# C_2008285EN.01000802.xml

| 8.11.2008 | EN | Official Journal of the European Union | C 285/8 |
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8.11.2008

EN

Official Journal of the European Union

C 285/8

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Judgment of the Court (Third Chamber) of 11 September 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Jörn Petersen v Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich

(Case C-228/07) (1)

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(Social security - Regulation (EEC) No 1408/71 - Article 4(1)(b) and (g), Article 10(1) and Article 69 - Freedom of movement for persons - Articles 39 EC and 42 EC - Statutory pension and accident insurance scheme - Benefit for reduced capacity to work or incapacity to work - Advance payment to unemployed persons who apply for the grant of a benefit - Whether the benefit is an ‘unemployment benefit’ or an ‘invalidity benefit’ - Residence qualification)

(2008/C 285/12)

Language of the case: German

Referring court

Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: Jörn Petersen

Applicant:

Defendant: Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich

Defendant:

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof — Interpretation of Article 39 EC and of Article 4(1)(b) and (g) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ 1971 L 149, p. 2) — Whether a monetary payment from unemployment insurance, not subject to the condition that the applicant be capable of working or ready for work, and payable as an advance, pending a final decision, only to unemployed persons having previously applied for a benefit under the statutory pension and accident insurance scheme on the ground of reduced capacity for work or incapacity for work, to be classified as an unemployment benefit or as an invalidity benefit — National legislation suspending that benefit if the unemployed person concerned lives in another Member State

Operative part of the judgment

| 1. | A benefit such as the one at issue in the main proceedings must be regarded as an ‘unemployment benefit’ within the meaning of Article 4(1)(g) 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; |
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1.

A benefit such as the one at issue in the main proceedings must be regarded as an ‘unemployment benefit’ within the meaning of Article 4(1)(g) 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;

| 2. | Inasmuch as no factor has been put forward which shows that such a condition is objectively justified and proportionate, Article 39 EC must be interpreted as preventing a Member State from making the grant of a benefit such as the one at issue in the main proceedings, which must be regarded as an ‘unemployment benefit’ within the meaning of Article 4(1)(g) of Regulation No 1408/71, subject to the condition that the recipients be resident in the national territory of that State. |
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2.

Inasmuch as no factor has been put forward which shows that such a condition is objectively justified and proportionate, Article 39 EC must be interpreted as preventing a Member State from making the grant of a benefit such as the one at issue in the main proceedings, which must be regarded as an ‘unemployment benefit’ within the meaning of Article 4(1)(g) of Regulation No 1408/71, subject to the condition that the recipients be resident in the national territory of that State.

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(1)  OJ C 170, 21.7.2007.

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