Opinion of the Advocate General — ECLI:EU:C:2008:281
Date: 2008-05-15
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Social security for migrant workers – Community legislation – Substantive scope (Council Regulation No 1408/71, Art. 4(1)(g)) 2. Social security for migrant workers – Equal treatment (Art. 39 EC; Council Regulation No 1408/71, Art. 4(1)(g)) 1. A benefit such as the advance granted to unemployed persons who have applied for the grant of a benefit under the statutory pension and accident insurance scheme on the ground of reduced capacity to work or incapacity to work must be regarded as an ‘unemployment benefit’ within the meaning of Article 4(1)(g) of Regulation No 1408/71. First, the purpose and object of the benefit in question is to provide an applicant for invalidity benefit who is unemployed or has no income, when the circumstances indicate that the pension should be granted, with the financial means to meet his needs until a definitive decision is adopted on his application and, consequently, during a period in which it is still uncertain whether the applicant can return to professional life. That benefit, which is also paid by the authorities competent in the matter of unemployment, is essentially to replace the remuneration lost by reason of unemployment and thereby provide for the maintenance of the unemployed person. In addition, with regard to the basis on which the benefit at issue in the main proceedings is calculated, the amount thereof is determined in the same way as unemployment benefit. Finally, with regard to the conditions for the grant of the said benefit, in addition to the fact that the provisions applicable to that benefit are laid down in the rules concerning unemployment benefit and that the benefit is paid by the authorities competent in regard to unemployment, the applicant for an invalidity pension must fulfil the conditions for entitlement to unemployment benefit in terms of length of affiliation; in addition, the period of entitlement to the benefit must not be exhausted. Under those circumstances, notwithstanding the fact that it is linked to an application for an invalidity pension, such a benefit is directly related to the risk of unemployment referred to in Article 4(1)(g) of Regulation No 1408/71. (see paras 23, 25, 29-30, 35-36, operative part 1) 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 advance granted to unemployed persons who have applied for the grant of a benefit under the statutory pension and accident insurance scheme on the ground of reduced capacity to work or incapacity to work, 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. Unless it is objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. That is true of a residence condition such as the one to which the grant of the benefit at issue is subject, which can be more easily met by national workers than by those from other Member States, since the latter workers above all, particularly in the case of unemployment or invalidity, tend to leave the country in which they were formerly employed to return to their countries of origin. (see paras 54-55, 64, operative part 2)