From reading the article "The Coming of age of infringement proceedings (Prete, Smulders, Common Market Law Review, Vol. 47 No. 1 February 2010):
While the Member States is free to raise any new argument before the Court...
With regard to substantive defences, it should be stressed that Member States are at liberty to raise new or additional arguments before the Court, and are not confined to the defences brought up during the administrative stage of the procedure. In the Armaments case, for instance, the Commission had argued that one plea of defence raised by Spain was out of time since it was not advanced at any time during the pre-litigation procedure. However, the Court rejected this objection, holding that the Commission's argument appeared contrary to the general principle of respect for the rights of defence. Moreover, the Court noted that there was no rule of procedure which requires Member States to put forward, during the pre-litigation phase, all the arguments of their defence. (C-414/97 Commission v. Spain, paras 16-18).
This case-law is criticized by the authors: ... one cannot avoid agreeing with those who find deeply regrettable the tendency of certain Member States to present a serious defence only before the Court. The attitude to treat with some superficiality the Commission's investigations may in fact lead this institution into error and thus provoke unnecessary litigation, with a consequential significant waste of resources for the Commission, the Member State concerned, and ultimately the EU judicature.
... the Commission has its hands tied, but this cannot not be stretched to the extreme.
For instance, that is the case where "the Commission, after alleging that a Member State has failed to transpose a directive at all, later specifies that the transposition pleaded for the first time by that State at a subsequent stage of the procedure is in any event incorrect or incomplete so for as certain provisions of the directive are concerned. Such a complaint is necessarily included in the complaint alleging a complete failure to transpose and is subsidiary to that complaint." (C-456/03 Commission v. Italy, para 40)
Wednesday, May 23, 2012
Thursday, April 12, 2012
C-611/10 and C-612/10 Hudzinski: not obliged yet entitled
Another interesting case coming up on coordination of social security schemes (Regulation No 1048/71 in the case at hand, Regulation 883/2004 today). On 16 February 2012, GA Mazák presented his opinion.
The issue
The issue is fairly straightforward: two Polish citizens are permantly established (with their families) in Poland, but worked for a certain period in Germany. For that period, German taxes were due. Both Polish citizens requested German child benefits (154 euro per month), but Germain authorities rejected the requests arguing inter alia that, under Regulation No 1048/71 (and the popular principle "one worker, one Member State", enshrined e.g. in Article 13(1) of Regulation No 1048/71; see also paragraph 50 of the opinion: "according to established case-law, it is the aim of Title II of Regulation No 1408/71 to ensure that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and thus to avoid the attendant complications. That principle is expressed in Article 13(1) of Regulation No 1408/71, which provides that a worker to whom that legislation applies is to be subject to the legislation of a single Member State only."?
In this case, the question was, however: if Regulation No 1048/71 points to another Member State (Poland), does that preclude the other Member State (Germany) from granting the benefit (to which the person concerned is entitled to on the basis of the legislation of that other Member State). In other words: can a Member State take the Union law as a ground (or rather an excuse) for rejecting a claim, otherwise well-founded under the national law?
The opinion
According to GA Mazák, the answer is no:
53. While stating thus clearly that, pursuant to EU law, the non-competent Member State of residence is under no obligation to grant the child benefit at issue, the Court held in the subsequent part of its judgment in Bosmann that that State was not prevented, however, from granting the child benefit in question pursuant to its national legislation.
...
58. To my mind, although the Court had to give judgment on the basis of the specific circumstances of the case, which arguably means that a different reading of the judgment is not excluded, the rationale of Bosmann transcends those factors or conditions and clarifies in a more general fashion the relationship – as characterised above – between, on the one hand, the provisions of Regulation No 1408/71 on the determination of the applicable legislation and, on the other, the possibility arising for a Member State other than the competent State to make such a grant through the application of its own legislation.
...
66. This all leads me to conclude that a Member State other than the competent State is not wholly deprived by Regulation No 1408/71 of any possibility of granting workers and members of their family social protection above and beyond, or in addition to, the protection arising from the application of that regulation, and this holds true also in situations such as those at issue, where the worker does not, as a result of exercising his right to freedom of movement, suffer a loss or reduction as compared with the social protection previously enjoyed and where there is, or may be, entitlement to child benefit in the competent State.
My opinion
The conclusion is not unreasonable. After all, it remains Member States' competence to regulate the substance, including the personal scope of their social security system, the only purpose of Regulation No 1408/71 (and Regulation No 883/2004) is to coordinate these systems. The coordination rules guarantee a certain minimum, but if a Member State decides, on its own, to go beyond that minimum, these rules do not, in essence, come to play at all.
On the other hand, this would turn the "one Member State rule" into a rather one-sided principle. It would be a source of obligation for those situations where there is a danger of no Member State being competent, but would be totally indifferent to situations where systems of two (or more) Member States overlap. And this is not without problems. This would be coordination allowing for chaos to remain.
I don't say the Polish citizens concerned should not be entitled to the German child benefits (after all, they paid Germain taxes for the relevant period). All I say is they should not be able to receive child benefits for the same period of time both in Germany and Poland. Why should they be? (On the other hand, GA Mazák does not say Germany should be, simultaneously with Poland, in obligation, under Regulation No 1408/71, it is simply not precluded from granting the benefit. In other words, it is for each Member State to make sure that migration does not lead, in itself, to multiplication of social security benifits, as it is clear this is not the purpose of the EU rules on free movement of persons. The only problem: how do you avoid this where Member States act on a individual basis? Bilateral treaties? Why not through the Union law then?).
Let us see what the Court has to say on the matter.
The issue
The issue is fairly straightforward: two Polish citizens are permantly established (with their families) in Poland, but worked for a certain period in Germany. For that period, German taxes were due. Both Polish citizens requested German child benefits (154 euro per month), but Germain authorities rejected the requests arguing inter alia that, under Regulation No 1048/71 (and the popular principle "one worker, one Member State", enshrined e.g. in Article 13(1) of Regulation No 1048/71; see also paragraph 50 of the opinion: "according to established case-law, it is the aim of Title II of Regulation No 1408/71 to ensure that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and thus to avoid the attendant complications. That principle is expressed in Article 13(1) of Regulation No 1408/71, which provides that a worker to whom that legislation applies is to be subject to the legislation of a single Member State only."?
In this case, the question was, however: if Regulation No 1048/71 points to another Member State (Poland), does that preclude the other Member State (Germany) from granting the benefit (to which the person concerned is entitled to on the basis of the legislation of that other Member State). In other words: can a Member State take the Union law as a ground (or rather an excuse) for rejecting a claim, otherwise well-founded under the national law?
The opinion
According to GA Mazák, the answer is no:
53. While stating thus clearly that, pursuant to EU law, the non-competent Member State of residence is under no obligation to grant the child benefit at issue, the Court held in the subsequent part of its judgment in Bosmann that that State was not prevented, however, from granting the child benefit in question pursuant to its national legislation.
...
58. To my mind, although the Court had to give judgment on the basis of the specific circumstances of the case, which arguably means that a different reading of the judgment is not excluded, the rationale of Bosmann transcends those factors or conditions and clarifies in a more general fashion the relationship – as characterised above – between, on the one hand, the provisions of Regulation No 1408/71 on the determination of the applicable legislation and, on the other, the possibility arising for a Member State other than the competent State to make such a grant through the application of its own legislation.
...
66. This all leads me to conclude that a Member State other than the competent State is not wholly deprived by Regulation No 1408/71 of any possibility of granting workers and members of their family social protection above and beyond, or in addition to, the protection arising from the application of that regulation, and this holds true also in situations such as those at issue, where the worker does not, as a result of exercising his right to freedom of movement, suffer a loss or reduction as compared with the social protection previously enjoyed and where there is, or may be, entitlement to child benefit in the competent State.
My opinion
The conclusion is not unreasonable. After all, it remains Member States' competence to regulate the substance, including the personal scope of their social security system, the only purpose of Regulation No 1408/71 (and Regulation No 883/2004) is to coordinate these systems. The coordination rules guarantee a certain minimum, but if a Member State decides, on its own, to go beyond that minimum, these rules do not, in essence, come to play at all.
On the other hand, this would turn the "one Member State rule" into a rather one-sided principle. It would be a source of obligation for those situations where there is a danger of no Member State being competent, but would be totally indifferent to situations where systems of two (or more) Member States overlap. And this is not without problems. This would be coordination allowing for chaos to remain.
I don't say the Polish citizens concerned should not be entitled to the German child benefits (after all, they paid Germain taxes for the relevant period). All I say is they should not be able to receive child benefits for the same period of time both in Germany and Poland. Why should they be? (On the other hand, GA Mazák does not say Germany should be, simultaneously with Poland, in obligation, under Regulation No 1408/71, it is simply not precluded from granting the benefit. In other words, it is for each Member State to make sure that migration does not lead, in itself, to multiplication of social security benifits, as it is clear this is not the purpose of the EU rules on free movement of persons. The only problem: how do you avoid this where Member States act on a individual basis? Bilateral treaties? Why not through the Union law then?).
Let us see what the Court has to say on the matter.
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