CELEX: 62005CJ0287
Social security for migrant workers
Articles 12 EC, 17 EC, 18 EC and 39 EC
Regulation (EEC) No 1408/71
Article 4(2a), Article 10a and Annex IIa
Regulation (EEC) No 1612/68
Article 7(1)
Non-contributory benefits
Netherlands benefit for disabled young people
Non-exportability

1       This reference for a preliminary ruling concerns the interpretation of Article 4(2a) of Council Regulation (EEC) No 1408/71
of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members
of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996
(OJ 1997 L 28, p. 1), as amended by Council Regulation (EC) No 1223/98 of 4 June 1998 (OJ 1998 L 168, p. 1), (‘Regulation
No 1408/71’) and the scope of Articles 12 EC, 18 EC and 39 EC and of Article 7(1) of Regulation (EEC) No 1612/68 of the Council
of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p 475).
2       The reference was made in the course of proceedings brought by Mr Hendrix against the Raad van Bestuur van het Uitvoeringsinstituut
Werknemersverzekeringen (Management Board of the body entrusted with implementation of employee insurance contributions, ‘the
UWV’). Mr Hendrix challenges the refusal by the UWV to allocate to him the benefit payable under the Law on provision of incapacity
benefit to disabled young people (Wet arbeidsongeschiktheidsvoorziening jonggehandicapten) (Stb. 1997, No 177) of 24 April
1997 (‘the Wajong’), on the ground that he is not resident in the Netherlands.

Legal context

Community legislation
3       Article 2 of Regulation No 1408/71 defines the persons covered by the regulation; Article 2(1) provides:
‘This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation
of one or more Member States and who are nationals of one of the Member States … as well as to the members of their families
and their survivors.’
4       Article 4 of Regulation No 1408/71, headed ‘Matters covered’, provides :
‘1.      This Regulation shall apply to all legislation concerning the following branches of social security:
(a)      sickness and maternity benefits;
(b)      invalidity benefits, including those intended for the maintenance or improvement of earning capacity;
…
2a.      This Regulation shall also apply to special non-contributory benefits which are provided under legislation or schemes other
than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended:
(a)      either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security
referred to in paragraph 1(a) to (h);
or
(b)       solely as specific protection for the disabled.
…
4.      This Regulation shall not apply to social … assistance …’
5       In relation to the special non-contributory benefits referred to in Article 4(2a) of Regulation No 1408/71, Article 10a(1)
of that regulation provides:
‘Nothwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the
special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which
they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits
shall be granted by and at the expense of the institution of the place of residence.’
6       In section J of Annex IIa to Regulation No 1408/71, the benefits granted in the Netherlands under the Wajong are classified
as special non-contributory benefits.
7       Article 7 of Regulation No 1612/68, which was enacted in order to apply the provisions of the EC Treaty on freedom of movement
for workers, provides:
‘1.      A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from
national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards
remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.
2.      He shall enjoy the same social and tax advantages as national workers.
…’

National legislation
8       The Law on insurance against incapacity for work (Wet op de arbeidsongeschiktheidsverzerkering) (Stb. 1966, No 84) of 18 February
1966 (‘the WAO’) insures employees against the risk of loss of salary as a consequence of incapacity for work. That insurance
is funded by contributions payable by employers in respect of the salary paid by them to their employees. To qualify for a
benefit under the WAO, an employee must be insured at the time when incapacity for work arises.
9       Until 1998, the Law providing for general insurance against incapacity for work (Algemene Arbeidsongeschiktheidswet) (Stb.
1975, No 674) of 11 December 1975 (‘the AAW’) established compulsory general insurance for the whole of the population against
the financial consequences of long-term incapacity for work.
10     The AWW was replaced, first, with regard to the self-employed, by the Law on insurance against incapacity for work for the
self-employed (Wet arbeidsongeschiktheids-verzekering zelfstandigen) (Stb. 1997, No 176) of 24 April 1997 and, secondly, by
the Wajong, aimed at protecting disabled young people against the financial consequences of long-term incapacity for work.
11     The Wajong provides for the payment of a minimum benefit to young persons who are already suffering from total or partial
long-term incapacity for work before joining the labour market. Disabled young people are defined as residents who on their
17th birthday were already incapable of work or who, if they become incapacitated subsequently, have studied for at least
six months during the year immediately preceding the day when their incapacity for work arose. The benefit cannot be received
before the 18th birthday.
12     The amount of benefit payable under the Wajong depends on the degree of incapacity – there is a threshold of 25% – and amounts
to 70% of the statutory minimum wage in the case of total incapacity for work. Entitlement to that benefit is not made dependent
on payment of a premium or a contribution, nor is it means-tested. The benefit may however be reduced if the recipient has
an income from work or where the benefit is paid in addition to other work‑incapacity benefits.
13     The Wajong benefit is paid out of the Arbeidsongeschiktheidsfonds jonggehandicapten (Fund for disabled young people incapacitated
for work) and, under Article 64(a) of the Wajong, is financed from public funds.
14     By contrast with the position under the AAW, which did not impose any such restriction, the Wajong benefit cannot be paid
if the recipient is not resident in the Netherlands. Article 17(1) of the Wajong provides that ‘entitlement to work-incapacity
benefit shall end … on the first day of the month following that in which the disabled young person took up residence outside
the Netherlands’.
15     An exception may however be made to that rule when ending entitlement to the benefit would lead to an ‘unacceptable degree
of unfairness’ (Article 17(7) of the Wajong).
16     By a decision of 29 April 2003, the UWV stated that there is an ‘unacceptable degree of unfairness’ where a disabled young
person has compelling reasons for taking up residence outside the Netherlands and he is likely to suffer an appreciable disadvantage
if the benefit is no longer paid. Compelling reasons are considered to include medical treatment of a certain duration, acceptance
of work with some prospect of reintegration, and the need for a disabled young person to follow persons on whom he is dependent
where they are required to leave the Netherlands.

The main proceedings and the reference for a preliminary ruling
17     Mr Hendrix was born on 26 September 1975 and has Netherlands nationality. He has a slight mental disability. On 26 September
1993 a benefit under the AAW was awarded to him, and on 1 January 1998 it was converted to a benefit under the Wajong. Mr
Hendrix has always been considered to be between 80% and 100% incapacitated for work because there are insufficient posts
on the free labour market which, assessed objectively, are suitable to his skills and capabilities.
18     Mr Hendrix was employed, from 1 February 1994, in specially adapted work, in the wages and salaries division of Formido Bouwmarkt
in Maastricht (Netherlands). He was paid for this work but continued to receive the Wajong benefit, reduced to take account
of his wages. He has not been employed outside the Netherlands.
19     On 1 June 1999, Mr Hendrix moved to Belgium while continuing to work in the Netherlands. By a decision of 28 June 1999, the
UWV decided at that juncture to end the benefit paid under the Wajong to Mr Hendrix as from 1 July 1999, thereby applying
Article 17(1)(c) of the Wajong which provides that the benefit ends on the first day of the month following that in which
the disabled young person has taken up residence outside the Netherlands.
20     By its decision of 17 September 1999, the UWV dismissed the complaint made by Mr Hendrix against the decision of 28 June 1999.
21     The Rechtbank (District Court) Amsterdam, by a judgment of 16 March 2001, dismissed the action brought by Mr Hendrix against
the decision of 17 September 1999. Mr Hendrix appealed against that judgment to the Centrale Raad van Beroep (Higher Social
Security Court).
22     Having taken the view that resolution of the dispute called for an interpretation of Community law, the Centrale Raad van
Beroep decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(1)  Must a benefit under the Wajong, listed in Annex IIa to Regulation No 1408/71, be regarded as a special non-contributory benefit
within the meaning of Article 4(2a) of that regulation with the result that only the coordinating provision introduced by
Article 10a of the regulation must be applied to a person such as the applicant in the main proceedings? In answering this
question, is it of any relevance that the person concerned initially received an AAW benefit for disabled young persons, converted
by operation of law from 1 January 1998 into a Wajong benefit?
(2)       If the answer to Question 1 is in the affirmative, can a worker rely on Article 39 EC, as implemented by Article 7 of Regulation
No 1612/68, against the Member State of which he is a national when he has worked only in that Member State but is resident
in the territory of another Member State?
(3)       If the answers to Questions 1 and 2 are in the affirmative, must Article 39 EC, as implemented by Article 7(2) of Regulation
No 1612/68, be understood as meaning that a legislative provision which makes the grant or continuation of a benefit conditional
on the person concerned being resident in the territory of the Member State whose legislation is at issue is always compatible
therewith where that legislation provides for a special non-contributory benefit, within the meaning of Article 4(2a) of Regulation
No 1408/71, which is listed in Annex IIa to that regulation?
(4)       If the answers to Questions 1 and 2 are in the affirmative and the answer to Question 3 is in the negative, must Community
law (in particular Article 7(2) of Regulation No 1612/68 and Article 39 EC, and also Articles 12 EC and 18 EC) be understood
as meaning that sufficient justification can be found in the nature of the Wajong to invoke the residence condition against
a citizen of the Union, who is in full-time employment in the Netherlands and in that regard is subject solely to Netherlands
legislation? ’
The questions referred for a preliminary ruling

The first question
23     By its first question, the referring court essentially seeks to know whether the benefit paid under the Wajong constitutes
a special non-contributory benefit subject to the provisions of Article 4(2a) in conjunction with Article 10a of Regulation
No 1408/71, from which it would follow that payment could validly be made to depend on a condition of residence. The court
also seeks to know whether there is any need to take account of the earlier situation of the applicant in the main proceedings.
Observations submitted to the Court
24     The applicant in the main proceedings claims, first, that only those benefits which do not fall under legislation referred
to in Article 4(1) of Regulation No 1408/71 may be regarded as special non‑contributory benefits.
25     Second, he argues that a benefit awarded on the basis of need constitutes a special benefit. He thus argues that the benefit
provided by the Wajong is designed to cover a reduction in income which results from one of the risks listed in Article 4(1)
of Regulation No 1408/71.
26     He adds that that benefit replaced another benefit, paid under the AAW, which could be exported. The inference he draws is
that he may rely on the transitional provisions set out in Article 2 of Council Regulation (EEC) No 1247/92 of 30 April 1992
amending Regulation No 1408/71 (OJ 1992 L 136, p. 1) and accordingly on the exportability of the benefit.
27     The defendant in the main proceedings considers that the benefit provided for by the Wajong constitutes a special benefit,
in that it is not a replacement for loss of income (in which case it would be a social security benefit) but for a presumed
loss of income, since disabled young people are not comparable to workers.
28     The Netherlands Government considers that the benefit is a substitute allowance intended for those persons who do not satisfy
the conditions of insurance for obtaining a normal invalidity benefit.
29     The Commission of the European Communities considers that the benefit provided by the Wajong is a hybrid benefit falling under
both social security and social assistance.
30     As such, the benefit is a special benefit since, although covering the same risk, it relates to persons who, since they have
no history of employment, have never been insured pursuant to the WAO or the Law on insurance against incapacity for work
for the self‑employed of 24 April 1997, and moreover never could have been.
31     The defendant in the main proceedings, the Netherlands Government and the Commission consider that the fact that Mr Hendrix
received a similar benefit on the basis of other legislation before the introduction of the Wajong benefit has no relevance.
32     The United Kingdom Government submits that, if the benefit provided for by the Wajong is to be classified as special non-contributory
benefit, it must satisfy the substantive criteria that it is both a special benefit and a non-contributory benefit, and must
also be listed in Annex IIa to Regulation No 1408/71.
33     As regards the non-contributory character of the benefit, the United Kingdom Government considers that since it is financed
from public funds the benefit provided by the Wajong is non-contributory.
34     As regards the second part of the question, the United Kingdom Government considers that it makes no difference that Mr Hendrix
originally received a different but similar benefit, since that situation does not affect the substance of the question asked
by the referring court.
Findings of the Court
–       The first part of the question
35     In Case C‑154/05
Kersbergen-Lap
and
Dams-Schipper
[2006] ECR I‑6249 the Court ruled that that a benefit under the Wajong must be regarded as a special non-contributory benefit
within the meaning of Article 4(2a) of Regulation No 1408/71.
–       The second part of the question
36     In
Kersbergen-Lap
and
Dams-Schipper
(paragraph 43), the Court ruled that a person in the situation of the applicant in the main proceedings cannot rely on the
maintenance of rights acquired under the AAW prior to adoption of the Wajong. The legal effects (whether or not the Wajong
benefit may be exported) of taking up residence outside the Netherlands must consequently be examined in the light of the
rules applicable at the time when the new residence was established, which is to say in the light of the new provisions.
37     Further, as regards the argument of the applicant in the main proceedings based on Article 2 of Regulation No 1247/92, while
those persons who, prior to 1 June 1992, the date of entry into force of that regulation, were in receipt of the AAW benefit
or satisfied the conditions to receive it may, in accordance with Article 2 of the regulation, continue to take advantage
of the principle of waiver of residence clauses laid down in Article 10 of Regulation No 1408/71, the situation of those persons
who, like him, satisfied those conditions only after that date is conversely governed by Article 10a of the latter regulation
(see, to that effect, Case C‑297/96
Partridge
[1998] ECR I‑3467 paragraph 39).
38     In light of the foregoing, the answer to be given to the referring court must be that a benefit such as that provided under
the Wajong must be regarded as a special non-contributory benefit within the meaning of Article 4(2a) of Regulation No 1408/71,
with the result that only the coordinating provision of Article 10a of that regulation must be applied to persons who are
in the situation of the applicant in the main proceedings and that payment of that benefit may validly be reserved to persons
who reside in the territory of the Member State which provides the benefit. The fact that the person concerned previously
received a benefit for disabled young people which was exportable is of no relevance to the application of those provisions.

The second and third questions
39     By its second and third questions, the referring court seeks in essence to know whether the applicant in the main proceedings
can rely on Article 39 EC as implemented by Article 7 of Regulation No 1612/68 and, if so, whether those provisions preclude
termination of the payment to a person in his situation of the Wajong benefit on the ground that he has left the Netherlands.
Observations submitted to the Court
40     The applicant in the main proceedings submits that he ought to be regarded as a worker who has exercised his right of freedom
of movement within the meaning of Community law. He relies in particular on Case C‑18/95
Terhoeve
[1999] ECR I‑345, where the Court ruled that any Community national who exercises his right to freedom of movement for workers
and who is employed in another Member State falls within the scope of Regulation No 1612/68, irrespective of his place of
residence and his nationality. He states also that in Case C‑57/96
Meints
[1997] ECR I‑6689 the Court ruled that the effect of Regulation No 1612/68 is that payment of a social advantage may not
be made dependent on the condition that the recipient resides on the territory of the Member State which must provide the
benefit to him.
41     The defendant in the main proceedings acknowledges that an individual can rely on Article 39 EC against the Member State of
which he is a national, provided that he has exercised his rights of freedom of movement (see, in particular,
Terhoeve
, paragraphs 27 and 28). The defendant argues, however, that the exercise of those rights must involve transfer of residence
into another Member State with the objective of taking up or continuing an economic activity, or must at least have some connection
with employment, future or not.
42     That however is not the situation of Mr Hendrix. He did leave his State of origin, but he did so merely to reside in another
Member State and not to carry on an economic activity there. Since he has never worked outside the Netherlands, he has never
exercised his rights of freedom of movement. The opinion of the defendant in the main proceedings is that Article 39 EC should
be interpreted in the light of the reasoning employed by the Court on the subject of freedom of establishment in Case C‑112/91
Werner
[1993] ECR I‑429. The Court there ruled that the mere fact that a person resides in a Member State without establishing himself
there did not embody any foreign element on the basis of which Article 43 EC could be pleaded.
43     The Netherlands Government and the Commission present, in essence, the same arguments as the defendant in the main proceedings.
44     The United Kingdom Government also contends that the ruling in
Terhoeve
is not applicable to the facts of the main proceedings. It considers that Mr Hendrix cannot be regarded as a worker who has
exercised his right of freedom of movement and refers, inter alia, in addition to the judgment in
Werner
, to points 93 to 97 of the Opinion of Advocate General Jacobs in Joined Cases C‑245/94 and C‑312/94
Hoever and
Zachow
[1996] ECR I‑4895. His argument was that Regulation No 1612/68 only applies to workers who are nationals of one Member State
but work in another Member State. Accordingly, given the situation of Mr Hendrix, he cannot be considered to be a worker who
has exercised his right to freedom of movement and as such entitled to rely on the provisions of Regulation No 1612/68.
Findings of the Court
45     The facts of the main proceedings are that Mr Hendrix was employed from 1 February 1994 in a DIY retail store in the Netherlands.
On 1 June 1999 Mr Hendrix moved to Belgium but continued to work in the Netherlands, initially in the same store, where he
received a wage which was lower than the statutory minimum wage. That wage was supplemented by the Wajong benefit. When the
UWV, by decision of 28 June 1999, suspended payment of the benefits under the Wajong as from 1 July 1999 and his employer
refused to increase his wage, that employment was terminated. However, from 5 July 1999 onwards, Mr Hendrix was employed in
another DIY retail store where he was paid the statutory minimum wage. In 2001 Mr Hendrix took up residence again in the Netherlands.
46     The situation at issue in the main proceedings is therefore that of a person who, while maintaining paid employment in his
State of origin, transferred his residence to another Member State, and then found other employment in his State of origin.
The fact that Mr Hendrix, after taking up residence in Belgium, continued to work in the Netherlands and then changed employer
in that Member State gives him the status of a migrant worker and brings him, throughout the period at issue in the main proceedings,
that is from June 1999 to 2001, within the scope of Community law and, in particular, within the scope of its provisions relating
to freedom of movement for workers (Case C‑152/03
Ritter-Coulais
[2006] ECR I‑1711, paragraphs 31 and 32, and Case C‑212/05
Hartmann
[2007] ECR I‑0000, paragraph 17).
47     Under Article 7 of Regulation No 1612/68, a migrant worker is to enjoy the same social advantages as those which are made
available to national workers. In accordance with settled case-law, the concept of worker referred to by that provision covers
frontier workers who have the same entitlement to rely on it as any other worker targeted by that provision (see, to that
effect,
Meints
, paragraph 50, Case C‑337/97
Meeusen
[1999] ECR I‑3289, paragraph 21, and
Hartmann
, paragraph 24).
48     As to the concept of social advantage, referred to in Article 7(2) of Regulation No 1612/68, this term covers all the advantages
which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their
status as workers or by virtue of the mere fact of their ordinary residence on the national territory, and the extension of
which to migrant workers therefore seems likely to facilitate their mobility within the Community (Case 249/83
Hoeckx
[1985] ECR 973, paragraph 20, and Case C‑85/96
Martínez Sala
[1998] ECR I‑2691, paragraph 25).
49     The benefit granted under the Wajong is an advantage which is granted to workers who, because of an illness or disability,
are not capable of earning through their work what a person in good health and with the same level of training and experience
ordinarily earns through his work. As the referring court considers, the the benefit in question is therefore a social advantage
within the meaning of Article 7(2) of Regulation No 1612/68.
50     The Court has held that a Member State may not make payment of a social advantage within the meaning of Article 7 of Regulation
No 1612/68 dependent on the condition that recipients are resident in the national territory of that Member State (
Meints
, paragraph 51 and
Meeusen
, paragraph 21).
51     It is true that the benefit under the Wajong is one of the special non-contributory benefits referred to in the provisions
of Article 4(2a) in conjunction with Article 10a of Regulation No 1408/71, receipt of which can lawfully be reserved to persons
who are resident in the territory of the Member State whose legislation provides for such a benefit, and that Article 42(2)
of Regulation No 1612/68 provides that it ‘shall not affect measures taken in accordance with Article 51 of the Treaty’ (now,
after amendment, Article 42 EC), which applies to a coordinating regulation such as Regulation No 1408/71.
52     However, as the Court has consistently held, the provisions of Regulation No 1408/71 enacted to give effect to Article 42
EC must be interpreted in the light of the objective of that article, which is to contribute to the establishment of the greatest
possible freedom of movement for migrant workers (Case C‑215/99
Jauch
[2001] ECR I‑1901, paragraph 20).
53     On that point, Article 7(2) of Regulation No 1612/68 is the particular expression, in the specific area of the grant of social
advantages, of the principle of equal treatment enshrined in Article 39(2) EC, and must be accorded the same interpretation
as Article 39(2) EC (see the judgment of 23 February 2006 in Case C‑205/04
Commission
v
Spain
, not published in the ECR, paragraph 15).
54     It follows that the condition of residence attached to receipt of the benefit under the Wajong can be put forward against
a person in the situation of Mr Hendrix only if it is objectively justified and proportionate to the objective pursued.
55     As the Court held in paragraph 33 of
Kersbergen-Lap and Dams-Schipper
, the Wajong benefit is closely linked to the socio-economic situation of the Member State concerned, since it is based on
the minimum wage and standard of living in the Netherlands. Further, that benefit is one of the special non-contributory benefits
referred to in Article 4(2a) in conjunction with Article 10a of Regulation No 1408/71, which the persons to whom that regulation
applies receive exclusively within the territory of the Member State in which they reside and in accordance with the legislation
of that State. It follows that the condition of residence as such, laid down in the national legislation, is objectively justified.
56     It is also necessary that the application of such a condition does not entail an infringement of the rights which a person
in the situation of Mr Hendrix derives from freedom of movement for workers which goes beyond what is required to achieve
the legitimate objective pursued by the national legislation.
57     From this point of view, it must be observed that the national legislation, as stated above in paragraph 15, expressly provides
that the condition of residence may be waived when the condition leads to an ‘unacceptable degree of unfairness’. In accordance
with settled case-law, it is the responsibility of national courts to interpret, so far as possible, national law in conformity
with the requirements of Community law (Case C‑106/89
Marleasing
[1990] ECR I‑4135, paragraph 8, and Joined Cases C‑397/01 to C-403/01
Pfeiffer and Others
[2004] ECR I‑8835, paragraph 113). The referring court must therefore be satisfied, in the circumstances of this particular
case, that the requirement of a condition of residence on national territory does not lead to such unfairness, taking into
account the fact that Mr Hendrix has exercised his right of freedom of movement as a worker and that he has maintained economic
and social links to the Netherlands.
58     In light of the foregoing, the answer to be given to the referring court must be that Article 39 EC and Article 7 of Regulation
No 1612/68 must be interpreted as not precluding national legislation which applies Article 4(2a) and Article 10a of Regulation
No 1408/71 and provides that a special non‑contributory benefit listed in Annex IIa to that regulation may be granted only
to persons who are resident in the national territory. However, implementation of that legislation must not entail an infringement
of the rights of a person in a situation such as that of the applicant in the main proceedings which goes beyond what is required
to achieve the legitimate objective pursued by the national legislation. It is for the national court, which must, so far
as possible, interpret the national legislation in conformity with Community law, to take account, in particular, of the fact
that the worker in question has maintained all of his economic and social links to the Member State of origin.
The fourth question
59     In this question, the referring court seeks to know whether the rules which relate, inter alia, to European citizenship are
such as to call into question the rule by virtue of which a special non‑contributory benefit such as that provided under the
Wajong is not exportable.
60     As has been stated in the course of answering the preceding questions, a national of a Member State in the situation of Mr
Hendrix falls within the scope of the provisions of the Treaty on freedom of movement for workers.
61     According to settled case‑law, Article 18 EC, which sets out generally the right of every citizen of the Union to move and
reside freely within the territory of the Member States, finds specific expression in Article 39 EC in relation to freedom
of movement for workers (see Case C‑100/01
Oteiza
Olazaba
l [2002] ECR I‑10981, paragraph 26, and Case C‑392/05
Alevizos
[2007] ECR I‑0000, paragraph 66).
62     Since the case in the main proceedings falls within the scope of Article 39 EC, it is not necessary to rule on the interpretation
of Article 18 EC (see, to that effect,
Oteiza Olazabal
, paragraph 26, and
Alevizos,
paragraph 80), and there is, therefore, no need to answer the fourth question.

Costs
63     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1.
A benefit such as that provided under the Law on provision of incapacity benefit to disabled young people (Wet arbeidsongeschiktheidsvoorziening
jonggehandicapten) of 24 April 1997 must be regarded as a special non‑contributory benefit within the meaning of Article 4(2a)
of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons,
to self employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation
(EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1223/98 of 4 June 1998, with the result that only
the coordinating provision in Article 10a of that regulation must be applied to persons who are in the situation of the applicant
in the main proceedings and that payment of that benefit may validly be reserved to persons who reside on the territory of
the Member State which provides the benefit. The fact that the person concerned previously received a benefit for disabled
young people which was exportable is of no relevance to the application of those provisions.
2.
Article 39 EC and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers
within the Community must be interpreted as not precluding national legislation which applies Article 4(2a) and Article 10a
of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1223/98, and provides
that a special non-contributory benefit listed in Annex IIa to Regulation No 1408/71 may be granted only to persons who are
resident in the national territory. However, implementation of that legislation must not entail an infringement of the rights
of a person in a situation such as that of the applicant in the main proceedings which goes beyond what is required to achieve
the legitimate objective pursued by the national legislation. It is for the national court, which must, so far as possible,
interpret the national legislation in conformity with Community law, to take account, in particular, of the fact that the
worker in question has maintained all of his economic and social links to the Member State of origin.
[Signatures]
*
Language of the case: Dutch.