Case C-499/06, Nerkowska

>> Residence requirement for disability pension granted to civilian victims of war or repression infringing Art. 18 EC

Ms Nerkowska , who had Polish nationality, was born on in 1946 in the territory of present-day Belarus. In 1951, Ms Nerkowska was deported to the former USSR. She lived there under difficult conditions until January 1957, when she returned to Poland. In 1985, she left Poland and settled permanently in Germany. In October 2000, Ms Nerkowska submitted an application to obtain a disability pension for the damage her health had suffered while she was a deportee. The competent authority decided that she was entitled to a pension as a result of partial incapacity for work linked to her stay in places of isolation, but payment of this benefit was suspended on the ground that she did not reside in Polish territory.
After the accession of Poland, Ms Nerkowska submitted a fresh application for payment. The competent authority refused to pay, on the ground that she did not have a place of residence in the territory of Poland. Ms Nerkowska appealed. The national court asked whether Art. 18(1) EC was to be interpreted as precluding legislation of a Member State under which it refused to pay one of its nationals a benefit granted to civilian victims of war or repression although it had been acknowledged by a decision of the competent authority that that national was entitled to such a benefit, on the sole ground that the national was habitually resident in the territory of another Member State and not in that of the Member State in question.

Reiterating its Tas-Hagen and Tas judgment of two years ago, the Court held that under Art. 17(1) EC, every person holding the nationality of a Member State was a citizen of the Union. In addition, Art. 17(2) EC attributed to citizens of the Union the rights conferred and duties imposed by the EC Treaty, including those mentioned in Art. 18(1) EC. As a Polish national, Ms Nerkowska enjoyed the status of citizen of the Union established by Art. 17(1) EC and might therefore rely where relevant on the rights conferred on those having that status, such as the rights to move freely and to reside freely laid down in Art. 18(1) EC. As Community law now stood, a benefit which was intended to compensate civilian victims of war or repression for physical or mental harm which they had suffered, fell within the competence of the Member States. However, Member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions concerning the freedom accorded to every citizen of the Union to move and reside freely within the territory of the Member States.
(
Case C-192/05 Tas-Hagen et Tas [2006]).

The Court furthermore held that Citizenship of the Union was not intended to extend the scope ratione materiae of the Treaty to internal situations which had no link with Community law. However, situations which fell within the scope ratione materiae of Community law included those involving the exercise of the fundamental freedoms guaranteed by the Treaty and those involving the exercise of the freedom, as conferred by Art. 18 EC, to move and reside within the territory of the Member States. (
See Joined Cases C-64/96 and C‑65/96 Uecker and Jacquet [1997] and Case C-148/02 Garcia Avello [2003]).

The Court held that a situation in which the exercise by Ms Nerkowska of a freedom accorded by Community law had an impact on her right to the payment of a benefit under national legislation could not be considered to be a purely internal matter with no link to Community law. It furthermore argued that national legislation which placed certain of the nationals of the Member State concerned at a disadvantage simply because they had exercised their freedom to move and to reside in another Member State was a restriction on the freedoms conferred by Art. 18(1) EC on every citizen of the Union.

Such restriction could be justified, under Community law, only if it was based on objective considerations of public interest independent of the nationality of the persons concerned and was proportionate to the legitimate objective of the national provisions. Although both the wish to ensure that there was a connection between the society of the Member State concerned and the recipient of a benefit and the necessity to verify that the recipient continued to satisfy the conditions for the grant of that benefit constituted objective considerations of public interest which were capable of justifying the fact that the conditions for the grant or payment of the benefit might affect the freedom of movement of the citizens of that Member State.

Nevertheles, while the restriction found was capable of being justified by objective considerations of public interest, that restriction must also not be disproportionate in the light of the objective pursued. A residence condition such as that at issue in the main proceedings went beyond what was necessary to achieve the objective of verifying that the recipient of a benefit continued to satisfy the conditions for grant of the benefit and, therefore, it failed to comply with the principle of proportionality. The requirement of residence throughout the period of payment of the benefit concerned went beyond what was necessary to ensure that such a connection existed.

Text of judgment