Komentarz (w j. angielskim) autorstwa Bénédicte Buisson do wyroku ETS w sprawie James Wood v Guarantee Fund for the Victims of Acts of Terrorism and Other Crimes. W swoim wyroku ETS podkreślił, że prawo wspólnotowe stoi na przeszkodzie przepisom prawnym państwa członkowskiego, które wyłączają obywateli innych państw członkowskich, zamieszkujących i pracujących na jego terytorium, wyłącznie ze względu na ich obywatelstwo, z kręgu osób uprawnionych do odszkodowania za szkody na osobie i zadośćuczynienia za krzywdy spowodowane przestępstwem niepopełnionym na terytorium tego państwa.

In order of showing how the European law protects the fundamental Human Rights, I have chosen to talk about a preliminary ruling concerning the interpretation of the first paragraph of Article 12 EC, about the prohibition of discrimination on the ground of the nationality. In this case, a British national was refused to grant compensation for the death of his daughter by the French Guarantee Fund because of his nationality.

I/The fact
Helena Wood died in a road traffic accident in 2004 during a traineeship in Australia. Her parents, James Wood and Evelyne Arraitz, brought a claim before the Commission of Compensation Board for Victims of Crime in France. They wanted compensation for their material losses and for their non-pecuniary losses for each of them and for each of their younger children.

On this issue, the article 706-3 of French Code of Criminal Procedure provides that : "Any person who has suffered harm caused by intentional or unintentional acts which constitute the actus reus of an offence may obtain full compensation for the damage deriving from offences against the person", if the required conditions are met. For example, the act must "have brought about death, permanent incapacity or total incapacity for work for more than one month ". What is more important is that "the person injured must be a French national; or the act must be committed on the national territory".
They were awarded of the compensation. However, the father of the victim was not granted such compensation because of his British nationality. Mr Wood lodged a complaint on the prohibition of all discrimination on grounds of nationality, provided by the article 12 EC. Indeed, Mr. Wood lives, works and pays taxes in France where he has lived for 20 years with his partner, a French national. But still, he was not awarded the compensation paid to the other members of his family. For the Guarantee Fund, Mr Wood failed to meet the criteria laid down in Article 706-3 of the French Code of Criminal Procedure.
Face to this problem, the Compensation Board decided to refer a preliminary ruling to the Court of Justice.

II/The decision of the court
The question was "in the light of the general principle of non-discrimination on grounds of nationality, sets out in Article 12 EC are the provisions of Article 706-3 of the French Code of Criminal Procedure compatible or not with Community law in that a citizen of the European Community, residing in France, the father of a child having French nationality who died outside the French territory, does not have a right to compensation paid by the Guarantee Fund on the sole ground of his nationality?"

According to the principle of non-discrimination, comparable situations must not be treated differently excepted only if it is based on objective considerations, independent of the nationality of the persons concerned and if it's proportionate to the objective being legitimately pursued. In this case, due to the loss of their daughter, Mr Wood is in the same situation as his partner, they suffered the same prejudice. Nevertheless, he hasn't received the same compensation. What explains the difference of treatment is only the nationality; it's clearly a direct discrimination.

That's why, the Court concluded that "Community law precludes legislation of a Member State which excludes nationals of other member states who live and work in its territory from the grant of compensation intended to make good losses resulting from offences against the person where the crime in question was not committed in the territory of that State, on the sole ground that they do not have the nationality of that State."

III/ Background and commentary
First of all, we can notice that thanks to the right to freedom of movement in the European Union, Mr. Wood has the right to live and working in France. In this case, there was not objective reason to the refusal, independent from his nationality. Even if he is not a French citizen, he has worked in France for 20 years, so his links with the French society cannot be contested.

Moreover, the compensation doesn't correspond to "unreasonable burden". Indeed, seven years ago, the Court has specified in Bidar case (15th march 2005) that "it is permissible for a Member State to ensure that the grant of assistance to cover the maintenance costs of students from other Member States does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that State."

In this case a French national had to study in the United Kingdom because of his mother's medical treatment during three years. He was granted tuition fees but he was refused the maintenance loan because he was not "settled" in the United Kingdom. The question referred to the Court for a preliminary ruling was whether a student applying for loan can invoke the principle of non discrimination on grounds of nationality.

The Court concludes that" the first paragraph of Article 12 EC must be interpreted as precluding national legislation which grants students the right to assistance covering their maintenance costs only if they are settled in the host Member State, while precluding a national of another Member State from obtaining the status of settled person as a student even if that national is lawfully resident and has received a substantial part of his secondary education in the host Member State and has consequently established a genuine link with the society of that State". A student, during the residence in a host Member State, can rely on the right of equal treatment of the article 12 EC. Nevertheless, the member state can demand of students a certain degree of integration into the society of that state in order to grant them such assistance based on objective considerations, independent of the nationality, like the requirement of a certain length of time's residence.

The court has already wondered about the issue of compensation for the victims in the French law in Cowan case (2nd February 1989). The article concerning the State compensation for victims of assault provided that only foreign nationals who prove that they are nationals of a state which has concluded a reciprocal agreement with France or that they are holders of a residence permit may receive the compensation in question. In this case, Mr Cowan came in France as a tourist and was victim of an assault. He was refused the compensation. The Court declared that "the prohibition of discrimination must be interpreted as meaning that in respect of persons whose freedom to travel to a Member State, in particular as recipients of services, is guaranteed by Community law that State may not make the award of State compensation for harm caused in that State to the victim of an assault resulting in physical injury subject to those conditions".

In all these case, the Court forbids the refusal of compensation on the ground of nationality. But the Court accepts that the State sets some requirement to avoid an unreasonable burden, like the principle of residence. In Cowan case, we can't establish a requirement of residence, but however there is the required "link" with the state because the infraction was committed on the French territory.

In conclusion, the European law prohibits the legislation of a member state that excludes the nationals of other member states from being granted compensation because of their nationality. A European Union citizenship who resides lawfully in a member state can cite the non-discrimination principle due to nationality (provided by the article 21 of the Charter) in many situations.

This principle protects the fundamental freedom of the exercise of the right to move and reside within the territory of the Member States. This principle was guaranteed by the article 45 of the Charter: "Every citizen of the Union has the right to move and reside freely within the territory of the Member States".

The European Citizenship strengthens the equality between the citizens of the member states, permitting that the European citizens residing in another member state can receive the same treatment that the nationals of this member state, encouraging therefore the exchange of goods and services and the movement of person all over the European Union.