Overview of Recent Cases before the European Court of Human Rights and the European Court of Justice (October – December 2007)
| Published date | 01 December 2007 |
| Date | 01 December 2007 |
| DOI | 10.1177/138826270700900404 |
| Author | Mel Cousins |
| Subject Matter | News and Cases |
European Jour nal of Social Secu rity, Volume 9 (2007), No. 4 367
NEWS AND CASES
OVERVIEW OF RECENT CASES BEFORE THE EUROPEAN
COURT OF HUMAN RIGHTS AND THE EUROPEAN COURT
OF JUSTICE OCTOBER DECEMBER 2007
EUROPEAN COURT OF JUSTICE
e Court of Justice considered a number of important issues in the period in question
including the ongoing issue of t he exportability of social s ecurity payments classied
as ‘specia l non-contributory benets’ under Regulation 1408/71. A signicant issue
in terms of the provision of socia l security benets, and one with i mplications for
individuals in terms of how they w ill be paid thei r benets, was considered in a case
involving the Irish socia l security authorities and their decision in the 1990s to award
a contract for the payment of social security benets to the Irish postal service without
open competition.
Readers should also note the decision of t he Grand Chamber of the Court of
Justice in Palacios de la Villa concerning age d iscrimination and Directive 2000/78/
EC (the general f ramework directive on equal treatment in employment). e C ourt
ruled that national legislation a llowing compulsory retirement claus es in collective
agreements was not contra ry to the Directive as it reected a legitimate aim of social
policy (the encouragement of employment) and was therefore objectively justied; and
was proportionate in its application.1 is decision is not directly relevant to statutory
social sec urity schemes which a re excluded from the scope of the Directive, but may
be of relevance to occupational pensions.
Special Non-Contributory Benets and Regulation 1612/68
In addit ion to the Commission v. Council case on special non-contributory benets
(noted in the last issue of this journal), the ECJ also considered special non-contributory
benets (SNCBs) i n the Hendrix case – this t ime in relation to Regu lation 1612/68.
Mr. Hendrix was Dutch. He had a slight menta l disability and received a disabilit y
1 Case C-411/05, Palacios de la Villa [2007] ECR I-00 0. e rules allowed such clauses at age 65 where
the person qual ied for a contributory ret irement pension. As the case i s primarily of intere st from
an employment and equ ality perspec tive it is not discussed i n more detail in th is section.
News and Cases
368 Intersentia
allowance (Wajong) which the Court found to be a ‘social advantage’ for the purposes
of Regulation 1612/68.2 He was employed in specially adapted work, in the Netherlands
and was paid for t his work but continued to receive the Wajong benet, reduced to
take account of h is wages. In 1999, Mr. Hendrix moved to Belg ium while continuing
to work in the Netherlands. e Netherlands authorities then decided to termi nate
the benet under the Wajong on the basis t hat he had taken up residence outside
the Netherlands. e Wajong b enet is specically designated by t he Netherlands
as a special non-contributory benet under Regulation 1408/71 and as such is not
exportable.3 Article 10a of Regul ation 1408/71 specically prov ides that
Notwithsta nding the provisions of Article 10 and Title I II, persons to whom this
regulation applies shall be granted the special non-contributory cas h benets referred to
in Art icle 4(2a) exclusively in the territory of the Membe r State in which they re side
(my emphasis), in accordance with the leg islation of that State, provided that such b enets
are listed in A nnex IIa…
e defendant as well as the Netherlands and UK governments argued that Regulation
1408/71 was the more specic provision in comparison to Regu lation 1612/68, and
that it therefore applied to the exclusion of Reg ulation 1612/68 w ithin its scope of
application. ey arg ued in particular that Regulation 1612/68 cou ld not result in
a situation that benets whose export is excluded under Article 10a of Regulation
1408/71 mig ht, aer all, be payable. e Court, however, predict ably rejected this
argument in principle.
As to it s application in practice, the Court pointed out that it had previously
held t hat a Member State may not make payment of a socia l advantage within the
meaning of Article 7 of Regulation 1612/68 dependent on the condition that recipients
are resident in the national territory of that Member State unless that condition i s
objectively just ied and propor tionate to the objective pursued.4 is remained the
case even though the Wajong benet is a specia l non-contributory benet. Following
Advocate General Kokott, the Court stated t hat Article 7(2) of Regulation No 1612/68
is the pa rticular expression, in the specic area of the gra nting of social advantages,
of the principle of equal t reatment enshrined in Article 39(2) EC, and as such it must
be accorded the same interpretation as Ar ticle 39(2) EC. e Court accepted that
the Wajong benet is closely l inked to t he socio-economic situat ion of the Member
2 Case C-287/05 Hendri x [2007] ECR I-000.
3 e referring court in Hendrix had asked whether the Wajong was, in fact, a special non contributory
benet but this issue had already been resolved in Case C-154/05 Kersbergen-Lap [2006] ECR I-6249.
See the recent d iscussion in thi s journal and H. Verschueren ‘Eu ropean (internal) mig ration law as
an i nstrument for den ing the boundarie s of national s olidarity systems’ 9 Europea n journal of
migration and law (20 07), 307–346.
4 Citing Case C-57/96 Meints [1997] ECR 6689, paragraph 51 and Case C-337/97, Meeusen [1999] ECR
3289, paragraph 21.
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