Lucy Stewart v Secretary of State for Work and Pensions.
Date: 2011-07-21
32. 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, in particular, Case C‑286/03 Hosse  [2006] ECR I‑1771, paragraph 37; Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt and Others  [2007] ECR I‑11895, paragraph 63; and Case C‑228/07 Petersen  [2008] ECR I‑6989, paragraph 19).
35. With regard to determining the precise nature of the benefit at issue in the main proceedings, it follows from the Court’s settled case-law that the requirement that EU law be applied uniformly implies that the concepts to which that law refers should not vary according to the particular features of each system of national law but rest upon objective criteria defined in a context specific to EU law. In accordance with that principle, the concepts of sickness and invalidity benefits in Article 4(1)(a) and (b) of Regulation No 1408/71 are to be determined, for the purpose of applying the regulation, not according to the type of national legislation containing the provisions giving those benefits, but in accordance with EU rules which define what those benefits shall consist of (see, to that effect, Case 69/79 Jordens-Vosters  [1980] ECR 75, paragraph 6).
36. In that regard, in order to distinguish between different categories of social security benefit, the risk covered by each benefit must also be taken into consideration (Case C‑406/04 De Cuyper  [2006] ECR I‑6947, paragraph 27).
38. By contrast, an invalidity benefit, within the meaning of Article 4(1)(b) of the regulation, is intended, as a general rule, to cover the risk of disability of a prescribed degree, where it is probable that such disability will be permanent or long-term (see, by analogy, Case C‑13/05 Chacón Navas  [2006] ECR I‑6467, paragraph 45).
46. That conclusion is supported both by the subject-matter and purpose of short-term incapacity benefit in youth and by the basis on which it is calculated and the conditions for granting it (see, by analogy, Case 171/82 Valentini  [1983] ECR 2157, paragraph 13; De Cuyper , paragraph 25; and Petersen , paragraph 21).
61. That submission cannot be accepted. As the Court has already observed, the purpose of Article 10 of Regulation No 1408/71 is to protect the persons concerned against any adverse effects that might arise from the transfer of their residence from one Member State to another. It follows from that principle not only that the person concerned retains the right to receive benefits referred to in that provision acquired under the legislation of one or more Member States even after taking up residence in another Member State, but also that the acquisition of such entitlement may not be refused on the sole ground that he or she does not reside in the Member State in which the institution responsible for payment is situated (see, to that effect, Case 51/73 Smieja  [1973] ECR 1213, paragraphs 20 to 22; Case 92/81 Camera  [1982] ECR 2213, paragraph 14; and Joined Cases 379/85 to 381/85 and 93/86 Giletti and Others  [1987] ECR 955, paragraph 15).
62. The Court has also had occasion to rule that, contrary to the United Kingdom Government’s submission, under Article 10 of Regulation No 1408/71, neither the acquisition nor the retention of entitlement to the benefits covered by that provision may be denied on the sole ground that the person concerned does not reside in the territory of the Member State in which the institution responsible for payment is situated (Case C‑356/89 Newton  [1991] ECR I‑3017, paragraph 23).
66. In addition, the first subparagraph of Article 10(1) of Regulation No 1408/71 prohibits the competent institutions, in general terms, from reducing, modifying, suspending, withdrawing or confiscating invalidity benefits by reason of the fact that the recipient resides in a Member State other than that in which the institution responsible for payment is situated. The only exceptions to that prohibition are those expressly provided for in EU legislation (see, to that effect, Giletti and Others , paragraph 16).
68. Since no other provision of that regulation allows Member States to derogate, in a situation such as that of Ms Stewart, from the principle, enshrined in the first subparagraph of Article 10(1) of that regulation, of waiving residence clauses, it follows that invalidity benefits are, as a rule, exportable to a Member State other than that in which the institution responsible for payment is situated (see, to that effect, Case C‑20/96 Snares  [1997] ECR I‑6057, paragraph 40, and Petersen , paragraph 38).
75. It must be pointed out, in that regard, 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; Case C‑331/06 Chuck  [2008] ECR I‑1957, paragraph 27; and Petersen , paragraph 41). Thus, according to settled case-law, Member States retain the power to organise their social security schemes (see, to that effect, Case 238/82 Duphar and Others  [1984] ECR 523, paragraph 16; Case C‑70/95 Sodemare and Others [1997] ECR I‑3395, paragraph 27; and Case C‑212/06 Government of the French Community and Walloon Government [2008] ECR I‑1683, paragraph 43).
76. Therefore, in the absence of harmonisation at EU level, it is for the legislation of each Member State to determine, first, the conditions concerning the right or duty to be insured with a social security scheme and, second, the conditions for entitlement to benefits (Case C‑158/96 Kohll [1998] ECR I‑1931, paragraph 18 and the case-law cited).
77. In exercising those powers, Member States must none the less comply with the law of the European Union and, in particular, with the provisions of the FEU Treaty giving every citizen of the Union the right to move and reside within the territory of the Member States (see, by analogy, Case C‑224/02 Pusa  [2004] ECR I‑5763, paragraph 19, and Case C‑192/05 Tas-Hagen and Tas  [2006] ECR I‑10451, paragraph 22).
78. It is appropriate to recall, in that regard, that Article 20 TFEU confers on every person holding the nationality of a Member State the status of citizen of the Union (see, in particular, Case C‑224/98 D’Hoop  [2002] ECR I‑6191, paragraph 27, and Case C‑34/09 Ruiz Zambrano [2011] ECR I‑0000, paragraph 40). The appellant in the main proceedings, who holds the nationality of a Member State, benefits from that status.
79. Even if the referring tribunal has limited its question to the interpretation of Regulation No 1408/71, such a situation does not prevent the Court from providing the national court or tribunal with all the elements of interpretation of EU law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see, to that effect, Case C‑241/89 SARPP  [1990] ECR I‑4695, paragraph 8; Case C‑152/03 Ritter-Coulais  [2006] ECR I‑1711, paragraph 29; and Case C‑392/05 Alevizos  [2007] ECR I‑3505, paragraph 64).
80. The status of citizen of the Union is destined to be the fundamental status of nationals of the Member States, enabling those among such nationals who find themselves in the same situation to receive, as regards the material scope of the Treaty, the same treatment in law irrespective of their nationality, subject to such exceptions as are provided for in that regard (see, to that effect, Case C‑184/99 Grzelczyk  [2001] ECR I‑6193, paragraph 31; D’Hoop , paragraph 28; and Case C‑544/07 Rüffler  [2009] ECR I‑3389, paragraph 62).
81. Situations falling within the material scope of EU law include those involving the exercise of the fundamental freedoms guaranteed by the Treaties, in particular those involving the freedom to move and reside within the territory of the Member States, as conferred by Article 21 TFEU (see, to that effect, Grzelczyk , paragraph 33; D’Hoop , paragraph 29; and Rüffler , paragraph 63 and the case-law cited).
83. Inasmuch as a citizen of the Union must be granted, in all Member States, the same treatment in law as that accorded to nationals of those Member States who find themselves in the same situation, it would be incompatible with the right to freedom of movement were citizens to receive, in the Member State of which they are nationals, treatment less favourable than that which they would enjoy if they had not availed themselves of the opportunities offered by the Treaty in relation to freedom of movement ( D’Hoop , paragraph 30, and Pusa , paragraph 18).
84. Those opportunities could not be fully effective if a national of a Member State could be deterred from availing himself of them by obstacles placed in the way of his freedom to move and to stay in another Member State by national legislation penalising the fact that he has used them (see, to that effect, D’Hoop , paragraph 31; Pusa , paragraph 19; Tas‑Hagen and Tas , paragraph 30; and Case C‑221/07 Zablocka‑Weyhermüller  [2008] ECR I‑9029, paragraph 34; and Rüffler , paragraph 65).
86. Such national legislation, which disadvantages some nationals of a Member State simply because they have exercised their freedom to move and to reside in another Member State, amounts to a restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union (see D’Hoop , paragraph 35; Pusa , paragraph 20; De Cuyper , paragraph 39; and Rüffler , paragraph 73).
87. Such a restriction can be justified, under EU law, only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national provisions (see De Cuyper , paragraph 40; Tas-Hagen and Tas , paragraph 33; Zablocka-Weyhermüller , paragraph 37; and Rüffler , paragraph 74).
89. The Court has already held that it is legitimate for the national legislature to wish to ensure that there is a genuine link between a claimant to a benefit and the competent Member State (see, to that effect, D’Hoop , paragraph 38, and Case C‑138/02 Collins  [2004] ECR I‑2703, paragraph 67), as well as to guarantee the financial balance of a national social security system (see, to that effect, Kohll , paragraph 41, and Petersen , paragraph 57).
90. It follows that the objectives of national legislation such as that at issue in the main proceedings which seek to establish a genuine link between a claimant to short-term incapacity benefit in youth and the competent Member State and to preserve the financial balance of the national social security system, constitute, in principle, legitimate objectives capable of justifying restrictions on the rights of freedom of movement and residence under Article 21 TFEU.
95. While the rules for applying that condition do not, in themselves, appear to be unreasonable, none the less that condition is too exclusive in nature. Indeed, by requiring specific periods of past presence in the competent Member State, the condition of past presence unduly favours an element which is not necessarily representative of the real and effective degree of connection between the claimant to short-term incapacity benefit in youth and that Member State, to the exclusion of all other representative elements. It therefore goes beyond what is necessary to attain the objective pursued (see, by analogy, D’Hoop , paragraph 39).
97. Such elements must be sought, in the first place, in the relationship between the claimant and the social security system of the competent Member State. In that regard, the decision making the reference states that the appellant is already entitled, under United Kingdom legislation, to disability living allowance.
98. Moreover, it is apparent from that decision that the appellant is credited with United Kingdom national insurance contributions which are added each week to her national insurance account.
99. It follows that Ms Stewart is already, in a certain way, connected to the national social security system in question.
100. Other elements capable of demonstrating the existence of a genuine link between the claimant and the competent Member State may, secondly, be apparent from the claimant’s family circumstances. In the case in the main proceedings, it is common ground that Ms Stewart, who is incapable of acting on her own behalf because of her disability, remains dependent on her parents who care for her and represent her in her relations with the outside world. Both Ms Stewart’s mother and her father receive retirement pensions under United Kingdom legislation. In addition, her father worked in that Member State before retiring, whereas her mother previously received, also under United Kingdom legislation, incapacity benefit.
101. Finally, it is common ground that the appellant, a United Kingdom national, has passed a significant part of her life in the United Kingdom.
102. The elements mentioned in paragraphs 97 to 101 of the present judgment appear to be capable of demonstrating the existence of a genuine and sufficient connection between the appellant and the competent Member State.
103. The foregoing considerations also apply with regard to the objective of guaranteeing the financial balance of the national social security system. In fact, the necessity of establishing a genuine and sufficient connection between the claimant and the competent Member State enables that State to satisfy itself that the economic cost of paying the benefit at issue in the main proceedings does not become unreasonable.
104. Consequently, national legislation, such as that at issue in the main proceedings, which makes acquisition of the right to short-term incapacity benefit in youth subject to a condition of past presence in the competent Member State to the exclusion of any other element enabling the existence of a genuine link between the claimant and that Member State to be established, goes beyond what is necessary to attain the objective pursued and therefore amounts to an unjustified restriction on the freedoms guaranteed by Article 21(1) TFEU for every citizen of the Union.
The condition of presence on the date on which the claim is made
105. It is clear from the decision making the reference that the appellant’s claim to short-term incapacity benefit in youth was rejected because she was not present in the United Kingdom on the date on which the claim was made. In those circumstances, even if the formulation of the third question does not refer expressly to that condition of presence, in the procedure laid down by Article 267 TFEU for cooperation between national courts and the Court of Justice, it is for the latter to examine that condition in order to provide the referring court with an answer which will be of use to it and enable it to determine the case before it (see, in particular, Case C‑334/95 Krüger  [1997] ECR I‑4517, paragraph 22; Case C‑88/99 Roquette Frères  [2000] ECR I‑10465, paragraph 18; and Case C‑62/00 Marks & Spencer  [2002] ECR I‑6325, paragraph 32).
109. It follows that the condition of presence in the competent Member State on the date on which the claim is made, to which acquisition of short-term incapacity benefit in youth is subject, amounts to an unjustified restriction on the freedoms conferred by Article 21(1) TFEU on every citizen of the Union.