Government of the French Community and Walloon Government v Flemish Government.
Date: 2008-04-01
16. For the purpose of answering that question, it is to be borne in mind that the Court has consistently held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each benefit, in particular its purposes and the conditions on which it is granted, and not on whether it is classified as a social security benefit by national legislation (see, inter alia, Case 249/83 Hoeckx  [1985] ECR 973, paragraph 11; Case C-111/91 Commission  v Luxembourg  [1993] ECR I-817, paragraph 28, and Case C-332/05 Celozzi  [2007] ECR I-563, paragraph 16).
17. On this point, the Court has also stated on numerous occasions 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 relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Hoeckx  , paragraphs 12 to 14; Commission  v Luxembourg , paragraph 29, and Celozzi , paragraph 17).
20. Secondly, the Court has earlier held that benefits intended to improve the state of health and quality of life of persons reliant on care, such as those at issue in the main proceedings, have as their essential purpose the supplementing of sickness insurance benefits and must accordingly be regarded as ‘sickness benefits’ for the purpose of Article 4(1)(a) of Regulation No 1408/71 (Case C-160/96 Molenaar  [1998] ECR I-843, paragraphs 22 to 24; Case C-215/99 Jauch  [2001] ECR I-1901, paragraph 28, and Case C‑286/03 Hosse  [2006] ECR I-1771, paragraph 38).
28. In that respect, it is to be borne in mind that, according to settled case-law, in the context of cooperation between the Court and national courts as provided for by Article 234 EC, it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent 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.  Consequently, where the questions referred involve the interpretation of Community law, the Court is, in principle, obliged to give a ruling (see, inter alia, Case C-379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 38; Case C-18/01 Korhonen  and Others  [2003] ECR I‑5321, paragraph 19, and Case C‑295/05 Asemfo  [2007] ECR I‑2999, paragraph 30).
29. It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of the provisions of Community law referred to in the questions bears no relation to the actual facts of the main action or to its purpose (Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 61, and Case C‑355/97 Beck and Bergdorf  [1999] ECR I‑4977, paragraph 22).
33. In this respect, it must be borne in mind that it is settled case-law that the Treaty rules governing freedom of movement for persons and the measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all relevant respects within a single Member State (see, inter alia, with regard to freedom of establishment and freedom of movement for workers, respectively, Case 20/87 Gauchard  [1987] ECR 4879, paragraphs 12 and 13, and Case C‑18/95 Terhoeve  [1999] ECR I‑345, paragraph 26, and the decisions there cited).  The same holds good in respect of the provisions of Regulation No 1408/71 (see, to that effect, Case C‑153/91 Petit  [1992] ECR I‑4973, paragraph 10, and Joined Cases C‑95/99 to C‑98/99 and C‑180/99 Khalil and Others  [2001] ECR I‑7413, paragraph 70).
34. On the other hand, as the Court has also stated, any national of a Member State, irrespective of his place of residence and his nationality, who has exercised the right to freedom of movement for workers and who has been employed in another Member State, falls within the scope of those provisions (see in particular, to that effect, Case C‑419/92 Scholz  [1994] ECR I‑505, paragraph 9; Terhoeve , paragraph 27, and Case C‑212/05 Hartmann [2007] ECR I‑6303, paragraph 17).
37. First, application of the legislation at issue in the main proceedings leads, inter alia, to the exclusion from the care insurance scheme of Belgian nationals working in the territory of the Dutch-speaking region or in that of the bilingual region of Brussels-Capital but who live in the French- or German-speaking region and have never exercised their freedom to move within the European Community.
38. Community law clearly cannot be applied to such purely internal situations.
39. It is not possible, as the Government of the French Community suggests, to raise against that conclusion the principle of citizenship of the Union set out in Article 17 EC, which includes, in particular, according to Article 18 EC, the right of every citizen of the Union to move and reside freely within the territory of the Member States.  The Court has on several occasions held that citizenship of the Union 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; Case C‑148/02 Garcia Avello  [2003] ECR I‑11613, paragraph 26, and Case C‑403/03 Schempp  [2005] ECR I‑6421, paragraph 20).
40. It may nevertheless be remarked that interpretation of provisions of Community law might possibly be of use to the national court, having regard too to situations classed as purely internal, in particular if the law of the Member State concerned were to require every national of that State to be allowed to enjoy the same rights as those which a national of another Member State would derive from Community law in a situation considered to be comparable by that court (see, to that effect, Case C‑250/03 Mauri  [2005] ECR I‑1267, paragraph 21, and Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 29).
43. In this respect it is important to bear in mind that, although Member States retain the power to organise their social security schemes, they must none the less, when exercising that power, observe Community law and, in particular, the provisions of the EC Treaty on freedom of movement for workers (Case C-135/99 Elsen  [2000] ECR I-10409, paragraph 33).
44. It is also settled case-law that all the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Joined Cases 154/87 and 155/87 Wolf and Others  [1988] ECR 3897, paragraph 13; Terhoeve , paragraph 37, and Case C‑318/05 Commission  v Germany  [2007] ECR I‑0000, paragraph 114).  In that context, nationals of the Member States have in particular the right, which they derive directly from the Treaty, to leave their State of origin to enter the territory of another Member State and reside there in order there to pursue an economic activity (see, inter alia, Bosman , paragraph 95, and Terhoeve , paragraph 38).
45. As a result, Articles 39 EC and 43 EC militate against any national measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by Community nationals of the fundamental freedoms guaranteed by the Treaty (see, to that effect, Case C‑19/92 Kraus  [1993] ECR I‑1663, paragraph 32; Case C‑285/01 Burbaud  [2003] ECR I‑8219, paragraph 95, and Case C‑442/02 CaixaBank France  [2004] ECR I‑8961, paragraph 11).
46. In the light of those principles, measures which have the effect of causing workers to lose, as a consequence of the exercise of their right to freedom of movement, social security advantages guaranteed them by the legislation of a Member State have in particular been classed as obstacles (see, inter alia, Joined Cases C‑45/92 and C‑46/92 Lepore and Scamuffa  [1993] ECR I‑6497, paragraph 21; Case C‑165/91 van Munster  [1994] ECR I‑4661, paragraph 27, and Hosse , paragraph 24).
48. Migrant workers, pursuing or contemplating the pursuit of employment or self-employment in one of those two regions, might be dissuaded from making use of their freedom of movement and from leaving their Member State of origin to stay in Belgium, by reason of the fact that moving to certain parts of Belgium would cause them to lose the opportunity of eligibility for the benefits which they might otherwise have claimed.  In other words, the fact that employed or self-employed workers find themselves in a situation in which they suffer either the loss of eligibility care insurance or a limitation of the place to which they transfer their residence is, at the very least, capable of impeding the exercise of the rights conferred by Articles 39 EC and 43 EC.
50. For a measure to restrict freedom of movement, it is not necessary for it to be based on the nationality of the persons concerned or even for it to have the effect of bestowing an advantage on all national workers or of operating to the detriment solely of nationals of other Member States, but not of nationals of the State in question (see, to that effect, Case C‑281/98 Angonese  [2000] ECR I‑4139, paragraph 41, and Case C‑388/01 Commission  v Italy  [2003] ECR I‑721, paragraph 14).  It is enough that the measure should benefit, as in the case of the care insurance scheme at issue in the main proceedings, certain categories of persons pursuing occupational activity in the Member State in question (see, by analogy, as regards freedom to provide services, Case C‑353/89 Commission  v Netherlands  [1991] ECR I‑4069, paragraph 25, and C‑250/06 United Pan-Europe Communications Belgium and Others  [2007] ECR I‑0000, paragraph 37).
51. In addition, as Advocate General Sharpston has pointed out in paragraphs 64 to 67 of her Opinion, the restrictive effects of the legislation in question in the main proceedings are not to be considered too indirect and uncertain for it to be impossible to regard that legislation as constituting an obstacle contrary to Articles 39 EC and 43 EC.  In particular, unlike the case giving rise to the judgment in Case C‑190/98 Graf  [2000] ECR I-493, referred to by the Flemish Government at the hearing, possible entitlement to the insurance care benefits at issue depends, not on a future and hypothetical event for the employed or self-employed worker concerned, but on a circumstance linked, ex hypothesi, to the exercise of the right to freedom of movement, namely, the choice of transfer of residence.
52. Likewise, as regards the Flemish Government’s argument that that legislation could in any case have only a marginal effect on freedom of movement, in view of the limited nature of the amount of benefits in question and the number of persons concerned, it need merely be observed that, according to the Court’s case-law, the articles of the Treaty relating to the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom is prohibited (see, in particular, Case C-49/89 Corsica Ferries France [1989] ECR 4441, paragraph 8, and Case C‑169/98 Commission  v  France  [2000] ECR I‑1049, paragraph 46).
55. According to well-established case-law, national measures capable of hindering the exercise of fundamental freedoms guaranteed by the Treaty or of making it less attractive may be allowed only if they pursue a legitimate objective in the public interest, are appropriate to ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued (see, inter alia, Case C‑9/02 De Lasteyrie du Saillant  [2004] ECR I-2409, paragraph 49, and Case C-104/106 Commission  v Sweden  [2007] ECR I‑671, paragraph 25).
58. That line of argument cannot be accepted.  As the Advocate General, in paragraphs 101 to 103 of her Opinion, and the Commission have noted, the Court has consistently held that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order, including those resulting from the constitutional organisation of that State, to justify the failure to observe obligations arising under Community law (see, inter alia, Case C‑87/02 Commission  v Italy [2004] ECR I‑5975, paragraph 38, Case C‑102/06 Commission  v Austria [2006], not published in the European Court Reports, paragraph 9).