Opinion of the Advocate General — ECLI:EU:C:2006:77
Date: 2006-02-02
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Social security for migrant workers – Community rules – Substantive scope – Benefits covered and benefits excluded (Council Regulation No 1408/71) 2. Citizenship of the European Union – Right of freedom to move and reside within the territory of the Member States – Social advantages (Art. 18 EC) 1. A benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. In that regard, an allowance granted to unemployed persons aged over 50, the grant of which is not of a discretionary nature, which is intended to cover the risk linked to involuntary loss of employment where the worker retains his capacity for work and the recipients of which are subject to the same conditions as other workers seeking an unemployment allowance, must be regarded as an unemployment allowance that falls within the scope of Regulation No 1408/71 even if, under a national provision, the recipient is exempt from registering as a job-seeker. (see paras 22, 29, 34) 2. Freedom of movement and residence, conferred on every citizen of the Union by Article 18 EC, does not preclude a residence clause which is imposed on an unemployed person over 50 years of age who is exempt from the requirement of proving that he is available for work, as a condition for the retention of his entitlement to unemployment benefit. Although such a measure is a restriction on the freedoms conferred by Article 18 EC on every citizen of the European Union, it is justified by the need to monitor the employment and family situation of unemployed persons. That clause allows national authority inspectors to check whether the situation of a recipient of the unemployment allowance has undergone changes which may have an effect on the benefit granted. That justification is accordingly based on objective considerations of public interest independent of the nationality of the persons concerned. Less restrictive measures, such as the production of documents or certificates, would mean that the monitoring would no longer be unexpected and would consequently be less effective, with the result that the measure in question is appropriate for securing the attainment of the objective pursued and does not go beyond what is necessary in order to attain it. (see paras 39, 41-43, 45-48, operative part)