European Parliament and Council Communication clarifying rules:
EUR-Lex - 52009DC0313 - EN
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2.3. Residence of EU citizens for more than three months
EU citizens have a right of residence in the host Member State if they are economically active there. Students and economically inactive EU citizens must have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover.
The list of documents to be presented with the application for residence is exhaustive. No additional documents can be requested.
2.3.1. Sufficient resources
The notion of ‘sufficient resources’ must be interpreted in the light of the objective of the Directive, which is to facilitate free movement, as long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State.
The first step to assess the existence of sufficient resources should be whether the EU citizen (and family members who derive their right of residence from him or her) would meet the national criteria to be granted the basic social assistance benefit .
EU citizens have sufficient resources where the level of their resources is higher than the threshold under which a minimum subsistence benefit is granted in the host Member State. Where this criterion is not applicable, the minimum social security pension should be taken into account.
Article 8(4) prohibits Member States from laying down a fixed amount to be regarded as "sufficient resources" , either directly or indirectly, below which the right of residence can be automatically refused. The authorities of the Member States must take into account the personal situation of the individual concerned. Resources from a third person must be accepted[26].
National authorities can, when necessary, undertake checks as to the existence of the resources, their lawfulness, amount and availability. The resources do not have to be periodic and can be in the form of accumulated capital. The evidence of sufficient resources cannot be limited[27]. (*)
In assessing whether an individual whose resources can no longer be regarded as sufficient and who was granted the minimum subsistence benefit is or has become an unreasonable burden , the authorities of the Member States must carry out a proportionality test. To this end, Member States may develop for example a points-based scheme as an indicator. Recital 16 of Directive 2004/38 provides three sets of criteria for this purpose:
(1) duration
- For how long is the benefit being granted?
- Outlook: is it likely that the EU citizen will get out of the safety net soon?
- How long has the residence lasted in the host Member State?
(2) personal situation
- What is the level of connection of the EU citizen and his/her family members with the society of the host Member State?
- Are there any considerations pertaining to age, state of health, family and economic situation that need to be taken into account?
(3) amount
- Total amount of aid granted?
- Does the EU citizen have a history of relying heavily on social assistance?
- Does the EU citizen have a history of contributing to the financing of social assistance in the host Member State?
As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State, they cannot be expelled for this reason[28].
Only receipt of social assistance benefits can be considered relevant to determining whether the person concerned is a burden on the social assistance system.
(*) Case C-424/98 Commission v Italy (para 37) - In essence, savings, investments etc. have to be taken into account.