OPINION OF ADVOCATE GENERAL
KOKOTT

delivered on 30 March 2006 ¹(1)

Case C-192/05

K. Tas-Hagen

R. A. Tas

(Reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands))

(Freedom of movement of Union citizens (Article 18 EC) – Restrictions on the right to free movement – Payment to civilian war victims – Requirement that the person concerned be resident in the Member State making the payment at the time when the application is submitted)

I –  Introduction

1.        The present case provides an opportunity to define further the scope of Article 18(1) EC. Can a Union citizen always rely on this provision where he exercises his right to free movement or is an additional link with Community law required? And what margin of discretion does the right to free movement of Union citizens leave Member States, in establishing a system of social benefits which are not governed by Community law? These are essentially the questions which the Court of Justice is called upon to consider by the Netherlands Centrale Raad van Beroep (also ‘the national court’).

2.        Two Netherlands nationals, who have been recognised as civilian war victims, applied to the competent Netherlands authority for the compensatory benefits provided for in such cases. They were refused the benefits solely on the ground that they were resident in Spain and not the Netherlands at the time when they submitted their application.

II –  Legal framework

A –    Community law

3.        Article 17 EC is worded as follows:

‘1.      Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2.       Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.’

4.        The freedom of movement of Union citizens is laid down as follows in Article 18(1) EC:

‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.’

5.        In addition, the following prohibition on discrimination is contained in the first paragraph of Article 12 EC:

‘Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.’

B –    National law

6.        The national court states as follows, inter alia, as regards applicable Netherlands law:

7.        Under the Law of 10 March 1984 on Benefits for Civilian Victims of the 1940-1945 War (2) (‘the WUBO’), civilian war victims (3) and their dependants can apply inter alia for a periodic benefit (Article 7 et seq. of the WUBO) and an allowance for services to improve the living conditions of civilian war victims (Article 19 of the WUBO). The aim of a periodic benefit is, within reasonable limits, to compensate for the loss of income resulting from disability caused by injury sustained during war.

8.        Article 3 of the WUBO provides that it is applicable only to civilian war victims who hold Netherlands nationality and are resident in the Netherlands on the date of the application for benefits (Article 3 of the WUBO). This nationality and territorial criterion stems from the idea that the special obligation of solidarity towards civilian war victims on the part of the Netherlands people has a scope which is restricted by nationality and country of residence.

9.        Once a benefit or an allowance under the WUBO has been granted, then in principle the person concerned retains the rights granted to him even if he takes up residence abroad. However, in order to prevent persons resident abroad from taking up only brief residence in the Netherlands to acquire benefits under the WUBO, provision is made for the loss of acquired rights for persons who do not take up residence in the Netherlands until after the date on which the WUBO entered into force and take up residence abroad again within a period of five years (Article 3(3) of the WUBO).

10.      Responsibility for implementation of the WUBO has been entrusted to the Raadskamer WUBO van de Pensioen- en Uitkeringsraad (‘the PUR’).

11.      In relation to obvious hardship cases the legislature has granted the PUR authorisation to apply the WUBO also to civilian war victims who do not satisfy the nationality or territorial criterion (Article 3(6) of the WUBO). However, this rule for hardship cases is a discretionary provision.

12.      In the administrative practice of the PUR it is a basic condition for application of the rule for hardship cases that a connection with Netherlands society exist both at the time of the war event and the time of the application(4). Where this condition is satisfied, an individual assessment is made of whether or not obvious hardship exists. In this respect the general criterion applied is that the residence outside the Netherlands must have been brought about by circumstances which, viewed objectively, lie outside the immediate control of the person concerned and therefore he could not reasonably have been expected to take up residence in the Netherlands. Particular examples would be border realignments or medical reasons. On the other hand, where taking up residence abroad is the consequence of a marriage or motivated by economic reasons, the PUR considers that the hardship clause should not be applied. In situations where the person concerned was domiciled in the Netherlands at the time of the harmful event and has remained in the Netherlands continuously up to the date of the application, but has never held Netherlands nationality, the PUR considers that the hardship clause is also applicable.

13.      With effect from 1 July 2004 the PUR adjusted its practice relating to the application of the rule for hardship cases. Netherlands nationals living abroad can now be eligible for a benefit under the WUBO inter alia where they have Netherlands nationality at the time of the application, have lived a certain time in the Netherlands, and have (together with their partners) a gross monthly income of less than EUR 1 741.56.

III –  Facts and main proceedings

14.      Mrs Tas-Hagen was born in the former Dutch East Indies in 1943 and came to the Netherlands in 1954. In 1961 she acquired Netherlands nationality. In 1986 Mrs Tas-Hagen terminated her employment as executive secretary at the Gemeentelijke Dienst Verpleging en Verzorging (Municipal Treatment and Residential Care Service) in The Hague as a result of incapacity for work.

15.      In December 1986, while still resident in the Netherlands, Mrs Tas-Hagen submitted an initial application for the grant of a periodic benefit and payment under the WUBO. This application was rejected on the ground that Mrs Tas‑Hagen had not sustained any injury resulting in permanent disability and therefore she could not be regarded as a civilian war victim within the meaning of the WUBO.

16.      In 1987 Mrs Tas-Hagen established herself in Spain. In 1999 she submitted a renewed application for recognition as a civilian war victim and the grant of inter alia a periodic benefit and an allowance for services to improve her living conditions under the WUBO. This application too was rejected by decision of 29 December 2002. The PUR now did recognise Mrs Tas-Hagen as a civilian war victim. However, when she submitted her application Mrs Tas-Hagen was resident in Spain and therefore did not satisfy the territorial condition laid down in the WUBO. The conditions for application of the hardship clause were likewise deemed not to have been satisfied. By decision of 28 December 2001 the PUR also declared unfounded the objection lodged by Mrs Tas-Hagen against the decision of 29 December 2000.

17.      Mr Tas was born in the Dutch East Indies in 1931 and came to the Netherlands in 1947. From 1951 to 1971 he held Indonesian nationality. In 1971 he regained Netherlands nationality. In 1983 he left his employment as an official with the municipal council of The Hague and was declared completely incapable of work for mental health reasons. In 1987 Mr Tas took up residence in Spain.

18.      In April 1999 Mr Tas submitted an application for the grant of inter alia a periodic benefit and an allowance for services to improve his living conditions under the WUBO. The PUR rejected this application by decision of 28 December 2000. It stated that although Mr Tas was recognised as a civilian war victim he did not satisfy the territorial condition laid down in the WUBO since he was resident in Spain at the time he submitted the application. Nor were there special circumstances such that application of the hardship clause was justified. By decision of 28 December 2001 the PUR also declared unfounded the objection lodged against its decision of 28 December 2000.

19.      Mrs Tas-Hagen and Mr Tas instituted legal proceedings challenging the decisions rejecting the applications. Before the national court they contended inter alia that the territorial condition laid down in Article 3 of the WUBO was contrary to the provisions on Union citizenship.

IV –  Reference for a preliminary ruling and proceedings before the Court of Justice

20.      By order of 22 April 2005 the Centrale Raad van Beroep stayed its proceedings and referred the following question to the Court of Justice for a preliminary ruling:

Does Community law, in particular Article 18 EC, preclude national legislation under which, in circumstances such as those in the main proceedings, the grant of a benefit for civilian war victims is refused solely on the ground that the person concerned, who holds the nationality of the relevant Member State, was resident, not in the territory of that Member State, but in the territory of another Member State at the time when the application was submitted?

21.      The Netherlands Government, the United Kingdom Government, the Lithuanian Government and the Commission of the European Communities have submitted written observations to the Court. As the defendant in the main proceedings the PUR referred to the written observations submitted by the Netherlands Government. The Netherlands Government, the United Kingdom Government and the Commission presented oral argument at the hearing on 16 February 2006.

V –  Appraisal

22.      By its order for reference the national court essentially asks whether Article 18(1) EC precludes national legislation under which a Member State refuses to grant one of its nationals a benefit for civilian war victims solely on the ground that the person concerned was resident, not in the territory of that Member State, but in the territory of another Member State at the time when the application was submitted.

A –    Scope of Union citizens’ right to free movement

1.      Relationship of Article 18(1) EC to other fundamental freedoms

23.      According to settled case-law, the right to free movement laid down in Article 18(1) EC applies only where no more specific rights, such as those arising from Articles 39 EC, 43 EC and 49 EC, are relevant. (5)

24.      This is the case in the present proceedings. The facts in the main proceedings provide no indication whatsoever that Mrs Tas-Hagen and Mr Tas are pursuing an economic activity in Spain and consequently one of the more specific freedoms of movement could apply to them. Nor are Mrs Tas-Hagen and Mr Tas accessing services in Spain for the purposes of Article 49 EC because they are not merely staying temporarily there but have established themselves permanently in that Member State.(6)

2.      Scope ratione personae and ratione materiae

25.      Netherlands nationals such as Mrs Tas-Hagen and Mr Tas are citizens of the Union within the meaning of Article 17(1) EC and consequently enjoy the right to free movement laid down in Article 18(1) EC.

26.      Mrs Tas-Hagen and Mr Tas may rely on this right to free movement also as against the Kingdom of the Netherlands, whose nationality they hold. Citizenship of the Union is not intended to extend the scope ratione materiae of the Treaty also to internal situations which have no link with Community law. (7) However, in the present case the situation has a cross-border link since Mrs Tas-Hagen and Mr Tas were, in exercise of their right to free movement under Article 18(1) EC, resident in Spain at the time when they submitted their application for benefits for civilian war victims. Therefore, there is a link with Community law.

27.      What is disputed, however, is whether a Union citizen can always rely on Article 18(1) EC where he has exercised his right to free movement or whether, in addition, a matter must also be concerned on which Community law itself contains rules, even if they are merely objectives to be attained.

28.      One view, which has been adopted in particular by the United Kingdom Government, is that reliance on Article 18(1) EC presupposes that the situation concerned relates to a matter covered by Community law and that Community law is also applicable in that respect ‘ratione materiae’. If this view is accepted, Mrs Tas-Hagen and Mr Tas cannot plead an infringement of Article 18(1) EC in the present case as the social benefits for civilian war victims claimed are not covered either by primary or secondary Community law. (8) Benefits for victims of war are in fact expressly excluded from the scope of Regulation No 1408/71 (9) (see Article 4(4) thereof) and Regulation No 883/2004 (10) (see Article 4(5) thereof).

29.      It is true that in a number of cases relating to Union citizens’ right to free movement the Court has provided grounds for its conclusion by reference to other provisions of Community law in addition to Article 18 EC (formerly Article 8a of the EC Treaty). In particular, it found that the social benefits concerned in those cases fell within the scope of Community law. (11)

30.      However, the Court nevertheless assumes that there is a situation ‘which fall[s] within the scope ratione materiae of Community law’ where a Union citizen has exercised his right to freedom of movement under Article 18(1) EC.

‘Those situations include those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the right to move and reside within the territory of the Member States, as conferred by Article 18 EC.’ (12)

31.      The Court does so even in cases in which the exercise of the right to free movement or the status of the person concerned as a Union citizen are the only links with Community law. (13)

32.      Therefore, the fact that the matter concerned or the social benefit claimed are also governed by Community law or serve the aims of the Community can be at most an additional factor in the appraisal of a particular case. (14) Considerations of this kind are to be found in particular in judgments concerning the freedom of movement of students. (15) However, in those judgments, the Court had to re-examine its earlier case-law which dated from a period when neither Union citizenship nor the new Treaty provisions on education policy (16) provided a link for the application of Community law to the matters concerned.

33.      However, such additional considerations are not an imperative requirement for the application of Article 18(1) EC. (17) Union citizens can assert their right to free movement even if the matter concerned or the benefit claimed is not governed by Community law. (18)

34.      The nature of Union citizens’ right to free movement as a fundamental freedom is expressed therein (19) As a fundamental freedom, Article 18(1) EC is directly applicable (20) and to be interpreted broadly. (21) In particular, this provision has, like the classic fundamental freedoms of the internal market, (22) a scope which is not restricted to specific matters.

35.      Thus, the classic fundamental freedoms apply also to matters in respect of which the Treaty grants the Community no powers or otherwise contains rules. If such matters not governed by Community law were excluded from the scope of the fundamental freedoms, it would be impossible reasonably to implement one of the Community’s core tasks, namely to establish an internal market without obstacles to the free movement of goods, persons, services and capital (Article 3(1)(c) EC). The internal market would not have the comprehensive aim of providing an area without internal frontiers (Article 14(2) EC), but would be merely fragmentary as it would be limited to individual products and activities governed by specific rules of Community law.

36.      A fortiori the scope of the fundamental freedoms cannot be restricted merely to matters in respect of which the Community has already exercised its powers, in particular by adopting harmonisation measures.(23) On the contrary, the fact that it can produce its effects primarily in fields which are not (yet) harmonised is consistent with the spirit and purpose of the fundamental freedoms and precisely an expression of their direct applicability. To make the application of a fundamental freedom subject to the existence of a harmonising measure would ultimately be to deprive it of direct effect.

37.      Accordingly, the Court has consistently held that the fundamental freedoms are to be observed even where Community law has not (yet) laid down rules and the Member States have retained the relevant powers. That, for example, is the case with regard to direct taxation, (24) criminal legislation and the rules of criminal procedure, (25) and the organisation of social security schemes. (26) The Court followed a similar line of reasoning in a case relating to the rules governing a person’s surname. (27)

38.      However, it would be equally inconsistent with the notion of Union citizenship as the fundamental status of all Union citizens, (28) which they enjoy irrespective of any economic activity, (29) if the Member States did not have to observe Union citizens’ right to free movement in all areas but merely in individual matters in respect of which the Treaty grants the Community specific powers or other rules of Community law exist.

39.      This is not precluded by the fact that under Article 18(1) EC Union citizens only have a right to free movement ‘subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect’. This clause does not limit the scope ratione materiae of this fundamental freedom to particular matters. Unlike Articles 39(4) EC and 45 EC, this clause does not contain any exceptions for particular fields. Instead, it is merely a general reservation which is laid down, in this or a similar form, in relation to all other fundamental freedoms, in particular in Articles 30 EC, 39(3) EC, 46(1) EC and 58 EC.

40.      With regard to direct taxation (30) and organisation of social security schemes, (31) for example, the Court logically held that Article 18(1) EC was applicable in the same way as the other fundamental freedoms. (32) The same applies, for example, to the rules governing a person’s surname. Although, as Community law stands at present, that matter comes within the competence of the Member States and is not governed by Community law, the Member States must none the less, when exercising that competence, take account of Community law and in particular the right to free movement laid down in Article 18(1) EC. (33) For the same reason this provision must be complied with even where it is necessary, in connection with enforcement measures under national law, to calculate the attachable income of a Union citizen. (34)

41.      Accordingly, Article 18(1) EC must be applied also in a case in which a Union citizen who transfers his place of residence to a Member State other than that of his nationality applies for benefits for civilian war victims to the competent authorities of the Member State whose nationality he holds. However, the fact that such social benefits are not governed by Community law naturally means that the Member States have a broad margin of discretion in organising the system of such benefits. (35)

42.      Furthermore, the judgment in Baldinger (36), in which the Court recently had to consider Austrian legislation on compensation for former prisoners of war, does not militate against application of Article 18(1) EC. In that judgment, the Court merely held that benefits for victims of war do not fall within the scope of Regulation No 1408/71, that they are not migrant workers’ conditions of work and employment within the meaning of Article 39(2) EC, and that they do not fall under the category of social advantages to which migrant workers are entitled under Article 7(2) of Regulation No 1612/68.

43.      The Court did not rule on the applicability of Article 18(1) EC in Baldinger. It did not necessarily have to do so because the referring court had not requested an interpretation of that provision.(37) Nevertheless, in his Opinion in Baldinger Advocate General Ruiz-Jarabo Colomer commented at length on the applicability of Article 18(1) EC and found that is was applicable. (38) In any event, in Baldinger the Court itself did not expressly rule otherwise on this matter. In view of the Court’s other case-law concerning Union citizens’ right to freedom of movement,(39) there is no reason to interpret its mere silence in Baldinger as a conclusive indication that Article 18(1) EC is not applicable.

3.      Application ratione temporis

44.      Purely in the interest of completeness, it should be pointed out that there is also nothing to preclude the application of Article 18(1) EC in temporal terms. Although Mrs Tas-Hagen and Mr Tas transferred their residence to Spain in 1987, that is to say before the provisions on Union citizenship introduced by the Maastricht Treaty entered into force, (40) these provisions must be applied in any event to the present effects of situations which had arisen previously. (41) Consequently, they can also be applied in assessing the effects of Mrs Tas-Hagen’s and Mr Tas’ move to Spain, which took place earlier, on their present entitlement to benefits for civilian war victims under the WUBO.

B –    Restriction of freedom of movement

45.      Consequently, a residence requirement such as that placed on Mrs Tas-Hagen and Mr Tas must be assessed in the light of Union citizens’ right to free movement under Article 18(1) EC.

46.      As already stated,(42) the Court has consistently held that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for’. (43)

47.      A Union citizen who has exercised his right to free movement under Article 18(1) EC falls within the scope of the Treaty and consequently may rely on the general principle of non-discrimination laid down in the first paragraph of Article 12 EC, under which any discrimination on grounds of nationality is to be prohibited. (44)

48.      However, Union citizens such as Mrs Tas-Hagen and Mr Tas are not discriminated against on account of their nationality. There can be no question of direct discrimination because the benefits for civilian war victims in question are in any event available only to Netherlands citizens and both applicants hold precisely this nationality. Consequently, there is likewise no question of indirect discrimination based on nationality in the present case. The fact that legislation makes a link with the place of residence of the person concerned can often constitute evidence of indirect discrimination on grounds of nationality. However, the residence requirement laid down in Article 3 of the WUBO merely draws a distinction between Netherlands nationals. Therefore, in a case such as the present one this rule cannot give rise to either direct or indirect discrimination against the persons concerned for the purposes of the first paragraph of Article 12 EC.

49.      Nevertheless, a Union citizen who has exercised his right to free movement under Article 18(1) EC by no means enjoys only protection against discrimination on grounds of his nationality under the first paragraph of Article 12 EC. Legislation which results in a Union citizen who exercises his right to free movement being afforded less favourable treatment than if he had not exercised that right must also be assessed in the light of Article 18(1) EC. This applies even in those cases in which the unequal treatment emanates from the Member State of which the Union citizen himself is a national. (45)

50.      So far as the classic fundamental freedoms are concerned, the Court has normally regarded unequal treatment of facts having a cross-border aspect and purely domestic cases as a restriction. (46) As stated above, Union citizens’ general right to free movement is also a fundamental freedom. (47) Therefore, there is much in favour of classifying this less favourable treatment of cross-border situations with no simultaneous discrimination on grounds of nationality as a restriction where they fall within the scope of Article 18(1) EC. (48) It follows, that all measures which obstruct the right of Union citizens to move and reside freely in other Member States, (49) or which otherwise constitute an obstacle which might deter Union citizens from exercising this general right to free movement must be assessed by reference to Article 18(1) EC. (50)

51.      However, it is in any event clear that the Member States may not prevent their own nationals from exercising the freedom of movement conferred by Article 18(1) EC by attaching to its disadvantageous consequences that would not arise if they remained within the territory. (51)

52.      A residence requirement such as that laid down in Article 3 of the WUBO makes it less attractive for Union citizens such as Mrs Tas-Hagen and Mr Tas to exercise their right to free and to transfer their residence from the Netherlands to another Member State. (52) If they do so they can no longer successfully submit an application for benefits for civilian war victims under the WUBO. It also makes it less attractive for those concerned to maintain their residence abroad since only residence in the Netherlands enables them to apply for benefits under the WUBO.(53)

53.      Consequently, such a residence requirement constitutes a restriction on the general right to freedom of movement under Article 18(1) EC.

C –    Justification of the restriction

54.      However, it is now necessary to consider whether this restriction on Union citizens’ right to freedom of movement is justified.

55.      In the present case nothing points to there being justification on the basis of ‘the limitations and conditions laid down in [the EC] Treaty and by the measures adopted to give it effect’ in relation to the exercise of the right to free movement (Article 18(1) EC).

56.      However, a restriction on Union citizens’ right to free movement can also be justified where it is based on objective considerations and is proportionate to a legitimate aim. (54)

57.      The requirement of residence in the Netherlands – and, moreover, the requirement of Netherlands nationality – stems from the idea that the obligation of solidarity towards civilian war victims on the part of the Netherlands people has a scope which varies depending on the degree of their integration into Netherlands society. As the national court and the Netherlands Government have explained, the social benefits granted to civilian war victims under the WUBO are an expression of the particular solidarity of the Netherlands people with a category of persons which distinguishes itself by its particular connection with Netherlands society.

58.      By seeking to limit benefits for civilian war victims under the WUBO to a category of persons which distinguishes itself by its particular connection with Netherlands society, the Netherlands legislature is pursuing a legitimate aim.

59.      In this connection, it should first be recalled that compensatory allowances for former prisoners of war, who prove that they underwent a long period of captivity, are commonly acknowledged as constituting testimony of national gratitude for the hardships they endured and thus paid as a quid pro quo for the service they rendered to their country during the war. (55) This notion cannot be applied directly to compensatory allowances for civilian war victims because the suffering they endured is not connected with war service or military service they rendered for their country. However, it would appear legitimate for a Member State to grant also to civilians with whom it has a particular connection both at the time of the war events and thereafter certain social benefits as an expression of national solidarity for the material and non-material damage they suffered during the war.

60.      Secondly, in other cases the Court also permits a Member State to grant certain benefits – such as maintenance grants for students – only to persons who have demonstrated a certain degree of integration into the society of that State. (56) This consideration can also be applied to the present case since the Netherlands benefits for civilian war victims under the WUBO have the character of a (non-contributory) maintenance grant, that is to say they serve to improve the living conditions of civilian war victims and are intended to help compensate for the loss of income resulting from disability caused by war.

61.      In the same way as a Member State is generally free to lay down the conditions for granting social benefits not governed by Community law, it also has a broad margin of discretion as regards the degree of integration which the person concerned must demonstrate.

62.      The place of residence of the person concerned can, in principle, be used as the criterion for connection with the society of the Member State granting the benefit. That person’s integration into the relevant society may be regarded as established by a finding that he has resided in that Member State for a certain length of time. (57)

63.      In this respect the competent Member State can, in principle, determine how long the person concerned must have resided in its territory overall before he can claim a particular benefit. Furthermore, unless Community law stipulates otherwise in harmonising or coordinating measures, (58) that Member State can also require that the person concerned be integrated into its society at the time when he begins receiving the benefits and, where appropriate, throughout the entire period that he receives them, and that he prove this by maintaining his residence in that country. Thus, the transfer (‘export’) of social assistance benefits abroad can generally be prevented by such a permanent residence requirement. (59)

64.      In spite of its broad margin of discretion in determining the degree of integration required, the relevant Member State must at least formulate the residence requirement in such a way that it accurately reflects the desired degree of integration. Therefore, the residence criterion must, as it is specifically formulated, be appropriate and necessary to attain the legitimate aim pursued,(60) that is to say to reserve social benefits solely to one category of persons which has the desired degree of integration. In particular, the residence requirement may not be ‘too general and exclusive’. (61)

65.      In the present case the Netherlands legislature does not expressly require, by Article 3 of the WUBO, that the persons concerned maintain their residence in the Netherlands throughout the period they receive benefits for civilian war victims. Therefore, as the Netherlands Government also expressly confirmed at the hearing, the transfer (‘export’) of benefits abroad once they have been awarded is not excluded by a subsequent transfer of residence. (62) The person concerned is merely required to reside in the Netherlands at the time when he submits his application. On account of this exclusive focus on the time of the application the residence requirement contained in Article 3 of the WUBO is akin to a qualifying‑date rule.

66.      Two factors militate against the capability of such a residence requirement to demonstrate that the person concerned has been integrated into the relevant society.

67.      Firstly, all those people who have lived and worked in the Member State concerned for a long time in the past and now merely wish to spend their retirement in another Member State can be covered to only an inadequate degree by such a criterion. Even if the time when they submitted the application was immediately before they moved abroad, they retain their entitlement to benefits under the WUBO and may ‘export’ the benefits awarded. If, however, they submitted their application just after they moved abroad, they are granted no benefits. Therefore, in the case of persons who are able to demonstrate a comparable degree of integration in Netherlands society in relation to the past and have decided to move abroad, the criterion relating to residence at the time of the application can produce relatively random results.(63)

68.      Secondly, there is a danger that such a criterion will open up entitlements to persons who transferred their residence to the Member State concerned only shortly before submitting an application and whose integration into the society of that Member State may therefore be considerably less than that of the former category. Although under Article 3(3) of the WUBO such persons lose their entitlements again unless they maintain their residence in the Netherlands for at least five years, such a rule promotes at most the future integration of those concerned into Netherlands society. However, it says nothing about the degree of their integration on the qualifying date in this case, namely the date on which the application is submitted.

69.      When requested, even the Netherlands Government was unable to provide the Court with any detailed information on the extent to which precisely the residence of the person concerned at the time the application is submitted can be of relevance to the degree of his integration into Netherlands society.

70.      The fact that the person concerned is resident in the national territory certainly makes it easier for the competent authority to verify the entitlement, in particular in cases such as the present one which concerns disability caused by war. However, in this case too mere residence in the national territory on the date when the application is submitted is incapable of attaining the desired aim. Either the disability caused by war has in fact already been established, as in the present case, or it cannot be definitively established immediately on the date on which the application is submitted but only after a certain time.

71.      Therefore, even having regard to the margin of discretion available to the Member States as regards the degree of required integration in their society it is not possible to discern any objective justification for a residence requirement such as that contained in Article 3 of the WUBO and for the resulting restriction on Union citizens’ right to freedom of movement. A territorial criterion would be an appropriate means at most if it allowed those concerned to demonstrate their connection with Netherlands society, if necessary also irrespective of their place of residence at the time when the application is submitted.

VI –  Conclusion

72.      In the light of the foregoing, I propose that the Court reply as follows to the question submitted by the Centrale Raad van Beroep:

Article 18 EC precludes national legislation under which a Member State refuses to grant one of its nationals a benefit for civilian war victims – which is basically transferable abroad – solely on the ground that the person concerned was resident, not in the territory of that Member State, but in the territory of another Member State at the time when the application was submitted.

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1 – Original language: German.

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2 – Wet Uitkeringen Burger-Oorlogsschlachtoffers 1940-1945 (Staatsblad 94).

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3 – Under Article 2 of the WUBO, they are persons who, as civilians, sustained physical or mental injury as a result of or in connection with the German or Japanese occupation or during disturbances in the post-war years (up to 27 December 1949) in the former Dutch East Indies and have become permanently disabled or have died as a result.

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4 – A connection at the time of the war event is deemed to exist where the person concerned held Netherlands nationality or was a Netherlands national within the meaning of the Law of 10 February 1910 (Staatsblad 55) or where the person concerned was resident in the Netherlands or the Dutch East Indies. A connection at the time of the application is assumed to exist where the person concerned holds Netherlands nationality or is resident in the Netherlands

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5 – Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929, paragraph 22); Case C-100/01 Oteiza Olazabal [2002] ECR I-10981, paragraph 26; Case C-92/01 Stylianakis [2003] ECR I-1291, paragraph 18; Case C-293/03 My [2004] ECR I-12013, paragraph 33; and Case C-258/04 Ioannidis [2005] ECR I-8275, paragraph 37.

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6 – Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraph 22. See also Case 196/87 Steymann [1988] ECR 6159, paragraphs 15 to 17, and – with regard to the active freedom to provide services – Case C-55/94 Gebhard [1995] ECR I-4165, in particular paragraphs 25 and 26; and Case C-456/02 Trojani [2004] ECR I-7573, paragraph 28.

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7 – Joined Cases C‑64/96 and C-65/96 Uecker and Jacquet [1997] ECR I‑3171, paragraph 23; Case C-148/02 García Avello [2003] ECR I-11613, paragraph 26; and Case C-403/03 Schempp [2005] ECR I-6421, paragraph 20. To the same effect see Case C-224/02 Pusa [2004] ECR I‑5763, paragraphs 18 and 19, and Case C-224/98 D’Hoop [2002] ECR I-6191, paragraphs 30 and 31.

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8 – See also Case 9/78 Gillard [1978] ECR 1661, paragraphs 13 to 15; Case 207/78 Even [1979] ECR 2019, paragraphs 12 to 14; and Case C-386/02 Baldinger [2004] ECR I-8411, paragraphs 16 to 18.

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9 – Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971(II), p. 416; 'Regulation No 1408/71'), most recently amended by Regulation (EC) No 631/2004 (OJ 2004 L 100, p. 1).

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10 – Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, Corrigendum in OJ 2004 L 200, p. 1; 'Regulation No 883/2004'). This regulation replaces Regulation No 1408/71 for the future.

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11 – Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraphs 28, 45, 57 and 61 to 63; Case C-184/99 Grzelczyk [2001] ECR I-6193, paragraph 27; D’Hoop, cited in footnote 7, paragraphs 17 and 32; and Case C-209/03 Bidar [2005] ECR I-2119, paragraphs 38 to 43. Outside the field of social benefits see, for example, Case C-147/03 Commission v Austria [2005] ECR I-5969, paragraph 44.

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12 –      Schempp (cited in footnote 7, paragraphs 17 and 18) and Bidar (cited in footnote 11, paragraphs 32 and 33). See also Grzelczyk (cited in footnote 11, paragraphs 32 and 33), D’Hoop (cited in footnote 7, paragraphs 28 and 29), García Avello (cited in footnote 7, paragraphs 23 and 24), and Pusa (cited in footnote 7, paragraphs 16 and 17).

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13 – García Avello (paragraphs 23 and 24), Pusa (paragraphs 16 and 17), and Schempp (paragraph 13 et seq.), cited in footnote 7 above.

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14 – See, for example, D’Hoop (cited in footnote 7, paragraph 32): ‘That consideration is particularly important in the field of education.’ Similar wording is also used in Commission v Austria (cited in footnote 11, paragraph 44).

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15 – Grzelczyk (cited in footnote 11, paragraphs 34 to 36) and Bidar (cited in footnote 11, paragraphs 38 and 43). To the same effect see D’Hoop (cited in footnote 7, paragraphs 32 and 33) and Case C-138/02 Collins [2004] ECR I-2703, paragraphs 62 and 63.

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16 – The Maastricht Treaty (Treaty on European Union) introduced in Title VIII (now Title XI) of the EC Treaty a new Chapter 3 on ‘Education, Vocational Training and Youth’.

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17 – In Grzelczyk (cited in footnote 11, paragraphs 30 to 37) and Bidar (cited in footnote 11, paragraphs 30 to 37) too the Court of Justice considered that Article 12 EC, in conjunction with Article 18 EC, was applicable only because the individuals concerned had, as Union citizens, exercised their right to free movement. The fact that they were pursuing studies was not an additional condition for reliance on the prohibition of discrimination in either case, it merely could not ‘of itself, deprive [them] of the possibility of relying on the prohibition of all discrimination on grounds of nationality laid down in Article [12 EC]’ (Grzelczyk, paragraph 36; see also Bidar, paragraphs 34 and 46).

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Likewise, no additional condition for the application of Articles 12 EC and 18 EC is evident from Trojani (cited in footnote 6). Paragraph 42 of that judgment merely refers to Grzelczyk which however, as has just been mentioned, lays down no additional condition.

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18 – See to this effect García Avello (paragraphs 24 and 25), Pusa (paragraphs 17 and 22), and Schempp (paragraphs 18 and 19), cited in footnote 7 above.

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19 – Union citizens’ right to free movement is expressly referred to as a fundamental freedom in D’Hoop (cited in footnote 7, paragraph 29), García Avello (cited in footnote 7, paragraph 24), and Pusa (cited in footnote 7, paragraph 17). To the same effect see Zhu and Chen (cited in footnote 6, paragraph 31) and C-408/03 Commission v Belgium [2006] ECR I-0000, paragraph 40, according to which a fundamental principle, namely that of the free movement of persons, is laid down in Article 18 EC.

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20 – Case C-413/99 Baumbast and R [2002] I-7091, paragraphs 84 to 86 and 94, Zhu and Chen (cited in footnote 6, paragraph 26), and Commission v Belgium (cited in footnote 19, paragraph 34).

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21 – Zhu and Chen (cited in footnote 6, paragraph 31) and Commission v Belgium (cited in footnote 19, paragraph 40).

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22 – Free movement of goods (Article 23 et seq. EC), freedom of movement for workers (Article 39 EC), freedom of establishment (Articles 43 EC and 48 EC), freedom to provide services (Articles 49 EC and 50 EC), and free movement of capital and payments (Article 56 EC).

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23 – See, from an extensive line of precedent, Case 120/78 Rewe, ‘Cassis de Dijon’, [1979] ECR 649, paragraphs 6, 8 and 15; Case C-262/02 Commission v France [2004] ECR I-6569, paragraphs 23 and 25; Case C-429/02 Bacardi France [1994] ECR I-6613, paragraphs 32 and 34; and Case C-411/03 Sevic Systems [2005] ECR I-10805, paragraph 26.

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24 – Case C-279/93 Schumacker [1995] ECR I-225, paragraph 21; Case C-80/94 Wielockx [1995] ECR I-2493, paragraph 16; Case C-9/02 De Lasteyrie du Saillant [2004] ECR I-2409, paragraph 44; Case C-319/02 Manninen [2004] ECR I-7477, paragraph 19; Case C-446/03 Marks & Spencer [2005] ECR I-10837, paragraph 29; Case C-265/04 Bouanich [2006] ECR I-923, paragraph 28; and Case C-471/04 Keller Holding [2006] ECR I-0000, paragraph 28.

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25 – Case 186/87 Cowan [1989] ECR I-195, paragraph 19; Case C-274/96 Bickel and Franz [1998] ECR I-7637, paragraph 17.

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26 – Case C-120/95 Decker [1998] ECR I-1831, paragraphs 21 and 23; Case C-158/96 Kohll [1998] ECR I-1931, paragraphs 17 and 19; Case C-135/99 Elsen [2000] ECR I-10409, paragraph 33; and Case C-227/03 Van Pommeren-Bourgondiën [2005] ECR I-6101, paragraph 39.

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27 – Case C-168/91 Konstantinidis [1993] ECR I-1191.

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28 – Baumbast and R (cited in footnote 20, paragraph 82), García Avello (cited in footnote 7, paragraph 22), and Zhu and Chen (cited in footnote 6, paragraph 25). See also Grzelczyk (cited in footnote 11, paragraph 31), D’Hoop (cited in footnote 7, paragraph 28); Collins (cited in footnote 15, paragraph 61); Pusa (cited in footnote 7, paragraph 16); Bidar (cited in footnote 11, paragraph 31); Commission v Austria (cited in footnote 11, paragraph 45); and Schempp (cited in footnote 7, paragraph 15).

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29 – Baumbast and R (cited in footnote 20, paragraphs 81, 83 and 84). See to the same effect Trojani (cited in footnote 6, paragraph 40) and Bidar (cited in footnote 11, paragraph 37).

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30 – Schempp (cited in footnote 7, paragraph 19).

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31 – Elsen (cited in footnote 26, paragraph 33).

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32 – See to this effect the comments above at paragraph 37 of this Opinion.

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33 – GarcíaAvello (cited in footnote 7, paragraph 25). See also to this effect the Opinion of Advocate General Jacobs in Case C-96/04 Standesamt Stadt Niebüll [2006] ECR I-0000, in particular paragraph 50.

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34 – Pusa (cited in footnote 7, paragraphs 22 and 23).

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35 – See to this effect paragraphs 61 to 64 below of this Opinion.

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36 – Judgment cited in footnote 8. See in particular paragraphs 16 to 21 therein.

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37 – The question referred is reproduced at paragraph 13 of Baldinger (cited in footnote 8).

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38 – Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-386/02 Baldinger [2004] ECR I‑8411, paragraphs 24 to 47, in particular paragraph 31.

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39 – See to this effect paragraph 40 of this Opinion and in particular the judgment in García Avello, cited in footnote 7 above, which the Court delivered in plenary session.

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40 – The Maastricht Treaty (Treaty on European Union) entered into force on 1 November 1993.

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41 – D’Hoop (cited in footnote 7, paragraph 25).

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42 – See paragraph 38 above of this Opinion.

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43 – See, for example, Collins (cited in footnote 43, paragraph 61), Commission v Austria (cited in footnote 11, paragraph 45), and Schempp (cited in footnote 7, paragraph 15). To this effect see also Grzelczyk (cited in footnote 11, paragraph 31), D’Hoop (cited in footnote 7, paragraph 28), García Avello (cited in footnote 7, paragraphs 22 and 23), Pusa (cited in footnote 7, paragraph 16), and Bidar (cited in footnote 11, paragraph 31).

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44 – Grzelczyk (cited in footnote 11, paragraph 31), García Avello (cited in footnote 7, paragraphs 22, 23, 27, 29 and 30), Bidar (cited in footnote 11, paragraphs 31 to 33), Commission v Austria (cited in footnote 11, paragraph 45), and Schempp (cited in footnote 7, paragraph 15 et seq.). See to the same effect – but without the specific reference to Article 12 EC – the judgments in D’Hoop (paragraph 28) and Pusa (paragraph 16) cited in footnote 7.

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45 – See to this effect D’Hoop (paragraphs 30 and 31) and Pusa (paragraphs 18 and 19). To the same effect see Schempp (paragraphs 16 and 26), cited in paragraph 7.

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46 – See in particular De Lasteyrie du Saillant (paragraph 45). To the same effect see Manninen (paragraph 20 et seq.) and Marks & Spencer (paragraph 34), cited in footnote 24.

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47 – See to that effect paragraph 34 of this Opinion above and the case-law cited in footnote 19 above.

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48 – See also to the same effect the Opinion of Advocate General Jacobs in Case C-224/02 Pusa [2004] ECR I-5763, paragraphs 18 to 20 and 22, and in Standesamt Stadt Niebüll (cited in footnote 33, paragraph 52 et seq.), and the Opinion of Advocate General Geelhoed in Case C‑406/04 De Cuyper [2006] ECR I-0000, paragraphs 104 to 108. See also my Opinion of today’s date in Case C-470/04 N. [2006] ECR I-0000, paragraph 65.

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49 – See to this effect Schempp (cited in footnote 7, paragraph 43), in which the Court first suggests such an interpretation by using the word ‘obstruct’ (French: ‘entrave’).

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50 – See to this effect Pusa (cited in footnote 7, paragraph 19).

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51 – See to this effect D’Hoop (paragraphs 30 and 31) and Pusa (paragraphs 18 and 19), both cited in footnote 7. See also paragraph 22 of the Opinion of Advocate General Jacobs in Pusa and paragraph 66 of my Opinion in N., both cited in footnote 48.

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52 – See to the same effect the Opinion of Advocate General Geelhoed in De Cuyper (cited in footnote 48, in particular paragraph 110).

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53 – Such disadvantages cannot be offset completely by a rule for hardship cases such as that laid down in Article 3(6) of the WUBO. The use thereof is at the discretion of the PUR and, in accordance with its administrative practice, is precisely not applied to cases in which residence has been transferred abroad voluntarily. Even in accordance with the more generous administrative practice of the PUR in place since 1 July 2004, not all cases of voluntary transfer of residence abroad are covered since an income ceiling applies. See paragraphs 11 to 13 of this Opinion.

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54 – See to the same effect D’Hoop (cited in footnote 7, paragraphs 26 and 36), García Avello (cited in footnote 7, paragraph 39 et seq.), Collins (cited in footnote 15, paragraph 66), Pusa (cited in footnote 7, paragraph 33) and Bidar (cited in footnote 11, paragraph 54).

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55 – See Baldinger (paragraph 17), Gillard (paragraph 13) and Even (paragraph 12) cited in footnote 8.

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56 – Bidar (cited in footnote 11, paragraph 57). See also D’Hoop (cited in footnote 7, paragraph 38), Collins (cited in footnote 15, paragraph 67), and Ioannidis (cited in footnote 5, paragraph 30).

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57 – Bidar (cited in footnote 11, paragraph 59).

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58 – See, for example, the waiving of residence clauses pursuant to Article 10(1) of Regulation No 1408/71 and Articles 7 and 63 to 65 of Regulation No 883/2004. As regards the ‘exportability’ of certain social benefits in connection with Article 19 of Regulation No 1408/71, see also, most recently, Case C-286/03 Hosse [2006] ECR I-0000. The ‘exportability’ of certain benefits may follow also from Articles 7(2) and 12 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement of workers within the Community (Official Journal, English Special Edition 1968(I), p. 475). See in that respect, for example, Case C-308/89 Di Leo [1990] ECR I-4185, paragraphs 10 to 17; Case C-3/90 Bernini [1992] ECR I-1071, paragraphs 20 and 29; and Case C-337/97 Meeusen [1999] ECR I-3298, paragraphs 23 to 25 and 30.

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59 – See also in this connection the Opinion of Advocate General Geelhoed in De Cuyper (cited in footnote 48).

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60 – Such an assessment of necessity is to be found, for example, in D’Hoop (cited in footnote 7, paragraph 39, in particular the final sentence); Collins (cited in footnote 15, paragraphs 66 and 72); and Ioannidis (cited in footnote 5, paragraph 31, in particular the final sentence). To the same effect see Bidar (cited in footnote 11, paragraphs 58 und 61).

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61 – D’Hoop (cited in footnote 7, paragraph 39, as regards the place where a diploma of completion of secondary education was obtained). See to the same effect Ioannidis (cited in footnote 5, paragraphs 31 and 33, as regards the place where a diploma of completion of secondary education was obtained and the place of residence of the parents of the person concerned).

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62 – See in detail paragraph 9 of this Opinion.

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63 – A rule for hardship cases such as that laid down in Article 3(6) of the WUBO cannot substantially alter this finding. The use thereof is at the discretion of the PUR and, in accordance with its administrative practice, is precisely not applied to cases in which residence has been transferred abroad voluntarily. Even in accordance with the more generous administrative practice of the PUR in place since 1 July 2004, not all cases of voluntary transfer of residence abroad are covered since an income ceiling applies. See paragraphs 11 to 13 of this Opinion.