C-187/73

JUDGMENT OF THE COURT OF 28 MAY 1974 1

Odette Callemeyn v Belgian State (preliminary ruling requested by the Tribunal du travail Tournai)

Case 187/73

Summary

1. Social security for migrant workers — Handicapped persons — Grant of benefits provided by national legislations — Character — Benefits within the meaning of Article 4 (1) (b) of Regulation (EEC) No 1408/71 — Criteria 2. Social security for migrant workers — Regulation No 1408/71 — More favourable to those entitled, as compared with the European Interim Agreement on social security schemes of 11. 12. 1953 — Precedence

1. The benefits mentioned in Article 4 2. In the framework of its field of (1) (b) of Regulation (EEC) No application to persons and to matters 1408/71 of the Council of 14 June covered, Regulation No 1408/71 1971 embrace those provided by the takes precedence over the European national provisions granting benefits Interim Agreement on social security to handicapped persons, insofar as schemes in respect of old age, these provisions relate to workers invalidity and survivors signed in within the meaning of Article 1 (a) of Paris on 11 December 1953 and this Regulation and confer upon referred to in Article 7 (1) (b) of the them a legally protected entitlement Regulation, insofar as it is more to the grant of these benefits. favourable for those entitled, than the Agreement.

on the interpretation of the provisions of Regulation No 1408/71 of the Council of 14 June 1971, 'on the application of social security schemes to employed persons and their families moving within the Community' (OJ 1971 L 149), particularly as regards benefits for handicapped persons,

THE COURT

composed of: R. Lecourt, President, A. M.Donner and M. Sørensen, Presidents of Chambers, R. Monaco (Rapporteur), J. Mertens de Wilmars, P. Pescatore, H. Kutscher, C. Ó Dálaigh and A. J. Mackenzie Stuart, Judges,

Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

On 2 March 1973 Mrs Callemeyn The Belgian State, represented by the appealed to the Tribunal du travail Minister for Social Security, assisted by (Labour Court) of Tournai against this J. Donis, the Italian Government, rejection. represented by Ambassador Adolfo This court, having examined the Belgian Maresca as agent, assisted by Arturo Law of 27 June 1969 setting up the Marzano, Avvocato dello Stato, and the system of benefits for handicapped Commission of the European Communi­ persons, as well as Article 2 of the ties, represented by Richardt Larsen, aforementioned Interim Agreement, Legal Adviser, as agent, assisted by desired to know whether it is not in the Marie-José Jonczy, member of the Legal event appropriate to apply the Service, submitted written observations provisions of Regulation No 1408/71 of under Article 20 of the Protocol on the the Council of 14 June 1971 'on the Statute of the Court of Justice. application of social security schemes to The Court, on the report of the employed persons and their families Judge-Rapporteur, after hearing the moving within the Community'. Advocate-General, decided to open the Taking these considerations into oral procedure without a preparatory account, the Tribunal du Travail decided inquiry. by judgment of 27 November 1973 to stay the proceedings and to refer the following preliminary questions to the Court under Article 177 of the EEC II — Observations submit­ Treaty: ted under Article 20 of the Protocol on the 1. Insofar as it concerns employed Statute of the Court of persons, does the scheme of benefit Justice of the EEC for handicapped persons set up under the Law of 27 June 1969 come within the ambit of Regulation A — Observations submitted by the (EEC) 1408/71 of the Council of 14 Belgian State June 1971 on the application of social security schemes to employed On the first question, the Belgian State persons and their families moving points out that under Article 4 thereof, within the Community? In other Regulation No 1408/71 covers legisla­ words, does the list of benefits in tion concerning the nine 'branches of Article 4 (EEC) No 1408/71 embrace social security', arrived at by Convention the provisions made by national No 102 on the minimum norms of the legislation for payment of grants to I.L.O. handicapped persons insofar as these In the absence of definitions contained in provisions relate to employed Article 1 of the said Regulation (except persons? in the case of 'family benefits'), one 2. Insofar as it is more favourable for must, in order to determine whether a those entitled, does Regulation No legislation relating to benefits for 1408/71 of the Council replace the handicapped persons falls under one or European Interim Agreement on other branch, refer to the contents of social security schemes in respect of Convention No 102, which is not old age, invalidity and survivors, affected by Regulation No 1408/71. signed in Paris on 11 December 1953 The ordinary benefit for handicapped and referred to in Article 7 of the persons provided by the Belgian Law of Regulation!' 27 June 1969 provides a rate fixed in

proportion to the percentage of the therefore a replacement income, permanent inability to work of the intended to compensate for a reduction handicapped person, diminished by the in the beneficiary's earning capacity; it proportion of his means which exceeds can even be granted to persons who an amount laid down by the Law. Since have never worked. the only comparison possible is with the The Belgian State adds that if, against all invalidity benefits under Article 4 (1) (b) likelihood, the allocation in question of Regulation No 1408/71, the question ought to be regarded as an invalidity therefore amounts to asking whether a benefit, only workers within the meaning benefit granted under the conditions of of Article 1 (a) of Regulation No Article 4 of the Law of 27 June 1969 1408/71 could invoke the benefit of the really amounts to an invalidity benefit provisions relating to invalidity, within the meaning above indicated. For appearing under Title III, Chapter 2, of this to be the case three conditions must the said Regulation. be present: the benefit must have the purpose of maintaining or improving the As regards the second question, the earning capacity of the beneficiary and Belgian State is of the opinion that assumes an inability on the part of the Community Regulations take the place latter to exercise an occupational activity of the Interim Agreements, where they to a degree laid down, as well as an concern a national of the Member States, incapacity, permanent or subsisting after and always within the limits of the the termination of the sickness benefit. area of applicability, as regards matters covered, of Regulation No 1408/71.

for handicapped persons. It appears from the medical guidance scale which is It likewise cannot be referred to by provided by the legislation relating to any of the other possibilities set out the grant of benefits to handicapped in the said Article. persons (cf. Arrêté ministériel of 19 March 1959, Moniteur Belge, 21 April 2. As regards nationals of the Member 1959) that the degrees of invalidity States, Regulation No 1408/71 takes allowing an assessment of the degree of the place of the Interim Agreements permanent incapacity to work on the to the extent that they come within part of the person involved were the area of applicability as regards prepared by the medico-social service of persons and matters covered, of the the Ministry for Social Security Regulation, as they are defined in (Ministère de la prévoyance sociale) Article 2 and 4'. without any reference to a specific occupation: this scale was prepared in a global manner, without regard to any B — Observations by the Italian considerations of an occupational or Government

CALLEMEYN v BELGIUM

workers. Such a theory would clash not 1. Despite the fact that the reference from the national court relates to the only with the case law of the Court but equally with Article 7 (2) of Regulation first aspect of the problem, the Italian No 1612/68, referring to both 'social' Government considers it appropriate and 'tax' advantages. This theory would first to examine the second aspect, since lead to the absurd result that in the field the definition of the character of the benefits aforementioned on the basis of of tax advantages the principle of equality of treatment would, as regards Regulation No 1612/68 might render it income resulting from salaried employ unnecessary to rule on the connexion ment, only apply to the period during between Regulation No 1408/71 and the which the beneficiary works and not Paris Interim Agreement of 11 December

1612/68. Finally, it is useless to argue that the grant involved is provided by provisions The equality of treatment — which this of a general character which do not take provision seeks to establish — between into account the existence of a working workers from the Community and relationship. If such an argument were workers who are the nationals of a well-founded it would become an easy Member State is in fact only an matter for Member States to evade the expression of the fundamental principle provisions of Community law by of Article 7 of the Treaty prohibiting any extending any social security system to discrimination on grounds of nationality. all their nationals. Besides one must not forget that the Thus the Italian Government suggest, by basic Regulations No 3 and No 1408/71 way of reply, that primary benefits to deal with 'Social Security' and that this covers the systems of both 'social handicapped persons under national insurance' and social assistance'.

JUDGMENT OF 28. 5. 1974 — CASE 187/73

(a) On this subject, it must be noted Basing itself upon these principles, the that Article 7 (1) of Regulation No Italian Government analyses the legal 1408/71 only refers to 'obligations' system of benefits to handicapped people arising from the Interim Agreement and set up by the Belgian Law of 27 June does not refer to 'rights of beneficiaries'. 1969. After having examined the nature Further, the limited extent of this of the administrative and legal reference is confirmed by the wording of authorities competent to grant them and paragraph 2 of the same Article, which, having drawn attention to the fact that in referring to provisions under other the law in question explicitly grants to international agreements, uses the the parties involved the right, guaranteed expression 'shall continue to apply'. In by the right of access to the courts, to any event, there are no valid reasons for obtain these benefits, it concludes that denying that Article 5 of the Interim these are benefits provided by way of Agreement refers to the provisions of social insurance and thus fall within the Regulation No 1408/71 which are more scope of application of Regulation No favourable for the beneficiary, all the 1408/71. In support of this conclusion it more so since the principles of applying points to the fact that Article 4 (1) (b) of the system that is more favourable for this Regulation includes amongst the interested party form the basis of invalidity benefits also those 'intended Community legislation. for the maintenance or improvement of (b) As regards the first question, the earning capacity'. Besides, it matters Italian Government recognizes the little that the Belgian Law was possibly absence of a clear criterion that would not notified in accordance with Article 5

CALLEMEYN v BELGIUM

On the other benefit for the handicapped. Besides, this hand, the Community regulations have Law corresponds to the mixed systems as their objective the setting up of a of 'social security — assistance', system for coordinating national social described by the Court in its judgment security legislation on the basis of the No 1/72 ('Frilli', Rec. 1972, p. 457). most uniform possible rules, in order to Bearing in mind this judgment, bring about the free movement of Regulation No 1408/71 ought, pursuant workers within the Community.

In these circumstances 3. This principle admittedly contains a one cannot set up a nationality condition number of exceptions, amongst which is against Mrs Callemeyn, since such a that provided by Article 7 (1) (b) of condition is incompatible with the Regulation No 1408/71 in favour of fundamental principle of equality of obligations arising from the European treatment laid down under Article 3 of Interim Agreement of 11 December 1953 Regulation No 1408/71. on social security, entered into between the Member States of the Council of The Commission concludes, as regards

JUDGMENT OF 28. 5. 1974 — CASE 187/73

se they have substituted these regulations where the Community regulations only for international conventions and for the took their place within the limits of their European Interim Agreements. field of application to persons and matters. After having pointed out that one ought in this matter to draw upon the case law The Commission suggests that the of the Court concerning Article 6 and 7 second question be answered as follows: of Regulation No 1408/71 (Walder, Case 'Regulation No 1408/71 of the Council 82/72, Rec. 1973, p. 599), the takes the place of the European Interim Commissions explains that the afore­ Agreements on social security schemes in mentioned exception contained in Article 7 respect of old age, invalidity and is justified by reference to the survivors, signed at Paris on 11 obligations, arising from the Interim December 1953, within the framework Agreements, entered into by the Member of the area of application of this States of the Community towards third Regulation, and this is so even if countries. On the one hand the applying these Agreements would confer Community regulations cannot be put upon those entitled to these benefits on a par with 'agreement' within the advantages superior to those arising meaning of Article 3 of the Interim from the said Regulation. The same Agreements, so much so that it would applies to Regulation No 3 of the have been contrary to the legal nature of Council'. these acts to extend their applicability, by means of the expedient of the Interim Agreements, to nationals of third countries. On the other hand it is normal that the setting up of the Community's III — Oral procedure own system of coordination should not affect the rights of the nationals of third The oral observations of the Belgian State and of the Commission of the States that are parties to the Interim Agreements. Besides, the situation is no European Communities were made at different from that which one finds in the hearing on 2 April 1974. the case of bilateral agreements The Advocate-General delivered his concluded between Member States, opinion on 30 April 1974.

4 Under the provisions of Article 4 (1) thereof, Regulation No 1408/71 applies to all legislation concerning branches of social security as defined by that provision.

5 On the other hand paragraph 4 of the same Article provides that the Regulation does not apply to 'social and medical assistance'.

6 Although it may appear desirable, from the point of view of the application of the Regulation, to draw a clear distinction between legislation concerning social security on the one hand and assistance on the other, the possibility cannot be excluded that some laws may fall within both these categories, because of the class of persons to whom they apply, of their objectives and of their manner of application, and thus not be amenable to any overall classification.

7 Whilst in some of its features, legislation concerning the grant of benefits to handicapped persons is akin to social assistance, especially when need is the essential criterion in its implementation and there are no conditions as to periods of employment, of membership or of contributions, yet it is nevertheless close to social security to the extent that, departing from the consideration of each case on its merits — a characteristic feature of assistance — it confers upon beneficiaries a legally defined position.

8 In view of the widely-drawn definition of people entitled to benefit, such a legislation fulfils in fact a double function, which is on the one hand to guarantee a minimum income to handicapped persons who are entirely outside the social security system and, on the other hand, to provide supplementary means to persons entitled to social security benefits who are permanently incapacitated from work.

14 Moreover, Article 7 (1) and (2) of Regulation No 1612/68 of the Council of 15 October 1968, on freedom of movement for workers within the Community (OJ 1968, No L 257), provides that a worker who is a national of a Member State shall, on the territory of the other Member States, 'enjoy the same social and tax advantages as national workers'.

15 Accordingly, the reply to the first question must be that the benefits mentioned in Article 4 (1) (b) of Regulation No 1408/71 of the Council of 14 June 1971 embrace those provided by the national provisions granting benefits to handicapped persons, insofar as these provisions relate to workers within the meaning of Article 1 (a) of this Regulation and confer upon them a legally protected entitlement for the grant of these benefits.

CALLEMEYN v BELGIUM

16 The second question asks whether Regulation No 1408/71 of the Council of 14 June 1971, in so far as it is more favourable for those entitled, replaces the European Interim Agreement on social security schemes in respect of old age, invalidity and survivors signed in Paris on 11 December 1963 and referred to in Article 7 of the Regulation.

17 Under the provisions of Article 6 (a) thereof, Regulation No 1408/71 replaces, subject to the provisions of Articles 7, 8 and 46 (4), as regards persons and matters which it covers, the provisions of any social security convention binding ...' (a) two or more Member States exclusively'.

18 Under Article 7 (1) (b) of Regulation No 1408/71 the provisions of the Regulation shall not affect obligations arising from the European Interim Agreements on social security of 11 December 1953 concluded between the Member States of the Council of Europe.

step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Tribunal du Travail of Tournai by judgment of 27 November 1973, hereby rules:

1. The benefits mentioned in Article 4 (1) (b) of Regulation No 1408 of the Council of 14 June 1971 include those provided by national provisions granting benefits to the handicapped to the extent that these provisions concern workers within the meaning of Article 1 (a) of this Regulation and confer on the latter a legally protected right to the grant of these benefits.

2. Within its field of application to persons and to matters covered, Regulation No 1408/71 takes precedence over the European Interim Agreement on Social Security Schemes in respect of old age, invalidity and survivors, signed in Paris on 11 December 1953, and referred to in Article 7 (1) (b) of the Regulation, to the extent that this Regulation is more favourable than the said Agreement for those entitled.