C-39/74

JUDGMENT OF THE COURT OF 13 NOVEMBER 1974 1

Luciana Costa, spouse Mazzier v Belgian State (preliminary ruling requested by the Tribunal du Travail Liege)

Case 39/74

Summary

1. Social security for migrant workers — National legislation — Social assistance and social security — Distinction

2. Social security for migrant workers — National legislation — Handicapped persons — Entitlement to benefit — Social assistance and social security — Community Regulations — Conditions under which they apply (EEC Treaty, Article 51, Regulation of the Council No 3, Article 1 (s), Article 2 (1) (b))

and

BELGIAN STATE, represented by the Minister for Social Security, Department of Allowances for the Handicapped, Brussels

on the effect of Regulation No 3 of the Council relating to social security for migrant workers and of Regulation No (EEC) 1612/68 of the Council on freedom of movement for workers within the Community.

THE COURT

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

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

of other Member States to. receive this — 'it must be concluded that benefit, provided they fulfil the Community Regulations replacing conditions laid down in Article 2 of the the Interim Agreements do not afford Agreement, under the terms of which: Community nationals greater advan­ 'the nationals of the contracting parties tages', shall be entitled to benefit from the laws and regulations of any of the other — this application is however only possible 'if the law on allowances for parties under the same conditions as the other party's own nationals provided the handicapped is covered by the that, regulations',

constitutes a 'social advantage' within The plaintiff in the national proceedings, the meaning of Article 7 of Regulation No 1612/68 of the Council of 15 represented by Jean Jadin, the Belgian State, represented by the Minister for October 1968 (OJ L 257, 19. 10. 1968) Social Security, the Government of the and that, since she is unable to satisfy Italian Republic, represented by the conditions of the Interim Agreement, she is entitled to rely on the provisions Ambassador Adolfo Maresca, assisted by of the said Regulation. Giorgio Zargari, and the Commission of the European Communities, represented The Belgian State on the other hand by Norbert Koch, legal adviser, assisted argued that the Regulation applied to by Marie-Jose Jonczy, member of the her does not arise from Community Legal Service, submitted written Law, the allowance for the handicapped observations pursuant to Article 20 of being a 'social assistance' payment, the Protocol on the Statute of the Court awarded apart from any question of of Justice. occupation, whilst 'social advantages' under Article 7 of Regulation No The Court on the report of the 1612/68 are linked to the performance of Judge-Rapporteur, after hearing the and remuneration for work. Advocate-General, decided to open the The Tribunal du Travail of Liège, oral proceedings without any prepara­ considering inter alia that; tory inquiry.

JUDGMENT OF 13. 11. 1974 — CASE 39/74

advantages. of Article 4 (1) of Regulation No It matters little that the beneficiaries of 1408/71, provided the beneficiaries are the allowances are 'workers' within the workers within the meaning of Article meaning of Article 1 (a) of Regulation 1 (a) of this Regulation or members of No 1408/71, for the notion of 'social the family. security' decreed by Article 4 (2) of this The allowances paid within the Regulation applies to legislations of the

In the present case Regulation No 1612/68 must be the interested party stated she was a interpreted in the light of the 'housewife'. Moreover, nothing appear fundamental objectives of the Com ing on the Court file makes it possible to munity rules. The system of free call here a former worker. Consequently movement of workers, which this the interpretation given by the Court to Regulation is intended to ensure, Regulations No 3 and 1612/68 can have necessarily excludes the possibility of a no bearing on the possible award of change in the place of work depriving a benefits provided for within the

framework of the Belgian Law of 27 conditions of Article 54 of Convention February 1969. No 102, that is to say a benefit that As for the first question, the Belgian implies, apart from a permanent state of Government observes that under Article incapacity, a link between the reduction 2 thereof, the field of application of in earning capacity and the amount of the benefit. Regulation No 3 extends to the nine fields of social security set out in There is however, no such link in the Convention No 102 on the minimum present case. It appears from the medical norms of the ILO. guidance scale laid down by the In the absence in Article 1 of Regulation legislation relating to the award of No 3 of any definitions of these allowances for the handicapped (cf. branches, it is necessary, for the purpose Arrêté ministériel of 19 March 1969, of deciding whether a legislation relating Moniteur Belge 21 April 1969) that the to allowances for the handicapped is rates of invalidity that would allow the covered by one of these branches, to degree of permanent incapacity to work refer to the aforementioned Convention, on the part of the parties involved to be which is not affected by Regulation assessed, were evaluated by the

The will be permanent or where it continues allowance for the handicapped is granted after the sickness benefit has ceased'. It in respect of a percentage of invalidity different from that which results from refers solely to inability to work and any other type of invalidity falls outside the legislation relating to invalidity and area of application of the Convention, cannot amount to a supplementary including physical incapacity which invalidity benefit. consists in diminution in strength or As for the second question, the Belgian health as compared with that of a State considers that in conformity with normal person who possesses all his the first recital of Regulation No faculties and is in a good state of health. 1612/68 the 'social advantages' referred This is precisely the type of invalidity to to in Article 7 (2) of this Regulation are which the Belgian Law of 27 June 1971 those attaching to employment.

JUDGMENT OF 13. 11. 1974 — CASE 39/74

paragraph 9) can benefit from the of legal force which characterizes the aforementioned provisions. claimant's entitlement to these benefits.

the case before it. measure having the characteristics of 2. In any event, the replies to be given social security within the meaning of to the two questions referred must be Regulation No 3 might be called a in the negative.' 'social advantage' for the purpose of interpretation of Article 7 (2) and C — Observations submitted by the Regulation No 1612/68. This being said, the Italian Government considers that Italian Government there can be no doubt in this case that On the first question the Italian the allowances granted to handicapped Government recalls the Court's case law persons by national law constitute a and in particular the judgment given on 'social advantage'. It is pointless to 28 May in the Callemeyn case (No object that these allowances are laid

In the it made in that case. present case, on the contrary, it is right to treat as sufficient the fact that As for the second question, the Italian Government considers that a positive national workers may (also) benefit from reply to the second question is not these national provisions; the principle of non-discrimination in Article 7 of the affected by a negative response to the first one, since the system of allowances EEC Treaty implies that these same for the handicapped, though having provisions may equally benefit the nationals of other Member States who a social security function, equally work or have worked in the State in constitutes a social advantage within the meaning of Article 7 (2) of Regulation question. No 1612/68.

COSTA v BELGIUM

Even if it be Article 7 (2) of Regulation No 1612/68. true that the Court cannot within the Besides, it would appear that the party framework of the Article 177 procedure involved is the wife of a Belgian of the Treaty define the Belgian Law, it employee, working in Belgium and that can nevertheless provide the national she neither is nor has ever been an courts with elements of interpretation employed person or a person treated as under Community law which can guide such. Thus, there is another question these courts in applying the effects of the implicitly contained in the judgment Law. referring the matter, that is whether the Having analysed the Belgian Law of 27 condition of nationality applied to the June 1969 on the subject of the grant of the allowance for the conditions attaching to and the manner handicapped is removed in the case of in which allowances to the handicapped members of the family of an employed are granted and having referred to the person or a person treated as such by the Court's case law in the matter as well as application of either Regulation No 3 or to the structure of Regulation No Regulation No 1612/68. 1408/71, the Commission points out that In conformity with the principle laid the benefits mentioned in Article down by the Court under which in this 2 (1) (b) of Regulation No 3 include sphere it would not be right to give way those under national provisions granting to a formalism incompatible with the allowances to the handicapped insofar as nature and' the purpose of the Article these provisions concern employed 177 mechanism of the Treaty, the persons or persons treated as such questions referred in essence amount to within the meaning of this Regulation enquiring: and confer on them a legally protected right to the grant of such advantages. '(a) are the allowances for the Equally, if Madame Mazzier had been handicapped provided for under a an employed person or a person treated national legislation included amongst as such within the meaning of the benefits referred to under Article Regulation No 3 one could not plead 2 (1) (b) of Regulation No 3?

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Hence the allowances in question are social security benefits. consequence that Mrs Mazzier, not herself being an employed person or a As for the third question, the person treated as such within the Commission points out that on the face meaning of the aforementioned provision of the Court record, one must envisage cannot claim to have the said Regulation, the possibility that the party interested is and more particularly the provision as to not herself a worker but simply the equality of treatment intended by this spouse of one, employed in Belgium. provision, applied to her. Accordingly the question to be resolved is whether as a member of a worker's Besides, assuming that the capacity of 'employed person or person treated as family the person interesred can under such' is not a condition precedent for the provisions of either Regulation No 3 extending the area of applicability of or Regulation No 1612/68, benefit from Regulation No 3 to systems such as that allowances for the handicapped that are in question in these proceedings, it provided under national legislation such would be a matter of determining the as the Belgian Law of 27 June 1969. rights which Community law holds (a) As regards Regulation No 3, the members of the family to be entitled to. Commission recalls the Court's case law Under Article 4 (1) of Regulation No 3 which shows that allowances for the 'dependants' of a worker, referred to by. handicapped such as those provided for Article 51 of the EEC Treaty are the very under the Belgian legislation fall within 'members of the family' and the the provisions of Article 4 (1) (b) of 'survivors' defined by Article 1 (n) and Regulation No 1408/71 to the extent (o) of the said Regulation.

COSTA v BELGIUM

in the territory of such State, and not on provisions concern employed persons the worker being insured. or persons treated as such within the meaning of that Regulation and (b) As regards Regulation No 1612/68, the Commission recalls that the confer on them a legally protected right to the grant of such advantages. provisions thereof expressly refer to workers who, being nationals of a 2. Consequently, Regulation No 1612/68 Member State, seek work or are working of the Council on the freedom of in another Member State. Similarly, as movement for workers within the regards members of the worker's family, Community is not relevant. Article 10 of this Regulation lays down that it refers to relatives in the 3. Neither the provisions of Regulation descending and ascending line of 'a No 3 of the Council nor those of worker who is a national of one Regulation No 1612/68 of the Member State and who is employed in Council allow the equality of the territory of another Member State'. treatment of members of the family Equally, assuming Mrs Mazzier is the of a worker, employed in a Member spouse of a Belgian worker working in State, to be ensured in relation to the Belgium, then Regulation No 1612/68 legislation of such Member State does not apply to her. which makes the entitlement to the

Law

1 By judgment dated 29 March 1974, received at the Registry of the Court on 5 June 1974, the Tribunal du Travail of Liège referred to the Court of Justice, under Article 177 of the Treaty, preliminary questions on the interpretation of certain provisions of Regulation No 3 of the Council on social security for migrant workers and of Regulation No 1612/68 of the Council on freedom of movement for workers within the Community.

2 These questions were submitted in the course of proceedings concerning the refusal of the Kingdom of Belgium to grant the plaintiff in the national proceedings — an Italian national married to a Belgian and residing in Belgium since July 1956 — the benefit of the Belgian Law of 27 June 1969 relating to the grant of benefits to handicapped persons, on the grounds that the party interested cannot by reason of her nationality benefit from the provisions for equal treatment with the State's own nationals, otherwise than under the provisions of the European Interim Agreement of 11 December 1953 on Social Security Schemes in respect of old-age, invalidity and. survivors, and that she does not satisfy the conditions of Article 2 of the said agreement.

3 The first question asks whether 'the legislation on allowances for the handicapped (Law of 27 June 1969) [is] social assistance legislation falling, ratione materiae, within the ambit of Article 2 (3) of Regulation No 3'.

4 Under the terms of Article 1 (b) thereof, Regulation No 3 applies to all legislation of Member States relating to 'the social security schemes and branches of social security' set out in Article 2 (1) and (2) thereof.

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 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.

9 Under the provisions of Article 2 (1) (b) thereof, Regulation No 3 applies to 'invalidity benefits, including benefits granted for the purpose of maintaining or improving earning capacity'.

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

11 Accordingly, a national legislation giving a legally protected right to a benefit for the handicapped falls, as regards the persons covered by Regulation No 3, within the area of social security within the meaning of Article 51 of the Treaty and of the Community Regulations thereunder.

12 The second question asks whether in the event of the answer to Question 1 being in the negative the legislation on the handicapped constitutes a social advantage covered by Article 7 (2) of Regulation No 1612/68.

JUDGMENT OF 13. 11. 1974 — CASE 39/74

in answer to the questions referred to it by the Tribunal du Travail of Liege by judgment of 29 March 1974, hereby rules:

A national legislation granting a legally protected right to a benefit for the handicapped falls, as regards the persons referred to by Regulation No 3, within the ambit of social security, within the meaning of Article 51 of the Treaty and of the Community Regulations thereunder.

Lecourt Ó Dalaigh Mackenzie Stuart

Donner Monaco Mertens de Wilmars Pescatore

Delivered in open court in Luxembourg on 13 November 1974.

A. Van Houtte R. Lecourt