The Gazette 1985

GAZETTE

APRIL 1985

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

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,

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.

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

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,

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