WRITTEN QUESTION E-0702/00

by Bartho Pronk (PPE-DE) to the Commission

(17 March 2000)

Subject: Non-exportability of the Netherlands Wajong benefit

The Netherlands Government has placed the Invalidity Insurance (Young Disabled Persons) Act acronym Wajong in the annex to Article 10a of Regulation 1408/71(1), as a result of which benefits under this Act can no longer be exported.

1. It is apparent from the preamble to Regulation 1247/92(2) that need is the essential criterion for the granting of the relevant benefits. Do Wajong benefits meet this requirement, given that they are available to all, irrespective of income from other sources?

2. Does the Commission agree that in fact only means-tested benefits can be listed in the annex?

3. To what extent does the situation described above detract from free movement of workers and the self-employed pursuant to Articles 39 and 42 of the EC Treaty, because children of these workers and self-employed persons cannot export the benefit concerned?

4. Article 4(2a) refers to special benefits. Will the Commission indicate the criteria for the concept special?

(1) OJ L 149, 5.7.1971, p. 2.

(2) OJ L 136, 19.5.1992, p. 1.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(2 May 2000)

Regulation (EEC) No 1408/71(1) and its implementing Regulation No 574/72 coordinating the various social security schemes guarantee equal treatment in relation to the nationals of a given country, provide for the export of social security benefits within the Community and the aggregation of periods of insurance, and enable the sole applicable legislation to be determined so that migrant workers are not placed at a disadvantage as compared with persons who have spent their entire career in a single Member State.

The material scope of this Community legislation also encompasses special non-contributory benefits intended either to provide supplementary, substitute or ancillary cover against the risks referred to, or solely as specific protection for the disabled (Article 4(2a) of Regulation (EEC) No 1408/71). Article 10a of the same Regulation states that such benefits, provided that they are listed in Annex IIa, are subject to special arrangements which depart from the exportability principle in that persons entitled to such benefits may only receive them in the territory of the Member State in which they reside.

Having said this, the Commission would like to make the following observations in response to the questions raised by the Honourable Member concerning benefits provided for under the Act passed by the Netherlands on 24 April 1997 (Wajong), which are entered in Annex IIa of Regulation (EEC) No 1408/71 and thus constitute special non-contributory benefits not subject to export.

1. and 2. The special nature of this type of benefit lies in the fact that their characteristic features fall simultaneously within the areas of social security and social assistance; this is because of their personal scope, their aims and the arrangements for their application. These benefits thus confer a legally defined entitlement within the field of social security. In the area of social assistance, need is an essential criterion for granting such benefits. This term may, however, refer to the specific situation in which the persons concerned find themselves and is not evaluated purely in financial terms for which it is assumed that means testing would necessarily be carried out. This is especially true when national legislation aims to meet the special needs of disabled people arising from their mental or physical state.

In this connection, the Court of Justice has already had occasion to accept the principle of non-exportability of a non-means-tested benefit for disabled people (see Case C-20/96 SNARES, 4 November 1997)(2). In addition, the Court has ruled that the special status of this type of benefits was also justified by the fact that they were closely linked to the economic and social structure of the Member State granting them, and thus also to the place of residence of the person concerned (see esp. judgment of 27 September 1998 in Case C-313/86 Lenoir)(3).

3. Finally, in the rulings referred to above, the Court accepted the validity of special coordination rules governing special non-contributory benefits, and in particular their non-exportability, under provisions of the EC Treaty.

4. In view of the above observations, the Commission considers that it would not serve any useful purpose to look in greater detail at the characteristics of special non-contributory benefits.

(1) Most recent consolidated version: Regulation (EC) No 118/97 (OJ L 28, 30.10.1997).

(2) ECR 1997, I-6057.

(3) ECR 1998, p. 5391.