to support himself. Should Mr Tarola’s circumstances change, he may apply for Job Seekers’ Allowance.”

The High Court

In the High Court, it was concluded that the applicant’s employment in the State as a casual labourer for that two-week period was not sufficient to bring him within the terms of Article 7(3)(c) of the Citizenship Directive such that he would have an entitlement to stay here for at least a further six months and, accordingly, to claim job seeker’s benefit once that period of employment ended.

Court of Appeal

Justice Hogan stated that the appeal raised difficult questions concerning the proper interpretation of Article 7(3)(c) of the Citizenship Directive.

Justice Hogan emphasised that the Citizenship Directive did not give EU nationals unconditional rights of residence in other Member States.

At the heart of the appeal was the question of whether an individual who has worked for less than twelve months retains his or her status as a “worker” for the purposes of Article 7(3)(c) of the Citizenship Directive and, by extension, Article 6(2)(c)(iii) of the 2006 Regulations.

Considering the leading cases on the subject (Case 53/81 Levin ECR 1035, and Case 66/85 Lawrie-Blum ECR 2121); Justice Hogan was satisfied that the Court of Justice consistently took a broad view of what constitutes a “worker”.

The question effectively here is whether Mr Tarola has retained his status as a worker for the purposes for the purposes of Article 7(3)(c) of the Citizenship Directive by virtue of the fact that he worked for this two week period in July 2014.

In considering the interpretation of Article 7(3)(c), Justice Hogan was cognisant that one of the underlying objectives of the Citizenship Directive was to strike a fair balance between safeguarding the free movement of workers on the one hand and ensuring that the social security systems of the host Member State should not be placed under unreasonable burdens.

Reference to the Court of Justice of the European Union

Given the variety of possible interpretations of Article 7(3)(c) of the Citizenship Directive, and the acknowledged absence of any definitive ruling on a very important aspect of the general law of free movement of workers; Justice Hogan found that it was appropriate to refer the case to the Court of Justice of the European Union pursuant to Article 267 TFEU.

Adjourning the appeal pending a ruling from the CJEU, Justice Hogan referred the following draft question:

“Where a citizen of another EU member state arrives in the host state and works for a two-week period for which he is genuinely remunerated and thereafter becomes involuntarily unemployed, does that citizen thereby retain the status of a worker for no less than a further six months for the purposes of Article 7(3)(c) and Article 7(1)(a) of Directive 2004/38/EC such as would entitle him to receive social security benefits on the same basis as if he were a resident citizen of the host State?”

  • by Seosamh Gráinséir for Irish Legal News