E-2/22 - A v Arbeids- og velferdsdirektoratet

EFTA-case

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Deadlines: Motivation ministry:          22 February 2022
Written observations:                          8 April 2022 (ultimate deadline)

Keywords : transitional benefit, membership requirement, social security

Subject :

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems

Facts of the case:

A is a Swedish national. She moved to Norway in August 2017 when her spouse at the time – a Norwegian national – got a job in Norway. Immediately before moving to Norway, she had resided and been employed in Sweden for over five years. Prior to moving to Norway, she had been in Norway a number of times, but had never been resident in the country. A applied for a transitional benefit on 24-06-2019. In the application, she stated that her expected due date was 25-07-2019. It was further stated in the application that A had been accepted at an educational institution in Oslo from the autumn and would be studying for a bachelor’s degree there. By decision of 26-06-2019, the NAV Employment and Benefits Office rejected the application for a transitional benefit. The reasoning was that Section 15-2 of the National Insurance Act required three years’ prior membership in the social security system, whilst A only had just under two years. The child was born on 28-07-2019. According to the information in the case file, the child’s father is a Swedish national resident in Sweden and will not have much contact with the child. In the appeal to the National Insurance Court, A argued that the rejection was contrary to the EEA rules. She expressed the position that a transitional benefit had to be considered a “maternity benefit” under Article 3(1)(b) of Regulation 883/2004 and that that regulation accordingly applied in the case. She submitted that, under Article 6 of that regulation, she was entitled to have the time in Sweden included for the purposes of determining whether she fulfilled the membership requirement provided for in Section 15-2 of the National Insurance Act. If Regulation 883/2004 applies to the case, it seems not doubtful that the Appellant is entitled to have her time in Sweden included in the calculation on whether she fulfils the membership requirement. On that basis, it is necessary to clarify whether transitional benefit comes within the material scope of Regulation 883/2004. Moreover, although the transitional benefit formally speaking is one benefit, the question may be asked whether it is in fact a number of different benefits, with different eligibility requirements. What the National Insurance Court needs to have clarified is the EEA law classification of the “normal cases”, i.e, where a benefit is given to a single parent with a child under eight years old. When the youngest child becomes one year old, certain requirements are imposed on the benefit recipient for continued entitlement to the benefit. On this basis, the National Insurance Court finds it appropriate also to refer a question as to whether a requirement of occupational activity for continued entitlement to the benefit when the youngest child becomes one year old affects or modifies the nature of the benefit as a social security benefit or social assistance for the purposes of Regulation 883/2004.

Request for an advisory opinion:

1) Does a benefit such as the transitional benefit (overgangsstønad) – see the first paragraph of Section 15-5 of the National Insurance Act, read in conjunction with the first sentence of the second paragraph – come within the material scope of Regulation (EC) No 883/2004 according to:

a. Article 3(1), in particular (j), or

b. Article 3(3), read in conjunction with Article 70?

2) Is it of any significance for the assessment under question 1) that there is a requirement of occupational activity for continued entitlement to a benefit when the youngest child becomes one year old, see Section 15-6 of the National Insurance Act?

Cited (recent) case-law: (C-449/16), (C-372/18), (C-78/91), (C-177/12), (C-299/05),

Policy area: SZW