JUDGMENT OF THE COURT

of 5 May 2021

in Case E-8/20

Criminal proceedings against N

(Freedom to receive services – Freedom of movement for workers – Regulation (EEC) No 1408/71 – Regulation (EC) No 883/2004 – Retention of social security benefits in another EEA State – Sickness benefit – Stay – Restriction of a fundamental freedom – Justification)

(2021/C 324/12)

In Case E-8/20, Criminal proceedings against N – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Supreme Court of Norway (Norges Høyesterett) concerning the interpretation of the Agreement on the European Economic Area, in particular Articles 28 and 36, 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, Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the Court, composed of Páll Hreinsson, President (Judge-Rapporteur), Per Christiansen and Bernd Hammermann, Judges, gave judgment on 5 May 2021, the operative part of which is as follows:

1. The answer to the first and twelfth questions is that a benefit such as the work assessment allowance at issue in the main proceedings constitutes a sickness benefit within the meaning of point (a) of Article 4(1) of Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and point (a) of Article 3(1) of Regulation (EC) No 883/2004 on the coordination of social security systems.

2. The answer to the second, third, and fourth questions must be that a situation such as that at issue in the main proceedings does not come within the scope of Articles 19 or 22 of Regulation (EEC) No 1408/71. However, that finding does not have the effect of removing national rules such as those at issue in the main proceedings from the scope of the provisions of the main part of the EEA Agreement or another legal act incorporated into the EEA Agreement.

3. The answer to the fifth, sixth, seventh, and eight questions must be that Article 36 EEA must be interpreted as precluding legislation of an EEA State, such as that at issue in the main proceedings, which makes the right of insured persons to retain sickness benefits in cash within the meaning of point (a) of Article 4(1) of Regulation (EEC) No 1408/71 in the case of a stay in another EEA State subject to — a requirement that the recipient of sickness benefits may stay abroad only for a limited period of time which may not usually exceed four weeks per year; and — a system of prior authorisation, which provides for such authorisation to be refused unless it can be demonstrated that the stay in another EEA State is compatible with the performance of defined activity obligations and does not impede follow-up and control by the competent institution.

4. In light of the answer given to the fifth, sixth, seventh and eighth questions, it is not necessary to answer the ninth, tenth and eleventh questions.

5. The answer to the thirteenth question must be that the term ‘staying’ in Article 21(1) of Regulation (EC) No 883/2004 must be interpreted as encompassing short-term stays in another EEA State not constituting ‘residence’ within the meaning of point (j) of Article 1 of that regulation, such as those at issue in the main proceedings.

6. The answer to the fourteenth question must be that Article 21 of Regulation (EC) No 883/2004 must be interpreted as covering situations where a medical diagnosis is given during a stay in an EEA State other than the competent EEA State as well as situations where, as in the main proceedings, the diagnosis is recognised by the competent institution before departure.

7. The answer to the fifteenth question must be that Article 21(1) of Regulation (EC) No 883/2004 must be interpreted as precluding conditions such as (i) that the benefit may be provided only for a maximum of four weeks per year outside of Norway; (ii) that it must be demonstrated that the stay abroad is compatible with the activity obligations and does not impede follow-up and control by the competent institution; and (iii) that the person concerned must obtain authorisation and comply with the notification duty through the use of a notification form. Accordingly, a further assessment of such conditions under other provisions of EEA law is not necessary.