E-13/20 O v Arbeids- og velferdsdirektoratet
EFTA-case
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Deadlines: Motivation ministry: 9 October 2020 Written observations: 25 November 2020
Keywords : social security; unemployment benefits
Subject :
- 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;
Facts of the case:
The case 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 EEA Agreement.
Request for 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 not applicable?
(2) Does 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 unemployment benefit?
- 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?
(6) If 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.
Cited (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
Policy Area: SZW