H. Meints v Minister van Landbouw, Natuurbeheer en Visserij.
Date: 1997-11-27
23 The Court has held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each benefit, in particular its purposes and the conditions on which it is granted, and not on whether it is classified as a social security benefit by national legislation (see, in particular, Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 28, and Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout [1985] ECR 973, paragraph 11).
24 A benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (Case C-66/92 Acciardi v Commissie Beroepszaken Administratieve Geschillen in de Provincie Noord-Holland [1993] ECR I-4567, paragraph 14).
27 In order to be classified as an `unemployment benefit' within the meaning of Article 4(1)(g) of Regulation No 1408/71, a benefit must be intended to replace the remuneration lost by reason of unemployment and thereby provide for the maintenance of the unemployed person (see, to that effect, Case C-102/91 Knoch v Bundesanstalt für Arbeit [1992] ECR I-4341, paragraph 44).
39 The reference to `social advantages' in Article 7(2) cannot be interpreted restrictively (Case 32/75 Cristini v SNCF [1975] ECR 1085, paragraph 12). It has consistently been held that `social advantages' should be interpreted as meaning all advantages which, whether or not linked to a contract of employment, are generally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community (Case C-310/91 Schmid v Belgian State [1993] ECR I-3011, paragraph 18).
40 Furthermore, as the Court held in Case 39/86 Lair v Universität Hannover [1988] ECR 3161, paragraph 36, migrant workers are guaranteed certain rights linked to the status of worker even when they are no longer in an employment relationship.
41 A benefit such as that in issue, the payment of which is dependent on the prior existence of an employment relationship which has recently come to an end, meets those conditions, since entitlement to the benefit is intrinsically linked to the recipients' objective status as workers.
44 The Court has consistently held that the equal treatment rule laid down in Article 48 of the EC Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see, inter alia, Case C-237/94 O'Flynn v Adjudication Officer [1996] ECR I-2617, paragraph 17).
45 Unless it is objectively justified and proportionate to its aim, 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 (O'Flynn, cited above, paragraph 20).
49 The French and Netherlands Governments further observe that a frontier worker cannot in any event rely on Article 7 of Regulation No 1612/68 in order to claim social advantages. That regulation, they argue, does not provide for the possibility of `exporting' such advantages.
50 That argument disregards the wording of Regulation No 1612/68, the fourth recital of whose preamble expressly states that the right of free movement must be enjoyed `without discrimination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services' and Article 7 of which refers, without reservation, to a `worker who is a national of a Member State'.
51 In the light of the foregoing, the answer to the second part of the second question must be that a Member State may not make payment of a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 dependent on the condition that recipients be resident within its territory.