Discretion exercised by Member States- principle of “no, unless”

In his opinion delivered on 29 November 2017 in [J. Klein Schiphorst v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (C-551/16)], Advocate General Mengozzi takes an interesting view on the concept of discretion exercised by Member States.

The case at issue concerns a dispute between Mr J. Klein Schiphorst, a Netherlands national, and the ‘Uwv’ Netherlands. The ‘Uwv’ refused to grant Mr Klein Schiphorst’s application to extend the three-month period, during which the right to unemployment benefits is retained, for the purposes of his search for employment on the territory of the Swiss Confederation, of which his partner is a national.

Article 64(1)(c) Regulation No 883/2004 provides inter alia for the option given to the competent services or institutions of a Member State to extend the period of three months up to a maximum of six months.

The main question referred to the ECJ, rephrased by Advocate General Mengozzi is “whether extending the unemployment benefit export period beyond three months is an option — as all of the interested parties agree — which is directed only at the employment services of the competent State and of which those services must therefore always be able to avail themselves in each individual case, or whether, on the contrary, the Member States may choose to waive that option.”

After ruling out a possible application in the cases provided for by Articles 64 and 65 of Article 7 which prohibits residence rules, Advocate General Mengozzi observes that Member States are given the following alternatives:

  • To waive the option given by the EU law (i.e.as the case at issue the extension of the period up to six months).
  • To exercise the option and “to safeguard legal certainty and the equal treatment of applicants, to adopt national measures specifying the conditions under which the extension of the three-month period will or will not be granted, or regulating the discretion left to the competent national administrative body by Article 64(1)(c) in fine of Regulation No 883/2004”.
  • To exercise the option, not accompanied by national measures clearly specifying the conditions under which the extension will be granted. The Member State “may nevertheless decide to refuse, as a matter of principle, any application to extend the three-month period, unless, in the light of the particular circumstances of the case in question, the outcome of such a refusal would be unreasonable, that is to say, ultimately, disproportionate”.

Contrary to the position adopted by the Commission (exercise of the discretion according to the formula ‘yes, unless’), Advocate General Mengozzi, takes the view that the discretion may be exercised according to the formula “no, unless”, determined by the last alternative.

It can be probably alleged that on the one hand, where Member States may decide to refuse as a matter of principle, such refusal will not violate the legitimate expectations of the applicants, and on the other hand, a proportionate use of such discretion is not less constraining than determining  exhaustive criteria.

Providing that the ECJ will follow the opinion delivered by the AG, the formula “no, unless” will be applicable mutatis mutandis to any situation Member States are merely given discretion and are not bound to “facilitate” in the sense of [Rahman and Others (2012)].




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