Overview of Recent Cases before the European Court of Human Rights and the European Court of Justice (October–December 2008)

AuthorMel Cousins
Published date01 December 2008
Date01 December 2008
Subject MatterRecent Case Law
/tmp/tmp-17pfkUypsUrZXG/input ReCenT Case law
Recent cases before the Court of Justice and human Rights have focussed on the issue
of residence – highlighting once again the importance of this issue in a social security
context. First, the Court of Justice has given what is, in effect, its first judgement on
the relationship between the EU residence directive (2004/38), EU citizenship and the
right to social provisions or social advantages (in this case an education maintenance
grant).1 Given the importance of this case, it is reported in full below. Secondly, the
Court of Justice has again considered the export of benefits for victims of war in the
light of EU citizenship – holding that such a benefit is exportable. Finally, the Court
of human Rights has examined the compatibility of the non-up-rating of pension
benefits (payable outside the EU) in the light of the EChR. Other cases concerned
gender discrimination and the EChR (discussed below) and exemption from social
security contributions as State aid.2
Readers may also be interested to note that the Council of Ministers adopted
(on 17 December 2008) common positions in relation to the proposed regulations
completing and implementing Regulation 883/2004, which is to replace Regulation
1408/71 as regards coordination of social security schemes for migrants.3 The regulations
have now to return to the European Parliament for further consideration but it may be
Although the case concerns the predecessor directive (93/96/EEC), the Court specifically refers to
Directive 2004/38 in justifying its answer.
Joined Cases T-254/00, T-270/00 and T-277/00. Hotel Cipriani v Commission [2008] ECR II-000.
The Court rejected a challenge by various businesses to a Commission decision that reductions
and/or exemptions to social security contributions constituted State aid which was incompatible
with EU law, in so far as they were granted to undertakings which were not small or medium-sized
enterprises (SMEs) and which were not located in an area eligible for a derogation because of the
special features of the region. The Court concluded that the Commission did not exceed the limits of
its discretion in considering that the reductions in social security contributions and the exemptions
from such contributions constituted State aid incompatible with the common market, since those
measures did not satisfy any of the conditions for the application of the derogations provided for
under the Treaty. It also found that Italy is under an obligation to recover the unlawful aid from the
companies concerned.
Details are available in the documents section of the website of the EU Council: www.consilium.
European Journal of Social Security, Volume 10 (2008), No. 4

Recent Case Law
possible that the regulations will finally be agreed in 2009 for implementation in 2010
– a mere six years after Regulation 883/2004 was adopted.
In Zablocka-Weyhermüller, a Polish national had been married to a German national
(living in Germany) who was in receipt of a pension for war victims.4 After his death
in 2004, she applied for a surviving dependant’s pension as a war widow and indicated
that she wished to move to Poland in the near future. She was refused a reduced
pension because of her Polish residence.
The Court, following its approach in previous decisions such as Tas-Hagen and
Nerkowska,5 held that national legislation (such as the German law in question), which
places Community nationals at a disadvantage 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 EC. Such legislation can be justified 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
The justification submitted was that the aim of the reduced pension was to provide
a suitable benefit to beneficiaries resident outside Germany, taking into account the
current differences between the cost of living, income and the average level of social
benefits paid in Germany and in the Member State in which the person entitled
The Court held that the desire to provide a benefit that takes into account those
differences between the Member States (and the need to ensure effective monitoring of
the employment and social situation of beneficiaries) might justify the restriction on
freedom of movement. however, the Court also pointed out that any restriction must
not be disproportionate to the objective pursued. The German legislation limited the
application of the restriction to beneficiaries domiciled or resident on the territory of
Albania, Bulgaria, the Czech Republic, Estonia, hungary, Latvia, Lithuania, Poland,
Romania, Russia, Slovakia, Slovenia, and the other States comprising the territories
of the former yugoslavia and the former Soviet Union. however, as the Court pointed
out there are (1) other States in which the cost of living is lower than that in some of
Case C-221/07, Zablocka-Weyhermüller [2008] ECR I-000.
Case C-192/05 Tas-Hagen and Tas [2006] ECR I-10451, and Case C-499/06 Nerkowska [2008] ECR
At para 38. Additional justification suggested included the need to ensure effective monitoring of
the employment and social situation of those entitled, in particular their incomes.

Recent Case Law
the Member States referred to and (2) the differences existing between the Member
States referred to in that paragraph are considerable.
Likewise, the Court held that effective monitoring of the employment and social
situation of beneficiaries should be carried out in exactly the same way in all Member
States and that the suspension of benefits went beyond what is necessary to carry out
such monitoring. Therefore, it found that the restrictions did not meet the objectives
claimed by the German authorities and were in breach of Article 18(1) EC.
In the light of its recent decisions, the outcome in this case is unsurprising,
especially given the clearly discriminatory restrictions that applied only to some
Member States and not others. however, the fact that the Court accepted that the
objective of reflecting different costs-of-living could constitute objective justification
is interesting. It has never been the case that such a variation was allowed under
Regulations 1408/71 and, if such an approach is to be allowed, it may make for a
somewhat complicated system of assessment.
The Carson case involved persons in receipt of UK State pensions who lived abroad in
certain countries which do not have reciprocal agreements with the UK under which
cost-of-living increases are payable.7 As a result, while Ms. Carson and the other
applicants received a pension, this was not updated. It was not disputed that there was
no particularly logical scheme as to the countries with which reciprocal agreements
had been negotiated and whose residents thereby benefited from annual increases.
The countries represented whomever the UK had, from time to time, been able to
negotiate with, without placing itself at an undue economic disadvantage.
One issue in Carson was whether or not residence constituted a status for the
purpose of Article 14. The EChR has never shown much interest in confining status in
any narrow way (or defining it at all for that matter) but the UK courts have been greatly
exercised by this issue. The UK government argued that ‘status’ within Article 14 meant
‘a personal characteristic… by which persons or groups of persons are distinguishable
from each other’ (referring to Kjeldsen)8 and that the place of residence was not such
a personal characteristic. The applicants, on the other hand, argued that the narrow
interpretation of the term ‘status’ in Kjeldsen had been superseded by subsequent
decisions of the Court. The Court confirmed that it had established in its case law that
differences in treatment based on an identifiable characteristic, or ‘status’, are capable
of amounting to discrimination within the meaning of Article 14.9 however, the Court
R v Secretary of State for Work and Pensions ex parte Carson [2005] UKhL 37 at para 27. For a
critical commentary on the approach of the UK courts see Baker (2008: 857–67).
Kjeldsen v. Denmark, 5095/71, 5920/72, 5926/72, (1979–89) 1 EhRR 711.
Carson [ECthR] at para 73.
European Journal of Social Security, Volume 10 (2008), No. 4

Recent Case Law
went on to point out that the list of grounds set out in Article 14 is ‘illustrative and not
exhaustive’, as is shown by the words ‘any ground such as’ (in French ‘notamment’).10 It
further recalled that it had previously given the words ‘other status’ (and a fortiori the
French ‘toute autre situation’) a wide meaning so as to include, in certain circumstances,
a distinction drawn on the basis of a place of residence.11
The Court ruled that, in the circumstances of the case, ordinary residence, like
domicile and nationality, is to be seen as an aspect of personal status and that the place
of residence applied as a criterion for the differential treatment of citizens in the grant
of State pensions is a ground falling within the scope of Article 14.12
The Court then considered...

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