K. Tas-Hagen and R. A. Tas v Raadskamer WUBO van de Pensioen- en Uitkeringsraad.
Date: 2006-10-26
18. Regarding the scope ratione personae  of that provision, suffice it to state that, under Article 17(1) EC, every person holding the nationality of a Member State is a citizen of the Union. Furthermore, Article 17(2) EC attributes to citizens of the Union the rights conferred and duties imposed by the Treaty, including those mentioned in Article 18(1) EC.
19. As Netherlands nationals, Mrs Tas-Hagen and Mr Tas enjoy the status of citizens of the Union under Article 17(1) EC and may therefore benefit from the rights conferred on those having that status, such as, inter alia the right to move and to reside freely within the territory of the Member States conferred by Article 18(1) EC.
21. In that regard, it is important to bear in mind that, as Community law now stands, a benefit such as that in issue in the main proceedings, which is intended to compensate civilian war victims for physical or mental damage which they have suffered, falls within the competence of the Member States.
22. However, Member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions giving every citizen of the Union the right to move and reside freely within the territory of the Member States.
23. Furthermore, it is accepted that citizenship of the Union, established by Article 17 EC, is not intended to extend the material scope of the Treaty to internal situations which have no link with Community law (Joined Cases C‑64/96 and C‑65/96 Uecker and Jacquet  [1997] ECR I‑3171, paragraph 23, and Case C‑148/02 Garcia Avello  [2003] ECR I‑11613, paragraph 26).
30. With regard to the scope of Article 18(1) EC, the Court has already held that the opportunities offered by the Treaty in relation to freedom of movement cannot be fully effective if a national of a Member State can be deterred from availing himself of them by obstacles raised to his residence in the host Member State by legislation of his State of origin penalising the fact that he has used them (Case C‑224/02 Pusa  [2004] ECR I‑5763, paragraph 19).
31. National legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union (Case C‑406/04 De Cuyper  [2006] ECR I‑0000, paragraph 39).
33. Such a restriction can be justified, with regard to Community law, only if it is based on objective considerations of public interest independent of the nationality of the persons concerned and is proportionate to the legitimate objective of the national provisions ( De Cuyper , paragraph 40).
35. Admittedly, this aim of solidarity may constitute an objective consideration of public interest. It is still necessary for the condition of proportionality outlined in paragraph 33 above to be met. It follows from the case-law that a measure is proportionate when, while appropriate for securing the attainment of the objective pursued, it does not go beyond what is necessary in order to attain it ( De Cuyper , paragraph 42).
36. With regard to benefits that are not covered by Community law, Member States enjoy a wide margin of appreciation in deciding which criteria are to be used when assessing the degree of connection to society, while at the same time complying with the limits imposed by Community law.
39. Consequently, the setting of a residence criterion such as that used in the main proceedings, based solely on the date on which the application for the benefit is submitted, is not a satisfactory indicator of the degree of attachment of the applicant to the society which is thereby demonstrating its solidarity with him. It follows that this condition of residence fails to comply with the principle of proportionality referred to in paragraphs 33 and 35 above.