European Commission v Slovak Republic.
Date: 2015-09-16
35. The Commission contends that it has neither broadened nor changed the subject-matter of the dispute and has not prejudiced the Slovak Republic’s rights of defence. First, it stated, both in its letter of formal notice and in its reasoned opinion, that it did not classify the determination of the income of the beneficiaries of the benefits at issue as an individual and discretionary assessment of their circumstances, for the purposes of the case-law of the Court in that regard. Although it is true that the subject-matter of proceedings brought under Article 258 TFEU is circumscribed by the pre-litigation procedure provided for in that provision and that, consequently, the Commission’s reasoned opinion and the application must be based on the same objections, that requirement cannot go so far as to mean that in every case exactly the same wording must be used in both, where the subject-matter of the proceedings has not been extended or altered (judgment in Commission  v Germany , C‑433/03, EU:C:2005:462, paragraph 28). In addition, the Commission submits that it follows from the judgments in Commission  v Ireland  (C‑362/01, EU:C:2002:739, paragraphs 18 to 20) and Commission v Luxembourg (C‑519/03, EU:C:2005:234, paragraph 21) that the failure to take account of the answer of the Member State concerned to the letter of formal notice and the reasoned opinion does not lead to the inadmissibility of that action.
39. As regards the objection of inadmissibility of the Commission’s action raised by the Slovak Republic as its principal argument, it should be recalled that the purpose of the pre-litigation procedure is to give the Member State concerned the opportunity to comply with its obligations arising from EU law or to present its defence effectively against the complaints put forward by the Commission. The proper conduct of that procedure constitutes an essential guarantee not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see, inter alia, Commission  v France , C‑1/00, EU:C:2001:687, paragraph 53; Commission  v Germany , C‑135/01, EU:C:2003:171, paragraph 19 and 20; and Commission  v Netherlands , C‑79/09, EU:C:2010:171, paragraph 21).
40. Thus, the pre-litigation procedure pursues the following three objectives: to allow the Member State to put an end to any infringement, to enable it to exercise its rights of defence and to define the subject-matter of the dispute with a view to bringing an action before the Court (judgments in Commission  v Ireland , C‑362/01, EU:C:2002:739, paragraph 18; Commission  v Germany , C‑135/01, EU:C:2003:171, paragraph 21; and Commission  v Netherlands , C‑79/09, EU:C:2010:171, paragraph 22).
41. In accordance with the foregoing, it is, in principle, for the Commission to set out, in its reasoned opinion, its assessment of the observations made by the Member State in its response to the letter of formal notice (see judgments in Commission  v Ireland , C‑362/01, EU:C:2002:739, paragraph 19, and Commission  v Germany , C‑135/01, EU:C:2003:171, paragraph 22).
45. First, during the pre-litigation procedure, having consistently stated that the benefits at issue were ‘social security benefits’, within the meaning of Article 3(1) of Regulation No 883/2004, which should therefore be exportable, the Commission clearly conferred on them the legal classification that it considered appropriate and thereby identified the subject-matter of the dispute. In so far as the concept of ‘social security benefit’, within the meaning of Article 3(1) thereof, and the concept of ‘special non-contributory cash benefits’, within the meaning of Article 3(2) and 70 of that regulation, are mutually exclusive (judgment in Hosse , C‑286/03, EU:C:2006:125, paragraph 36), the Commission’s argument as to the inapplicability of Article 70 to the benefits at issue, raised during the pre-litigation procedure, falls within the scope of the dispute thus delimited, without extending it.
46. Second, since there is no rule of procedure which requires the Member State concerned to put forward, during the pre-litigation procedure, all the arguments in its defence, in an application based on Article 258 TFEU (see judgments in Commission  v Spain , C‑414/97, EU:C:1999:417, paragraph 19, and Commission  v Netherlands , C‑34/04, EU:C:2007:95, paragraph 49), the Commission cannot be criticised for having presented, in its application, arguments relating to the inapplicability of Article 70 of Regulation No 883/2004 to the benefits at issue, even though the Slovak Republic has not invoked the applicability of that provision in the pre-litigation procedure, while retaining the right to do so in the contentious procedure.
54. Next, the Commission states that, in accordance with the case-law of the Court, benefits granted objectively on the basis of a statutorily defined position and which are intended to improve the state of health and quality of life of persons reliant on care have as their essential purpose supplementing sickness insurance benefits and must be regarded as ‘sickness benefits’ for the purpose of Article 3(1)(a) of Regulation No 883/2004 (see, in particular, judgments in Gaumain-Cerri and Barth , C‑502/01 and C‑31/02, EU:C:2004:413, paragraph 20; Hosse , C‑286/03, EU:C:2006:125, paragraph 38; and Commission  v Parliament and Council , C‑299/05, EU:C:2007:608, paragraph 61).
57. Third, the compensatory allowance for extra costs must also be regarded as a ‘sickness benefit’, for the purpose of Article 3(1)(a) of Regulation No 883/2004, since its aim is to enable severely disabled persons to lead a more fulfilling life. In accordance with Article 38(1) of Law No 447/2008, that allowance may be granted in order to compensate for the extra costs generated by a specific dietary regime or related to a specific bodily care regime, for wear and tear to clothing, household linen, shoes and furniture, the running of a personal motor vehicle or the upkeep of a specially trained dog. The Court has already held that a similar allowance granted in Sweden had to be considered as a ‘sickness benefit’ ( Commission v Parliament and Council , C‑299/05, EU:C:2007:608, paragraph 62).
67. With regard to the latter point, the Slovak Republic argues that since those benefits are not intended to improve the state of health of the dependent persons or offset in the short term the lack of income during illness, they cannot be classified as a sickness benefit strictu senso  (judgment in da Silva Martins , C‑388/09, EU:C:2011:439, paragraph 47) or as supplementary sickness benefits within the meaning of the judgments in Molenaar  (C‑160/96, EU:C:1998:84) and Jauch  (C‑215/99, EU:C:2001:139).
Findings of the Court
68. According to settled case-law, in an action for failure to fulfil obligations it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption (see, inter alia, Commission  v Italy , C‑135/05, EU:C:2007:250, paragraph 26, and Commission  v Greece , C‑305/06, EU:C:2008:486, paragraph 41).
70. The distinction between benefits excluded from the scope of Regulation No 883/2004 and those which fall within it is based essentially on the constituent elements of each particular benefit, in particular its purpose and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation (see, to that effect, judgment in Molenaar , C‑160/96, EU:C:1998:84, paragraph 19).
71. According to settled case-law, 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 beneficiaries 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 883/2004 (see, judgment in da Silva Martins , C‑388/09, EU:C:2011:439, paragraph 38 and the case-law cited).
73. It follows from settled case-law that the first of the two conditions mentioned in paragraph 71 of the present judgment is satisfied if the grant of a benefit is made with regard to objective criteria which if satisfied, give entitlement to the benefit without the competent authority being able to take other personal circumstances into consideration (see to that effect, in particular, judgments in Hughes , C‑78/91, EU:C:1992:331, paragraph 17; Molenaar , C‑160/96, EU:C:1998:84, paragraph 21; Maaheimo , C‑333/00, EU:C:2002:641, paragraph 23; and De Cuyper , C‑406/04, EU:C:2006:491, paragraph 23).
81. As is clear from the observations of the Slovak Republic, that interpretation is also confirmed by the case-law of the Najvyšší sůd Slovenskej republiky. It follows from settled case-law that the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (see, inter alia, judgment in Commission  v Germany , C‑490/04, EU:C:2007:430, paragraph 49 and the case-law cited).