CELEX: 62005CJ0192
Benefit awarded to civilian war victims by a Member State
Condition of residence in the territory of that State at the time when the application for the benefit is submitted
Article 18(1) EC

The reference for a preliminary ruling concerns the interpretation of Article 18(1) EC.
The reference has been made in the course of proceedings between, on the one hand, Mrs Tas-Hagen and Mr Tas and, on the other,
the Raadskamer WUBO van de Pensioen- en Uitkeringsraad (Pension and Benefit Board Advisory Chamber on the Law on Benefits
for Civilian War Victims, hereinafter ‘the PUR’) concerning the latter’s refusal to grant them various benefits to which they
claim to be entitled as civilian war victims.

The national legislation
The national legislation consists of the Law on Benefits for Civilian War Victims 1940-1945 (Wet uitkeringen burger-oorlogsslachtoffers
1940-1945) of 10 March 1984 (
Staatsblad
1984, No 94, hereinafter the ‘WUBO’).
Article 2(1) of the WUBO states:
‘1.      For the purposes of the application of this Law and the provisions for its implementation, the term “civilian war victims”
refers to:
…
(f)      all civilians who sustained mental or physical injury resulting in permanent disability or death,  as a result of the disturbances
– comparable both in their nature and their consequences to the circumstances outlined under (a), (b), (c) and (d) – which
followed the war and which lasted until 27 December 1949 in the former Dutch East Indies.’
Under Article 3 of the WUBO:
‘1.      This Law applies to:
(a)      all civilian war victims – as defined in Article 2(1) – during the years 1940 to 1945 or in the following years, on the condition
that, having held Netherlands nationality at the time of the event, … they hold Netherlands nationality and reside in the
Netherlands at the time at which the application is submitted;
(b)      all civilian war victims – as defined in Article 2(1) – during the years 1940 to 1945 or in the following years, on the condition
that, having been foreign nationals resident, at the time of the events, in the Netherlands, where they were resident for
reasons other than the following of the orders of an enemy power, they have held Netherlands nationality and have lived uninterruptedly
in the Netherlands until the time at which the application is submitted;
(c)      all civilian war victims – as defined in Article 2(1) – during the years 1940 to 1945 or in the following years, on the condition
that, having been foreign nationals resident, at the time of the events, in the former Dutch East Indies, where they were
resident for reasons other than the following of the orders of an enemy power, they held Netherlands nationality and lived
uninterruptedly in the Dutch East Indies, in Indonesia, or in the former Dutch New Guinea until the date of their arrival
in the Netherlands, and at the latest until 1 April 1964, before becoming resident in the Netherlands and living there uninterruptedly
until the time at which the application is submitted …
2.      If a person fulfils the requirements laid out in paragraph 1(b) and (c), or his immediate family members … have acquired Netherlands
nationality during their uninterrupted stay in the Netherlands, or in the former Dutch East Indies, in Indonesia, or in the
former Dutch New Guinea, their stay need not have been uninterrupted, on the condition that the applicant or his immediate
family members retain Netherlands nationality until their death and are resident in the Netherlands at the time at which the
application is submitted.
3.      If the person who fulfils the criteria laid down in paragraph 1(a), and paragraph 2, or his immediate family members … become
resident in the Netherlands after the date of entry into force of the present Law, they shall be deprived of the right to
benefits under the present Law if they again become resident elsewhere before five years have elapsed.
4.      “Arrival in the Netherlands” for the purposes of paragraph 1(c) … must be understood as meaning, inter alia, the filing of
an application for authorisation to reside in the Netherlands, on the condition that this application was successful.
5.      “Uninterrupted stay” for the purposes of paragraph 1 must be understood as meaning any stay that has not been interrupted
by a stay of more than one year in another country.
6.      In cases where the non-application of the present Law would lead to obvious hardship, the Pension and Benefit Board can extend
the application of the Law to any civilian who was, in the years 1940 to 1945, or in the following years, a war victim within
the meaning of Article 2(1), as well as to the civilian’s immediate family members, even if the criteria laid down in paragraphs
1, 2 or 3 are not fulfilled.’
The ‘hardship clause’ provided for in Article 3(6) of the WUBO allows for derogations in certain cases from the nationality
and residence conditions, to the extent to which there is a particular link between the civilian war victim and Netherlands
society at the time of the war and at the time when the application is submitted. The general criterion to be applied in such
cases is that the residence outside the Netherlands must be attributable to circumstances which, viewed objectively, lie outside
the immediate control of the person concerned, such as, in particular, border realignments or medical reasons.

The main proceedings and the question referred for preliminary ruling
Mrs Tas-Hagen was born in 1943 in what was at the time the Dutch East Indies and came to the Netherlands in 1954. In 1961
she acquired Netherlands nationality. In 1987, after having become incapable of working and thereby forced to terminate her
professional career, she took up residence in Spain.
In December 1986, while still resident in the Netherlands, Mrs Tas-Hagen applied, under the WUBO, for the grant of a periodic
benefit and an allowance to cover various expenses. This application was based on health problems resulting from the events
that she had experienced in the Dutch East Indies during the Japanese occupation and during the Bersiap period following that
occupation.
By decision of 5 June 1989, the PUR rejected the application. According to this decision, which is in line with the opinion
given by a medical consultant, Mrs Tas-Hagen had not suffered any injury capable of resulting in permanent disability, with
the result that she could not be regarded as a civilian war victim within the terms of the WUBO. Mrs Tas-Hagen did not appeal
against this decision.
In 1999 Mrs Tas-Hagen filed a new application seeking recognition as a civilian war victim and the grant of a periodic benefit
and a further allowance to cover expenses to improve her living conditions.
By decision of 29 September 2000, the PUR rejected the application. Taking account of the guidelines applicable from 1 July
1998 to establish permanent disability, the PUR, on the basis of the opinion of its medical consultants, recognised the applicant’s
status as a civilian war victim. However, as the applicant was resident in Spain when her application was submitted, the PUR
took the view that the territorial requirement laid down in the WUBO had not been satisfied. The decision also stated that
the circumstances of the case were not sufficiently special to justify application of the hardship clause. By decision of
28 December 2001, the PUR dismissed the objection lodged by Mrs Tas-Hagen against the decision of 29 December 2000.
Mr Tas was born in the Dutch East Indies in 1931. In 1947 he took up residence in the Netherlands. From 1951 to 1971 he held
Indonesian nationality. He regained Netherlands nationality in 1971.
In 1983 Mr Tas’s term of employment as an official of the Hague municipal council ended, and he was declared wholly incapable
of work on grounds of mental health. In 1987 Mr Tas took up residence in Spain.
In April 1999 Mr Tas submitted an application under the WUBO for, inter alia, the grant of a periodic benefit and an additional
allowance to improve his living conditions. By decision of 28 December 2000, the PUR rejected this application. It stated
that, although Mr Tas was recognised as a civilian war victim, he did not satisfy the territorial condition laid down in the
WUBO, since, at the time at which he submitted the application, he was resident in Spain. The PUR also took the view that
the circumstances were not sufficiently special to justify application of the hardship clause. By decision of 28 December
2001, the PUR dismissed the objection lodged by Mr Tas against the decision of 28 December 2000 on the ground that it was
unfounded.
Mrs Tas-Hagen and Mr Tas thereupon commenced legal proceedings challenging the decisions to reject their applications, contending
inter alia that the condition of residence in the Netherlands at the time of the applications, laid down in Article 3 of the
WUBO, is contrary to the Treaty provisions on citizenship of the Union.
In those circumstances, the Centrale Raad van Beroep (Higher Social Security Court) decided to stay the proceedings and to
refer the following question to the Court for a preliminary ruling:
‘Does Community law, in particular Article 18 EC, preclude national legislation under which, in circumstances such as those
in the main proceedings, the grant of a benefit for civilian war victims is refused solely on the ground that the person concerned,
who holds the nationality of the relevant Member State, was resident, not in the territory of that Member State, but in the
territory of another Member State at the time when the application was submitted?’

The question referred for preliminary ruling

The applicability of Article 18(1) EC
In order to provide a useful answer to the question referred, it must first be determined whether a situation such as that
in the main proceedings falls within the scope of Community law, and in particular of Article 18(1) EC.
Regarding the scope
ratione personae
of that provision, suffice it to state that, under Article 17(1) EC, every person holding the nationality of a Member State
is a citizen of the Union. Furthermore, Article 17(2) EC attributes to citizens of the Union the rights conferred and duties
imposed by the Treaty, including those mentioned in Article 18(1) EC.
As Netherlands nationals, Mrs Tas-Hagen and Mr Tas enjoy the status of citizens of the Union under Article 17(1) EC and may
therefore benefit from the rights conferred on those having that status, such as, inter alia the right to move and to reside
freely within the territory of the Member States conferred by Article 18(1) EC.
As to the material scope of Article 18(1) EC, the question of the applicability
ratione materiae
of this provision to the main proceedings was raised in the course of the proceedings before the Court. According to the
PUR and some of the Member States which submitted observations, that provision can be relied upon only if, over and above
the mere exercise of the right to freedom of movement, the facts of the main proceedings relate to a matter covered by Community
law, with the result that Community law is applicable
ratione materiae
to that case. Under this view, Mrs Tas-Hagen and Mr Tas cannot plead any infringement of Article 18(1) EC in this case because
benefits for civilian war victims do not come within the scope of Community law.
In that regard, it is important to bear in mind that, as Community law now stands, a benefit such as that in issue in the
main proceedings, which is intended to compensate civilian war victims for physical or mental damage which they have suffered,
falls within the competence of the Member States.
However, Member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions
giving every citizen of the Union the right to move and reside freely within the territory of the Member States.
Furthermore, it is accepted that citizenship of the Union, established by Article 17 EC, is not intended to extend the material
scope of the Treaty to internal situations which have no link with Community law (Joined Cases C‑64/96 and C‑65/96
Uecker and Jacquet
[1997] ECR I‑3171, paragraph 23, and Case C‑148/02
Garcia Avello
[2003] ECR I‑11613, paragraph 26).
In this case, it must be held that a situation such as that of the applicants in the main proceedings is covered by the right
of free movement and residence of citizens of the European Union.
In that regard, it must be borne in mind that Mrs Tas-Hagen and Mr Tas, in taking up residence in Spain, were exercising the
right granted by Article 18(1) EC to every citizen of the Union to move and reside freely within the territory of a Member
State other than that of which he is a national.
Furthermore, it is clear from the documents sent to the Court by the Centrale Raad van Beroep that the rejection of the applications
for benefits submitted by Mrs Tas-Hagen and Mr Tas was attributable to the fact that, at the time at which they submitted
those applications, they had taken up residence in Spain.
Since, in order to obtain a benefit granted to civilian war victims such as that in issue in the main proceedings, the WUBO
requires that applicants, at the time of their applications, be resident in the Netherlands, the unavoidable conclusion is
that the exercise by the applicants of their right to move and reside freely within the territory of a Member State other
than that of which they are nationals was such as to affect their prospects of receiving that benefit.
It follows that, as the exercise by Mrs Tas-Hagen and Mr Tas of a right recognised by the Community legal order has had an
impact on their right to receive a benefit under national legislation, such a situation cannot be considered to be a purely
internal matter with no link to Community law.
It is therefore necessary to examine whether Article 18(1) EC, which is applicable to a situation such as that in the main
proceedings, is to be interpreted as precluding national legislation requiring that applicants for a benefit granted to civilian
war victims be resident in the Netherlands at the time when their application is submitted.

The need for a condition of residence
With regard to the scope of Article 18(1) EC, the Court has already held that the opportunities offered by the Treaty in relation
to freedom of movement cannot be fully effective if a national of a Member State can be deterred from availing himself of
them by obstacles raised to his residence in the host Member State by legislation of his State of origin penalising the fact
that he has used them (Case C‑224/02
Pusa
[2004] ECR I‑5763, paragraph 19).
National legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because
they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred
by Article 18(1) EC on every citizen of the Union (Case C‑406/04
De Cuyper
[2006] ECR I‑0000, paragraph 39).
The WUBO constitutes just such a restriction. In making payment of the benefit to civilian war victims conditional on the
fact that applicants are resident in the territory of the Netherlands at the time when their application is submitted, this
Law is liable to dissuade Netherlands nationals in a situation such as that of the applicants in the main proceedings from
exercising their freedom to move and to reside outside the Netherlands.
Such a restriction can be justified, with regard to Community law, only if it is based on objective considerations of public
interest independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national
provisions (
De Cuyper
, paragraph 40).
As to the first condition, which concerns the existence of objective considerations of public interest, it is apparent from
the order for reference that the limitation by the WUBO, by means of the condition of residence, of the number of persons
likely to be eligible for the benefits introduced by that Law results from the Netherlands legislature’s wish to limit the
obligation of solidarity with civilian war victims to those who had links with the population of the Netherlands during and
after the war. The condition of residence is therefore an expression of the extent to which such victims are connected to
Netherlands society.
Admittedly, this aim of solidarity may constitute an objective consideration of public interest. It is still necessary for
the condition of proportionality outlined in paragraph 33 above to be met. It follows from the case-law that a measure is
proportionate when, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is
necessary in order to attain it (
De Cuyper
, paragraph 42).
With regard to benefits that are not covered by Community law, Member States enjoy a wide margin of appreciation in deciding
which criteria are to be used when assessing the degree of connection to society, while at the same time complying with the
limits imposed by Community law.
However, a condition of residence such as that in issue in the main proceedings cannot be characterised as an appropriate
means by which to attain the objective sought.
As the Advocate General has noted in points 67 and 68 of her Opinion, a criterion requiring residence cannot be considered
a satisfactory indicator of the degree of connection of applicants to the Member State granting the benefit when it is liable,
as is the case with the criterion in issue in the main proceedings, to lead to different results for persons resident abroad
whose degree of integration into the society of the Member State granting the benefit is in all respects comparable.
Consequently, the setting of a residence criterion such as that used in the main proceedings, based solely on the date on
which the application for the benefit is submitted, is not a satisfactory indicator of the degree of attachment of the applicant
to the society which is thereby demonstrating its solidarity with him. It follows that this condition of residence fails to
comply with the principle of proportionality referred to in paragraphs 33 and 35 above.
In the light of the foregoing considerations, the answer to the question must be that Article 18(1) EC is to be interpreted
as precluding legislation of a Member State under which it refuses to grant to one of its nationals a benefit for civilian
war victims solely on the ground that, at the time at which the application was submitted, the person concerned was resident,
not in the territory of that Member State, but in the territory of another Member State.

Costs
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 (Second Chamber) hereby rules:
Article 18(1) EC must be interpreted as precluding legislation of a Member State under which it refuses to grant to one of
its nationals a benefit for civilian war victims solely on the ground that, at the time at which the application was submitted,
the person concerned was resident, not in the territory of that Member State, but in the territory of another Member State.
[Signatures]
*
Language of the case: Dutch.