E-15/20 Criminal Proceedings Against P  

EFTA-case  

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Deadlines: Motivation ministry:    23 November 2020
Written observations:                    6 January 2021

Keywords : social security; benefits;

Subject :

•          Agreement on the European Economic Area;

•          Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland);

•          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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance);

Facts of the case:

The case is a public criminal case brought against P, who is indicted for aggravated fraud and providing a false statement to the Norwegian Labour and Welfare Administration (Arbeids- og velferdsetaten - “NAV”) in connection with the receipt of cash benefits in the event of unemployment (“unemployment benefits”). Under Norwegian social security legislation a general rule is that the unemployed person must stay (“oppholde seg”) in Norway in order to receive cash benefits in the event of unemployment. There are exceptions that allow an unemployed person to export such cash benefits. Inter alia, subject to certain conditions, the unemployed person may apply to stay for three months in another EEA State in order to seek work there. In the present case it is undisputed that the accused was staying in other EEA States – Denmark and Spain – whilst he was receiving cash benefits, without at any time applying for export of the benefit and whilst he regularly failed to inform NAV that he was staying outside Norway.

Request for an advisory opinion:

Question 1

Do Articles 3 and 7(a) of the EEA Agreement, read in conjunction with Regulation 883/2004, in particular Articles 4, 5 and 7, read in conjunction with Chapter 6, preclude a national scheme under which:

a) it is a condition for entitlement to unemployment benefits that the unemployed person stays (“oppholder seg”) in Norway (see Section 4-2 of the National Insurance Act); and

b) an exemption from the requirement to stay, including the provision in Article 64 of Regulation 883/2004, is provided for in the national Unemployment Benefits Regulation, which is also implemented in the Transposing Regulation?

Question 2

Irrespective of the answer to question 1, is a scheme as described in question 1 a restriction under the EEA Agreement’s rules on free movement, including Articles 28, 29 and 36? If so, can such a restriction be justified by reference to the following grounds:

i. that stays in the competent State are usually viewed as giving the unemployed person better incentive and opportunities for seeking and finding employment, including being able to start quickly in a possible job;

ii. that stays in the competent State are usually viewed as helping the unemployed person to be available for the employment services, and that presence in Norway makes it possible for the public administration to monitor whether the unemployed person fulfils the conditions for receiving the cash benefit paid in the event of unemployment – including that the unemployed person is in fact unemployed and does not have hidden sources of income, is a genuine job-seeker, is engaged in an active search for employment or participates in other activities aimed at finding employment;

iii. that stays in the competent State are usually viewed as giving the employment services better opportunities to assess whether the unemployed person is being given suitable follow-up; and

iv. that the national scheme allows for receiving unemployment benefits in another EEA State on the conditions provided for by Regulation 883/2004.

Question 3

In so far as required by the answers to questions 1 and 2, equivalent questions are asked in relation to Directive 2004/38, including Articles 4, 6 and 7.

Question 4

The accused has been indicted for having provided false information to the administrative body NAV regarding stays in another EEA State, thereby having misled NAV into paying unemployment benefits to which he was not entitled because the National Insurance Act lays down conditions requiring a stay (“opphold”) in Norway in order to receive unemployment benefits. Given the Norwegian transposition of Regulation 883/2004 (see question 1), is the use of the provisions of the Criminal Code on fraud and providing a false statement in a case such as the present one in accordance with fundamental EEA law principles such as the principle of clarity and the principle of legal certainty?

Question 5

In the light of the specific case such as the present one and the transposition by Norway of Regulation 883/2004 (see question 1), is the criminal law sanction in accordance with the principle of proportionality?

Cited (recent) case-law: (C-406/04); (C-102/91); (C-215/00); (C-85/96); (C-43/99); (C-551/16); (C-225/14); Commissie/Frankrijk (C-167/73); Commissie/Italië (C-104/86); Commissie/België (C-522/04); Commissie/Griekenland (C-729/17); (C-192/05); (C-228/07); (C-203/80); (C-265/88); Norwegian State (E-3/12); (C-14/15); (E-26/13); (E-28/15); Norwegian Government (E-4/19); Criminal Proceedings against F and G (E-5/19); (E-2/10);

Policy Area: SZW