Halina Nerkowska v Zakład Ubezpieczeń Społecznych Oddział w Koszalinie.
Date: 2008-05-22
21. First, regarding the scope ratione personae of this provision, suffice it to state that, under Article 17(1) EC, every person holding the nationality of a Member State is a citizen of the Union. In addition, Article 17(2) EC attributes to citizens of the Union the rights conferred and duties imposed by the EC Treaty, including those mentioned in Article 18(1) EC (Case C-192/05 Tas-Hagen et Tas  [2006] ECR I‑10451, paragraph 18).
22. As a Polish national, Ms Nerkowska enjoys the status of citizen of the Union established by Article 17(1) EC and may therefore rely where relevant on the rights conferred on those having that status, such as the rights to move freely and to reside freely laid down in Article 18(1) EC.
23. Secondly, as to the scope ratione materiae of Article 18(1) EC, it is to be noted that, as Community law now stands, a benefit such as that in issue in the main proceedings, which is intended to compensate civilian victims of war or repression for physical or mental harm which they have suffered, falls within the competence of the Member States ( Tas-Hagen and Tas , paragraph 21).
24. However, Member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions concerning the freedom accorded to every citizen of the Union to move and reside freely within the territory of the Member States ( Tas-Hagen and Tas , paragraph 22).
25. Furthermore, it is accepted that citizenship of the Union, established by Article 17 EC, is not intended to extend the scope ratione materiae of the Treaty to internal situations which have no link with Community law (Joined Cases C-64/96 and C‑65/96 Uecker and Jacquet  [1997] ECR I-3171, paragraph 23; Case C-148/02 Garcia Avello  [2003] ECR I-11613, paragraph 26; and Tas-Hagen and Tas , paragraph 23).
26. However, the Court has already held that situations which fall within the scope ratione materiae of Community law include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the freedom, as conferred by Article 18 EC, to move and reside within the territory of the Member States (Case C-209/03 Bidar  [2005] ECR I-2119, paragraph 33, and Case C‑403/03 Schempp  [2005] ECR I-6421, paragraphs 17 and 18).
31. With regard to the scope of Article 18(1) EC, the Court has already held that the opportunities offered by the Treaty in relation to freedom of movement cannot be fully effective if a national of a Member State can be deterred from availing himself of them by obstacles raised to his residence in the host Member State by legislation of his State of origin penalising the fact that he has used them (Case C‑224/02 Pusa  [2004] ECR I‑5763, paragraph 19, and Tas-Hagen and Tas , paragraph 30).
32. National legislation which places certain of the nationals of the Member State concerned at a disadvantage simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union (Case C‑406/04 De Cuyper  [2006] ECR I‑6947, paragraph 39, and Tas-Hagen and Tas , paragraph 31).
34. National legislation which imposes such a restriction on the exercise of freedoms by nationals of the Member State concerned can be justified, under Community law, only if it is based on objective considerations of public interest independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national provisions ( De Cuyper , paragraph 40, and Tas-Hagen and Tas , paragraph 33).
37. It is true that both the wish to ensure that there is a connection between the society of the Member State concerned and the recipient of a benefit and the necessity to verify that the recipient continues to satisfy the conditions for the grant of that benefit constitute objective considerations of public interest which are capable of justifying the fact that the conditions for the grant or payment of the benefit may affect the freedom of movement of the citizens of that Member State.
38. As regards the requirement for a connection with the society of the Member State concerned, the Court has held, with regard to a benefit such as that at issue in the main proceedings, which is not covered by Community law, that Member States enjoy a wide margin of appreciation in deciding which criteria are to be used to assess the degree of connection to society, while at the same time being required to comply with the limits imposed by Community law ( Tas-Hagen and Tas , paragraph 36).
45. If medical or administrative checks make it necessary for the recipient of a benefit such as that at issue in the main proceedings to be in the territory of the Member State concerned, nothing precludes that Member State from requesting that the recipient go to that State for the purpose of undergoing such a check, including on pain of suspension of payment of the benefit if there is an unwarranted refusal on the part of the recipient.
47. In view of the foregoing considerations, the answer to the question referred must be that Article 18(1) EC is to be interpreted as precluding legislation of a Member State under which it refuses, generally and in all circumstances, to pay to its nationals a benefit granted to civilian victims of war or repression solely because they are not resident in the territory of that State throughout the period of payment of the benefit, but in the territory of another Member State.
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