Genaro Acciardi v Commissie Beroepszaken Administratieve Geschillen in de Provincie Noord-Holland.
Date: 1993-08-02
13 However, according to the case-law of the Court, the fact that a national law or regulation has not been specified in the declarations referred to in Article 5 of the regulation is not of itself proof that that law or regulation does not fall within the field of application of the said regulation (see in particular Case 35/77 Beerens Rijksdienst voor Arbeidsvoorziening [1977] ECR 2249, paragraph 9). The Court has often stated that the distinction between benefits excluded from the scope of Regulation No 1408/71 and benefits which come within it is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation (see in particular Case 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).
14 The Court has also often stated that 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 concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see in particular Commission v Luxembourg, paragraph 29).
15 As to the first of these conditions, it is true that the amount payable to the plaintiff varies according to his income and that of his spouse because Article 9 of the IOAW provides that the benefit payable is equal to the difference between the applicable basic amount and the income of the person concerned and his spouse. However, this is an objective, legally defined criterion which gives entitlement to the benefit without the competent authority being able to take other personal circumstances into consideration. The grant of the benefit therefore does not depend on an individual assessment of the claimant' s personal needs, which is a characteristic feature of social assistance (see Case C-78/91 Hughes v Chief Adjudication Officer [1992] ECR I-4839).
16 As to the second condition, it must be observed firstly that, under Article 4 of the IOAW, the entitlement to the benefit provided for by this law is limited to unemployed workers and, where applicable, their spouses. Secondly, the entitlement ceases once the person concerned reaches the statutory retirement age of 65. Thirdly, for a person in the situation of the plaintiff in the main proceedings, entitlement to a benefit under the IOAW arises immediately after the benefit under the WW. Fourthly, pursuant to Article 26 of the IOAW, an unemployed worker is without exception entitled to benefit only if he satisfies certain conditions aimed at his re-integration into working life, namely that he registers as a job-seeker with the employment agency, seeks paid employment so far as he is able and accepts a suitable job.
17 It is clear from this that a law such as the IOAW relates directly to the risk of unemployment. It should also be noted that the Netherlands Government admitted in its written observations that the condition for the establishment of the right in question lay in the continuance of unemployment.