Opinion of Advocate General Van Gerven delivered on 6 May 1992

1 Originai language: Dutch.

2 In the version codified by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and in particular Article 73 as last amended by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1).

3 OJ, English Special Edition 1968 (II), p. 475.

4 Article 7 of Regulation No 1612/68 reads as follows:1. A worker who is a national of a Member State may not, in the territory of another Member Sute, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or reemployment; 2. He shall enjoy the same social and tax advantages as national workers. (...)

5 Case C-356/89 Newton v Chief Adjudication Officer [1991] ECR I-3017, paragraph 10.

6 See, for instance, Joined Cases 379/85 to 381/85 and 93/86 CRAM Rhône-Alpes v Oletti [1987] ECR 955, paragraph 11, Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Wehijn Kalmthout [1985] ECR 973, paragraphs 12 to 14, and recendy the judgment in Newton referred to in footnote 4, at paragraphs 11 and 19.

7 In Case 187/73 Callemeyn [1974] ECR 553 the Court held that a benefit, for which the Court itself pointed out that the essential criterion of entitlement was need, could nevertheless be a social security benefit if entitlement to it did not depend on the individual assessment which is the characteristic of social assistance, and the beneficiaries enjoyed a legally protected right to the benefit (paragraphs 7-11). In its recent judgment of 20 June 1991 in Newton (see footnote 4) the Court held that a benefit can only be regarded as a social security benefit if entitlement to it depends on objective criteria (paragraph 19).

8 See paragraph 7 of the judgment cited in footnote 5.

9 Case 40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669, paragraph 7.

10 See also, inter alia, Case 94/84 RVA v Deák [1985] ECR 1873, paragraphs 14, 15, and Case 147/87 Zaoui v CRAMIF [1987] ECR 5511, paragraphs II-13.

11 The fact that Mrs Hughes neither lives nor works in the United Kingdom and never has done is no obstacle to making a claim based on that derived right. Article 73 does not in fact require that the spouse of the employed person must also work in the Member State whose legislation is applicable and applies precisely to the situation in which the family of the employed person resides in another Member Sute.

12 The question whether it is compatible with Article 73 for national legislation such as that of the United Kingdom to require for entidement to Family Credit the spouse of the employed person, if employed, to be so in the same Member Sute, does not arise in this case because Mrs Hughes is not employed.

13 See for example Hoeckx, cited in footnote 5, paragraph 20.

14 See, for example, Case 207/78 Openbaar Ministerie v Even [1979] ECR 2019, paragraph 21.

15 See, for instance, Case 180/83 Moser v Land Baden- Württemberg [1984] ECR 2539, paragraph 15, Joined Cases 35/82 and 36/82 Morsoti and Jbanjan v State of the Netherlands [1982] ECR 3723, paragraph 15, Hid Case 175/78 Saunders [1979] ECR 1129, paragraph 11.

16 See the judgment cited in footnote 9, Zaoui, paragraph 16.

17 Case 316/85 Centre Public d'Aide Sociale de Courcelles v Lebon [1987] ECR 2811, paragraph 12.

18 Case 3/90 Bernini v Minister van Onderwijs en Wetenschappen [1992] ECR I-1071, paragraphs 27 and 28. See also my Opinion in that case of 11 July 1991, paragraph 22.

19 That is how I interpret the judgments of 27 March 1985, Hoeckx and Scrivner. There the Court declared that a benefit guaranteeing a minimum means of subsistence constitutes a social advantage within the meaning of Regulation No 1612/68 of the Council, which may not be denied to a migrant worker who is a national of another Member State ana is resident within the territory of the State paying the benefit, nor to his family (Hoeckx, paragrapn 22, my emphasis). In those cases the Belgian legislation required even in the case of Belgian nationals that they be resident in Belgium in order to claim the minimum means of subsistence. However, Belgian nationals were not subject to the condition applied to migrant workers that they have already resided in Belgium for a particular period.

20 See Case 152/73 Solgin [1974] ECR 153, paragraph 11. Of recent judgments, see Case 33/88 Allué et Coonan [1989] ECR 1591, Case C-175/88 Biehl [1990] ECR I-1779, paragraph 13, and Case C-27/91 URSSAF v U Manoir [1991] ECR I-5531, paragraph 10.

21 See paragraph 14 of Biehl, cited in footnote 19.