The story is as follows. Mrs Tas-Hagen was born in 1943 in what was at the time the Dutch East Indies. She moved to the Netherlands in 1954. In 1961 she acquired Netherlands nationality. In 1987, after having become incapable of working and thereby forced to terminate her professional career, she took up residence in Spain. In 1999, while resident in Spain, Mrs Tas-Hagen applied for the grant of a war pension. This application was based on health problems resulting from her experiences in the Dutch East Indies during the Japanese occupation and during the Bersiap period following that occupation. Her application was denied on the ground that the relevant Dutch legislation required the applicant for the war pension to be actually resident in the Netherlands and she was not because she was resident in Spain at the time.
As for Mr Tas, he was born in the Dutch East Indies in 1931. In 1947 he took up residence in the Netherlands. From 1951 to 1971 he held Indonesian nationality. He regained Netherlands nationality in 1971. In 1983 he ceased to be employed as an official of the Hague municipal council, and he was declared wholly incapable of work on grounds of mental health. In 1987 Mr Tas took up residence in Spain. He too applied for a war pension in 1999 and was also turned down on the ground that he was resident in Spain, not the Netherlands, at the time of the application.
They both challenged the refusal before the Dutch courts on the ground that the condition of residence in the Netherlands at the time of the applications is contrary to the Treaty provisions on citizenship of the Union. The Dutch court then referred the matter to the Court of Justice.
The Court had first to determine whether the facts of the case came within the scope of EC law. The Court held that they did. It stated that a benefit such as that in issue in the main proceedings, which is intended to compensate civilian war victims for physical or mental damage which they have suffered, falls within the competence of the member States. But, member States must exercise that competence in accordance with Community law, in particular with the Treaty provisions giving every citizen of the Union the right to move and reside freely within the territory of the member States. The Court pointed out that while citizenship of the Union, established by Article 17 EC, is not intended to extend the material scope of the Treaty to internal situations which have no link with Community law (Joined Cases C‑64/96 and C‑65/96 Uecker and Jacquet, paragraph 23, and Case C‑148/02 Garcia Avello, paragraph 26), the situation of Ms Tas-Hagen and Mr Tas is covered by the right of free movement and residence of citizens of the European Union. Clearly, Ms Tas-Hagen and Mr Tas, in taking up residence in Spain, were exercising the right granted by Article 18(1) EC to every citizen of the Union to move and reside freely within the territory of a Member State other than that of which he is a national.
Then the Court considered whether the residence requirement laid down in Dutch law was contrary to EC law. The Court held that it was contrary to EC law. The Court recalled that the opportunities offered by the Treaty in relation to freedom of movement cannot be fully effective if a national of a member State can be deterred from availing himself of them by obstacles raised to his residence in the host Member State by legislation of his State of origin penalizing the fact that he has used them (Case C‑224/02 Pusa, paragraph 19). It held that national legislation which places at a disadvantage certain of the nationals of the Member State concerned simply because they have exercised their freedom to move and to reside in another Member State is a restriction on the freedoms conferred by Article 18(1) EC on every citizen of the Union (Case C‑406/04 De Cuyper, paragraph 39).
The Court did consider whether the restriction, deriving from the residence requirement, was justified. Such a restriction can be justified, the Court held, only:
- if it is based on objective considerations of public interest independent of the nationality of the persons concerned
- and is proportionate to the legitimate objective of the national provisions (De Cuyper, paragraph 40).
As to the first condition (the existence of objective considerations of public interest) it is apparent the limitation in the Dutch legislation, by means of the condition of residence, of the number of persons likely to be eligible for the benefits introduced by that legislation results from the Netherlands legislature’s wish to limit the obligation of solidarity with civilian war victims to those who had links with the population of the Netherlands during and after the war. The condition of residence is therefore an expression of the extent to which such victims are connected to Netherlands society. The Court conceded that this aim of solidarity may constitute an objective consideration of public interest.
But that left the second condition, the one relating to proportionality. The Court had a problem with that one. The Court held that a condition of residence such as that in issue in the main proceedings cannot be characterised as an appropriate means by which to attain the objective sought. It found that a criterion requiring residence cannot be considered a satisfactory indicator of the degree of connection of applicants to the member State granting the benefit when it is liable, as is the case with the criterion in issue in the main proceedings, to lead to different results for persons resident abroad whose degree of integration into the society of the member State granting the benefit is in all respects comparable. The setting of a residence criterion such as that used in the main proceedings, based solely on the date on which the application for the benefit is submitted, is not a satisfactory indicator of the degree of attachment of the applicant to the society which is thereby demonstrating its solidarity with him. It follows that this condition of residence fails to comply with the principle of proportionality.
Consequently, the Court held the Dutch residence requirement was contrary to Article 18(1) EC.