C-24/74

1. The Court can provide the national the reason why a supplementary court with aids to interpretation allowance, paid by a national derived from Community law which solidarity fund on the basis of an might guide it in an assessment of the invalidity pension to persons entitled effects of a national legislation. to such pension, constitutes, to the extent that the persons concerned 2. Where a legislation which comes have a legally protected right to the close to both a system of social grant thereof, a 'benefit' within the security and a system of social meaning of Article 1 (s) of Regulation assistance has ceased to concern itself No 3, and for that reason falls within with the assessment of need in the the matters covered by this individual case — a characteristic Regulation. feature of a system of assistance — A person who transfers his residence and has conferred on the persons to another Member State is entitled to entitled a legally defined position, continue to receive this benefit even if then it comes under the system of such supplementary allowance is by social security within the meaning of national legislation limited to persons the Community regulations. This is residing within the national territory.

In Case 24/74

Reference to the Court under Article 177 of the EEC Treaty by the Cour

1 — Language of the Case: French.

JUDGMENT OF 9. 10. 1974 — CASE 24/74

d'Appel of Paris for a preliminary ruling in the action pending before that Court between

Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The judgment making the reference and to the French legislation. As from that the written observations submitted under date she also received a supplementary Article 20 of the EEC Statute of the allowance ('allocation supplémentaire') Court may be summarized as follows: from the Fonds National de Solidarité, established in France by Law of 30 June 1956.

a benefit payable for life on the basis of of the European Communities keep her an invalidity reducing by two-thirds or rights in existence, notwithstanding her more 'the working or earning capacity'. residence in Italy. Since it is further laid down by Article The Cour d'Appel of Paris drew a 707 of this code that this allowance is in distinction between the period sub­ the case of foreigners only payable sequent to 1 October 1972, that is the provided there exists an international date of bringing into effect Regulation reciprocal convention, the French Law No EEC 1408/71 of the Council of 14 of 2 August 1957 extended the benefit June 1971 'on the application of social thereof to holders of an invalidity security schemes to employed persons pension under a French system of social and their families moving within the security, or arising from an international Community', and the period prior reciprocal convention. thereto when Regulation No 3 of the On 15 May 1972, Miss Biason informed Council 'concerning social security for the 'Caisse Régionale d'Assurance migrant workers' applied. Maladie de Paris' (the 'Caisse') that she As regards the period subsequent to 1 had changed her residence from France October 1972, the Cour d'Appel held to Italy. The Caisse informed her that by that the Caisse was liable to pay the reason of this move it had (as from 1 supplementary allowance as from that April 1972) of its own motion date, since no capital payment had either withdrawn her supplementary allow­ occurred or been feasible. ance.

JUDGMENT OF 9. 10. 1974 — CASE 24/74

The fact that the Commission of the European Communi provisions concerning the Fonds ties, represented by Richardt Larsen, National are contained in the said code Legal Adviser, acting as agent, assisted is not conclusive in this case since this by Marie-Jose Jonczy, member of the text does not refer solely to the system Legal Service. of social security, and numerous After hearing the report of the provisions on social security are not Judge-Rapporteur and the opinion of the included therein. Advocate-General, the Court decided to The supplementary allowance in this open the oral procedure without a case is an assistance allowance based preparatory inquiry. upon the principle set out in the preamble to the 1946 Constitution.

The grant The French Government considers that thereof to foreigners is only provided for the legislation relating to the by specific protocols, distinct from the supplementary allowance of the Fonds conventions. Being linked to benefits National de Solidarité (the 'Fonds granted to all French citizens residing in National') being a legislation concerned France the grant is exported neither for with assistance, does not fall within the the benefit of French nationals nor for matters covered by the Community foreigners. regulations relating to the application of Where it is added to an invalidity systems of social security to employed benefit, the aforementioned grant, persons and their families moving within insofar as its payment to Italian citizens the Community. is concerned, is based upon the In support of this contention, the French supplementary agreement of 6 February Government observes that the supple 1960 to the Franco-Italian Protocol of 11 mentary allowance involved in this case January 1957.

It would be incorrect to state that since not dependent on the discretionary this supplementary agreement was not power of the administration, since the reproduced in Annex D of Regulation interested party is 'entitled' to it as soon No 3, it is replaced by this Regulation. as he fulfils the conditions laid down by The fact that the lastmentioned law for the grant thereof. provision is silent on this point has quite From the finding that the supplementary a different explanation: in view of the allowance in question is covered by fact that the benefit involved here does

to this view. Had they thought that their equally applies within the framework of position on this point was not Regulation No 3. Whilst it is true that sufficiently clear, then they would not the text of Article 10 (1) of the have failed to clarify it by inserting the lastmentioned Regulation is not quite necessary restrictions into the Regula identical with that of Article 10 (1) of tions. Regulation No 1408/71, the difference is due only to reasons of a technical or drafting nature and it has no substantial B — Observations presented by the effect. Both provisions are in fact the

Italian Government suggests the In support of this solution the Italian following answer to the question Government points out firstly that under referred: the terms of the French Law of 2 August 1967, the supplementary allowance has 'Pursuant to Regulation No 3 and the purpose of supplementing the Regulation No 1408/71, invalidity invalidity pension paid to the pensions, including those intended for beneficiary. Given the fact that the the maintenance or improvement of invalidity pension is in the nature of a earning capacity, cannot be subject to social security benefit, the supplementary any reduction, modification, suspension, allowance, which has the purpose of withdrawal or confiscation by reason of increasing it must be recognized as the fact that the recipient resides in the having the same character. territory of a Member State other than The Italian Government further points that in which the institution responsible out that the award of the allowance is for payment is situated.'

C — Observations presented by the a benefit which 'is to provide sup Commission of the European plementary income to persons whose Communities social security benefits are insufficient'. Furthermore, this system was set up and The Commission considers that the governed by legal provisions appearing question submitted by the national in the French code on social security and Court raises three fundamental falls under the provisions of the systems problems. of social security to which the European The first is whether Regulation No 3 is Interim Agreements and the European applicable to a worker who has only Convention on Social Security apply. been employed in only one Member

The condition law, from which it appears that of reciprocity cannot be pleaded against Regulation No 3 applies to workers who nationals of the Member States. have been subject to the legislation of only one Member State. As regards the exportability of such a benefit, the Commission draws a As regards the second and third distinction between two systems of social problems, the distinction drawn by the security. Under the first, the classical Cour d'Appel of Paris between the system, social security has the purpose of period during which Regulation No 3 guaranteeing to the parties interested an applied and the period governed by income in line with their previous

No 3. Following upon the accession of the new Member States and the evolution of the As regards the problem concerning the legislation of the original Member States, nature of the supplementary allowance, the Commission considers that the we are now witnessing the progressive abandonment of the classical conception system instituted by the Fonds National has numerous points of resemblance of social security and in its place we are with those of the guaranteed mininum coming closer to another system, under income provided by the Belgian which social security has the purpose of legislation and examined by the Court in guaranteeing to all members of a its judgment of 22 June 1972 in the Frilli national community or, in the case of case (Case 1/72, Rec. 1972, p. 457). It in some of these legislations to all residents, fact confers on beneficiaries 'a legally a basic income. With such a system, defined position giving them the right to which involves the honouring of claims a benefit similar to an old-age pension', against the country of employment by

the country of residence, the principle of 1408/71 are applicable, be considered an exportability of benefits does not seem invalidity benefit within the meaning of to be a necessary element. these Regulations and one which by reason of this fact falls within Article 10 This is precisely the case with systems (1) of these provisions. On the basis of analogous to that of the Fonds National these observations it suggests the de solidarité. The very fact that the following answer to the question benefits which they provide retain 'need'

present case cannot be decided within the framework of Regulations No 3 and The oral observations of the No 1408/71, it is nevertheless possible to Commission of the European Commu say that where one is dealing with a nites were made at the hearing on 9 July benefit having the purpose of increasing 1974. an invalidity benefit due from the same Member State, and where the holder These observations added no new resides on the territory of this State at elements to those put forward in the the moment when the risk materializes, course of the written procedure. the benefit must, as regards persons to The Advocate-General delivered his whom Regulations No 3 and No opinion on 17 September 1974.

5 To answer this question it is first of all necessary to know whether the benefit in question comes within the range of application of Regulation No 3.

6 Without in the framework of the present proceedings being able to label this benefit in the light of the French legislation, the Court can nevertheless provide the national court with aids to interpretation derived from

CAISSE RÉGIONALE D'ASSURANCE MALADIE v BIASON

Community law which might guide it in an assessment of the effects of this legislation.

7 Under the provisions of Article 1 (b) thereof, Regulation No 3 applies to all legislation of Member States that concerns 'social security schemes and branches of social security' set out in paragraphs (1) and (2) of Article 2.

8 On the other hand, under the provisions of Article 2 (3), the Regulation shall not apply to 'social and medical assistance'.

14 Under Article 1 (s) of the same Regulation, the term 'benefits' must be understood in the widest possible sense as referring to all benefits 'including all fractions thereof, chargeable to public funds, increments, revaluation allowances or supplementary allowances'.

15 Accordingly, in the case of an employed person of someone assimilated thereto who is in a Member State benefits from an invalidity pension, a legislation which by reason of this pension confers on him a right to a legally protected supplementary allowance falls, insofar as this person is concerned, within the field of social security within the meaning of Article 51 of the Treaty and of the Regulations for carrying this provision into effect.

16 One can therefore conclude that a supplementary allowance, paid by a national solidarity fund and granted by national legislation by reason of an invalidity pension to persons entitled to this pension, whose working capacity is reduced by at least two-thirds, constitutes, to the extent that the persons concerned have a legally protected right to the grant thereof, a 'benefit' within the meaning of Article (1) (s) of Regulation No 3, and for that reason falls within the matters covered by this Regulation.

17 It is now necessary to answer the question whether such a benefit may be withdrawn because the beneficiary has transferred his residence to a Member State other than that where the benefit was acquired, where national law provides that this benefit is payable only to persons residing within the national territory.

18 Under the provisions of Article 10 (1) of Regulation No 3, pensions or death benefits payable under the legislation of one or more Member States shall not suffer reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the beneficiary resides in the territory of a Member State other than that in which the institution responsible for payment is situated.

23/24 The costs incurred by the French Republic, the Italian Republic and the Commission of the European Communities, which 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 national court, costs are a matter for that court.

On those grounds,

THE COURT

in answer to the question referred to it by the Cour d'Appel of Paris by judgment of that court dated 2 March 1974, hereby rules:

An insured person who is in receipt of an invalidity pension acquired under a sickness insurance scheme by reason of employment in a Member State wherein he was resident, and who receives a supplementary allowance by virtue of that pension, is entitled to continue to receive such grant if he transfers his residence to another Member State, provided that such grant falls within the area for

OPINION OF MR REISCHL — CASE 24/74

DELIVERED ON 17 SEPTEMBER 1974 1

Mr President, sixty. However, it is expressly laid down in Article L 699 of the Code de la Members of the Court, Sécurité sociale that the supplement is The 'Fonds National de Solidarité' was withdrawn if a beneficiary transfers his established in France by Law of 30 June residence outside the territory of the 1956. It has the purpose of granting French Republic. persons in need, i.e. persons whose income does not exceed certain limits, After the Law of 2 August 1957 had supplementary benefits for the purpose been passed, a supplementary agreement of supplementing various benefits paid to the Franco-Italian Protocol on Social in respect of old-age that are sufficient. Security of 11 January 1957, was Such supplements are paid to French concluded on 6 February 1960. Under its citizens having their residence in France, provisions Italian nationals also are if they are legally entitled to an old-age entitled to claim payment of the pension and are at least sixty-five years supplement where in case of invalidity of age, or sixty in the case of incapacity they draw benefits pursuant to a French to work. Pursuant to a Law of 2 August system of social security. Here too 1957 the supplement is also granted to however, it is expressly laid down that those entitled to an invalidity pension only persons having their residence in for life, if their inability to work or earn metropolitan France are entitled to claim is reduced by two-thirds or more and and that payment will cease upon the they have not yet attained the age of person entitled transferring his residence