C-76/72

JUDGMENT OF 11. 4. 1973 — CASE 76/72

In Case 76/72

Reference to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail of Brussels for a preliminary ruling in the action pending before that court between

Michel S. of Brussels

and

LE FONDS NATIONAL DE RECLASSEMENT SOCIAL DES HANDICAPÉS, of Brussels

Issues of fact and of law

I — Facts and procedure The plaintiff in the main action is suffering from serious mental deficiency. The facts and procedure may be In 1970 his father had made on his summarized as follows: behalf an application for 'registration' with the defendant in the main action 1. The plaintiff in the main action, born in 1954, arrived in Belgium on 15 (The National Foundation for the May 1957 with his parents, who were of rehabilitation of the handicapped — Italian nationality. His father was at first hereafter referred to as 'Fonds'). This a wage-earner in Belgium; from 1962 was so that his son could take advantage until his death, which occurred in 1971, of certain benefits which it was the duty he received an invalidity pension. of the Fonds to decide whether to grant

MICHEL S. v FONDS NATIONAL DE RECLASSEMENT SOCIAL DES HANDICAPÉS

2. Before the Tribunal du Travail of 3. The judgment referring the matter Brussels, to whom he had brought on was received by the Court Registry on appeal to have this decision set aside, the 24 November 1972. plaintiff in the main action asserted that, The plaintiff in the main action, the in any case and without his Italian Government of the Italian Republic and nationality operating against him, he had the Commission of the European the right to benefit from the Communities submitted their written abovementioned Belgian legislation. observations in accordance with the That was by virtue of Article 7 of provisions of Article 20 of the Statute of Regulation No 1612/68 of which the Court of Justice of the EEC. paragraph 2 lays down that 'the worker being a national of a Member State shall After hearing the report of the enjoy the same social and financial Judge-Rapporteur and the opinion of the benefits as the workers of that State' Advocate-General, the Court decided to when he is in the territory of other proceed without any preparatory Member States. inquiry. The oral observations of the defendant The Fonds, without disputing that the in the main action, the Italian said Regulation applies equally to the Government and the Commission were families of workers, did however object that by 'social benefits', the made at the hearing on 14 March 1973. abovementioned provision only included The plaintiff in the main action was benefits resulting from employment, represented by D. Rossini, a trade union consequently those benefits resulting delegate in the legal department for from social security. The Belgian law of Italian workers of the Federation des 16 April 1963, on the other hand, Syndicats Chretiens. The defendant in applied to all the disabled whatever their the main action was represented by Me. social status, and the system which it set Schellekens; the Italian Government by up was essentially a non-contributory Adolfo Maresca, Ambassador, assisted

The defendant in the main action explains in detail the task and organization of the Fonds. II — Observations submit­ ted before the Court Article 7 of Regulation No 1612/69 only relates to workers themselves. That follows not only from the clear wording The observations submitted before the of this provision but also from the fact Court may be summarized as follows: that the rights conferred especially on The plaintiff in the main action is of the the close relations of the workers are opinion that Regulation No 1612/68 has governed by Articles 10 to 12 of the a general application and applies equally Regulation under the heading 'Families to the members of the family of the of workers', (cf the rectification made in worker who need vocational retraining the said Regulation and published in OJ or rehabilitation to enable them to work. No L 295 of 7 December 1968 p. 12). In the case in issue, if the plaintiff in the These rights are much more restricted main action does not gain such than those which the Regulation confers retraining, he will remain unemployed on workers. In particular, the expression for the rest of his life. Such a result 'courses of general education, of would infringe the fifth recital of the apprenticeship and vocational training' said Regulation, whereby 'the right of which appear in Article 12 of the freedom of movement requires the Regulation, do not refer to the elimination of obstacles which impede handicapped, but only to persons in the mobility of workers, especially as good health. Besides, this expression has regards the right of the worker to be a more limited scope than the reunited with his family and the expressions 'rehabilitation' and 're-train­ conditions of integration of such family ing' used in Article 7 (3). in the environment of the host country'. Moreover, even if one supposes that the It would likewise be incompatible with plaintiff in the main action can be Article 12 of the same Regulation, which reads as follows: considered a worker, he could not claim the application of the abovementioned 'The children of a national of a Member Article 7. The expression 'social benefits' State who is or has been employed in the used in this provision relates only to territory of another Member State shall benefits having a direct or indirect be admitted to courses of general relation with an occupation, whereas the education, of apprenticeship and of scope of the Belgian law of 16 April vocational training on the same 1963 is independent of the exercise of conditions as nationals of that state, if such an activity. they reside within its territory. The Italian Government submits that in Member States shall encourage steps accordance with the spirit of the Court's which permit such children to attend the case law and in particular with the abovementioned courses under the best judgment of 22 June 1972 (Frilli v État conditions'. beige, Case 1/72, 'guaranteed income to The argument supported by the Fonds the elderly', Rec. 1972, p. 457) the likewise runs counter to the fact that it expression 'social benefits' must be given receives subsidies from the European a wide interpretation, in such a way as

to embrace benefits granted under the or contribution for compensation for heading of rehabilitation. injury resulting from accidents at work, collected by insurers approved for the The prohibition on 'any discrimination purpose of compensation for accidents', on grounds of nationality' which has and 'by the proceeds of employers' been established as a principle by Article contributions'. The law confers a right 7 of the EEC Treaty leads to the on the persons fulfilling the conditions conclusion that every national of a which it has laid down. Member State resident in Belgium must It follows from all these factors that the enjoy the benefits provided for by the Belgian law of 16 April 1963 on the benefits granted by the Fonds do not same basis as Belgian nationals. The arise either from social security or from assistance in the classic sense of the term. principle set out in the provision cited applies to all the spheres of activity That is, moreover, confirmed by the fact governed by the Treaty, including that that the European Social Fund, whose of employment; and likewise it controls task, by the terms of Article 123 of the the interpretation of Community EEC Treaty, is that 'of rendering the secondary law. employment of workers easier and of increasing their geographical and The rehabilitation of the handicapped, occupational mobility within the within the meaning of the law referred Community', has granted its aid to the to above, constitutes a 'social benefit' for Belgian Fonds, the defendant in the main Belgian workers and must therefore be action. extended to workers of other Member Furthermore, the social benefits referred States residing in Belgium. The fact that to in Article 7 (2) of Regulation No the grant of this benefit is independent 1612/68 do not arise from social of a relationship of employment is of no security. In this respect, there is no importance. difficulty in admitting that this According to the Commission it could be expression likewise covers the benefits asked whether Article 7 (2) of granted by the Fonds. But it could be Regulation No 1612/68 is the only asked if it is not rather Article 7 (3) provision which can be invoked in the which mentions in particular 'teaching in question at issue. vocational schools and rehabilitation or

JUDGMENT OF 11. 4. 1973 — CASE 76/72

legislation in question. By refusing him also the special protection, in particular these benefits the Fonds would seem to against dismissal, which the laws of a accept the erroneous argument according Member State grant for reasons of a to which its task lies outside the sphere social nature to specific categories of of freedom of movement for workers, workers'. covered by Articles 48 to 51 of the EEC Treaty and the Regulations enacted to Thus the reply to the question raised by implement these provisions. In support the Tribunal du Travail of Brussels of its interpretation the Commission also should be as follows: invokes the judgment delivered by the Court in December 1972 in Case 44/72 'Workers who are nationals of Member (Marsman v Firma Rosskamp) in which States and the members of their families it was held that 'the prohibition against have the right to take advantage of the discrimination in conditions of work and benefits provided for by the Belgian law employment, which Article 48 of the of 16 April 1963, which relates to the Treaty and Article 7 of Regulation No rehabilitation of the handicapped, on the 1612/68 of the Council enact, concerns same basis as nationals of that State'.

Grounds of judgment

1 By judgment of 10 November 1972, received at the Court on 24 November 1972, the Tribunal du Travail of Brussels referred, under Article 177 of the EEC Treaty, the question whether the benefits provided for by the Belgian law of 16 April 1963 which relate to the rehabilitation of the handicapped constitute social benefits within the meaning of Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 (OJ L 257 of 19 October 1968, p. 2) relating to freedom of movement for workers within the Community.

7 By virtue of Article 7 (2) and (3), the said worker when in the territory of other Member States, shall enjoy 'the same social benefits ... as the workers of that State' and 'on the same basis and under the same conditions as workers of that State, teaching at vocational schools and centres of rehabilitation and retraining'.

8 As is apparent in particular from the use of the expressions 'reinstatement in occupation', 'rehabilitation' and 'retraining', the provisions of Article 7 extend to measures provided by national legislation with a view to allowing handicapped workers to recover their ability to work.

9 However, the benefits referred to by the said Article are those which, being connected with employment, are to benefit the workers themselves. Benefits reserved for the members of their families on the other hand, are excluded from the application of Article 7.

10 This interpretation results as much from the wording of this Article as from the scheme of Regulation No 1612/68, in which Article 7 appears in Part 1, Title 2, headed 'Exercise of employment and equality of treatment', this Title being followed by a third Title reserved for 'Families of workers' (cf rectification to the same Regulation, OJ L 295 of 7 December 1968, p. 12).

11 With a view to placing the national court in a position to act with a complete knowledge of the Community rule, it is appropriate to investigate whether the provisions of this third Title of the Regulation confer on persons in the same position as the plaintiff in the main action the right to take advantage of the benefits in question under the same conditions as nationals who are in a similar position.

16 Under these conditions, Article 12 is to be understood in the sense that it embraces the measures provided by national laws which allow the handicapped to realize or improve their aptitude for work and thus it has among its objects the guidance, training, and vocational rehabilitation and retraining of the said handicapped.

17 Finally, the application of Articles 7 and 12 of Regulation No 1612/68 to such legislation is not excluded by the fact that such legislation refers to the handicapped as a whole and not only those who have the position of workers or the children of workers.

MICHEL S. v FONDS NATIONAL DE RECLASSEMENT SOCIAL DES HANDICAPÉS

Costs

18 The costs incurred by the Commission of the European Communities and by the Italian Government, who have submitted observations to the Court are not recoverable and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before the Tribunal du Travail of Brussels, the decision on costs is a matter for that court.

On those grounds,

improve their aptitude for work, insofar as such measures concern the children of workers.

Lecourt Monaco Pescatore

Donner Kutscher Ó Dálaigh Sørensen

Delivered in open court in Luxembourg on 11 April 1973

A. Van Houtte R. Lecourt

Registrar President

1 — Translated from the French.