Major clarification by the Court of Justice about the job seeker’s right to stay

By: Prof. Jean-Philippe Lhernould (University of Poitiers)

ECJ 17 December 2020, Case C-710/19, G.M.A. – v – Belgium

The right to stay of Union citizens who entered the territory of one Member State to seek employment is one of the trickiest questions raised by Directive 2004/38. In an ambiguous wording codifying the Antonissen case, Article14(4)(b) provides that these workers “may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged”. A report underscores the heterogeneity of national practices (C. O’Brien, The concept of worker under Article 45 TFEU and certain non-standard forms of employment, FreSsco network, European Commission, 2015, see pt 3.1.5.2 and pt 4.5). For instance, whilst some countries have imposed variable tests to assess on a case-by-case basis the “genuine chance”, the test being sometimes applicable immediately upon arrival or after a six-month period of stay, some others ignore such a test. Some Member States have set temporal restrictions – 6 months or 3 months right to stay - instead of or in conjunction with the “Antonissen test”, some Member States have no such temporal restriction.  

The G.M.A case was very much expected to bring more clarity.

On 27 October 2015, a Greek national applied for a certificate of registration in Belgium as a jobseeker in order to obtain a right of residence for more than three months in that Member State. The application was rejected on the ground that the job seeker did not suggest that he had a genuine chance of being engaged in Belgium. Consequently, he was ordered to leave Belgium within 30 days of notification of that decision. He lodged a complaint before the High administrative court of Belgium, claiming that Member States are obliged to grant a “reasonable period of time” to jobseekers from another Member State, in order to enable those persons to acquaint themselves with offers of employment likely to suit them and take the measures necessary to be engaged. That period cannot in any circumstances be less than six months. Moreover, throughout that period, the jobseeker could not be required to prove that he has a genuine chance of being engaged.

The Court of Justice starts recalling that jobseekers must have a reasonable period of time to apprise themselves of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged.

As regards the length of that period, the Court notes that jobseekers are first covered by Article 6 of the Directive which grants an unconditional three-month right to stay to all Union citizens, irrespective of the intention with which those citizens enter the territory of the host Member State. No condition may be required from the jobseeker during that period.

Second, in addition to this three-month period, the CJEU rules that jobseekers have under Article 14(4)(b) a right to stay “from the time as [their] registration as a jobseeker”.  This is a major change as so far, for many for Member States, the starting point of that period was the entry on their territory. How long is that second period? For the Court, “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”. With such a careful wording, the six-month period should be read as an acceptable ceiling, but not necessarily as a minimum floor. It should though be interpreted as a common reference by countries. As regards the obligations which the host Member State may impose on the person seeking employment during that second period, it follows from the wording of Article 14(4)(b) of Directive 2004/38 that the host Member State may, already during that period, require the jobseeker to seek employment. However, and it is very important to keep in mind, that Member State cannot require during that period the person concerned to demonstrate the existence of a genuine chance of being engaged.

Third, it is only after that “reasonable period of time” (of six months) has elapsed that the jobseeker is required to provide evidence not only that he or she is continuing to seek employment but also that he or she has a genuine chance of being engaged. In other words, a third period of stay starts after the nine-month period, where the “genuine test to be engaged” can be assessed. How to assess it? The Court gives some hints. The fact that the jobseeker has registered with the national body responsible for jobseekers, that he or she regularly approaches potential employers with letters of application or that he or she goes to employment interviews. In the context of that assessment, national authorities and courts must take into account the situation of the national labour market in the sector corresponding to the occupational qualifications of the jobseeker in question. By contrast, the fact that that jobseeker refused offers of employment which did not correspond to his or her professional qualifications cannot be taken into account for the purpose of considering that that person does not satisfy the conditions laid down in Article 14(4)(b) of Directive 2004/38.

In sum, the migrant jobseeker is subject to three consecutive cycles: during three months, he can stay without any condition; during six months, he can stay if he registers as a jobseeker and continues to seek employment; during an indefinite period of time, he can stay if he continues to seek employment and has a genuine chance of being engaged. In truth, each of the three cycles has a variable length since the second cycle starts from the date of registration (which could be done before the end of the first three-month period) and may have a length shorter or longer than six months. By its nature, the length of the third period will be based on a case-by-case assessment.

It follows from these considerations that, at the time when he lodged his application for registration as a jobseeker in Belgium, the Greek worker had to have at least a reasonable period of time during which the Belgian authorities could only require him to demonstrate that he was seeking employment. Instead, the decision refusing a right of residence in Belgium for more than three months was taken on the ground that the evidence adduced by the him in support of his application was not such as to establish that he had a genuine chance of being engaged.

This case is a brilliant illustration of the denial by the Court of Justice of a strict interpretation of Article 45(3) TFEU which would jeopardise the actual chances that a national of a Member State who is seeking employment will find it in another Member State, and would, as a result, make that provision ineffective. The old Antonissen case has also been consolidated, which is also noteworthy.