Jörn Petersen v Landesgeschäftsstelle des Arbeitsmarktservice Niederösterreich.
Date: 2008-09-11
19. According to settled case-law, a benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Case C‑286/03 Hosse  [2006] ECR I-1771, paragraph 37, and Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt and Others  [2007] ECR I‑11895, paragraph 63).
21. With regard to determining the precise nature of the benefit at issue in the main proceedings, it is clear from the Court’s case-law that social security benefits must be regarded, irrespective of the characteristics peculiar to different national legal systems, as being of the same kind when their purpose and object as well as the basis on which they are calculated and the conditions for granting them are identical. On the other hand, characteristics which are purely formal must not be considered relevant criteria for the classification of the benefits (see, to that effect, Case 171/82 Valentini  [1983] ECR 2157, paragraph 13, and Case C‑406/04 De Cuyper  [2006] ECR I‑6947, paragraph 25).
25. It is clear from the foregoing that, like all unemployment benefits, the benefit at issue in the main proceedings, which is also paid by the authorities competent in the matter of unemployment, is essentially to replace the remuneration lost by reason of unemployment and thereby provide for the maintenance of the unemployed person (Case C‑102/91 Knoch  v Bundesanstalt für Arbeit  [1992] ECR I-4341, paragraphs 44 and 45; Acciardi , cited above, paragraphs 16 and 17; and Case C‑57/96 Meints  [1997] ECR I‑6689, paragraph 27). If the invalidity pension is refused, the benefit at issue is, in regard to the duration thereof and to the amount granted, regarded as unemployment benefit pursuant to Paragraph 23(7) of the AlVG.
28. The consequence, in particular, is that if the recipient of the benefit at issue in the main proceedings obtains employment, he loses the right to the benefit. The Court has already decided that a benefit granted if the risk of loss of employment materialises and which is no longer payable if that situation ceases to exist as a result of the claimant’s engaging in paid employment must be regarded as constituting an unemployment benefit ( De Cuyper , cited above, paragraph 27).
33. However, although it is true that those requirements could constitute an important characteristic of the conditions of eligibility for unemployment benefit (see, to that effect, Case 79/81 Baccini  [1982] ECR 1063, paragraphs 15 and 16; Acciardi , cited above, paragraphs 16 and 17; Case C‑25/95 Otte  [1996] ECR I‑3745, paragraph 36; and De Cuyper , cited above, paragraph 27), the fact of being dispensed from fulfilling those conditions in a particular case cannot, as such, affect the very nature of the benefit at issue in the main proceedings.
34. In the present case, such a dispensation is intended solely to adapt the conditions for the grant of that benefit to the situation of an applicant for an invalidity pension whose capacity and availability for work are, in fact, uncertain during the period in which a definitive decision is being adopted in regard to him (see, by analogy, De Cuyper , paragraphs 30 and 34).
38. First of all, it must be noted that although Article 10(1) of Regulation No 1408/71 – which provides, ‘[s]ave as otherwise provided in this Regulation’, for the waiver of residence clauses in regard to the benefits enumerated therein – expressly mentions invalidity benefits, which are therefore, in principle, exportable to another Member State (Case C‑20/96 Snares  [1997] ECR I‑6057, paragraph 40), it does not mention unemployment benefits. That provision therefore does not preclude the legislation of a Member State from making entitlement to such a benefit conditional on residence in the territory of that State (see, to that effect, De Cuyper , cited above, paragraph 37).
39. In that regard, Regulation No 1408/71 provides, however, for two situations in which the competent Member State is required to allow recipients of an unemployment allowance to reside in the territory of another Member State while retaining their entitlement to benefit. Firstly, there is the situation provided for in Article 69 of the regulation, allowing unemployed persons who go to a Member State other than the competent State ‘in order to seek employment there’ to retain their entitlement to unemployment benefit. Secondly, there is the situation referred to in Article 71 of that regulation, relating to unemployed persons who, during their last employment, were residing in the territory of a Member State other than the competent State ( De Cuyper , cited above, paragraph 38).
41. It must be pointed out, however, that Regulation No 1408/71 does not set up a common scheme of social security, but allows different national social security schemes to exist and its sole objective is to ensure the coordination of those schemes (Case 21/87 Borowitz  [1988] ECR 3715, paragraph 23, and Case C‑331/06 Chuck  [2008] ECR I‑0000, paragraph 27).
42. Whilst, in the absence of harmonisation at Community level, Member States retain the power to organise their social security schemes, they must none the less, when exercising that power, comply with Community law and, in particular, the provisions of the EC Treaty on freedom of movement for workers (see, to that effect, Case C-135/99 Elsen  [2000] ECR I-10409, paragraph 33, and Case C‑227/03 van Pommeren-Bourgondiën  [2005] ECR I‑6101, paragraph 39).
43. According to settled case-law, the aims of Articles 39 EC to 42 EC would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid. Such a consequence might discourage Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (see, to that effect, Case C‑349/87 Paraschi  [1991] ECR I‑4501, paragraph 22; Case C‑215/99 Jauch  [2001] ECR I‑1901, paragraph 20; and Hosse , cited above, paragraph 24).
45. It must be borne in mind in that regard that, according to settled case-law, the concept of ‘worker’ within the meaning of Article 39 EC of the Treaty has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17; Case C‑456/02 Trojani  [2004] ECR I-0000, paragraph 15; and Case C‑109/04 Kranemann  [2005] ECR I‑2421, paragraph 12).
48. According to settled case-law, migrant workers are guaranteed certain rights linked to the status of worker even when they are no longer in an employment relationship (see, to that effect, Case 39/86 Lair  [1988] ECR 3161, paragraph 36; Case C‑85/96 Martínez Sala  [1998] ECR I-2691, paragraph 32; Case C‑35/97 Commission  v France  [1998] ECR I‑5325, paragraph 41; Case C‑413/01 Ninni‑Orasche  [2003] ECR I‑13187, paragraph 34; and Case C‑138/02 Collins  [2004] ECR I‑2703, paragraph 27).
49. That is the case in regard to benefits the payment of which is dependent on the prior existence of an employment relationship which has come to an end and is intrinsically linked to the recipients’ objective status as workers ( Meints , cited above, paragraph 41, and Case C‑43/99 Leclere and Deaconescu  [2001] ECR I‑4265, paragraph 57).
53. According to settled case-law, the equal treatment rule which appears in Article 39(2) EC prohibits not only overt discrimination on grounds of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (see, in particular, Meints , cited above, paragraph 44; Case C‑212/05 Hartmann  [2007] ECR I‑6303, paragraph 29; and Case C‑213/05 Geven  [2007] ECR I‑6347, paragraph 18).
54. Unless it is objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage ( Meints , cited above, paragraph 44; Hartmann , cited above, paragraph 30; and Geven , cited above, paragraph 19).
55. That is true of a residence condition such as the one to which the grant of the benefit at issue in the main proceedings is subject, which can be more easily met by national workers than by those from other Member States, since the latter workers above all, particularly in the case of unemployment or invalidity, tend to leave the country in which they were formerly employed to return to their countries of origin (see, to that effect, Paraschi , cited above, paragraph 24, and Case C‑290/00 Duchon  [2002] ECR I‑3567, paragraph 38).
57. In order to provide the national court with a complete answer, it should be pointed out, however, that although it is possible that the risk of seriously undermining the financial balance of a social security system may, in particular, constitute an overriding reason in the general interest (see, in particular, Case C‑158/96 Kohll  [1998] ECR I‑1931, paragraph 41, and Case C‑208/05 ITC  [2007] ECR I‑181, paragraph 43), the existence of such a risk would be difficult to establish since, as the Advocate General points out in point 81 of his Opinion, by granting the benefit at issue in the main proceedings to applicants for an invalidity pension who, at the time that they submit their application, reside in the national territory, the competent authorities have in fact demonstrated their capacity to bear the economic burden of that benefit until such time as a definitive decision has been adopted in regard to it.
58. In addition, it must be pointed out that the residence requirement at issue in the main proceedings seems disproportionate since it is imposed in respect of a social security benefit which, like the benefit at issue in the main proceedings, is intended to be paid to applicants for an invalidity pension for a limited period which, according to the Austrian Government, does not exceed, on average, three to four months during which, while waiting for a definitive decision on the grant of such a pension, they are not required to be capable of working, willing to work and available for work (see, to that effect, Collins , cited above, paragraphs 68 and 69).
61. In addition, the residence requirement at issue in the main proceedings also seems disproportionate since it is clear from the order for reference that, during the waiting period while a decision is being made on the application for an invalidity pension, applicants for the benefit at issue in the main proceedings, like the unemployed persons seeking work in another Member State to whom Article 69 of Regulation No 1408/71 applies, (Case 139/78 Coccioli  [1979] ECR 991, paragraph 7), are not subject to any particular checks by the employment service of the Member State concerned, since they are dispensed from the obligations concerning capacity to work, willingness to work and availability for work.
62. In any event, even if such checks were provided for, it would still have to be ascertained whether it was not sufficient to request that the recipient go to the Member State concerned for the purpose of undergoing such checks, if necessary, on pain of suspension of payment of the benefit in the event of unwarranted refusal on the part of the recipient (see, to that effect, Case C‑499/06 Nerkowska  [2008] ECR I‑0000, paragraph 45).