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However the Court did not adopt the approach of the Advocate General. Ratio |
As Lord Walker points out, it did not explain why it thought that the Advocate General was wrong to treat the case as direct discrimination. Ratio |
But the contrast between her carefully reasoned approach and that of the Court is so profound that it cannot have been overlooked. Ratio |
One must assume that her approach, which was to find that the measures were precluded because the second condition was directly discriminatory, was rejected by the Court as too analytical. Ratio |
The Court looked at the conditions as a whole. Ratio |
It referred to its judgment in Case C-212/05 Hartmann v Freistaat Bayern [2007] ECR I-6303, para 29, where it acknowledged that the principle of non-discrimination prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which lead in fact to the same result by th... |
It said that a provision of national law was to be regarded as indirectly discriminatory if it was liable to affect nationals of other Member States more than nationals of the host State and there was a consequent risk that it would place the former at a particular disadvantage: paras 40-41. Ratio |
It then proceeded in para 42 to make the following analysis, by looking at the residence conditions cumulatively: In the cases in the main proceedings, the decree of June 16, 2006 provides that unrestricted access to the medical and paramedical courses covered by that decree is available only to resident students, that... |
[Emphasis added] Ratio |
The Court concluded that, looked at in this way, the national legislation created a difference in treatment between resident and non-resident students. Ratio |
A residence condition, such as that required by this legislation, was more easily satisfied by Belgian nationals, who more often than not reside in Belgium, than by nationals of other Member States, whose residence is generally in a Member State other than Belgium. Ratio |
It followed that the national legislation affected nationals of Member States other than Belgium more than Belgian nationals and placed them at a particular disadvantage which was indirectly discriminatory. Ratio |
The second cumulative condition as to the right to remain permanently in Belgium which the Advocate General said was necessarily linked to a characteristic indissociable from nationality and directly discriminatory, was subsumed into the first when the two conditions were treated cumulatively. Ratio |
The fact that the Court then went on to consider whether the difference in treatment was objectively justified makes it plain beyond any doubt that it considered the case to be one of indirect, rather than direct, discrimination. Ratio |
There is an obvious similarity between the provisions under consideration in Bressol and the circumstances in which a person is to be treated as being in Great Britain by regulation 2 of the 2002 Regulations. Ratio |
The tests are of the same type and they can be analysed in the same way. Ratio |
Just as in that case the specified courses were to be available to resident students only, here a person must be in Great Britain to be entitled to state pension credit. Ratio |
The European Court did not follow the Advocate Generals invitation to concentrate exclusively on the second cumulative condition. Ratio |
Nor did it pick up the point that she made in footnote 34 to her opinion, where she drew attention to Advocate General Jacobs opinion in Case C-79/99 Schnorbus v Land Hessen [2000] ECR I-10997, [2001] 1 CMLR 40, para 33 which has been discussed by Lord Walker (paras 66-68, below) and by Lady Hale (paras 88-91, below). ... |
Instead it looked at the conditions cumulatively and treated them overall as importing a residence test which was indirectly discriminatory. Ratio |
So it would be wrong in this case to concentrate exclusively on the regulation 2(2) right to reside test which is linked to nationality. Ratio |
Looking at the regulation as a whole, in the context of section 1(2)(a) of the 2002 Act, the test which is laid down is that the claimant must be in Great Britain. Ratio |
This test is constructed in a way that is more likely to be satisfied by a United Kingdom national than by a national of another Member State. Ratio |
The Courts reasoning in Bressol tells us that it is not directly discriminatory on grounds of nationality. Ratio |
But it puts nationals of other Member States at a particular disadvantage, so it is indirectly discriminatory. Ratio |
As such, to be lawful, it has to be justified. Ratio |
Justification Ratio |
The test that must be applied is to be found in Case C-209/03 R (Bidar) v Ealing London Borough Council [2005] QB 812, para 54. PRE |
In that case the European Court held that the criteria in the Education (Student Support) Regulations 2001 for granting assistance to cover the maintenance of students risked placing primarily nationals of other Member States at a disadvantage, because the condition requiring them to have residence in the United Kingdo... |
In para 54 the Court said that such a difference in treatment could be justified only if it was based on objective considerations independent of the nationality of the persons concerned and was proportionate to the legitimate aim of the national provisions. PRE |
Another source for this test is Case C-138/02 Collins v Secretary of State for Work and Pensions [2005] QB 145, para 66, where the same formula is set out; see also Case C-164/07 Wood v Fonds de Garantie des Victimes des Actes de Terrorisme et dAutres Infractions [2008] 3 CMLR 265, para 13. PRE |
The parties are agreed that article 3(1) of Regulation 1408/71 does not prohibit indirect discrimination if it is objectively justified by considerations that are independent of the nationality of the person concerned. PRE |
They are also agreed that the proportionality of the conditions for state pension credit under regulation 2 of the 2002 Regulations is not in issue. PRE |
As Mr Cox put it in his reply, what the Secretary of State has to show is that the difference in treatment of nationals of other member states is based on objective considerations independent of nationality. PRE |
If the Secretary of State can meet this requirement, there is no need to examine the question of proportionality. PRE |
If he cannot do so, it will not help him to say that the conditions for entitlement are proportionate. PRE |
There are, then, two questions that need to be addressed. PRE |
First, do the Secretary of States reasons for the difference in treatment provide an objective justification for it? Secondly, if they do, is that justification based on considerations that are independent of the nationality of the persons concerned? The jurisprudence of the European Court has consistently shown that t... |
The Secretary of States reasons for the introduction of the right to reside requirement in the 2002 Regulations were set out in a statement made in accordance with section 174(2) of the Social Security Administration Act 1992 in April 2004 in response to concerns raised by the Social Security Advisory Committee (Cm 618... |
As Katherine Fleay explained in her witness statement, para 4, it was made at the same time as regulations introducing the right to reside test were laid before Parliament. Ratio |
The underlying purpose was said to be to safeguard the United Kingdoms social security system from exploitation by people who wished to come to this country not to work but to live off income- related benefits, while allowing those who come here genuinely to work to have access to them: para 4 of Cm 6181. Ratio |
The purpose of the habitual residence test was to prevent benefit tourism. Ratio |
It was believed to be not unreasonable to expect people who were not economically active, whatever their nationality, to show that they had decided to live indefinitely in the United Kingdom and had a right to reside here before being entitled to benefits funded by the UK tax-payer: paras 13-17. Ratio |
In para 45 he gave this further explanation: As already explained, the Government considers that it is not unreasonable to concentrate benefits on people who have a particularly close connection with the UK or to expect people to have a right to reside in the UK before they become entitled to income-related benefits fu... |
The EC Directives governing the right of those who are economically inactive to reside in other member states have been in place since the early 1990s. Ratio |
Before the current Immigration (European Economic Area) Regulations 2000, the Immigration (EEA) Order 1994 made clear in line with those Directives that EEA nationals who were economically inactive (for example, retired people) had to have sufficient resources to avoid their becoming a burden on our social assistance s... |
The Governments proposals merely seek to bring the income-related benefit rules into line with this long- standing requirement. Ratio |
In para 57 of the statement the Secretary of State said that the government believed that its proposals were compatible with EU law as there would be no difference in treatment as between nationals of the eight accession states and other nationals. Ratio |
In para 58 he added this further point: Moreover, the new requirement to have a right to reside in the UK as a condition of access to income-related benefits will apply to UK nationals as well as current EEA nationals and nationals of the acceding states. Ratio |
It will thus apply equally to nationals of all Member States. Ratio |
In para 61 he again stated that the government was concerned that some current EEA nationals had taken advantage of free movement within the European Economic Area to become an unreasonable burden on this countrys benefit system, even though this negated their right to reside in the United Kingdom. Ratio |
It was reasonable to expect people to have a right to reside in the United Kingdom before they could have access to its income-related benefits, particularly as support might last for many years. Ratio |
His proposals were expected to bring the United Kingdom into line with the broad approach of policy and practice in Europe. Ratio |
It should be noted, in regard to that last observation, that by letter dated 4 June 2010 the European Commission invited the United Kingdom pursuant to article 258 TFEU to submit observations on the compatibility with EU law of the imposition of a right to reside test for benefits, including state pension credit, falli... |
Under this procedure, if the Commission is not satisfied with the United Kingdoms observations, it will send a reasoned opinion to the Member State following which, if it does not remedy the alleged breach within the time-frame set by the Commission, the Commission may bring the matter before the Court of Justice of th... |
Mr Drabble QC for the intervener, the AIRE Centre (Advice on Individual Rights in Europe), submitted that the Commissions decision to issue a letter of formal notice supported the conclusion that it was at least not acte clair that right to reside test was compatible with EU law. Ratio |
So far, no opinion has yet been issued by the Commission with reference to any alleged infringement of Regulation 1408/71. Ratio |
In these circumstances I would not draw any conclusions either one way or the other from these developments. Ratio |
The justification that was given in para 45 of the Secretary of States statement is repeated in the agreed Statement of Facts and Issues, para 33: The justification advanced by [the Secretary of State] for the discriminatory effect of regulation 2 of the 2002 Regulations is to protect the resources of the United Kingdo... |
Mr Lewis submitted that the requirements of regulation 2 of the 2002 Regulations were objectively justifiable. ARG |
He said that para 33 of the Statement of Facts and Issues was not meant to be a complete statement. ARG |
A person would be eligible to receive state pension credit if he could show economic integration in the United Kingdom or a sufficient degree of social integration here. ARG |
Where there was social integration, the person would be eligible. ARG |
What the regulation sought to do was to prevent exploitation of welfare benefits by people who came to this country simply to live off benefits without working or having worked here. ARG |
It was important to understand the nature of state pension credit. ARG |
As the Court of Appeal observed in para 41, Regulation 1408/71 draws a distinction between social security benefits within article 4(1) and hybrid benefits within article 4(2a). ARG |
Social security benefits, such as the appellants Latvian pension, could not be the subject of a residence condition. ARG |
They must be exportable to any state within the EU. ARG |
Hybrid benefits on the other hand, such as state pension credit, reflected the social and economic conditions in the country where they were paid. ARG |
They did not lose their character as social assistance simply because they were treated by the article as hybrid. ARG |
What mattered was the nature and function of the benefit. ARG |
State pension credit was social assistance despite the hybrid status that it was given by Regulation 1408/71. ARG |
It is an income-related benefit to help people in need. ARG |
So it was not inconsistent with the purpose of Regulation 1408/71 for access to this benefit to be refused to people who did not have right to reside in this country. ARG |
Mr Lewis submitted that this approach was supported by the judgment of the European Court in Case C-456/02 Trojani v Centre Public dAide Sociale de Bruxelles [2004] 3 CMLR 820 and various EU measures dealing with the right of residence in EU law and its consequences such as Council Directive 90/364 EEC, which made it a... |
Mr Trojani was a French national. ARG |
He moved to Belgium where he worked for a while without being registered. ARG |
He then sought social assistance in the form of a benefit known as the minimex. ARG |
One of the questions was whether he had a right of residence in Belgium, and was thus entitled to social assistance there, simply by virtue of being an EU citizen. ARG |
In para 17 of his opinion in Trojani Advocate General Geelhoed said that the differential treatment of economic and non-economic migrants, viewed historically, was based on the need to remove obstacles to inter-state trade and later to provide for the free movement of persons. Ratio |
In para 18 he contrasted the historical position with what it is today: The difference in treatment now has a more pragmatic basis. Ratio |
So long as social security systems have not been harmonised in terms of the level of benefits, there remains a risk of social tourism, ie moving to a Member State with a more congenial social security environment. Ratio |
And that is certainly not the intention of the EC Treaty, which to a considerable extent leaves responsibility for social policy in the hands of the Member States. Ratio |
The Community legislature has acted on the assumption that an economic migrant will not claim any subsistence allowance in the host Member State. Ratio |
In para 70 he said that the basic principle of Community law is that persons who depend on social assistance will be taken care of in their own Member State. Ratio |
There was no doubt that Mr Trojani was applying for the minimex because he did not have sufficient resources to provide for himself. Ratio |
In these circumstances he could not claim a right of residence on the basis of article 18 EC. Ratio |
The Court endorsed the approach of the Advocate General. Ratio |
In paras 35-36 it said: 35 It follows from the judgment making the reference that a lack of resources was precisely the reason why Mr Trojani sought to receive a benefit such as the minimex. 36 In those circumstances, a citizen of the Union in a situation such as that of the claimant in the main proceedings does not de... |
Mr Coxs response to these arguments was that the purpose of regulation 2 of the 2002 Regulations was simply to exclude other EU citizens. ARG |
This was plainly contrary to article 3(1) of Regulation 1408/71, whose effect was that the provisions of Regulation 1408/71 applied to all those who were within its personal scope without distinction as to whether they were lawfully resident in the host Member State. ARG |
When the Secretary of State used the word people in his statement (see paras 37-38, above) it was plain that he was referring to citizens of other Member States. ARG |
He was not seeking to impose additional conditions on United Kingdom nationals, as it was enough for them to prove British citizenship. ARG |
For those who were not United Kingdom or Irish nationals, habitual residence was no longer to be enough. ARG |
The Secretary of States purpose was not independent of nationality. ARG |
So the regulation could not be justified by objective considerations independent of the nationality of the persons concerned. ARG |
As for the nature of state pension credit, some benefits which had the characteristics of social assistance were properly characterised as social security. ARG |
That was what article 4(2a), inserted by Regulation (EC) No 647/2005, was designed to do. ARG |
There was consistent case law, starting with Case 1/72 Rita Frilli v The State (Minister for Social Security) [1973] CMLR 386, para 14, to the effect that benefits which had the dual characteristics of social assistance and social security, and which conferred upon beneficiaries a legally defined position giving them a... |
This was significant because, if the principle which the Secretary of State relied upon (see para 40, above) did exist, it was only relevant to social assistance benefits and not in respect of social security. ARG |
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