Overview of Recent Cases before the European Court of Human Rights and the European Court of Justice (April 2011 – June 2011)
| DOI | 10.1177/138826271101300304 |
| Published date | 01 September 2011 |
| Author | Mel Cousins |
| Date | 01 September 2011 |
| Subject Matter | Article |
372 Intersentia
oveRvieW oF ReCent CAses beFoRe
tHe eURoPeAn CoURt oF HUmAn
RigHts AnD tHe eURoPeAn CoURt
oF JUstiCe (APRiL 2011 − JUne 2011)
M C*
In this article, we review developments in the case law of the European Court of
Justice and Court of Human Rights in the p eriod April to June 2011. In contrast to
the la st issue which focussed on a number of key judgments – mainly involving an
interpretation of the Treaty provisions − that look likely to have a n important impact
on s ocial secu rity issues ,1 this issue returns to the more mundane case law of the
two courts on issues such as the co-ordinat ion of so cial secur ity for migrants a nd
the application of the right to fair hearing and non-discrimination in the e ld of
social securit y. However, the Römer case does mark an important conrmation of the
Court of Just ice’s earlier r uling (in Maruko) on di scrimination on grounds of sexual
orientation.
1. SPECIAL NONCONTRIBUTORY BENEFITS YET AGAIN
Regulation 1408/712 covers socia l security benets (as dened i n Article 4(1)),
although ‘social assistance’ is e xcluded from its scope. Hybrid benets (known as
* School of Law a nd Social S cience, Glasgow C aledonian Univer sity; e-mail : mcousi11@caledonian.
ac.uk.
1 Readers should note th at, having ta ken a bold step for ward on Union citi zenship in Ca se C-34/09,
Ruiz Zambrano, the Court more recently (and in a non-social secu rity case) took a b old st ep
sideways in Case C-43 4/09, McCarthy [2011] ECR I-000, in which it held that Art icle 21 TFEU is not
applicable to a Union citizen who has never exercised her ri ght of free movement , who has a lways
resided in a Member St ate of which she is a national, a nd who is also a nationa l of another Member
State, provid ed that the situation of that citize n does not i nclude the applic ation of measu res by a
Member State that would have the ee ct of depriving her of the genuine enjoyment of the sub stance
of the rights conferred by vir tue of her statu s as a Union c itizen, or of i mpeding t he exercise of
her right of free movement and residence within t he territory of the Membe r States. W hereas the
parent-child relation ship in Ruiz Zambrano was apparently su cient to engage the substance of the
rights of Union citi zenship, the spousa l relationship in McCar thy was not.
2 Now replaced by Regulation 883/20 04.
Recent News and Cas e Law
European Jour nal of Social Secu rity, Volume 13 (2011), No. 3 373
special non-contributory benets and dened in Article 4(2a)) fall partially with in the
scope of the Regulation, but are not ex portable.3 While t here are obvious dicu lties
in categorising benets from a wide range of Member States i n a consistent manner,
the C ourt’s case law in the area has been marked by an a bysmal lack of clarity.4 In
practice, t he Court has held that ca sh benets relating to care are to be classi ed as
social security,5 whereas benets that provide a subsistence income (even if not means-
tested) are special non-contributory benets.6 Even if this dist inction i s not very
logical and somewhat athe oretical, its a cceptance might have been made easier had
the Court ever openly admitted t hat it is categorising on this basis. Instead, the Cou rt
has continued to put forward rat her inconsistent and oen spurious justications for
the results at which it arr ives.
e Court adopts t wo dierent approaches in categorising benets. I f it wishes to
nd that a benet is social secu rity, it starts from Article 4(1) and examines whet her
the benet covers one of the contingencies listed therein and is granted on the basis
of a legally dened position, without any individual and d iscretionary assessment of
personal needs. Hav ing found that it falls w ithin the denition of social security, the
Court holds that it cannot be a SNCB. Where it wants to nd the benet to be a SNCB,
it starts with Article 4(2)(a) and nds that the benet in question falls within the scope
of that sub-article.7 Even given the dismal standa rd of the Court’s jurisprudence to
date, its decision in Bartlett marks a new low.8
e background to the Bartlett case goes back to the Court’s 2007 judgment
in Commission v Council, in wh ich the Court ruled t hat a series of care/disability
benets were social security rat her than SNCBs.9 One of the benets involved was the
UK disabi lity living allowance (DLA). is non-contributory and non-means-tested
benet has two components: care and mobility.10 Before the 2007 proceedings reached
the Court, t he Commission and t he UK government had agreed t hat the mobility
component was a SNCB and this was accepted by the Advocate General and the Court,
without detailed consideration. However, the Cou rt held that the ca re component
3 e precise wording of Article 4(2)(a) has changed over time, though the Court has never paid much
attention to thes e changes.
4 Cousins (2007a).
5 Case C-286/03, Hosse [2006] ECR I-1771; Case C-299/05, Commission of the European Communitie s
v European Parliamen t and Council of the European Unio n, [2007] ECR I-8695.
6 Case C-160/02, Skalka [2004] ECR I-5613, Case C-154/05, Kersbergen-Lap [200 6] ECR I-6249.
7 In its post-2005 for m, this c overs benets i ntended to provide either (i) supplementa ry, substitute
or anc illary cover aga inst the social securit y risks (set out in A rticle 4(1)), and which g uarantee
the persons concerned a min imum su bsistence income; or (ii) solely s pecic protection for the
disabled.
8 Case C-537/09, Bartlett [2011] ECR I-000.
9 Case C-299/05 Commission v Parliament and Counc il [2007] ECR I-8695. See Cousins (20 07b).
10 is, in part, reect s the fact that it replaced separate mobilit y and attenda nce allowance s.
Interesting ly, in Case C-356/89, Newton [1991] ECR I-3017 the Court had held that the then mobility
allowance wa s a social secur ity benet.
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