E-13/20 O v Arbeids- og velferdsdirektoratet
dossier van het EVA-hof (voor zover beschikbaar).
Motivation ministry: 9 October 2020 Written
observations: 25 November 2020
security; unemployment benefits
Agreement between the EFTA States on the Establishment of
a Surveillance Authority and a Court of Justice (SCA);
Regulation (EC) No 883/2004 of the European Parliament and
of the Council of 29 April 2004 on the coordination of
social security systems;
Directive 2004/38/EC of the European Parliament and of the
Council of 29 April 2004 on the right of citizens of the
Union and their family members to move and reside freely
within the territory of the Member States;
concerns an order for repayment of unemployment benefits
that were paid whilst the recipient was staying in
Germany. The basis for the order is that the recipient did
not fulfil the condition laid down in Section 4-2 of the
Act No 19 of 28 February 1997 (the Norwegian National
Insurance Act) to stay in Norway. The case raises
questions of whether the condition is compatible with the
an advisory opinion:
(1) Is it
compatible with the provisions of Regulation (EC) No
883/2004, including Article 5(b), for entitlement to a
cash benefit in the event of unemployment to be subject to
the condition that the unemployed person stay in the
competent State in cases where Articles 64, 65 or 65a are
Article 36 of the EEA Agreement apply in the case of
temporary stays in another EEA State as described in this case?
(3) Does a
condition as described in question 1 constitute a
restriction on the right of free movement under Article 31
or Article 36 of the EEA Agreement?
(4) If so,
can the restriction be justified on the ground that:
a stay in the competent State provides the unemployed
person with better incentive and opportunities for seeking
and finding employment?
a stay in the competent State ensures that the unemployed
person is available for the employment services, so that
they (the employment services) are able to monitor whether
the unemployed person fulfils the requirements for the
a stay in the competent State provides the employment
services with better opportunities in assessing whether
the unemployed person is being followed up in a suitable manner?
the requirement of a stay ensures the economic equilibrium
of the social security scheme?
(5) If the
condition can be justified, is it compatible with Articles
31 and 36 of the EEA Agreement that a person who has had a
stay in another EEA State than the competent State without
complying with the obligation to inform the competent
institution about the stay may be ordered to repay the
benefit, which was thus received unlawfully under national
law? If so, is it compatible with Articles 31 and 36 of
the EEA Agreement for an interest surcharge of 10 per cent
to be levied on the person concerned?
question 3 is answered in the negative, does Article 4, 6
or 7 of Directive 2004/38/EC apply in a situation where an
unemployed person has a temporary stay in another EEA
State? If Article 4, 6 or 7 applies and may be relied on
as against the home State, the same questions as in
questions 3 to 5 are put in as far as applicable.
(recent) case-law: C-406/04 ; C-228/07; C-551/16; C-211/08
Commission v Spain; C-443/11; 796/79; C-228/07