(Reference for a preliminary ruling from the Arbeidsrechtbank Gent)

(Social security for migrant workers – Regulation (EEC) No 1408/71 – Old-age pension – Holiday pay given to the recipient of a retirement pension – Unemployed cross-border worker receiving benefit of a pension scheme)

Judgment of the Court (Fourth Chamber), 20 January 2005

Summary of the Judgment

(Council Regulation No 1408/71, Art. 4(1))

(Council Regulation No 1408/71, Art. 45(1) and (6))

1.A benefit can be regarded as a social security benefit falling within the material scope of Regulation No 1408/71 only if, first, it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and, secondly, it relates to one of the risks expressly listed in Article 4(1) of that regulation. With regard to the second condition, the distinction between benefits excluded from the scope of that regulation and those which fall within it is based essentially on the constituent elements of each particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation.

It follows that a benefit, such as holiday pay granted to the recipient of a retirement pension, meets those two conditions if the provisions governing its grant confer on the recipients a legally defined right, that right is granted automatically to the persons meeting certain objective criteria and the elements constituting the benefit show that it may be considered an old-age pension.

(see paras 21, 23-24, operative part 1)

2.Article 45(6) of Regulation No 1408/71 must be interpreted as meaning that the competent institution of the Member State of residence is to take account, for the purposes of the grant of a benefit such as holiday pay granted to the recipient of a retirement pension, of a period of full unemployment during which the former employed worker received unemployment benefits under Article 71(1)(a)(ii) of that regulation, as if the legislation administered by that institution applied to that worker during his last employment.

(see paras 34, 36, operative part 2)

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

(Social security for migrant workers – Regulation (EEC) No 1408/71 – Old‑age benefits – ‘Holiday pay’ given to persons entitled to a retirement pension – Unemployed frontier worker receiving benefit of a pension scheme)

In Case C-101/04,

REFERENCE for a preliminary ruling under Article 234 EC made by the Arbeidsrechtbank Gent (Belgium), made by decision of 17 February 2004, received at the Court on 26 February 2004, in the proceedings

Rijksdienst voor Pensioenen,

THE COURT (Fourth Chamber),

composed of N. Colneric (Rapporteur), acting for the President of the Fourth Chamber, J.N. Cunha Rodrigues and E. Levits, Judges,

Advocate General: C. Stix-Hackl, Registrar: R. Grass,

having regard to the written procedure, after considering the observations submitted on behalf of:

– the Commission of the European Communities, by D. Martin, acting as Agent,

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

3 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.

ECLI:EU:C:2025:140

(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.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(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

must be interpreted as meaning that where, in the context of a screening procedure carried out under that provision, a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, as amended by Council Directive 2013/17/EU of 13 May 2013, that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an environmental impact assessment is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an environmental impact assessment is not necessary, without being required to ask the developer to provide it with additional information.

Gratsias

Passer

Smulders

Delivered in open court in Luxembourg on 6 March 2025.

Registrar

President of the Chamber

ECLI:EU:C:2025:140

15

Shortly before retiring, he became unemployed. During the year preceding that in which he became entitled to a retirement pension Mr Noteboom received unemployment benefit continuously. Pursuant to Article 71(1)(a)(ii) of Regulation No 1408/71, the unemployment benefit was calculated and paid in accordance with the Belgian legislation on the subject.

Since 1 January 1999 Mr Noteboom has been entitled to a retirement pension under the Belgian scheme for employed persons. In addition to that pension, the Rijksdienst paid him an amount of BEF 23 069, or EUR 571.87, by way of holiday pay in 1999.

The Rijksdienst subsequently considered that it had been wrong to pay that amount to Mr Noteboom and claimed it back by decision notified on 18 August 1999.

On 14 September 1999 Mr Noteboom challenged that decision before the national court.

Before the national court, Mr Noteboom claimed that he was entitled to holiday pay since he had received unemployment benefit continuously during the year preceding that in which he became entitled to a retirement pension.

The Rijksdienst contended, however, that Mr Noteboom did not fulfil the conditions laid down in Article 56 of the Royal Decree of 21 December 1967. His unemployment was not consequent ‘on an activity by virtue of which the person concerned was subject to the Belgian social security scheme’. The Rijksdienst considers that although the unemployment benefit was in fact paid by the Belgian State, the actual debtor is the Member State in which he was employed and in which the unemployment arose, in this case the Kingdom of the Netherlands.

The Rijksdienst also submitted that holiday pay is clearly ‘not a pension but an ad hoc benefit’ and that it does not fall within the  ratione materiae of Regulation No 1408/71.

The national court refers to the case-law of the Court in this domain, in particular the judgment in Case 171/82  Valentini [1983] ECR 2157, and argues in particular, with regard to the type of benefit at issue, as follows:

– the scope  ratione personae of Article 22 of the Royal Decree of 24 October 1967 coincides with that of the right to the retirement and survivor’s pension: holiday pay is granted to all pensioners but also only to pensioners;

pensioners’ holiday pay is financed by precisely the same resources that are used to finance the retirement and survivor’s pensions themselves;

in the same way as the retirement pension, the holiday pay linked to that pension is granted to persons who, because of their age, no longer have to remain available for work. The benefits provide them with means of subsistence;

however, holiday pay is a flat-rate amount which bears no relation at all to the wage earned or the insurance periods completed.

In those circumstances the Arbeidsrechtbank Gent (Labour Court, Ghent) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Does holiday pay within the meaning of Article 22 of Royal Decree No 50 of 24 October 1967 and Article 56 of the Royal Decree of 21 December 1967 fall within the scope  ratione materiae of Regulation No 1408/71 and more specifically does it constitute an “old-age benefit” within the meaning of Article 4(1)(c) thereof?

3. If the second question is answered in the negative, does the requirement in Article 71(1)(a)(ii) of Regulation No 1408/71 that the benefit is to be determined in accordance with the provisions of the legislation of the Member State in whose territory the frontier worker resides “as though he had been subject to that legislation while last employed” apply only to unemployment benefit or also to other benefits such as, in particular, holiday pay as referred to in Article 22 of Royal Decree No 50 of 24 October 1967 and Article 56 of the Royal Decree of 21 December 1967?’

On the questions referred for a preliminary ruling

The first question

In its first question, which concerns the scope  ratione materiae of Regulation No 1408/71, the national court essentially asks whether a benefit such as the holiday pay referred to in Article 22 of the Royal Decree of 24 October 1967 and Article 56 of the Royal Decree of 21 December 1967 constitutes an old-age benefit within the meaning of Article 4(1)(c) of Regulation No 1408/71.

The Court has consistently held that a benefit can be regarded as a social security benefit only if, firstly, it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and, secondly, it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, in particular, Case C-78/91  Hughes [1992] ECR I-4839, paragraph 15; Case C-85/99  Offermanns [2001] ECR I-2261, paragraph 28; and Case C-333/00  Maaheimo [2002] ECR I-10087, paragraph 22).

A benefit such as the holiday pay in question in the present case fulfils those conditions.

With regard to the first condition, it should be noted that the provisions relating to the grant of that holiday pay, in particular Article 56(1) of the Royal Decree of 21 December 1967, confer on recipients a right defined by legislation and that this right is granted automatically to the persons who meet certain objective criteria, without any individual and discretionary assessment of their personal needs.

With regard to the second condition, the Court has repeatedly held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation (see, in particular, the judgment in  Hughes, cited above, paragraph 14, and Joined Cases C-245/94 and C-312/94  Hoever and Zachow [1996] ECR I-4895, paragraph 17).

Thus, as regards the legal nature of a benefit such as that in question in the main proceedings, the classification as holiday pay is not decisive in assessing whether that benefit may be regarded as an old-age benefit within the meaning of Article 4(1)(c) of Regulation No 1408/71.

On the contrary, it should be noted that the constituent elements of the holiday pay in question show that it may be considered an old-age benefit within the meaning of Article 4(1)(c) of Regulation No 1408/71, paid as a supplementary allowance within the meaning of Article 1(t) of Regulation No 1408/71.

Firstly, it is clear from the provisions relating to the grant of the holiday pay that it is paid exclusively to persons entitled to a retirement and/or survivor’s pension. Moreover, the national court has observed that the pensioners’ holiday pay is financed by the same resources that are used to finance the retirement and survivor’s pensions.

Secondly, as the national court has pointed out, the holiday pay linked to the retirement pension provides the recipients with means of subsistence. As the Commission has observed, the aim of that pay is, more exactly, to ensure that pensioners receive a financial supplement so that they may take a holiday.

The fact, mentioned by the national court, that the holiday pay is a flat-rate amount which bears no relation at all to the wage earned or the insurance periods completed does not bring into question its legal classification as an old-age benefit within the meaning of Article 4(1)(c) of Regulation No 1408/71. It is true that the Court has observed that such benefits are normally financed and acquired on the basis of the recipient’s own contributions and calculated by reference to the length of time during which he has been affiliated to the insurance scheme (see the judgment in  Valentini, cited above, paragraph 14). However, the circumstances of the present case, examined in paragraphs 27 and 28 of this judgment, show that it concerns an old-age benefit within the meaning of Article 4(1)(c) of Regulation No 1408/71.

The answer to the first question must therefore be that a benefit such as the holiday pay referred to in Article 22 of the Royal Decree of 24 October 1967 and in Article 56 of the Royal Decree of 21 December 1967 constitutes an old-age benefit within the meaning of Article 4(1)(c) of Regulation No 1408/71.

The second question

In its second question, the national court essentially asks whether Article 45(1) and (6) of Regulation No 1408/71 is to be interpreted as meaning that the competent institution of the Member State of residence is to take account, for the purposes of the grant of a benefit such as that in question in the main proceedings, of a period of full unemployment during which the formerly employed person received benefits under Article 71(1)(a)(ii) of that regulation, despite the fact that the unemployment was not consequent on an activity by virtue of which that person was subject to the legislation administered by that institution.

That problem is covered in Article 45(6) of Regulation No 1408/71, which must therefore be interpreted first.

It follows from the first subparagraph of Article 45(6) that a period of full unemployment during which the formerly employed person receives benefits under Article 71(1)(a)(ii) of Regulation No 1408/71 is to be taken into account by the competent institution of the Member State in whose territory the worker resides, in accordance with the legislation administered by that institution, as if that legislation applied to him during his last employment.

Accordingly, a frontier worker’s periods of full unemployment which gave rise to the grant of unemployment benefits under Article 71(1)(a)(ii) of Regulation No 1408/71 must be taken into account in determining entitlement to a benefit such as that at issue in the main proceedings, as if the legislation of the Member State of his residence applied to the worker during his last employment.

It follows that it is not necessary to interpret Article 45(1) of Regulation No 1408/71.

In view of the above considerations, the answer to the second question must be that Article 45(6) of Regulation No 1408/71 must be interpreted as meaning that the competent institution of the Member State of residence is to take account, for the purposes of the grant of a benefit such as that in question in the main proceedings, of a period of full unemployment during which the formerly employed person received benefits under Article 71(1)(a)(ii) of that regulation, as if the legislation administered by that institution applied to that worker during his last employment.

The third question

In view of the answer to the second question, it is not necessary to reply to the third question.

Costs

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) rules as follows:

1.A benefit such as the holiday pay referred to in Article 22 of Royal Decree No 50 of 24 October 1967 concerning retirement and survivor’s pensions for employed persons, as amended by the Law of 30 March 1994, and in Article 56 of the Royal Decree of 21 December 1967 concerning general rules for the scheme of retirement and survivor’s pensions for employed persons, as amended by the Royal Decree of 27 January 1998 and by the Royal Decree of 4 March 2002, constitutes an old-age benefit within the meaning of Article 4(1)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998.

2.Article 45(6) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, must be interpreted as meaning that the competent institution of the Member State of residence is to take account, for the purposes of the grant of a benefit such as that in question in the main proceedings, of a period of full unemployment during which the formerly employed person received benefits under Article 71(1)(a)(ii) of that regulation, as if the legislation administered by that institution applied to that worker during his last employment.

[Signatures]

1 – Language of the case: Dutch.

* * *