Due to the recent COVID-19 pandemic, numerous businesses have been forced to have layoffs, with individuals being left wondering whether they will legally be able to continue living in a European Union (EU) Member State that they are not a national of but where they were previously working and whether they are entitled to any unemployment benefits that nationals of that Member State receive. The purpose of this blog entry is to explain from a European Union perspective whether it is possible to continue to reside in a Member State once an individual is no longer employed (solely in the case of involuntary unemployment) and whether unemployment benefits are available to workers who are nationals of a different Member State than the one they work in.
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One of the four freedoms that the EU aims to ensure is the free movement of persons. According to Article 21 of the Treaty on the Functioning of the European Union (TFEU), every citizen of the EU shall have the right to move and reside freely within the territory of the Member States. Article 45 TFEU further provides that the freedom of movement for workers shall be secured within the EU. A worker is defined under EU law as a person who performs services under the direction of another person in return for which he receives remuneration.1 On the right to reside in a Member State other than that of which one has nationality is further elaborated in Directive 2004/38.2 The relevant provisions of Article 7(1) of that Directive state that all Union citizens shall have the right to reside on the territory of another Member State for a period longer than three months if they are workers or self-employed in the host Member State or if they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State and if they have comprehensive sickness insurance cover in the host Member State. Therefore, one option to be able to continue to reside in the host Member State is to have some saved revenues that would allow a person to lead a decent lifestyle.
Further information for unemployed persons is provided in paragraph 3 of Article 7 of Directive 2004/38. It is stated that an EU citizen who is no longer a worker or self-employed can retain the status of worker or self-employed if he/she is in duly recorded involuntary unemployment after having been employed for more than one year and has registered as a job-seeker with the relevant employment office or if he/she is in duly recorded involuntary unemployment after completing a fixed-term employment contract of less than a year or after having become involuntarily unemployed during the first twelve months. In the case of the latter, Article 7(3) provides that the status of worker or self-employed shall be retained for at least six months if the person registers as a job-seeker. For individuals who have worked for longer than one year in the host Member State, it is considered that one is allowed to stay for as long as he is registered as a job-seeker with the employment service in the host Member State and continues to meet the conditions required for job-seekers.3 According to Article 14(4) of the Directive, an individual is considered a job-seeker if he/she can provide evidence that he/she is continuing to seek employment and that there is a genuine chance of being engaged. Another possibility to maintain the worker or self-employed status in the case of involuntary unemployment is to embark on vocational training.
A different situation takes place for individuals who have resided in the host Member State for more than five years. In that case, Article 16(1) of Directive 2004/38 grants those individuals the right to permanent residence in the host Member State. According to Article 16(4) of Directive 2004/38, this right can only be lost through an absence from the host Member State for a period exceeding two consecutive years. Therefore, in this situation, one does not have to worry about losing the right to residence in the host Member State in case of unemployment.
As regarding the availability of unemployment benefits to individuals left involuntarily unemployed, Article 18 TFEU provides that any discrimination on grounds of nationality is prohibited. In the area of the free movement of persons, this prohibition is further elaborated on in Article 24(1) of Directive 2004/38. This article provides that all EU citizens residing on the basis of Directive 2004/38 in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State. Therefore, an involuntarily unemployed person can apply for unemployment benefits just like any national of the host Member State provided that they fulfil the requirements imposed by national law.
For example, in the Netherlands there are several requirements to be met, such as being insured against unemployment, at least 5 hours of work per week were lost and the associated pay, availability of the individual to work on the Dutch labour market, avoiding becoming or remaining unemployed, having worked for at least 26 weeks of the past 36 weeks (working in another Member State will count) and being unemployed through no fault of your own.4
To conclude, involuntarily unemployed individuals have various possibilities to continue their residence in the Member State where they were previously working, depending on their savings, the length of their previous stay in the Member State, and their willingness to look for new employment. Regarding unemployment benefits, unemployed workers who previously worked in the host Member State shall be treated the same as nationals of that Member State.
- Case 66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR 2121 para 17. 1.[↩]
- Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [2004] OJ L158/77. 2.[↩]
- Jobseekers – residence rights (May 2020) accessed 10 June 2020. 3.[↩]
- European Commission, Netherlands – Unemployment accessed 11 June 2020.[↩]