OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 31 January 2018 ( 1 )

Case C‑679/16

A

(Request for a preliminary ruling

from the Korkein hallinto-oikeus (Supreme Administrative Court, Finland))

(Reference for a preliminary ruling — Articles 20 and 21 TFEU — Citizenship of the Union — Free movement of persons — Social security — Regulation (EC) No 883/2004 — Social assistance — Sickness benefits — Services provided to persons with disabilities — Whether or not a municipality within a Member State has an obligation to arrange for one of its inhabitants personal assistance provided for under national law while that person is in higher education in another Member State)

I. Introduction

1. In this case, the Court is, in essence, asked by the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) about the interpretation of Article 3(1)(a) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, ( 2 ) as amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009 ( 3 ) (‘Regulation No 883/2004’), and Articles 20 and 21 TFEU.

2. In essence, the issue is, first, whether personal assistance awarded to a severely disabled person is classified as a ‘sickness benefit’ within the meaning of Article 3(1)(a) of Regulation No 883/2004 or whether it falls outside the scope of the regulation. In the latter event, the referring court asks, secondly, whether Articles 20 and 21 TFEU preclude the competent Finnish authority from refusing to grant such assistance to a severely disabled person, who resides in Finland, so that he may pursue his higher education studies in another Member State, in this case, Estonia.

II. Legal framework

A. United Nations Convention on the Rights of Persons with Disabilities

3. Article 19 of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009, ( 4 ) states as follows: ‘States Parties to the present Convention … shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: … (b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; …’

4. On 11 May 2016, the Republic of Finland ratified the Convention on the Rights of Persons with Disabilities and the Optional Protocol to the convention. The convention and its optional protocol came into force in Finland on 10 June 2016.

B. Regulation No 883/2004

5. Article 1(j), (k) and (l) of Regulation No 883/2004 provides the following definitions: ‘(j) “residence” means the place where a person habitually resides; (k) “stay” means temporary residence; (l) “legislation” means, in respect of each Member State, laws, regulations and other statutory provisions and all other implementing measures relating to the social security branches covered by Article 3(1). …’

6. Article 3 of Regulation No 883/2004, entitled ‘Matters covered’, provides as follows: ‘1. This Regulation shall apply to all legislation concerning the following branches of social security: (a) sickness benefits; … 2. Unless otherwise provided for in Annex XI, this Regulation shall apply to general and special social security schemes, whether contributory or non-contributory, and to schemes relating to the obligations of an employer or shipowner. 3. This Regulation shall also apply to the special non-contributory cash benefits covered by Article 70. … 5. This Regulation shall not apply to: (a) social and medical assistance …; …’

7. Article 9 of Regulation No 883/2004, entitled ‘Declarations by the Member States on the scope of this Regulation’, provides, inter alia, that every year Member States shall notify the European Commission in writing of the legislation and schemes referred to in Article 3.

8. Article 70 of Regulation No 883/2004 reads as follows: ‘1. This Article shall apply to special non-contributory cash benefits which are provided under legislation which, because of its personal scope, objectives and/or conditions for entitlement, has characteristics both of the social security legislation referred to in Article 3(1) and of social assistance. 2. For the purposes of this Chapter, “special non-contributory cash benefits” means those which: (a) are intended to provide either: (i) supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in Article 3(1), and which guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned; or (ii) solely specific protection for the disabled, closely linked to the said person’s social environment in the Member State concerned, and (b) where the financing exclusively derives from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary. However, benefits provided to supplement a contributory benefit shall not be considered to be contributory benefits for this reason alone, and (c) are listed in Annex X. 3. Article 7 and the other chapters of this Title shall not apply to the benefits referred to in paragraph 2 of this Article. 4. The benefits referred to in paragraph 2 shall be provided exclusively in the Member State in which the persons concerned reside, in accordance with its legislation. Such benefits shall be provided by and at the expense of the institution of the place of residence.’

C. Finnish law

1. Law on social care

9. Paragraph 13(1) of the Sosiaalihuoltolaki (Law on social care) (17.9.1982/710) provides as follows: ‘Paragraph 13 When performing its duties relating to social care, the municipality must, having due regard to the provision as to content and extent made in legislation, ensure: 1. the provision of social services for the inhabitants; …’

10. Paragraph 14(1) of the Law on social care provides as follows: ‘For the purposes of this law, “inhabitant of the municipality” shall mean a person whose residence is in the municipality, as provided for in the Väestökirjalaki (Law on civil registries (141/69)). …’

2. Law on services and support provided on grounds of disability

11. Paragraphs 1 and 3, the second subparagraph of Paragraph 8, Paragraphs 8c and 8d of the Laki vammaisuuden perusteella järjestettävistä palveluista ja tukitoimista (Law on services and support provided on grounds of disability (3.4.1987/380)) (‘the Disability Services Law’), provide as follows: ‘Paragraph 1 Purpose of this law The purpose of this law is to promote conditions which enable a disabled person to live and act with others as an equal member of society and to prevent and eliminate hindrances and barriers caused by his disability. … Paragraph 3 Responsibility for organising services and support A municipality must ensure that services and support for the disabled are provided in such a way as to take account of the nature and extent of the needs arising in the municipality. In the provision of services and support as referred to in this law, account must be taken of the customer’s individual need for help (19.12.2008/981). … Paragraph 8 Services for persons with a disability … A municipality must arrange for persons with severe disabilities reasonable accompanied transport services, day activities, personal assistance and assisted living accommodation if the person, as a result of his disability or illness, necessarily requires the service in order to carry out everyday activities. However, the municipality has no particular obligation to provide assisted-living accommodation or personal assistance if the necessary care for the severely disabled person cannot be guaranteed as part of community-based care (19.2.2010/134). Paragraph 8c (19.12.2008/981) Personal assistance For the purposes of this law, “personal assistance” means the assistance necessary for a severely disabled person at home and outside the home: (1) in everyday activity; (2) in work and study; (3) in hobbies; (4) in participation in society; or (5) in maintaining social interaction. The purpose of personal assistance is to help a severely disabled person to implement his own choices in performing the activities referred to in the first subparagraph. Provision of personal assistance presupposes that the severely disabled person has the means to determine the content of the assistance and the manner in which it is delivered. For the purposes of arranging personal assistance, a person is to be regarded as severely disabled if, as a result of long-term or progressive disability or illness, he necessarily and repeatedly needs another person’s help in order to carry out the activities referred to in the first subparagraph and this need is not primarily attributable to age-related illness or disability. Personal assistance is to be arranged for everyday activity, work and study to the extent that the severely disabled person necessarily requires it. For the activities referred to in points (3) to (5) of the first subparagraph above, personal assistance must be provided for at least 30 hours per month, unless a lesser number of hours is sufficient to ensure the provision of the assistance necessarily required by the severely disabled person. Paragraph 8d (19.12.2008/981) Methods of arranging personal assistance When deciding on the methods of arranging personal assistance and when providing personal assistance, the municipality must have regard to the severely disabled person’s own opinion and wishes, and to the need for individual assistance defined in the service plan and to the life situation as a whole. The municipality may arrange personal assistance: (1) by reimbursing a severely disabled person the costs incurred as a result of employing a personal carer, including statutory contributions and payments owed by the employer, and other reasonable and necessary costs of the carer; (2) by giving a severely disabled person a service voucher of an appropriate value as referred to in the Laki sosiaali- ja terveydenhuollon palvelusetelistä (Law on service vouchers for social and healthcare) (569/2009), for the purpose of obtaining the services of a carer; or (30.12.2014/1309); (3) by obtaining for a severely disabled person the services of a carer from a public or private service provider, or by arranging the service itself or together with one or more other municipalities by contract. In the case referred to in point (1) of the second subparagraph above, the severely disabled person must, where necessary, be guided and assisted in questions connected with the employment of the carer. The personal carer referred to in point (1) of the second subparagraph above may not be a relative of the severely disabled person, or another person in a close relationship with that person, unless there is a particularly compelling reason for considering that to be in the interest of the severely disabled person.’

III. Facts of the dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

12. A, the appellant in the case in the main proceedings, was born in 1992 and resides in the municipality of Espoo in Finland. A suffers from a severe disability characterised by cerebral palsy, serious mobility problems and compulsive movements. A clearly has a substantial need for help even for the performance of everyday activities. The municipality of Espoo therefore provided him with a personal carer during his secondary school studies in Finland.

13. In August 2013, A applied to the municipality of Espoo, pursuant to the Disability Services Law, for personal assistance of about five hours per week to cover household chores, such as shopping, cleaning and laundry. The case file in the main proceedings shows that, at the time of his application, A was in the process of moving to Tallinn in Estonia to attend a three-year, full-time course of study there, with the intention of spending three or four days in the Estonian capital and returning to Espoo at weekends.

14. By decision of 12 November 2013, which, following an internal appeal, was upheld by decision of 4 February 2014, A’s application for personal assistance was rejected on the ground that his stay abroad had to be regarded as other than occasional residence, even though his home municipality had not changed. The municipality of Espoo took the view that it was under no obligation to provide services and support abroad, since the nature of A’s stays abroad approximated to the concept of ‘habitual residence’. It was also found that personal assistance could be provided abroad only for holidays or business travel. However, costs are not reimbursed if a person’s home municipality changes because of his being abroad or in the case of other long-term or habitual residence abroad.

15. By judgment of 27 June 2014, the Helsingin hallinto-oikeus (Helsinki Administrative Court, Finland) in essence confirmed that reasoning in an action brought by A against those decisions.

16. An appeal against that judgment was brought before the Korkein hallinto-oikeus (Supreme Administrative Court), which decided, however, that in order to resolve the matter, it was necessary to refer it to the Court of Justice for a preliminary ruling.

17. The referring court notes that, pursuant to the Disability Services Law, personal assistance is a service that the municipality has a special obligation to provide and to which the severely disabled person has a ‘personal right’. Personal assistance must be granted to a severely disabled person meeting the definition laid down in that law, if the assistance is necessary in relation to the individual need of the person concerned. However, although it is undisputed that A’s home municipality remains Espoo, even though he studies in the Estonian capital, the referring court comments that neither the wording of the Disability Services Law nor that of its travaux préparatoires supports the proposition that the municipality has an obligation to pay for the assistance requested in the context of a stay abroad.

18. The Korkein hallinto-oikeus (Supreme Administrative Court) therefore considers that the appeal could succeed only as a result of the interpretation of EU law. In that regard, the referring court first asks whether the nature of the personal assistance provided for by the Disability Services Law means that it should be classified as a sickness benefit, in which case it would fall within the material scope of Regulation No 883/2004, or whether it is a service of a social assistance type, in which case it would fall outside the scope of that regulation. Leaning more towards this second scenario, the referring court goes on to ask whether the provisions of the TFEU relating to citizenship of the Union preclude the refusal of the grant of the personal assistance applied for in the case in the main proceedings.

19. The referring court has therefore decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘(1) Is a benefit such as personal assistance provided for in the Disability Services Law a sickness benefit within the meaning of Article 3(1) of Regulation No 883/2004? (2) If the answer to Question 1 is in the negative, are the rights of Union citizens to move and reside freely in the territory of another Member State, laid down in Articles 20 and 21 TFEU, restricted in a situation in which the grant abroad of a benefit such as personal assistance within the meaning of the Disability Services Law is not separately provided for and the conditions for grant of the benefit are interpreted in such a way that personal assistance is not granted in another Member State in which the person completes a three-year course of higher education studies leading to a degree? – Is it relevant, in assessing the matter, that a benefit such as personal assistance may be granted in Finland in a municipality other than the person’s home municipality, for example when the person is studying in another municipality in Finland? – Must relevance be attached, in assessing the matter with respect to EU law, to the rights derived from Article 19 of the United Nations Convention on the Rights of Disabled Persons? (3) If the Court of Justice considers, in its answer to Question 2, that an interpretation of national law such as that in the present case constitutes a restriction of freedom of movement, is such a restriction nonetheless justifiable on compelling grounds of the public interest relating to the obligation of the municipality to supervise the arranging of personal assistance, the municipality’s possibilities of choosing the most suitable way of arranging assistance, and the maintenance of the coherence and efficacy of the system of personal assistance in accordance with the Disability Services Law?’

20. Written observations on those questions were submitted by the Finnish, Czech and Swedish Governments and the European Commission. In the light of the observations lodged, the Court considered that it had sufficient information and decided, in accordance with Article 76(2) of its Rules of Procedure, not to hold a hearing.

IV. Analysis

21. By its first question, the referring court asks whether personal assistance, such as that provided for in the Disability Services Law, should be classified as a sickness benefit within the meaning of Article 3(1)(a) of Regulation No 883/2004, in which case it would fall within the scope of that regulation or whether it is instead a service falling under ‘social assistance’ within the meaning of Article 3(5) of that regulation, which would, therefore, be expressly excluded from the scope of the regime for coordinating national social security legislation established by the regulation.

22. In that second scenario –– which is the one favoured by the referring court –– the Court is, in essence, invited to answer the question of whether Articles 20 and 21 TFEU, which enshrine the status of citizen of the Union and the right for that citizen to move and reside freely within the territory of the Member States, preclude the refusal by a municipality of one Member State to provide personal assistance applied for by a severely disabled inhabitant of that municipality on the ground that the inhabitant is temporarily staying in another Member State in order to pursue his higher education.

23. I will examine these questions in turn, but will begin by stating that, for the reasons I set out below, it is my opinion that the personal assistance in question does not, as is suggested by the referring court, fall within the category of ‘sickness benefits’ for the purposes of Article 3(1)(a) of Regulation No 883/2004 and that the refusal by the Finnish municipality to grant personal assistance to a severely disabled inhabitant, such as A, is contrary to Articles 20 and 21 TFEU.

A. The classification of personal assistance under Article 3 of Regulation No 883/2004

24. The system established by Regulation No 883/2004 (and the measures that preceded it) ( 5 ) is based upon the distinction between the social security benefits listed in Article 3(1), which fall within the scope of that regulation, and, inter alia, the ‘social assistance’ benefits under Article 3(5), which fall outside the scope of the regulation.

25. The dividing line between social security and social assistance is not easy to trace. Regulation No 883/2004 does not provide any general definition of these fields; nor does it refer to legislation of Member States for this purpose. In addition, the fact that a Member State may have failed to declare under Article 9 of Regulation No 883/2004 that a particular national scheme falls within the scope of the regulation does not have the effect of automatically excluding that scheme from the material scope of Regulation No 883/2004. ( 6 )

26. Faced early on with this problem, the Court identified two conditions which, as a general rule, allow a distinction to be drawn between benefits falling under social security and those which belong to the field of social assistance. According to settled case-law, 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 – it concerns one of the risks expressly listed in Article 3(1) of Regulation No 883/2004. ( 7 )

27. Since the two conditions listed above are cumulative in nature, if either one is not satisfied then the benefit in question will not fall within the scope of Regulation No 883/2004.

28. It sometimes happens that the same benefits scheme contains certain elements akin to social security but also resembles social assistance in certain aspects, which can complicate the analysis of the two conditions referred to in point 26 of this Opinion.

29. In view of the fact that some national laws display a mix of characteristics, the Court has repeatedly stated that although it may seem desirable, from the point of view of applying the regulation, to establish a clear distinction between legislative schemes which come within social security and those which come within assistance, it is possible that certain laws, because of the classes of persons to which they apply, their objectives, and the detailed rules for their application, may simultaneously contain elements belonging to both the categories mentioned and thus defy any general classification. ( 8 )

30. Admittedly, Articles 4(2a) and 10a of Regulation No 1408/71 (which were inserted into that regulation by Council Regulation No 1247/92 of 30 April 1992) ( 9 ) and, now, Articles 3(3) and 70 of Regulation No 883/2004, have partially dealt with that situation. Article 70 of Regulation No 883/2004 sets out the general provisions relating to ‘special non-contributory cash benefits’ which are provided under legislation which, because of its personal scope, objectives and/or conditions of entitlement, has characteristics both of social security legislation and of social assistance. The benefits falling within the scope of that provision include those intended to provide ‘solely specific protection for the disabled, closely linked to the said person’s social environment in the Member State concerned’, which is why, pursuant to Article 70(4) of Regulation No 883/2004, they are to be provided exclusively in the Member State in which the person concerned resides, in accordance with the legislation of that Member State.

31. Even though the concept of ‘social security benefit’ within the meaning of Article 3(1) of Regulation No 883/2004 and the concept of ‘special non-contributory cash benefit’ within the meaning of Articles 3(3) and 70 of that regulation are mutually exclusive, ( 10 ) the fact remains that the application of the latter articles presupposes that the benefits in question fall within the material scope of Regulation No 883/2004, that is to say, that they are classified as benefits that are special, in cash and non-contributory and that they are included, as a rule, on the list of legislation set out for each Member State in Annex X to the said regulation. In the case of the Republic of Finland, the Disability Services Law does not appear on the list in Annex X to Regulation No 883/2004. That would seem to be the reason why the referring court, apparently deliberately, omitted to ask the Court to interpret Articles 3(3) and 70 of that regulation and why the parties did not make any observations on that point. ( 11 )

32. That said, outside the scope of Articles 3(2) and 70 of Regulation No 883/2004 and, therefore, relevant to the demarcation between Article 3(1) and Article 3(5) of that regulation, the condition that carries most weight in the assessment made by the Court is the condition concerning the risks specified in Article 3(1) of Regulation No 883/2004. Even if national legislation confers upon recipients a legally defined position entitling them to benefits, without any individual and discretionary assessment of personal needs, the list contained in Article 3(1) of Regulation No 883/2004 is exhaustive and as a result a benefit that does not cover one of the risks listed in that article must, in any event, fall outside the scope of Regulation No 883/2004. ( 12 )

33. Even though the Court’s case-law on identifying the two conditions set out in point 26 of this Opinion is thus well established, the application of those conditions to cases brought before the Court has proven more controversial.

34. It could legitimately be supposed from the rigorous nature of the first condition defined by the Court that any individual and discretionary assessment of the needs of the individual concerned, allowed on the part of the competent national administration, would result in the possibility of classification as a social security benefit being ruled out. However, in what is, in my view, a rather contradictory stance, the Court has found that condition to be met, despite the fact that a benefit was granted only in the light of the claimant’s assets, income, and the number and age of his dependent children, as the criteria were objective and legally defined and the competent authority had no power to ‘take account of other personal circumstances’. ( 13 ) More recently, on the other hand, in an action for failure to fulfil obligations brought by the Commission against the Slovak Republic and relating to allowances to compensate for the social consequences of severe disability, the Court held that, although the medical and social examinations and what was described as a detailed report, in which the proposal as to the type of allowance to be granted was set out, were carried out on the basis of objective and legally defined criteria, the Commission had not established that those criteria gave entitlement to the benefits at issue without the competent authority having any discretion as to their grant. ( 14 )

35. As for application of the second condition, although it recalled that the risks or benefits expressly set out in Article 3(1) of Regulation No 883/2004 are exhaustive, the Court acknowledged that, notwithstanding the list being silent on the risk of reliance on care, ( 15 ) benefits relating to that risk could be treated as ‘sickness benefits’ within the meaning of that article and, therefore, fall within the scope of EU legislation on the coordination of national social security schemes. ( 16 ) Equating the risk of reliance on care with the risk of sickness in that way is, however, subject to certain conditions so as not to unduly broaden the scope of Regulation No 883/2004, given that the regulation does not contain any provision dealing specifically with that risk. Accordingly, the Court found that benefits intended to cover the risk of reliance on care must not only meet the first condition referred to in point 26 of this Opinion, but must, above all, be intended to ‘improve the state of health and the quality of life of persons reliant on care’ by being ‘essentially intended to supplement sickness insurance’. ( 17 ) Benefits covering the risk of reliance on care, which, like sickness benefits, are generally long-term benefits, are at most supplementary to the ‘classic’ sickness benefits, that are rather intended to be paid on a short-term basis and that fall stricto sensu within Article 3(1)(a) of Regulation No 883/2004. ( 18 )

36. Whether the two conditions set out in point 26 of this Opinion are met in the case in the main proceedings must thus be ascertained in the light of those factors, given that, as the referring court rightly notes, according to the case-law, the fact that the Republic of Finland omitted to declare the Disability Services Law as falling within Article 3 of Regulation No 883/2004 does not mean that that law falls outside the substantive scope of that EU act.

1. The condition relating to the grant of a benefit on the basis of a legally defined position without any individual and discretionary assessment of personal needs

37. The referring court seems unsure whether this first condition is met. Although that court states that the individual needs of severely disabled persons are taken into account on the grant of the personal assistance provided for by the Disability Services Law, which would make that benefit more akin to social assistance, the same law gives the designated beneficiaries a ‘personal right’ to the grant of personal assistance on the basis of legally defined conditions, regardless of the income level of the beneficiary.

38. The Finnish and Swedish Governments take the view that, since the individual needs of the beneficiary are taken into account and the municipality has a degree of discretion as to the methods of arranging the personal assistance and the extent thereof, the situation in question can be compared to the situation relating to the benefit that gave rise to the judgment of 16 September 2015, Commission v Slovakia (C‑433/13, EU:C:2015:602). However, the Commission and, to a lesser extent, the Czech Government, take the view that the first condition is met.

39. Taking into account the information supplied by the referring court, I tend to share the position taken by the latter two parties.

40. There is no question that taking account of the individual needs of the person concerned is mentioned several times in the Disability Services Law, in particular in Paragraphs 8c and 8d thereof.

41. Nevertheless, it is undisputed that personal assistance has to be provided by the municipality, if the person is resident within that municipality and meets the definition of severely disabled person, regardless of the income of that person.

42. As was essentially noted by the Czech Government, the degree of discretion given by Paragraph 8d of the Disability Services Law to the municipality where the beneficiary resides does not relate to whether a person is eligible for the personal assistance, but rather to the methods for arranging that assistance and the extent thereof. It is precisely in that respect that the present case differs from the situation considered in the judgment of 16 September 2015, Commission v Slovakia (C‑433/13, EU:C:2015:602, paragraphs 79 and 80). In that case, the Court held, first, that the Commission had not established that the criteria under Slovak law relating to the various medical and social examinations to be carried out ‘[gave] entitlement to the benefits at issue without the competent authority having any discretion as to their grant’, and, secondly, that the said law provided that ‘the entitlement to a compensatory allowance and its payment arise from a valid decision of the competent authority as to the recognition of that right’, supporting the position of the Slovak Government, according to which ‘the administration has discretion as to the grant of the benefits at issue’. ( 19 ) In view of the referring court’s uncertainties, it would be helpful of the Court to reiterate that, in order to rule out satisfaction of the first condition referred to in point 26 of this Opinion, the discretionary assessment of the beneficiary’s individual needs must, above all, relate to eligibility for the benefit in question. ( 20 )

43. Therefore, I am of the view that the first condition referred to in point 26 of this Opinion should be regarded as having been met.

2. The condition relating to the grant of a benefit concerning one of the risks expressly listed in Article 3(1) of Regulation No 883/2004

44. As for the second condition, it must be determined whether the personal assistance at issue in the case in the main proceedings constitutes or must be treated as a ‘sickness benefit’, within the meaning of Article 3(1)(a) of Regulation No 883/2004.

45. As I have already pointed out, the Court has, on a number of occasions, held that benefits the aim of which is to improve the state of health and life of persons reliant on care are essentially intended to supplement sickness insurance benefits and must, therefore, be treated as ‘sickness benefits’ within the meaning of that article. ( 21 )

46. In my view, and as the Finnish and Swedish Governments commented in their written observations, the aim of personal assistance under the Disability Services Law cannot be regarded as the improvement of either the condition associated with the beneficiary’s disability or his health. First of all, Paragraph 1 of the Disability Services Law states that ‘the purpose of this law is to promote conditions which enable a disabled person to live and act with others as an equal member of society and to prevent and eliminate hindrances and barriers caused by disability.’ Next, as stated in Paragraph 8c of the Disability Services Law, the purpose of personal assistance is to help a severely disabled person to implement his own choices in performing the actions listed in that paragraph, namely everyday activity, work and study, hobbies, participation in society, or maintaining social interaction. Finally, as observed by the Finnish Government, the travaux préparatoires for the Disability Services Law confirm that requirements for assistance relating to care, treatment or supervision are expressly excluded from the scope of personal assistance.

47. The purpose of personal assistance is therefore not medical, unlike the Finnish (disabled) childcare allowance (lapsen hoitotuki) which was the subject of the case leading to the judgment of 18 October 2007, Commission v Parliament and Council (C‑299/05, EU:C:2007:608, paragraphs 57 to 59) and which the Court held to be a sickness benefit within the meaning of Article 4(1)(a) of Regulation No 1408/71 (now Article 3(1)(a) of Regulation No 883/2004) due to the fact that the purpose of that allowance is to enable the parents of disabled children to provide for the care, supervision and possibly rehabilitation of those children.

48. It is therefore necessary, at this point, to determine whether personal assistance, the aim of which is to improve not the state of health of severely disabled persons but, admittedly, only the ‘life of persons reliant on care’, within the meaning of the case-law cited in point 45 of this Opinion, can be regarded as a ‘sickness benefit’, within the meaning of Article 3(1)(a) of Regulation No 883/2004.

49. As I have already pointed out, the risk of reliance on care is not expressly covered by Article 3(1) of Regulation No 883/2004.

50. In its case-law, the Court has treated benefits provided under care insurance schemes as sickness benefits, to the extent that their aim is to improve the state of health and quality of life of persons reliant on care. The cases in question concerned the payment of certain expenditure entailed by the insured person’s reliance on care, regardless of the method by which the schemes were financed, which related, at least concomitantly, to care provided to the person and to the improvement of the person’s everyday life, for example, through the provision of equipment and assistance by third parties. ( 22 ) This approach remains unaltered by the judgment of 1 February 2017, Tolley (C‑430/15, EU:C:2017:74) on which the Commission relies, maintaining that, at paragraph 53 of that judgment, the Court placed emphasis on the fact that the sole purpose was to improve the life of persons reliant on the ‘care’ component of the disability living allowance at issue in that case. In fact, first, the purpose of the ‘care’ component of that allowance was to cater for the extra costs of requiring certain types of care or of being unable or virtually unable to walk, ( 23 ) which, in my view, explains its connection to ‘sickness benefits’. Secondly, the questions referred by the referring court related above all to whether the ‘care’ component of the said allowance should be classified as a ‘sickness benefit’ rather than as a benefit to provide for invalidity or old age, which itself is a risk covered by Regulation No 883/2004.

51. In any event, I am of the view that the Court should refrain from equating with sickness benefits any allowances, such as the personal assistance at issue in the main proceedings, the sole purpose of which is to improve the everyday life of severely disabled persons, unless the allowances include, as a minimum, payment for care or equipment intended to improve the state of health of those persons. If the Court decided to proceed down that route, it would end up including the risk of reliance on care per se in the exhaustive list in Article 3(1) of Regulation No 883/2004 and therefore within the scope of that regulation, which is something that has been resisted by the EU legislature, despite the many amendments made over the years to EU legislation on the coordination of national social security schemes. I would not encourage the Court to follow such a course, which would risk distorting the very concept of ‘sickness benefits’ within the meaning of Article 3(1)(a) of Regulation No 883/2004.

52. I therefore consider that personal assistance that consists of paying costs incurred in everyday activities, such as the shopping, the housework and the laundry of a severely disabled and economically inactive person, with the aim of allowing that person to pursue higher education, should not be regarded as a ‘sickness benefit’ within the meaning of Article 3(1)(a) of Regulation No 883/2004.

53. In those circumstances, it is not necessary, despite suggestions to the contrary made by the Czech Government and the Commission, to rule on the question of whether the personal assistance provided for by the Disability Services Law should be classified as a ‘cash’ or ‘in kind’‘sickness benefit’ within the meaning of Regulation No 883/2004, since the assistance does not, in my opinion, fall within the scope of that regulation.

54. At this juncture, the second and third questions referred by the referring court therefore fall to be examined, having been raised precisely on the hypothesis that personal assistance fell outside the scope of Regulation No 883/2004.

B. Restriction of freedom of movement of citizens of the Union

55. By the second and third questions referred for a preliminary ruling, the referring court asks, in essence, whether Articles 20 and 21 TFEU, which enshrine the right of citizens of the Union to move and reside freely within the territory of other Member States, preclude the situation where a Finnish resident, such as the appellant in the main proceedings, is refused personal assistance, such as that provided for in the Disability Services Law, by his home municipality, on the grounds that he stays in another Member State to pursue his higher education.

56. Those questions are based on two assumptions.

57. First, it is undisputed that the appellant in the main proceedings retains his residence in Finland, within the meaning of the Kotikuntalaki (11.3.1994/201) (Law on home municipality of 11 March 1994, ‘the Law on home municipality’), and that his weekly stays in Estonia for study are only temporary, the referring court having found that he returns to his home municipality every weekend.

58. Secondly, the referring court found that the pursuit of studies, unlike business travel and holidays, has not been accepted as being among the grounds that allow an individual to receive personal assistance abroad. It is true that the Finnish Government disputed that interpretation of the national law in its written observations, as it had before the referring court, arguing that the Disability Services Law does not prevent a municipality from using its discretion to grant personal assistance in a case such as the one in the main proceedings. Nevertheless, irrespective of the merits of that remark, pursuant to the division of powers arising under Article 267 TFEU, it is not for the Court to interfere in the interpretation of national law adopted by the referring court, which retains exclusive responsibility for that interpretation. ( 24 )

59. Those clarifications having been made, it must be borne in mind that, as a Finnish national, the appellant in the main proceedings enjoys the status of citizen of the Union under Article 20(1) TFEU and may therefore rely on the rights conferred on those having that status, including against his Member State of origin. ( 25 )

60. That status is intended to be the fundamental status of nationals of the Member States when they are in a situation within the scope ratione materiae of the FEU Treaty. ( 26 )

61. The situations falling within the scope of EU law include, of course, those involving the exercise of the fundamental freedoms guaranteed by the FEU Treaty, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU. ( 27 )

62. It is apparent from settled case-law that national legislation which places certain nationals at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State constitutes a restriction of the freedoms conferred by Article 21(1) TFEU on every citizen of the Union. ( 28 )

63. Several of the cases in which the Court has recalled the case-law to which I have just referred concerned grants for training or study where the grant was conditional on a minimum residence requirement on the territory of the Member State awarding it, a condition which the students in question did not satisfy. ( 29 )

64. The present case can be distinguished from that line of case-law in two respects. First, personal assistance is not granted exclusively for the pursuit of study, but for the social and economic integration of severely disabled persons so that they can implement their ‘own choices’, including study. ( 30 ) Secondly, the personal assistance applied for by the appellant in the main proceedings was refused by the municipality of Espoo on the grounds that pursuing his higher education in Tallinn would lead to him habitually residing in Estonia. As I have already noted, the referring court refuted that approach, finding that the appellant in the main proceedings retained his residence in the municipality of Espoo, within the meaning of the Law on home municipality, as was indeed acknowledged by the Finnish Government in its written observations.

65. It would therefore appear that personal assistance was refused solely because the higher education course selected by the appellant in the main proceedings, who was otherwise eligible for the assistance, took place in a Member State other than Finland.

66. As the Finnish and Swedish Governments acknowledged, such a refusal constitutes a restriction on the freedom for all citizens of the Union to move and reside within another Member State, recognised by Article 21(1) TFEU. As the Court has previously held, the opportunities offered by the Treaty in relation to freedom of movement for citizens of the Union cannot be fully effective if a national of a Member State could be dissuaded from using them by obstacles resulting from his stay in another Member State because of legislation of his State of origin which penalises the mere fact that he has used those opportunities. ( 31 )

67. Such a restriction of one of the fundamental freedoms guaranteed by the Treaty can be justified in the light of EU law only if it is based on objective considerations of public interest independent of the nationality of the persons concerned, and if it is proportionate to a legitimate objective pursued by the provisions of national law. ( 32 )

68. In that regard, the referring court makes reference in its request to paragraphs 89 and 90 of the judgment of 21 July 2011, Stewart (C‑503/09, EU:C:2011:500), and mentions two potential grounds of justification. First, the restriction could be acceptable owing to the obligation on the municipality to supervise the arrangement of the personal assistance. Secondly, limiting the provision of personal assistance to Finnish territory is likely to maintain the coherence and efficacy of the personal assistance system, including the municipality’s ability to choose the appropriate methods of organising and providing the assistance.

69. Although neither the Czech Government nor the Commission expressed an opinion on that question, and the Finnish Government takes the view that there is no consideration of public interest that could justify the restriction at issue in the main proceedings, the Swedish Government considers that the municipality’s supervisory duty and the financial balance of the social security system justify the grant of personal assistance being limited to Finnish territory.

70. I myself wish first to make the point that there appears to be some confusion in relation to the public interest objectives mentioned by the referring court. In referring to paragraphs 89 and 90 of the judgment of 21 July 2011, Stewart (C‑503/09, EU:C:2011:500), the referring court seems to think that those objectives are ensuring a genuine link between the person claiming a benefit and the competent Member State and preserving the financial balance of the national security scheme, whilst it explicitly refers to the coherence and efficacy of the personal assistance system, a justification resembling that frequently invoked by Member States in the application of their tax systems, but which does not arise in the judgment that the referring court mentions.

71. Nevertheless, the Court did recognise, in paragraphs 89 and 90 of the judgment of 21 July 2011, Stewart (C‑503/09, EU:C:2011:500), that the objectives of national legislation which seek to establish a genuine link between a claimant to short-term incapacity benefit in youth and the competent Member State and to preserve the financial balance of the national social security system, constitute, in principle, legitimate objectives capable of justifying restrictions on the rights of freedom and residence under Article 21(1) TFEU.

72. In that case, the Court reached the conclusion that the condition that the claimant be present on the national territory (in the United Kingdom), both prior to the claim and on the date on which the claim was made, could not be justified by the two objectives stated above. ( 33 ) In particular, the Court found that, although the claimant of the incapacity benefit resided in a Member State other than the United Kingdom (in that instance, Spain), the existence of a ‘genuine and sufficient connection’ with the United Kingdom could be demonstrated by elements other than the presence of the claimant in the United Kingdom prior to the claim, such as the relationship the claimant had with the UK social security system and the family circumstances. ( 34 ) In addition, the Court held that that assessment also applied with regard to the objective of preserving the financial balance of the national social security system since the genuine and sufficient connection between the claimant and the competent Member State enabled that State to satisfy itself that the economic cost of paying the benefit at issue did not become unreasonable. ( 35 )

73. In my opinion, the conclusion reached by the Court in that judgment is all the more applicable in the case in the main proceedings. At the risk of repeating myself, it is undisputed that A retains his permanent residence in the municipality to which he applied for personal assistance and that he returns there weekly during his studies in Estonia. Therefore, in my view, it cannot validly be maintained that the municipality may have particular difficulties in supervising compliance with the conditions or the arrangements for the organisation and provision of the assistance. Moreover, the referring court has not supplied any information as to the kind of obstacles that might affect the municipality’s ability to monitor compliance with the conditions on which use of personal assistance is granted in a situation such as the one in the main proceedings to any greater extent than they would in a case, permitted under Finnish law, in which the same personal assistance is used abroad by a Finnish resident during business trips or holidays. ( 36 )

74. In addition, I would point out that the Finnish Government has stated that there is currently nothing to suggest that the grant of personal assistance in circumstances such as those at issue in the main proceedings may pose a threat to the balance of the national social security system. In the absence of any further specific information from the referring court to suggest the existence of such a threat, it is my view that formal note should be taken of that finding.

75. I therefore consider that, in circumstances such as those in the case in the main proceedings, none of the objectives put forward by the referring court can justify the restriction of the freedom of movement and residence of a citizen of the Union such as A.

76. In those circumstances, there is no need to rule on the interpretation of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities, although this was also requested by the referring court, since that would have no bearing on the answer I propose should be given to the second and third questions referred for a preliminary ruling.

V. Conclusions

77. In the light of all of the foregoing considerations, I suggest that the Court respond to the request for a preliminary ruling made by the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) as follows: (1) A benefit, such as the personal assistance at issue in the case in the main proceedings, does not fall within the category of ‘sickness benefits’ within the meaning of Article 3(1)(a) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems. (2) Articles 20 and 21 TFEU must be interpreted as precluding the refusal by a municipality within a Member State to grant personal assistance, such as that at issue in the case in the main proceedings, on the ground that the claimant, who is severely disabled and who resides in the territory of that municipality, is pursuing or wishes to pursue higher educational studies, in order to obtain a degree, in another Member State.

( 1 ) Original language: French.

( 2 ) OJ 2004 L 166, p. 1.

( 3 ) OJ 2009 L 284, p. 43.

( 4 ) Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (OJ 2010 L 23, p. 35).

( 5 ) Namely: Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Journal Officiel 1958, p. 561) and Regulation (EEC) No 1408/71 of the Council 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 (OJ, English Special Edition 1971(II), p. 416), in the version amended and updated by Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1).

( 6 ) See, inter alia, by analogy with Article 5 of Regulation No 1408/71, judgment of 11 July 1996, Otte (C‑25/95, EU:C:1996:295, paragraph 20 and the case-law cited).

( 7 ) See, inter alia, judgments of 27 March 1985, Hoeckx (249/83, EU:C:1985:139, paragraphs 12 to 14); of 16 July 1992, Hughes (C‑78/91, EU:C:1992:331, paragraph 15); of 7 November 2002, Maaheimo (C‑333/00, EU:C:2002:641, paragraphs 22 and 24); of 30 June 2011, da Silva Martins (C‑388/09, EU:C:2011:439, paragraph 38); of 16 September 2015, Commission v Slovakia (C‑433/13, EU:C:2015:602, paragraph 71); and of 21 June 2017, Martinez Silva (C‑449/16, EU:C:2017:485, paragraph 20).

( 8 ) See, to that effect, in the context of Regulation No 3, judgment of 22 June 1972, Frilli (1/72, EU:C:1972:56, paragraph 13) together with, in the context of Regulation No 1408/71, judgments of 28 May 1974, Callemeyn (187/73, EU:C:1974:57, paragraph 6); of 27 March 1985, Hoeckx (249/83, EU:C:1985:139, paragraph 12); and of 27 March 1985, Scrivner and Cole (122/84, EU:C:1985:145, paragraph 19).

( 9 ) Council Regulation (EEC) No 1247/92 of 30 April 1992 amending Regulation No 1408/71 (OJ 1992 L 136, p. 1).

( 10 ) See judgments of 21 February 2006, Hosse (C‑286/03, EU:C:2006:125, paragraph 36), and of 16 September 2015, Commission v Slovakia (C‑433/13, EU:C:2015:602, paragraph 45).

( 11 ) Generally speaking, the Court refuses to extend or alter the subject matter of the request for a preliminary ruling when questions of interpretation of EU law are, deliberately, not referred to it: see, in that respect, my Opinion in Fonnship and Svenska Transportarbetareförbundet (C‑83/13, EU:C:2014:201, points 19 to 24).

( 12 ) See, to that effect, judgments of 27 March 1985, Hoeckx (249/83, EU:C:1985:139, paragraph 12); of 27 March 1985, Scrivner and Cole (122/84, EU:C:1985:145, paragraph 19); of 11 July 1996, Otte (C‑25/95, EU:C:1996:295, paragraph 22); of 5 March 1998, Molenaar (C‑160/96, EU:C:1998:84, paragraph 20); and of 30 June 2011, da Silva Martins (C‑388/09, EU:C:2011:439, paragraph 41).

( 13 ) See judgment of 16 July 1992, Hughes (C‑78/91, EU:C:1992:331, paragraph 17) (my emphasis). See also judgment of 2 August 1993, Acciardi (C‑66/92, EU:C:1993:341, paragraph 15).

( 14 ) Judgment of 16 September 2015, Commission v Slovakia (C‑433/13, EU:C:2015:602, paragraphs 78 and 79).

( 15 ) The Court defined the risk of reliance on care as essentially the situation in which, because of limited independence, a person is reliant on others to carry out the basic routines of everyday life: see judgments of 30 June 2011, da Silva Martins (C‑388/09, EU:C:2011:439, paragraphs 39 and 40), and of 12 July 2012, Commission v Germany (C‑562/10, EU:C:2012:442, paragraph 44).

( 16 ) See, in the context of Article 4(1) of Regulation No 1408/71, judgments of 5 March 1998, Molenaar (C‑160/96, EU:C:1998:84, paragraphs 23 to 25); of 8 March 2001, Jauch (C‑215/99, EU:C:2001:139, paragraph 28); of 8 July 2004, Gaumain-Cerri and Barth (C‑502/01 and C‑31/02, EU:C:2004:413, paragraph 19); of 21 February 2006, Hosse (C‑286/03, EU:C:2006:125, paragraphs 38 to 44); of 18 October 2007, Commission v Parliament and Council (C‑299/05, EU:C:2007:608, paragraphs 10, 61 and 70); of 30 June 2011, da Silva Martins (C‑388/09, EU:C:2011:439, paragraphs 40 to 45); of 12 July 2012, Commission v Germany (C‑562/10, EU:C:2012:442, paragraph 45); and of 1 February 2017, Tolley (C‑430/15, EU:C:2017:74, paragraph 46).

( 17 ) See, inter alia, judgments of 5 March 1998, Molenaar (C‑160/96, EU:C:1998:84, paragraph 24); of 18 October 2007, Commission v Parliament and Council (C‑299/05, EU:C:2007:608, paragraph 61); of 30 June 2011, da Silva Martins (C‑388/09, EU:C:2011:439, paragraph 45); and of 1 February 2017, Tolley (C‑430/15, EU:C:2017:74, paragraph 46).

( 18 ) See, to that effect, judgment of 30 June 2011, da Silva Martins (C‑388/09, EU:C:2011:439, paragraphs 47 and 48).

( 19 ) My emphasis.

( 20 ) It is therefore not necessary for the Court to rule on the additional argument put forward by the Commission, based on the judgment of 5 May 1983, Piscitello (139/82, EU:C:1983:126), according to which the fact that the appellant in the main proceedings has benefited from a right of appeal in the present case is an indication that personal assistance is not social assistance but a social security benefit which gives him a legally defined position. Although it is true that, in his Opinion in that case (139/82, EU:C:1983:67, point 5), Advocate General Mancini relied additionally on a similar situation, the Court made no mention of that in its judgment. Furthermore, the exercise of discretion in the grant of social assistance does not absolve the administration from review by the courts, particularly at the current stage of development of EU law. In addition, in view of the porosity between social security and social assistance, social assistance is increasingly becoming a right in Member States, like the Kingdom of Belgium, which now upholds the ‘right’ to social integration; see, in that regard, Paolillo, M., ‘Entre assurance et assistance: L’articulation entre la sécurité sociale et l’aide sociale au sens large’, Annales de Droit de Louvain, 2012, No 4, p. 438.

( 21 ) See, inter alia, judgments of 5 March 1998, Molenaar (C‑160/96, EU:C:1998:84, paragraph 24), and of 30 June 2011, da Silva Martins (C‑388/09, EU:C:2011:439, paragraph 45).

( 22 ) See, inter alia, judgments of 5 March 1998, Molenaar (C‑160/96, EU:C:1998:84, paragraph 23); of 8 July 2004, Gaumain-Cerri and Barth (C‑502/01 and C‑31/02, EU:C:2004:413, paragraphs 3, 21 and 26); and of 12 July 2012, Commission v Germany (C‑562/10, EU:C:2012:442, paragraphs 40 and 46).

( 23 ) Judgment of 1 February 2017, Tolley (C‑430/15, EU:C:2017:74, paragraph 15).

( 24 ) See, to that effect, inter alia, judgment of 14 June 2017, Online Games and Others (C‑685/15, EU:C:2017:452, paragraph 45 and the case-law cited).

( 25 ) See, to that effect, inter alia, judgment of 26 February 2015, Martens (C‑359/13, EU:C:2015:118, paragraph 20 and the case-law cited).

( 26 ) See, to that effect, judgment of 26 February 2015, Martens (C‑359/13, EU:C:2015:118, paragraph 21 and the case-law cited).

( 27 ) See, to that effect, judgment of 26 February 2015, Martens (C‑359/13, EU:C:2015:118, paragraph 22 and the case-law cited).

( 28 ) Judgment of 26 February 2015, Martens (C‑359/13, EU:C:2015:118, paragraph 25 and the case-law cited).

( 29 ) See, inter alia, the facts behind the judgments of 18 July 2013, Prinz and Seeberger (C‑523/11 and C‑585/11, EU:C:2013:524); of 24 October 2013, Elrick (C‑275/12, EU:C:2013:684); and of 26 February 2015, Martens (C‑359/13, EU:C:2015:118).

( 30 ) In this regard, it is not impossible that the appellant in the main proceedings, who wishes to study law, ultimately has no option than to study outside Finland. There are currently only three law faculties in Finland (Helsinki, Turku and Rovaniemi), access to which is subject to a particularly demanding entrance examination. In addition, although the city of Helsinki is a few kilometres from the municipality of Espoo, Turku and Rovaniemi are located 150 km and 830 km respectively from Espoo, in other words, significantly further away from Espoo than Tallinn, which is served by several daily sea connections departing primarily from Helsinki.

( 31 ) Judgment of 26 February 2015, Martens (C‑359/13, EU:C:2015:118, paragraph 26 and the case-law cited).

( 32 ) See, to that effect, judgment of 26 February 2015, Martens (C‑359/13, EU:C:2015:118, paragraph 34 and the case-law cited).

( 33 ) Judgment of 21 July 2011, Stewart (C‑503/09, EU:C:2011:500, paragraphs 104 and 109).

( 34 ) Judgment of 21 July 2011, Stewart (C‑503/09, EU:C:2011:500, paragraphs 97 to 102).

( 35 ) Judgment of 21 July 2011, Stewart (C-503/09, EU:C:2011:500, paragraph 103).

( 36 ) I even wonder whether, in view of the fact, mentioned by the referring court, that it is possible for personal assistance to continue to be granted if the recipient pursues his higher education in a Finnish municipality other than this home municipality, the ability of the home municipality to supervise the use of the assistance is not simpler in the situation where the appellant in the main proceedings pursues his studies in Tallinn and returns to Espoo every weekend, than it would be if he had attended the law faculty in Rovaniemi, nearly 900 km from his home municipality.