Social Security : Dutch Benefits for Young Disabled Persons Not Exportable

Article excerpt

The benefits paid in the Netherlands under the Disablement Assistance Act for Handicapped Young Persons (Wajong) should be considered as "special non-contributory benefits" under Regulation 1408/71/EEC on social security systems, maintained the European Court of Justice on 6 July. Accordingly, such benefits cannot be allocated to persons residing outside the Netherlands (Case C154/05, Kersbergen-Lap and Dams-Schipper).

The case concerned two young workers, both suffering from "long-term incapacity for work estimated at between 80% and 100%". Both had been granted work-incapacity benefits prior to 1998 under the AAW [Algemene Arbeidsongeschiktheidswet - law providing for general insurance against incapacity for work]. As of 1 January 1998, that benefit was converted into a benefit under the Wajong. In 2002, Mrs Kersbergen-Lap and Mrs Dams-Schipper took up residence in France and Germany, respectively, at which point their benefits were withdrawn. Dutch law says the benefit is non-exportable except when ending the benefit would lead to an "unacceptable degree of unfairness".

The Court, basing itself on the arguments of the Commission and the Dutch, Finnish and British governments (also involved in the case), ruled that the decision is compliant with EU law. Contrary to the general principle of exportation of social benefits which applies when an insured person travels to another member state, benefits which are deemed to be both special and non-contributory are not considered to be exportable outside the member state which granted the benefit. Both conditions were met in this particular case.

Special benefits are defined by their purpose. By guaranteeing a minimum income to a socially disadvantaged group (disabled young people), the Wajong benefit is by its nature social assistance justified on economic and social grounds. Moreover, it is granted according to objective criteria defined by law. The fact that the benefit is granted without any means testing or needs assessment does not change this. …