In this decision, the CJEU ruled that Articles 28 and 29 of Directive 2004/83 must be apply to beneficiaries of refugee or subsidiary protection status exclusively. It also stated that Article 15 (b) of Directive 2004/83 must be interpreted as meaning that 'serious harm, as defined by the directive, does not cover a situation in which inhuman or degrading treatment, such as that referred to by the legislation at issue in the main proceedings, to which an applicant suffering from a serious illness may be subjected if returned to his country of origin, is the result of the fact that appropriate treatment is not available in that country, unless such an applicant is intentionally deprived of health care.' According to the CJEU, this interpretation of the Directive is not inconsistent with Article 19 of the Charter, to the effect that no person may be returned to a State in which there is a serious risk that that person will be subjected to inhuman and degrading treatment. This decision is in line with the case-law of the ECHR Court and with Article 3 of the ECHR.
Mr M’Bodj arrived in Belgium on 3 January 2006. He applied for asylum and, subsequently, for leave to reside on medical grounds. Both applications being refused, he made a number of unsuccessful appeals against the decisions rejecting those applications. On 27 May 2008, Mr M’Bodj made a further application for leave to reside on medical grounds. That application was accepted as admissible on 19 September 2008 and, as a result, Mr M’Bodj was registered in the Register of Foreign Nationals. After receiving a general certificate recognising a reduction in earnings capacity and loss of independence, Mr M’Bodj applied, on 21 April 2009, for loss of income allowance and income support. On 5 October 2009, that application was refused by the Service public fédéral Sécurité sociale (Federal Public Social Security Authority) on the ground that Mr M’Bodj did not fulfil the nationality requirements under Article 4(1) of the Law of 27 February 1987. On 31 December 2009, Mr M’Bodj brought an action for annulment of the decision rejecting that application before the tribunal du travail de Liège (Labour Court, Liège). By judgment of 8 November 2012, the tribunal de travail de Liège decided to refer to the Cour constitutionnelle (Constitutional Court) a question for a preliminary ruling. The Cour constitutionnelle decided to stay the proceedings and to refer the question to the Court for a preliminary ruling.
The legal questions submitted by the referring Court to the ECJ for a preliminary ruling concerned, firstly, the interpretation of Articles 2, letter e) and f), and 15, 18, 28 and 29 Directive 2004/83. In particular, the referring Court asked if these provisions must be interpreted as meaning that not only a person who has been granted, at his request, subsidiary protection status by an independent authority of the Member State must be eligible for the social welfare and health care (Articles 28 and 29 of that directive), but also a foreign national who has been granted leave by an administrative authority of a Member State to reside in the territory of that Member State and who suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there is no appropriate treatment in his country of origin or in the country in which he resides.
Furthermore, the referring Court added that in the case that these two categories of persons must be considered eligible for the social welfare and health care, if Articles 20(3), 28(2) and 29(2) of Directive 2004/83 must be interpreted as meaning that ‘the obligation imposed on Member States to take into account the specific situation of vulnerable persons such as the disabled implies that the latter must be granted the allowances provided for by the Law of 27 February 1987 … in view of the fact that social assistance which takes account of the disability may be granted pursuant to the Basic Law of 8 July 1976 on public social welfare centres’.
“Articles 28 and 29 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, read in conjunction with Articles 2(e), 3, 15, and 18 of that directive, are to be interpreted as not requiring a Member State to grant the social welfare and health care benefits provided for in those measures to a third country national who has been granted leave to reside in the territory of that Member State under national legislation such as that at issue in the main proceedings, which allows a foreign national who suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment to reside in that Member State, where there is no appropriate treatment in that foreign national’s country of origin or in the third country in which he resided previously, unless such a foreign national is intentionally deprived of health care in that country”.
Could EU law save Paddington Bear? The CJEU develops a new type of protection by Steve Peers, available at: http://eulawanalysis.blogspot.com/2014/12/could-eu-law-save-paddington-bear-cjeu.html