Criminal proceedings

against

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Family benefits – Grant by a Member State of advances on maintenance payments for minor children – Child of a prisoner – Conditions of granting the maintenance payment – Prisoner transferred to another Member State to serve his sentence – Article 12 EC – Articles 3 and 13 of Regulation (EEC) No 1408/71)

Opinion of Advocate General Kokott delivered on 25 May 2004

Judgment of the Court (First Chamber), 20 January 2005.

Summary of the Judgment

(Council Regulation No 1408/71, Arts 1(u)(i) and 4(1)(h))

(Council Regulation No 1408/71, Art. 2(1))

(Council Regulation No 1408/71, Art. 13(2)(a) and (f))

(Art. 12 EC; Council Regulation No 1408/71, Art. 3)

(see para. 27)

(see paras 32-33)

(see paras 44, 52, operative part)

In a situation where an employed person has been transferred, as a prisoner, from the Member State where he has ceased all occupational activity and has started to serve his sentence to another Member State, from which he originates, in order to serve the remainder of his sentence, those provisions do not preclude the legislation of the first Member State making the grant of family benefits provided for by internal law to members of the family of such a Community national subject to the condition that he remain a prisoner on its territory.

(see paras 51-52, operative part)

JUDGMENT OF THE COURT (First Chamber) 20 January 2005(1)

(Family benefits – Grant by a Member State of advances on maintenance payments for minor children – Child of a prisoner – Conditions of granting the maintenance payment – Prisoner transferred to another Member State to serve his sentence – Article 12 EC – Articles 3 and 13 of Regulation (EEC) No 1408/71)

In Case C-302/02,

REFERENCE for a preliminary ruling under Article 234 EC from the Oberster Gerichtshof (Austria), made by decision of 11 July 2002, received at the Court on 26 August 2002, in the proceedings brought on behalf of

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, A. Rosas, K. Lenaerts, S. von Bahr and K. Schiemann (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

having regard to the written procedure,

having regard to the decision, after hearing the Advocate General, to proceed to judgment without a hearing,

after considering the observations submitted on behalf of:

– Waltham Abbey Residents Association, by J. Devlin, Senior Counsel, J. Kenny, Barrister-at-Law, and D. Healy, Solicitor,

– An Bord Pleanála, by. B. Foley, Senior Counsel, A. Carroll, Barrister-at-Law, and P. Reilly, Solicitor,

– Ireland, by M. Browne, Chief State Solicitor, S. Finnegan, K. Hoare and A. Joyce, acting as Agents, and by D. McGrath, Senior Counsel, F. Valentine, Senior Counsel, and E. O’Callaghan, Barrister-at-Law,

– the European Commission, by M. Noll-Ehlers and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

Under Paragraph 3 of the UVG the grant of such advances is, in principle, contingent on the existence of an executory order in the national territory. However, Paragraph 4 of the UVG provides that, in certain circumstances, advances are to be granted even where enforcement of the obligation to make maintenance payments appears to have no prospect of success or where no entitlement to maintenance has been determined. Thus, Paragraph 4(3) of the UVG provides that advances are also to be granted:

The Convention on the Transfer of Sentenced Persons

Under the Convention on the Transfer of Sentenced Persons, opened for signature on 21 March 1983 in Strasbourg (‘the Convention’) and to which declarations of the Republic of Austria have been attached (BGBl. I, 1986, No 524), and Paragraph 76 of the Auslieferungs‑ und Rechtshilfegesetz (Law applicable in matters of extradition and judicial assistance, ARGH, BGBl. I, 1979, No 529), persons sentenced in the territory of a State signatory to the Convention (sentencing State) may, pursuant to Article 2 thereof, ask to be transferred to their State of origin (administering State) in order to serve the sentence which has been imposed upon them. In so doing, pursuant to Article 9(1)(b) of the Convention, a sanction prescribed by the law of the administering State for the same offence may be substituted for the sanction imposed in the sentencing State.

According to the Convention’s recitals, the purpose of such a transfer is inter alia to further the social rehabilitation of sentenced persons, by allowing foreigners who are deprived of their liberty as a result of their commission of a criminal offence to serve their sentences within their own society.

Since the Convention entered into force in Ireland on 1 November 1995, it has bound all the Member States. It entered into force in Austria on 1 January 1987 and in Germany on 1 February 1992 and was also ratified by the 10 new Member States.

The main proceedings and the question referred for a preliminary ruling

In the main proceedings, the claimant, Nils Laurin Effing, contests the decision of the Austrian authorities to terminate the advances on maintenance payments which he was receiving pursuant to Paragraph 4(3) of the UVG.

His father, Ingo Effing, is a German national. According to the information provided in the order for reference, there was proof of having his habitual residence in Austria, where he was an employed person. The Austrian Government has stated on this point, however, that until 30 June 2001, he was insured for social security purposes in Austria as an independent trader. Nils Laurin Effing is an Austrian national. He lives with his mother, who has custody, in Austria.

On 7 June 2000, the father of the claimant in the main proceedings was detained pending trial in Austria and was subsequently sentenced to a term of imprisonment. Nils Laurin Effing was then awarded a monthly advance on maintenance payments of EUR 200.43 pursuant to Paragraph 4(3) of the UVG, for the period from 1 June 2000 to 31 May 2003.

Nils Laurin Effing’s father started to serve his custodial sentence at Garsten prison in Austria. On 19 December 2001 he was transferred to his country of origin, Germany, to serve the remainder of his sentence there. According to the order for reference, that transfer was effected pursuant to the Convention.

According to the information supplied by the German Government, pursuant to Article 9(1)(b) of the Convention, the sentence imposed in Austria on the father of the claimant in the main proceedings was converted to a prison sentence provided for by German legislation. The German Government has also stated that, during his imprisonment, in the period from February to July 2002, and also from September 2002 to March 2003, he performed paid work, in accordance with the obligation to work imposed on prisoners by German legislation. Contributions for unemployment insurance and health insurance were deducted from his pay. On 3 April 2003 he was released.

Following Nils Laurin Effing’s father’s transfer to Germany, the Bezirksgericht Donaustadt (Austria), the court of first instance, by decision handed down on 24 January 2002, terminated the advances on maintenance payments received by Nils Laurin Effing, as from the end of December 2001. According to that court, the conditions allowing for the grant of advances were no longer met on the ground that the father of the claimant in the main proceedings was in custody abroad.

Further to proceedings brought by Nils Laurin Effing, the Landesgericht für Zivilrechtssachen Wien (Austria), acting as a court of appeal, upheld the decision of the court of first instance. It held that the grant of advances on maintenance payments under Paragraph 4(3) of the UVG is subject to the condition that the person concerned must serve his sentence in Austria.

Nils Laurin Effing brought an action for judicial review of that decision before the Oberster Gerichtshof, arguing that the transfer of the debtor of the maintenance obligation to a prison in another Member State did not have the effect of terminating the payment of advances on maintenance payments. He submits that, according to Paragraph 4(3) of the UVG, a prison in Austria is to be equated with any other prison in the Community.

The Oberster Gerichtshof takes the view that Paragraph 4(3) of the UVG is to be interpreted as excluding from the benefit of advances on maintenance payments children who are dependents of foreign nationals serving, in their country of origin, prison sentences imposed on them in Austria. Relying on the preparatory documents relating to an amendment of an earlier version of the UVG in 1980, that court states, first, that minors whose parent is the debtor of the maintenance obligation and is incarcerated are innocent victims of offences committed by their parent and that they deserve compassion on the part of the State. Second, the resultant obligation of the Austrian State, that is, to ensure that sentenced persons receive an appropriate salary or are made able in some other way to meet their maintenance obligations, should be limited to prisoners who work and are in prison in Austria.

Finding, however, that such an interpretation of Paragraph 4(3) of the UVG might give rise to discrimination based on nationality and, consequently, infringement of Article 12 EC and Article 3 of Regulation No 1408/71, the Oberster Gerichtshof decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

Is Article 12 EC, in conjunction with Article 3 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, to be interpreted as precluding a national rule that discriminates against a Community citizen in receipt of advances on maintenance payments, where the father liable for maintaining that citizen is serving a criminal sentence in his Member State of origin (i.e. not in Austria); and, where the child of a German national is resident in Austria, does denying that child entitlement to maintenance payments because his father is serving a criminal sentence, which was handed down in Austria, in his Member State of origin (and not in Austria) constitute discrimination against that child?

The question referred for a preliminary ruling

The applicability of Regulation No 1408/71

With regard, first, to the scope ratione materiae of Regulation No 1408/71, the Court has, as stated by the national court and the parties who have submitted observations to the Court, already had to rule, in connection with Regulation No 1408/71, on the classification of advances on maintenance payments provided for by the UVG (Case C‑85/99 Offermanns [2001] ECR I‑2261; and Case C‑255/99 Humer [2002] ECR I‑1205).

It follows from those judgments, Offermanns at paragraph 49 and Humer at paragraph 33, that such advances are family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71.

Accordingly, in the present case it suffices to point out that the fact that the advances on maintenance payments were granted pursuant to Paragraph 4(3) of the UVG, namely on the ground that the father of the claimant, the person with the maintenance obligation, was serving a prison sentence, and not pursuant to the general provision in Paragraph 3 of the UVG, cannot affect the classification of the advances in question as ‘family benefits’ within the meaning of Article 4(1)(h) of Regulation No 1408/71. According to Article 1(u)(i) of that regulation, the term ‘family benefits’ includes all benefits in cash or in kind intended to meet family expenses. In that connection, the Court has held that the expression ‘to meet family expenses’ in Article 1(u)(i) is to be interpreted as referring in particular to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance (‘Unterhalt’) of children (Offermanns, paragraph 41).

The granting of advances pursuant to Paragraph 4(3) of the UVG thus also comes within the scope ratione materiae of Regulation No 1408/71.

Second, as regards the scope ratione personae of Regulation No 1408/71, the Austrian Government maintains that a prisoner who has been transferred to another Member State to serve his sentence is not an employed person who has exercised his right to free movement of workers as guaranteed by the EC Treaty.

In that regard, Article 2(1) of Regulation No 1408/71 provides that the regulation applies to employed or self‑employed persons who are or have been subject to the legislation of one or more Member States and to the members of their families.

The terms ‘employed person’ and ‘self‑employed person’ contained in that provision are defined in Article 1(a) of that regulation. They include any person insured under any of the social security schemes referred to in Article 1(a) against the contingencies and subject to the conditions referred to in that provision (Case C‑2/89 Kits van Heijningen [1990] ECR I‑1755, paragraph 9; and Joined Cases C‑4/95 and C‑5/95 Stöber and Piosa Pereira [1997] ECR I‑511, paragraph 27).

It follows, as the Court has stated in particular in paragraph 36 of Case C‑85/96 Martínez Sala [1998] ECR I‑2691, that a person has the status of employed person within the meaning of Regulation No 1408/71 where he is covered, if only in respect of a single risk, compulsorily or on an optional basis, by a general or special social security scheme mentioned in Article 1(a) of Regulation No 1408/71, irrespective of the existence of an employment relationship.

In those circumstances, contrary to the arguments of the Austrian Government, the German Government and the Commission rightly submit that the father of the claimant in the main proceedings is an employed person within the meaning of Article 2(1) of Regulation No 1408/71, since he was covered by unemployment insurance during most of the period in dispute, namely during his imprisonment in Germany. In addition, the cross‑border element lies in the fact that the father of the claimant in the main proceedings is a German national who has worked in the Republic of Austria, the Member State in which, in the course of his imprisonment, he exercised his right to be transferred to his Member State of origin in order to serve his sentence there.

The legislation applicable and the absence of discrimination on grounds of nationality

With respect to the issue of determining the legislation applicable, the Austrian Government maintains that if the Court were to find that the principle in Regulation No 1408/71 was applicable to prisoners and that they had to be considered to be employed persons, it would be necessary to adopt, as the essential connecting factor, the Member State where that employed person was employed, in accordance with Article 13(2)(a) of that regulation. That means that in the present proceedings, even though Regulation No 1408/71 was, in principle, applicable to prisoners, the advances on maintenance payments provided for by Austrian law do not have to be granted after the transfer to another Member State of a prisoner who is liable for the maintenance payments.

The Austrian Government adds that if that connecting factor cannot be used on the ground, for example, that the new administering State makes no provision for employment of prisoners, it is necessary, pursuant to Article 13(2)(f) of Regulation No 1408/71, to rely on the legal rules pertaining to social security in the Member State of residence. In the present case, that would mean that, even though Regulation No 1408/71 was, in principle, applicable to prisoners, the advances on maintenance payments as provided for by Austrian law would no longer have to be granted after the transfer to another Member State of a prisoner who was liable for maintenance payments.