Opinion of the Advocate General — ECLI:EU:C:2007:196
Date: 2007-03-29
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers;Free movement of workers;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Social security for migrant workers – Special non-contributory benefits (Council Regulation No 1408/71, Art. 4(2a), Art. 10a, and Annex IIa) 2. Freedom of movement for persons – Workers – Equal treatment – Social advantages (Art. 39 EC; Council Regulations Nos 1612/68, Art. 7, and 1408/71, Art. 4(2a), Art. 10a, and Annex IIa) 1. A benefit such as that provided under the Netherlands Law on provision of incapacity benefit to disabled young people (Wet arbeidsongeschiktheidsvoorziening jonggehandicapten), referred to in Annex IIa to Regulation No 1408/71 as amended and updated by Regulation No 118/97, as amended by Regulation No 1223/98, 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 in Article 10a of that regulation must be applied 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. (see para. 38, operative part 1) 2. Article 39 EC and Article 7 of Regulation No 1612/68 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 which a person enjoys from the freedom of movement of workers 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. (see paras 56, 58, operative part 2)