Jun
18
Hendrix [2007 pending]
June 18, 2007 |
The social benefit issue is a very sensitive and controversial one in the EU law. Some decisions of the ECJ point to the important existence of a “real and effective link” requirement as regards the Member State from which payment of the social benefit is sought but the clearest signs of such a development are appearing in recent Advocate Generals opinions.
Thus for example, the pending Hendrix case, concerns a Dutch frontier worker who worked and lived in the Netherlands. While continuing to work in the Netherlands, he transferred his residence to Belgium. Before his removal he was entitled under Dutch legislation to a benefit for handicapped people which is listed in Annex IIa of Regulation 1408/71 as a non-exportable special non-contributory benefit. Therefore, once Mr Hendrix had left the country, the Dutch competent institution stopped paying that benefit applying the said provisions of Regulation 1408/71. However, as Mr Hendrix continued to be active as a worker in the Netherlands, the ECJ has now been asked whether the withdrawal of the benefit is not contrary to Article 39 or Article 18 EC Treaty.
The Advocate General Kokott, referring almost exclusively to case law on EU citizenship, affirmed that entitlement to a social benefit can, as a matter of principle, be subject to the requirement of a link or attachment to the host Member State. In this case, she argues that the impugned residence condition is evidence of such a link to the social and economic environment of the host Member State from whom the benefit is requested. But in her opinion, in this case the work of a frontier worker is surely evidence of his social and economic attachment to that State.
The case is now pending before the ECJ, but taking into account the ECJ’s previously case law, Mr Hendrix as an active frontier worker may indeed have a chance of winning this case. I will get back with this case when the ECJ will give its judgment.