Direct effect of article 6 Reg 883/2004 (DLA)

Hello all

Just back from a DLA FTT hearing. Issue was whether claimant satisfies the past presence test. I argued he did because of article 6 Reg 883/2004.

Yet to get the SOR but the judge said verbally that article 6 does not apply because it is too vague. I think this can only be a reference to whether it has direct effect. I cannot see how it doesn’t.

Does anyone know of any ECJ case law establishing that it does? To me, it is sufficiently clear and precise, confers rights on an individual, does not require any implementing (since it is a Regulation, which is, by virtue of art 288 TFEU, directly applicable) and has no deadline for implementation.

For reference, this is the article in full:

Unless otherwise provided for by this Regulation,the competent institution of a Member State whose legislation makes:

– the acquisition, retention, duration or
recovery of the right to benefits,
– the coverage by legislation, or
– the access to or the exemption from compulsory, optional continued or voluntary insurance,

conditional upon the completion of periods of insurance, employment, self-employment or residence shall, to the extent necessary, take into account
periods of insurance, employment, self-employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it applies.

If this doesn’t have direct effect, and is not intended to require implementation, then what’s the point in it at all?

I think you’re right and the judge is wrong. Am not saying that your client meets that past presence test on the basis of the co-ordination rules in fact because I obviously don’t know the facts. But if, as it appears, the judge was trying to say the co-ordination rules cannot assist, then they’re clearly wrong.

Out of interest, was this a tribunal with wing members or a judge sitting alone?

She had two wing members but they didn’t intervene at all. It was basically just the judge in conversation with her chummy (and extremely smug) PO. Between the two of them I barely got a word in and was barely able to finish a sentence. I submitted that the article was directly effective but she didn’t ask about it any further. And afterwards the usher told me it was the judge’s last day before retiring… grumble grumble, rant rant…

The facts were basically that they claimed DLA for a child after having been here for 5 months (this was before it was 104 weeks). Living in Lithuania before. No question as to the disability criteria. I started to doubt whether article 6 really assists the night before the hearing as I’m not sure presence is the same thing as residence in the meaning of the Regulation. But to be told it doesn’t apply at all I found galling.

Part of the problem was also reg 2A. This is where we find the genuine and sufficient business. However, this only came into force a couple of months after the claim was made so we only have article 6 to go on. The judge said that ‘the domestic provisions prevail’. I’m not sure if she means reg 2A must apply to the exclusion of article 6 (which would be nonesense, accepting it didn’t apply back then) or that article 6 is irrelevant to the PPT. Either way, to say that a domestic provision prevails over a conflicting directly effective EU measure goes against everything I understand about EU law.

Off to the UT we go.

EU regulations are binding on member states and override domestic legislation.  Member states are forbidden from frustrating the effects of regulations and must not pass any legislation that is inconsistent with them without being in breach of the Treaty on the Functioning of the European Union.

Thanks, nevip.

I still can’t think what must have been going through the judge’s mind - other than a lack of art 288 TFEU.