Case C-535/19 Written commentary of a CJEU decision

Introduction

What does the free movement of people imply in the affiliation of the Union European´s citizens in the public sickness insure system? The question that addresses the problem of public health, who are bears the burden? What is the limit to the free movement of persons within the European Union in terms of being protected by the health system of the State and how can it be established?

These issues can be clearly seen as conflicting in case A vs Latvijas Repuclikas Veselibas ministrija[1]. In this case, there is a financial concern of the Member State and the Court of Justice from EU to not to allow the Italian citizenship to use all the health benefits of a national of Latvia.

This discrimination was justified by the Court and there are differences as in the Bosman[2] case, because, the law defines limitations of the application of free movement workers. In case A,  it is justify with the Directive 2004/38, Treaty on the Functioning of the European Union and Regulation n° 883/2004.

Limits to the application of free movement of workers about public sickness insurance system

One of EU fundaments is the free movement of persons, goods and services. At the beginning of the European Union, it was created a Regulation 1612/68 for free movement and the right of residence to family members of the worker. Today, it replaced by the legal law in the Regulation 492/11 and the Directive 2004/38.

The principle of free movement of workers include: a) right to accept offers of employment made, conform TFEU[3] and Regulation n° 492/2011; b) right to move freely, to stay and to remain in the territory of Member State; c) prohibition of any discrimination on the grounds of nationality as regards employment, remuneration and other conditions of work and employment, base of TFEU[4] and the Regulation 492/11(Benedita Queiroz, 2021). The jurisprudence is also clear in the application of this principle, for example, the case Lawrie-Blum[5]

On the other hand, the Article 36 of TFEU explains limits of free movement workers, in case it is justify, for example, morality public reasons, public order, public security, health and life protection (people and animals), as long as they are arbitrary and non-discriminatory.

Other relevant legal provision that elucidates limits and regulates the free movement workers is the Directive 2004/38, in special the recital 10 of Directive 2004/38[6], concerning the financial consequences of non-employed to social assistance of the host Member State. The goals of Directive are achieving the right of citizens of the European Union and their family members to move and reside freely within the territory of the Member States and jointly with the Regulation n° 883/2004 that it used as the main basis for the Case C- 535 decision.

The Article 7, number 1, separates in three types of regimes to regulate the right to reside in another EU Member State (Benedita Queiroz, 2020): economically active citizens; economically independent or inactive citizens; students. The definition of inactive citizens is non-employment in another Member State for more than three months and it requires of possession of “sufficient resources”.

In the same round, Regulation n° 883/2004, was created for coordination of national social security. The Article 3(1) (a) of Regulation N° 883/2004[7] explicates its material application and the Article 11 elucidates the law of which Member State to apply.

The case

The Case A against Latvijas Repuclikas Veselibas ministrija, is a recent CJEU (Court of Justice of the European Union) judgement, which discusses sensitive issues and basic principles of European Union Internal Market: Freedom of movement for persons; Financial condition of the health system of the Member State to bear new community citizens and unemployed in its territory; Equal treatment.

Between end of 2015 and January 2016, A who is Italian national, moved to Latvia, since his wife, a Latvian national, and their two children, a Latvian and Italian nationality, have lived there. When he left Italy to live in Latvia, it was recorded by the Italian authorities as he is residing abroad therefore, he left it out of the Italian health care system.

Other question raised by Latvia Supreme Court, it was the scope of Article 11 (3) (e), in order to verify if this regulation is appliqued in the dispute. Furthermore, if this regulation, along with Directive 2004/38 and the Brey[9] case, it seeks guidance on the interpretation of the principle of non-discrimination, because, of point of Supreme Court view, it is necessary to differentiate the treatment between economically inactive Union citizen, Latvian nationals and Union citizens who are economically active. The economically inactive could bring on disproportionate to the legitimate objective of protecting the public finances.

The judgement of the Court of Justice in the case C-535/19

Those questions were taken to CJEU as a preliminary ruling[10] and the Courted decided that the Member State may provide access to a public sickness ensure system, in the case the citizen require, but the possibility is not free of charge, that is, the citizen has to pay one contribution in order to avoid an unreasonable burden on the public finances of the host Member State.

The CJEU started arguing the question about the scope of Regulation n° 883/2004. In paragraph 28, the Court determined the importance of the question that classified as a social security benefit by national legislation. Besides, it is based on the constituent elements of each benefit, its purpose and the conditions for its grant.

In that regard, the Court used the lasts judgement: Comission v Slovakia[11] and A (Assistance for a disabled person)[12] for enunciated the two conditions: “a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 3 (1) of Regulation n° 883/2004. These two conditions are cumulative”. In Latvia Law, on medical care is objective and establish that cannot consider other personal circumstance of categories of recipients of medical care, therefore the first condition is fulfilled. In the case of the second condition, in this question, sickness benefits shall be qualified as social security benefits, as provided for in Article 3°, n° 1, of the Regulation 883/2004, fulfilling the second condition.

The Article 18 of TFEU must interpretation together with article 24 of Directive 2004/38 and the article 4° from Regulation n°883/ 2004[13], in order to define the limits of exceptions from the principle of non-discrimination, and it is against a national law of the Member State that exclude the right of the individual to be affiliate in the public sickness insurance system[14].

CJEU has decided the question “the affiliate to its public sickness insurance” depends of each Member States legislation, but cannot exclude this right.[15]

In the same vein, the Court, jointly interpreted the Article 7°, n°1 and Article 14, n°2 of Directive 2004/38, considered that the citizens resident over 3 months and under 5 years in another Member State, has the comprehensive sickness cover for themselves and their family members.[16]

In the end, the CJEU, had the same point of view the general Advocate General in his conclusions[17], in the sense of, the Member State have to provide the access to a public sickness ensure system, without any individual and discretionary assessment of personal needs. If the Union citizens are economically inactive, they can pay one contribution to the host Member State.

Comments

The decision of the case A (Case C-535/19) is a remarkable importance in European case law, in view of a reasonable limit to the right to health and it impose on the financial condition for contemplate the public sickness insure when the Union citizen is non-employment. However, the case is specific and narrow, once those aspects relative the preoccupation against the burden financial is available to non-employees of new European citizenship in host territory. This case can be use in future cases law.

In my point of vision, this case is a clear demonstration that the CJEU did not apply the “judicial activism”. This question is the extremely importance when analyze the other jurisdictions, for example, South Africa, Brazil, the latest, have a difficult one harmony between Executive, Legislative and Judiciary. However, this phenomenon did not happened in this case, because, the Court hadn´t attained the exclusive competence of the European Union Treaties. Important to mention, after Stauder[18]case, that many jurists considered as beginning of inclusion of the Principle of the Protection of Fundamental Rights in European jurisprudence, that the Court would address the issues with “judicial activism”, but this in fact did not happen. the jurisprudence of the Court of Justice remains delimited by the TFEU and is always concerned not to heed it, as in the case in question, it did not invade the jurisdiction of the legislative or judicial.  

Moreover, we may think that, the Court did not mention, but, its decision was influenced by the theory of the Reserve of the Possibility. This theory make clear the requirements of the postulants are endless  and the possibilities of the State to pay are finite. Additionally, the theory explain that it is necessary some limitations to social rights. 

In the presente case, we note the limitation of the free movement of persons, once that A, do not being resident for 5 years of Latvia and he is unemployed, therefore, he could not have public sickness insure.

Furthermore, when the CJEU conducts the proportionally test on the measures taken by Latvia authorities, it is bad de facto of A, despite the Court obligation, by enabling that the Latvia public sickness insurance system demand one contribution of “A”, to get it the system.

In this sense, we don´t have total comprehension about “A” financial situation. If he and his family have conditions to contribute to the Latvia health system. It is known that he is non-employee, but is a dramatic situation, because, if he doesn´t have any money, he will haven’t health coverage and he is a Union citizen without contemplate your Article 168° TFEU health right.

In general terms, the Court has acted in a manner that respects recent interpretations, for example, the case Mr. Bajratari[19]. The interpretation is in favor of Principle of non-discrimination, as already seen in Directive 2004/38 and Regulation 883/2004. This principle isn´t a supreme, without limitations, it is always important to consider other EU principles so that they don´t harm the European Union as an all.

Conclusion

The “A” case clarified the interpretation of Directive 2004/38 and the Principle of non-discrimination. In addition, it demonstrated the scope of Regulation n° 883/2004 in this case.

In law, this case isn´t so clear, needed one CJEU decision, for created a jurisprudence. The question about the protection of Directive and TFEU in case of non-employee, Union citizen, without other public sickness insure of Member State and non-permanent resident, did not previously addressed.

It isn’t known whether in the end “A” was able or not to contribute to the Latvian health system, but this jurisprudence should use as an influence for cases involving health coverage, unemployment and free movement of people.

[1] Case C-535/19: Request for a preliminary ruling under Article 267 TFEU from the Augstaka tiesa (Senats) ( Supreme Court, Latvia), made by decision of 9 July 2019, received at the Court on 12 July 2019.

[2] Judgment of the Court of 15 December 1995; Case C-415/93; Union royale belge des sociétés de football association ASBL, Royal club liégeois SA, Union des associations européennes de football (UEFA) v Jean-Marc Bosman; ECLI:EU:C:1995:463

[3] Article 45 (3a and b)

[4] Article 45 (2)

[5] Deborah Lawrie-Blum v Land Baden-Württemberg, Judgment of the Court of 3 July 1986, Case 66/85

[6] “Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions”

[7] This Regulation shall apply to all legislation concerning the following branches of social security:(a) sickness benefits

[8] Article 7 (1) (b) of Directive 2004/38

[9] Judgment of the Court (Third Chamber), 19 September 2013; Pensionsversicherungsanstalt v Peter Brey; C-140/12, EU:C:2013:565

[10] Article 267  of Treaty on the Functioning of the European Union

[11] Commission v Slovakia, C-433/13, EU:C:2015:602, paragraph 70, and of 25 July 2018

[12] A (Assistance for a disable person), C-679/16, EU:C:2018:601, paragraph 31, 32 and 33

[13] Case C-535/19: Request for a preliminary ruling under Article 267 TFEU from the Augstaka tiesa (Senats) ( Supreme Court, Latvia), made by decision of 9 July 2019, received at the Court on 12 July 2019 Paragraph 40

[14] Case C-535/19: Request for a preliminary ruling under Article 267 TFEU from the Augstaka tiesa (Senats) ( Supreme Court, Latvia), made by decision of 9 July 2019, received at the Court on 12 July 2019 Paragraph 44

[15] Case C-535/19: Request for a preliminary ruling under Article 267 TFEU from the Augstaka tiesa (Senats) ( Supreme Court, Latvia), made by decision of 9 July 2019, received at the Court on 12 July 2019 Paragraphs 49, 50,51

[16] Case C-535/19: Request for a preliminary ruling under Article 267 TFEU from the Augstaka tiesa (Senats) ( Supreme Court, Latvia), made by decision of 9 July 2019, received at the Court on 12 July 2019 Paragraph 55

[17] Case C-535/19: Request for a preliminary ruling under Article 267 TFEU from the Augstaka tiesa (Senats) ( Supreme Court, Latvia), made by decision of 9 July 2019, received at the Court on 12 July 2019 Paragraph 59

[18] Erich Stauder v City of Ulm; Judgment of the Court of 12 November 1969; Case 29-69

[19] Judgment of 2 October 2019, Ermira Bajratari v. Secretary of State for the Home Department, C-93/18, EU:C:2019:809

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