Comments on Gouvernement de la Communauté française and Gouvernement wallon (Case C-212/06 of 1 April 2008) and Eind (Case C-291/05 of 11 December 2007)

European Journal of Migration and Law

Volumn 10, Issue 3, 2008, Pages 365-379

  Martin, D ^a  

^a EUROPEAN COMMISSION   (Belgium)

Author keywords

Citizenship; Family reunification; Internal situation; Obstacle to free movement; Third country family member

Indexed keywords

EID: 68249160992     PISSN: 1388364X     EISSN: 15718166     Source Type: Journal    
DOI: 10.1163/157181608X338199     Document Type: Article

References (11)

1. The first question referred to the Court was whether the scheme at stake falls with the material scope of Regulation 1408/71, on the application of social security schemes to migrant workers. The Court answered affi rmatively to that question, but that part of the judgment does not deserve specifi c comments.
2. For a reminder, see case C-388/01, Commission v. Italy, [2003] ECR I-721, para. 14.
3. For a list of these cases, see the opinion of AG Warner in case 191/73, Niemann, [1975] ECR 571 and 584.
4. Such application was more problematic in a subsequent judgment given on 20 May 2008 in the Bosmann case (C-352/06). Mrs Bosmann, a Belgian national with two children, lived in Germany, in which she was entitled to family allowances. She then started to work in the Netherlands while still residing in Germany. According to a basic principle of Regulation 1408/71, which governs the determination of the applicable legislation (Article 13 (2) (a)), she was then subjected to Dutch legislation on family allowances. According to the latter, such allowances are not granted for children aged over 18, so that she lost her right to these allowances. The Court nevertheless ruled that, because of that same principle, "the fact remains that the purpose of that regulation is not to prevent the Member State of residence from granting, pursuant to its legislation, child benefi t to that person" (para. 31). The Court confuses the right not to lose a social security benefi t because of an exercise of the freedom guaranteed by Article 39 EC and the determination of the exclusive legislation applicable to the grant of that benefi t after such an exercise, organised by Regulation 1408/71. Such a judgment creates legal uncertainty for Member States and workers alike, as it disregards a fundamental principle of the coordination of social security legislation put in place by that regulation.
5. Case 2/69, Sociaal Fonds voor Diamantarbeiders, [1969] ECR 211.
6. Case C-332/90, Steen, [1992] ECR I-341.
7. R. Joliet, 'La libre circulation des marchandises: l'arrêt Keck et Mithouard et les nouvelles orientations de la jurisprudence', Journal des tribunaux - Droit européen, 1994, p. 145.
8. Pandora could not resist curiosity and opened the Box, freeing diseases and pains it contained. She was too slow to close the Box to keep them in, but Hope, slower to react, could not escape ⋯
9. The question was: "whether, in the event of a Community worker returning to the Member State of which he is a national, Community law requires the authorities of that State to grant a right of entry and residence to a third-country national who is a member of that worker's family, because of the mere fact that, in the Member State where the worker was gainfully employed, that third-country national held a valid residence permit issued on the basis of Article 10 of Regulation No 1612/68" (par. 20).
10. On that judgment, see EJML, 6(3) 2004, 277-284.
11. But a reversal of Akrich is surely to be warmly welcomed.