Case C-228/07: Judgment of the Court (Third Chamber) of 11 September 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Jörn Petersen v Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich (Social security — Regulation (EEC) No 1408/71 — Article 4(1)(b) and (g), Article 10(1) and Article 69 — Freedom of movement for persons — Articles 39 EC and 42 EC — Statutory pension and accident insurance scheme — Benefit for reduced capacity to work or incapacity to work — Advance payment to unemployed persons who apply for the grant of a benefit — Whether the benefit is an unemployment benefit or an invalidity benefit — Residence qualification)
Date: 2008-09-11
Institutions: Court of Justice
Subjects: disability insurance, incapacity for work, interpretation of the law, pension scheme, social-security benefit, unemployment insurance

C 285/8

EN

Official Journal of the European Union

8.11.2008

Judgment of the Court (Fourth Chamber) of 11 September
the European Communities v
2008 — Commission of

Federal Republic of Germany

Parties to the main proceedings

(Case C-141/07) (1)

Applicant: Jörn Petersen

(Failure of a Member State to fulfil obligations — Measures
having equivalent effect to a quantitative restriction — Protec-
tion of public health — Justification — Pharmacies — Supply
of medicinal products directly to hospitals — Proximity to the
hospital concerned)

(2008/C 285/11)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Schima, acting as Agent)
Defendant: Federal Republic of Germany (represented by: M.
Lumma and C. Schulze-Bahr, Agents)

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 28 EC and 30 EC — National rules stipulating
requirements to be met by pharmacies in order to be permitted
to supply pharmaceutical products directly to hospitals and
capable of being met in practice only by pharmacies located in
the vicinity of the hospital concerned

Operative part of the judgment

The Court:
1. Dismisses the action;

2. Orders the Commission of the European Communities to pay the

costs.

Defendant:
Niederösterreich

Landesgeschäftsstelle

des

Arbeitsmarktservice

Re:

Reference for a preliminary ruling — Verwaltungsgerichtshof —
Interpretation of Article 39 EC and of Article 4(1)(b) and (g) of
Council Regulation (EEC) No 1408/71 of 14 June 1971 on the
application of social security schemes to employed persons and
their families moving within the Community (OJ 1971 L 149,
p. 2) — Whether a monetary payment from unemployment
insurance, not subject to the condition that the applicant be
capable of working or ready for work, and payable as an
advance, pending a final decision, only to unemployed persons
having previously applied for a benefit under the statutory
pension and accident
insurance scheme on the ground of
reduced capacity for work or incapacity for work, to be classi-
fied as an unemployment benefit or as an invalidity benefit —
National legislation suspending that benefit if the unemployed
person concerned lives in another Member State

(1) OJ C 117, 26.5.2007.

Operative part of the judgment

Judgment of the Court (Third Chamber) of 11 September
2008 (reference for a preliminary ruling from the Verwal-
(Austria)) — Jörn Petersen v Landes-
tungsgerichtshof

geschäftsstelle des Arbeitsmarktservice Niederösterreich

(Case C-228/07) (1)

(Social
security — Regulation (EEC) No 1408/71 —
Article 4(1)(b) and (g), Article 10(1) and Article 69 —
Freedom of movement for persons — Articles 39 EC and 42 EC
insurance scheme —
— Statutory pension and accident
Benefit for reduced capacity to work or incapacity to work —
Advance payment to unemployed persons who apply for the
grant of a benefit — Whether the benefit is an ‘unemploy-
or an ‘invalidity benefit’ — Residence
ment benefit’

qualification)

(2008/C 285/12)

Language of the case: German

Referring court

Verwaltungsgerichtshof

1. A benefit such as the one at issue in the main proceedings must be
regarded as an ‘unemployment benefit’ within the meaning of
Article 4(1)(g) of Council Regulation (EEC) No 1408/71 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, as amended and updated
by Council Regulation (EC) No 118/97 of 2 December 1996;

2. Inasmuch as no factor has been put forward which shows that such
a condition is objectively justified and proportionate, Article 39 EC
must be interpreted as preventing a Member State from making the
grant of a benefit such as the one at issue in the main proceedings,
which must be regarded as an ‘unemployment benefit’ within the
meaning of Article 4(1)(g) of Regulation No 1408/71, subject to
the condition that the recipients be resident in the national territory
of that State.

(1) OJ C 170, 21.7.2007.