The Gazette 1985

APRIL 1985

GAZETTE

body corporate, is Article 58 to be interpreted as prohibiting a condition requiring that each of the persons entitled to a beneficial interest in the body corporate should have resided on the land during a similar period?" The Court of Justice concluded, firstly, that Article 58 was not relevant because Fearon and Co. was an Irish company. However, it then went on to reformulate the question from the Supreme Court as in effect seeking to ascertain whether, when nationals of one Member State have duly exercised the right of establishment and formed a company in another Member State (in this case Ireland), they can be required to meet a residence requirement. The Court proceeded to answer that question by ruling that a residence requirement may be imposed provided it is non- discriminatory, in that Irish shareholders would have to satisfy a similar residence requirement. The matter, having been referred back to the Supreme Court, is now in the process of being settled. The right of Irish citizens to reside, take up work and establish themselves in other EEC countries There is, of course, a reciprocal right of free movement for Irish citizens, which may be of increasing significance over the next few years in view of our young, growing population. Notwithstanding the high unemployment rates throughout Europe, there are job opportunities which Irish applicants are entitled to avail of. Yet very few Irish lawyers could advise a client on the social security rights available to him or her in moving to another Member State to look for a job, take up employment or establish him or herself. The basic objective of the free movement and the co-ordination of social security in the Community was to ensure that the same treatment would be given to EEC migrant workers as to those workers who remain subject to the law of a single Member State throughout their lives. This meant that (i) there could be no provision in national legislation which discriminated against EEC migrant workers, (ii) EEC migrants have to have the right to claim benefits on the basis of their entire insurance record in the same way as workers who have been subject only to a single social security system, (iii) the full range of benefits under the social security system of a particular Member State had to be made available to EEC migrant workers. This would include any claims for benefit in respect of members of his or her family, and also provision in relation to unemployment benefit. Although the reality of Europe in 1985 is that high unemployment rates in each Member State (e.g., 2 l / 2 m unemployed in Germany, militate against job mobility, nonetheless there are legal provisions governing both job opportunities and the facility to export a period of unemployment benefit. The information exchange has been streamlined since the mid-70s by the establishment of SEDOC, 8 under which the manpower services in each Member State exchange information about job opportunities and seek to establish linkages with suitably qualified applicants in

the different Member States. There is no doubt that SEDOC worked better in its first few years, when job opportunities were more available, as is borne out by the fact that in 1980 over 500 Irish people found jobs in Germany alone through the SEDOC system, whereas in 1984 the total of job placements for the whole of Europe was 152, and a large proportion of these were seasonal jobs. Apart from directing a potential job applicant towards the resources of SEDOC available in a local manpower office, a solicitor should also be aware of the legal provisions governing the export of unemployment benefit. Firstly, a person who has been in insured employment in Ireland and who is going to work in an EEC country, should acquire an E.301 certificate, concerning the periods to be taken into account for granting unemployment benefit in the host country. This will ensure that where necessary, the individual can add on the Irish period of insured employment to the period worked in the EEC country, for the purpose of qualifying for unemployment benefit there. Secondly, a person who has been in receipt of unemployment benefit in Ireland for a minimum of four weeks can apply to the Department of Social Welfare for certificate E.302, and export the entitlement to be paid unemployment benefit to whichever Member State he or she chooses for a maximum period of three months. 9 There have been a number of cases involving Irish nationals claiming social security rights which have been referred from the U.K. to the Court of Justice. Kenny -v- Insurance Officer 10 concerned an Irish national who normally resided in the U.K., but who had returned to Ireland in June 1973 and been imprisoned for breach of a court bond arising out of a previous conviction. While serving his term of imprisonment in Ireland, Kenny became ill and received treatment in a hospital outside the prison. Following his release and return to Britain, he claimed entitlement to a cash benefit for incapacity for work because of sickness, as provided for in the National Insurance Act 1965. His application was refused by the insurance officer because of the disqualification clause under British law for a person serving a term of imprison- ment. He appealed to the national insurance officer who referred several questions to the Court of Justice under Article 177. That court concluded that the EEC provisions which Mr. Kenny sought to rely upon were directly applicable, but that the circumstances which may lead to disqualification for cash benefits are a matter for the national authorities provided that they are applied without regard to nationality. Another case referred by the national insurance officer Margaret Walsh -v- National Insurance Officer, 11 illustrates the reward which may come in the end from persisting with a claim! Ms. Walsh was an Irish woman who had worked in both Britain and Ireland, who was married on 29 June 1974 and subsequently came to join her husband and live in Ireland in October 1974. In July 1975 she gave birth to a son in Ireland, and shortly afterwards returned to live in Britain. She claimed U.K. maternity allowance on 3 October 1975, which was disallowed. She appealed, and on 11 September 1979 the National Insurance Commissioner referred questions to the European Court of Justice under Article 177. On 22 May 1980 the European Court ruled that she was still a "worker" for present purposes and that the rule against

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