Case C-287/05: Reference for a preliminary ruling from the Centrale Raad van Beroep by order of that court of  15 July 2005  in D.P.W. Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen
Date: 2005-11-26
Institutions: Court of Justice
Subjects: Netherlands, disabled person, free movement of workers, interpretation of the law, legal domicile, non-contributory benefit, social security legislation

26.11.2005

EN

Official Journal of the European Union

C 296/9

ORDER OF THE COURT

(Sixth Chamber)

of 22 June 2005

in Case C-281/04 P: Michael Leighton, Graham French,
John Steven Neiger v Council of the European Union,
Commission of the European Communities, John Pascoe,
Richard Micklethwait, Ruth Margaret Micklethwait (1)

(Appeal — Action for failure to act — Failure to commence
proceedings for failure to fulfil obligations — Non-contrac-
tual liability of the Community — Clear inadmissibility)

(2005/C 296/17)

(Language of the case: English)

(lawyer:

In Case C-281/04 P: Michael Leighton, Graham French, John
Steven Neiger,
the other parties to the
J. Barnett)
proceedings being Council of the European Union, Commission
of the European Communities,
(Agents: E. Traversa and M.
John Pascoe, Richard Micklethwait, Ruth Margaret
Shotter),
Micklethwait — appeal under Article 56 of the Statute of the
Court of Justice lodged on 25 June 2004, the Court (Sixth
Chamber), composed of A. Borg Barthet, President of
the
Chamber, J.-P. Puissochet and U. Lõhmus (Rapporteur), Judges;
A. Tizzano, Advocate General; R. Grass, Registrar, made an
order on 22 June 2005, the operative part of which is as
follows

1. The appeal is dismissed.

2. Mr Leighton, Mr French and Mr Neiger shall pay the costs.

(1) OJ C 288 of 11.09.2004.

Reference for a preliminary ruling from the Centrale Raad
van Beroep by order of that court of 15 July 2005 in
D.P.W. Hendrix v Raad van Bestuur van het Uitvoeringsin-
stituut Werknemersverzekeringen

Court Registry on 18 July 2005, for a preliminary ruling in the
proceedings between D.P.W. Hendrix and Raad van Bestuur
van het Uitvoeringsinstituut Werknemersverzekeringen on the
following questions:

1. Must a benefit under the Wajong,

listed in Annex IIa to
Regulation No 1408/71, (1) be deemed to be a special non-
contributory benefit, as referred to in Article 4(2)a of Regu-
lation No 1408/71, with the result that only the coordi-
nating provision introduced by Article 10a of Regulation
No 1408/71 must be applied to persons such as the appel-
lant in the main proceedings? In answering this question
does it make any difference whether the person concerned
originally received a benefit (funded by contributions) for
disabled young persons under
the AAW which was
converted by operation of the law into a Wajong benefit as
of 1 January 1998?

2. If the answer to Question 1 is in the affirmative: can a
worker rely on Article 39 EC, as implemented by Article 7
of Regulation No 1612/68, (2) against the Member State of
which he is a national where he has worked solely in that
in the territory of another
Member State but
Member State?

resides

3. If the answers to Question 1 and 2 are in the affirmative:
must Article 39 EC, as implemented by Article 7(2) of Regu-
lation No 1612/68, be understood as meaning that a provi-
sion of legislation which makes the grant or continuation of
a benefit conditional on the person concerned being resi-
dent in the territory of the Member State whose legislation
is at issue is always compatible therewith where that legisla-
tion provides for a special non-contributory benefit, as
referred to in Article 4(2)a of Regulation No 1408/71, and
is listed in Annex IIa to that regulation?

4. If the answer to Questions 1 and 2 is in the affirmative and
the answer to Question 3 is in the negative: must Com-
munity law (including, inter alia, Article 7(2) of Regulation
No 1612/68 and Article 39 EC and Articles 12 EC and 18
EC) be understood as meaning that sufficient justification
can be found in the nature of the Wajong to invoke the resi-
dence condition against a citizen of the Union who is in
full-time employment in the Netherlands and in that regard
is subject solely to Netherlands legislation?

(Case C-287/05)

(2005/C 296/18)

(Language of the case: Dutch)

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on
the application of social security schemes to employed persons and
their families moving within the Community (OJ, English Special
Edition, 1971 (II), p. 416).

(2) Regulation (EEC) No 1612/68 of the Council of 15 October 1968
on freedom of movement for workers within the Community (OJ,
English Special Edition, 1968 (II), p. 475).

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Centrale Raad van Beroep
(Higher Social Security Court) of 15 July 2005, received at the