Government of Communauté française and Gouvernement wallon v Gouvernement flamand.

• Jurisdiction: European Union
• Celex Number: 62006CJ0212
• ECLI: ECLI:EU:C:2008:178
• Docket Number: C-212/06
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 01 April 2008

Case C-212/06

Government of the French Community

and

Walloon Government

v

Flemish Government

(Reference for a preliminary ruling from the Cour d’arbitrage, now the Cour constitutionnelle (Belgium))

(Care insurance scheme established by a federated entity of a Member State – Exclusion of persons residing in part of the national territory other than that falling within the competence of that entity – Articles 18 EC, 39 EC and 43 EC – Regulation (EEC) No 1408/71)

Summary of the Judgment

1. Social security for migrant workers – Community legislation – Scope ratione materiae

(Council Regulation No 1408/71, Art. 4)

2. Preliminary rulings – Jurisdiction of the Court – Limits – Purely internal situations

(Arts 17 EC, 18 EC and 234 EC)

3. Social security for migrant workers – Competence of federated entities of a Member State to organise their social security systems – Limits

(Arts 39 EC and 43 EC)

4. Social security for migrant workers – Competence of federated entities of a Member State to organise their social security systems – Limits

(Arts 39 EC and 43 EC)

1. Benefits provided under a care insurance scheme giving the right, objectively and on the basis of a statutorily defined position, to reimbursement by a care insurance fund of the costs incurred in respect of the provision of help and non-medical services by any person whose autonomy is reduced by reason of serious and prolonged disability, fall within the scope ratione materiae of Regulation No 1408/71.

Benefits intended to improve the state of health and quality of life of persons reliant on care 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 that regulation.

Furthermore, such a care insurance scheme, governed by provisions of domestic law applicable to part only of the territory of a Member State, cannot be excluded from the ambit of Regulation No 14087 if it is funded, at the very least in part, by contributions paid by the persons insured, and is not mentioned in Annex II, Section III, to that regulation.

(see paras 19-23, operative part 1)

2. Community law cannot be applied to purely internal situations. It is not possible 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. 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. Nevertheless, interpretation of provisions of Community law may 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 paras 38-40)

3. On a proper construction of Articles 39 EC and 43 EC, legislation of a federated entity of a Member State, such as that governing care insurance, limiting affiliation to a social security scheme and entitlement to the benefits provided by that scheme to persons either residing in the territory coming within that entity’s competence or pursuing an activity in that territory but residing in another Member State, is contrary to those provisions, in so far as such limitation affects nationals of other Member States or nationals of the Member State concerned who have made use of their right to freedom of movement within the European Community.

Those articles of the Treaty 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. 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 national workers. It is enough that the measure should benefit certain categories of persons pursuing occupational activity in the Member State in question.

In addition, the articles of the Treaty relating to the free movement of goods, persons, services and capital are fundamental provisions for the Community and any restriction, even minor, of that freedom is prohibited.

(see paras 45, 50, 52, 60, operative part 2)

4. On a proper construction of Articles 39 EC and 43 EC, those provisions militate against legislation of a federated entity of a Member State limiting affiliation to a social security scheme and entitlement to the benefits provided by that scheme only to persons residing in that entity’s territory, in so far as such limitation affects nationals of other Member States working in that entity’s territory or nationals of the Member State concerned who have made use of their right to freedom of movement within the European Community.

(see para. 63, operative part 3)

JUDGMENT OF THE COURT (Grand Chamber)

1 April 2008 (*)

(Care insurance scheme established by a federated entity of a Member State – Exclusion of persons residing in part of the national territory other than that falling within the competence of that entity –Articles 18 EC, 39 EC and 43 EC – Regulation (EEC) No 1408/71)

In Case C‑212/06,

REFERENCE for a preliminary ruling under Article 234 EC, by the Cour d’arbitrage, now the Cour constitutionnelle (Belgium), made by decision of 19 April 2006, received at the Court on 10 May 2006, in the proceedings

Government of the French Community,

and Walloon Government

v

Flemish Government,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts, A. Tizzano (Rapporteur), G. Arestis, Presidents of Chambers, A. Borg Barthet, M. Ilešič, J. Malenovský and J. Klučka, Judges,

Advocate General: E. Sharpston,

Registrar: M.-A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 27 March 2007,

after considering the observations submitted on behalf of:

– the Government of the French Community, by J. Sambon and P. Reyniers, avocats,

– the Walloon Government, by M. Uyttendaele, J.-M. Bricmont and J. Sautois, avocats,

– the Flemish Government, by B. Staelens and H. Gilliams, advocaten,

– the Netherlands Government, by H.G. Sevenster and P. van Ginneken, acting as Agents,

– the Commission of the European Communities, by V. Kreuschitz and J.-P. Keppenne, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 28 June 2007

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 18 EC, 39 EC and 43 EC, and of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Council Regulation (EC) No 307/1999 of 8 February 1999 (OJ 1999 L 38, p. 1) (‘Regulation No 1408/71’).

2 The reference was made in the context of proceedings between several federated entities of the Kingdom of Belgium. In those proceedings, the Government of the French Community and the Walloon Government, on the one hand, and the Flemish Government, on the other, are in dispute over the conditions for affiliation to the care insurance scheme established by the Flemish Community for persons whose autonomy is reduced by serious and prolonged disability.

Legal context

The relevant provisions of Community law

3 The scope ratione personae of Regulation No 1408/71 is defined in Article 2(1) thereof, which provides:

‘This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.’

4 Article 4 defines the scope ratione materiae of that regulation as follows:

‘This Regulation shall apply to all legislation concerning the following branches of social security:

(a) sickness and maternity benefits;

…

2. This Regulation shall apply to all general and special social security schemes, whether contributory or non-contributory, and to schemes concerning the liability of an employer or ship owner in respect of the benefits referred to in paragraph 1.

…

2b This Regulation shall not apply to the provisions in the legislation of a Member State concerning special non-contributory benefits, referred to in Annex II, Section III, the validity of which is confined to part of its territory.

…’

5 Article 3 of Regulation No 1408/71, headed ‘Equality of treatment’, provides:

‘1. Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.’

6 Lastly, Article 13 of the Regulation determines the legislation applicable to migrant workers in the field of social security. It is worded as follows:

‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a...