D. P. W. Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen.
Date: 2007-09-11
36. In Kersbergen-Lap and Dams-Schipper  (paragraph 43), the Court ruled that a person in the situation of the applicant in the main proceedings cannot rely on the maintenance of rights acquired under the AAW prior to adoption of the Wajong. The legal effects (whether or not the Wajong benefit may be exported) of taking up residence outside the Netherlands must consequently be examined in the light of the rules applicable at the time when the new residence was established, which is to say in the light of the new provisions.
37. Further, as regards the argument of the applicant in the main proceedings based on Article 2 of Regulation No 1247/92, while those persons who, prior to 1 June 1992, the date of entry into force of that regulation, were in receipt of the AAW benefit or satisfied the conditions to receive it may, in accordance with Article 2 of the regulation, continue to take advantage of the principle of waiver of residence clauses laid down in Article 10 of Regulation No 1408/71, the situation of those persons who, like him, satisfied those conditions only after that date is conversely governed by Article 10a of the latter regulation (see, to that effect, Case C‑297/96 Partridge [1998] ECR I‑3467 paragraph 39).
46. The situation at issue in the main proceedings is therefore that of a person who, while maintaining paid employment in his State of origin, transferred his residence to another Member State, and then found other employment in his State of origin. The fact that Mr Hendrix, after taking up residence in Belgium, continued to work in the Netherlands and then changed employer in that Member State gives him the status of a migrant worker and brings him, throughout the period at issue in the main proceedings, that is from June 1999 to 2001, within the scope of Community law and, in particular, within the scope of its provisions relating to freedom of movement for workers (Case C‑152/03 Ritter-Coulais  [2006] ECR I‑1711, paragraphs 31 and 32, and Case C‑212/05 Hartmann  [2007] ECR I‑0000, paragraph 17).
47. Under Article 7 of Regulation No 1612/68, a migrant worker is to enjoy the same social advantages as those which are made available to national workers. In accordance with settled case-law, the concept of worker referred to by that provision covers frontier workers who have the same entitlement to rely on it as any other worker targeted by that provision (see, to that effect, Meints , paragraph 50, Case C‑337/97 Meeusen  [1999] ECR I‑3289, paragraph 21, and Hartmann , paragraph 24).
48. As to the concept of social advantage, referred to in Article 7(2) of Regulation No 1612/68, this term covers all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their status as workers or by virtue of the mere fact of their ordinary residence on the national territory, and the extension of which to migrant workers therefore seems likely to facilitate their mobility within the Community (Case 249/83 Hoeckx  [1985] ECR 973, paragraph 20, and Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraph 25).
50. The Court has held that a Member State may not make payment of a social advantage within the meaning of Article 7 of Regulation No 1612/68 dependent on the condition that recipients are resident in the national territory of that Member State ( Meints , paragraph 51 and Meeusen , paragraph 21).
52. However, as the Court has consistently held, the provisions of Regulation No 1408/71 enacted to give effect to Article 42 EC must be interpreted in the light of the objective of that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers (Case C‑215/99 Jauch [2001] ECR I‑1901, paragraph 20).
53. On that point, Article 7(2) of Regulation No 1612/68 is the particular expression, in the specific area of the grant of social advantages, of the principle of equal treatment enshrined in Article 39(2) EC, and must be accorded the same interpretation as Article 39(2) EC (see the judgment of 23 February 2006 in Case C‑205/04 Commission  v Spain , not published in the ECR, paragraph 15).
54. It follows that the condition of residence attached to receipt of the benefit under the Wajong can be put forward against a person in the situation of Mr Hendrix only if it is objectively justified and proportionate to the objective pursued.
55. As the Court held in paragraph 33 of Kersbergen-Lap and Dams-Schipper , the Wajong benefit is closely linked to the socio-economic situation of the Member State concerned, since it is based on the minimum wage and standard of living in the Netherlands. Further, that benefit is one of the special non-contributory benefits referred to in Article 4(2a) in conjunction with Article 10a of Regulation No 1408/71, which the persons to whom that regulation applies receive exclusively within the territory of the Member State in which they reside and in accordance with the legislation of that State. It follows that the condition of residence as such, laid down in the national legislation, is objectively justified.
57. From this point of view, it must be observed that the national legislation, as stated above in paragraph 15, expressly provides that the condition of residence may be waived when the condition leads to an ‘unacceptable degree of unfairness’. In accordance with settled case-law, it is the responsibility of national courts to interpret, so far as possible, national law in conformity with the requirements of Community law (Case C‑106/89 Marleasing  [1990] ECR I‑4135, paragraph 8, and Joined Cases C‑397/01 to C-403/01 Pfeiffer and Others  [2004] ECR I‑8835, paragraph 113). The referring court must therefore be satisfied, in the circumstances of this particular case, that the requirement of a condition of residence on national territory does not lead to such unfairness, taking into account the fact that Mr Hendrix has exercised his right of freedom of movement as a worker and that he has maintained economic and social links to the Netherlands.
61. According to settled case‑law, Article 18 EC, which sets out generally the right of every citizen of the Union to move and reside freely within the territory of the Member States, finds specific expression in Article 39 EC in relation to freedom of movement for workers (see Case C‑100/01 Oteiza Olazaba l [2002] ECR I‑10981, paragraph 26, and Case C‑392/05 Alevizos  [2007] ECR I‑0000, paragraph 66).
62. Since the case in the main proceedings falls within the scope of Article 39 EC, it is not necessary to rule on the interpretation of Articl e 18 EC (see, to that effect, Oteiza Olazabal , paragraph 26, and Alevizos,  paragraph 80), and there is, therefore, no need to answer the fourth question.
Costs