J. J. Kersbergen-Lap and D. Dams-Schipper v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen.
Date: 2006-07-06
21. The referring court alone can determine the subject-matter of the questions it proposes to refer to the Court. It is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment and the relevance of the questions which they submit to the Court (see, to that effect, Case C-220/95 Van den Boogaard  [1997] ECR I-1147, paragraph 16; Case C‑295/95 Farrell  [1997] ECR I-1683, paragraph 11; Case C-159/97 Castelletti [1999] ECR I-1597, paragraph 14; and Case C-111/01 Gantner Electronic  [2003] ECR I-4207, paragraph 34).
22. At the end of the observations submitted on behalf of Mrs Kersbergen-Lap, further questions were put to the Court, in addition to those that were the subject of the national court’s order for reference, and these were supplemented by additional questions in her supplementary observations. In view of the matters set out in the preceding paragraph, it is not necessary to examine such questions, which go beyond the scope of that referred by the national court.
24. The applicants in the main proceedings fall within the scope ratione personae of Regulation No 1408/71 in that they were subject to a social security scheme in the Netherlands and, as insured persons, would be eligible for work-incapacity benefit if they were resident in that Member State (see, by analogy, inter alia, Case 182/78 Pierik  [1979] ECR 1977, paragraph 4, and Case C-215/90 Twomey  [1992] ECR I-1823, paragraph 13).
25. The provisions in Article 10a of Regulation No 1408/71 derogating from the principle of the exportability of social security benefits must be interpreted strictly. That provision can apply only to benefits which satisfy the conditions defined in Article 4(2a) of Regulation No 1408/71, that is, benefits which are both special and non-contributory and are listed in Annex IIa to that regulation (see, to that effect, Case C-215/99 Jauch  [2001] ECR I-1901, paragraph 21).
30. A special benefit within the meaning of Article 4(2a) of Regulation No 1408/71 is defined by its purpose. It must either replace or supplement a social security benefit and be by its nature social assistance justified on economic and social grounds and fixed by legislation setting objective criteria (see Case C-160/02 Skalka  [2004] ECR I-5613, paragraph 25, and case-law cited).
33. Further, that benefit is closely linked to the socio-economic situation in the Netherlands since it is based on the minimum wage and the standard of living in that Member State. The Court has in the past accepted that the grant of benefits closely linked with the social environment may be made subject to a condition of residence in the State of the competent institution (see, to that effect, Case 313/86 Lenoir  [1988] ECR 5391, paragraph 16; Case C-20/96 Snares  [1997] ECR I-6057, paragraph 42; and Case C-43/99 Leclerc and Deaconescu  [2001] ECR I-4265, paragraph 32).
36. The relevant determining criterion is how the benefit concerned is actually financed (see, to that effect, Jauch , paragraphs 32 and 33). The Court must consider whether that financing comes directly or indirectly from social contributions or from public resources.
42. Whilst the principle of legal certainty precludes a regulation from being applied retroactively, irrespective of whether such application might produce favourable or unfavourable effects for the person concerned, the same principle requires that any factual situation should normally, in the absence of any express contrary provision, be examined in the light of the legal rules existing at the time when the situation obtained (Case 10/78 Belbouab  [1978] ECR 1915, paragraph 7). If the new law is thus valid only for the future, it also applies, save for derogation, to the future effects of situations which came about during the period of validity of the old law (see, to that effect, Case 96/77 Bauche and Delquignies  [1978] ECR 383, paragraph 48; Case 125/77 Koninklijke Scholten-Honig and De Bijenkorf  [1978] ECR 1991, paragraph 37; Case 40/79 P. v Commission  [1981] ECR 361, paragraph 12; Case 270/84 Licata v Economic and Social Committee  [1986] ECR 2305, paragraph 31; and Case C-28/00 Kauer  [2002] ECR I-1343, paragraph 20).
43. The Wajong entered into force and was listed in Annex IIa to Regulation No 1408/71 before the applicants in the main proceedings moved outside the Netherlands. In the absence of any transitional provision to the contrary, in particular in Council Regulation (EC) No 1223/98 of 4 June 1998 amending Regulation No 1408/71 and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation No 1408/71 (OJ 1998 L 168, p. 1), the legal effects (whether or not the Wajong benefit may be exported) which came about as a result of that factual situation (taking up residence outside the Netherlands) must, therefore, be examined in the light of the rules applicable when that factual situation arose and, therefore, in the light of the new provisions.