C-7/75

on the interpretation of certain provisions of Article 12 of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ L 257 of 19. 10. 1968) and 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 L 149 of 5. 7. 1971) on the subject of benefits for handicapped persons

THE COURT

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

Advocate-General: A. Trabucchi

Registrar: A. Van Houtte

gives the following

employment. Their son Renzo, born in Justice of 11 April 1973 (Michel S, Case Belgium on 29 July 1959, has been 76/72, [1973] ECR 457) and of 28 May handicapped from birth, and is 1974 (Callemeyn, Case 187/73, [1974] apparently subject to a 100 % invalidity. ECR 553) and suggested to the Tribunal du Travail that two questions on the In August 1973 Mr and Mrs F. made on interpretation of Regulations Nos behalf of their son an application to the 1612/68 and 1408/71 be referred to the Ministry of Social Security for ordinary Court of Justice of the European benefit for the handicapped under the Communities. provisions of the Belgian Law of 27 June 1969 on the grant of benefits to the The Court considered that the handicapped (Moniteur Belge of 15 July interpretation which, as regards the 1969). person who must fulfil the conditions of residence, the Belgian Administration This Law grants a right to the benefit to placed upon the European Interim Belgian citizens residing in Belgium on Agreement 'appears, at least at first sight, condition that they have reached 14 years to be illogical and concluded that the of age, have a permanent incapacity to conditions referred to must be met by work of at least 30 % and do not possess the parents and not by the children. The resources exceeding certain limits. Tribunal added: 'However, this solution may do no more than transfer the The application was rejected on 19 problem elsewhere, in that it does not March 1974 on the grounds that the resolve the situation at various stages, minor, to whom the decision rejecting that is to say, at the age limit of 18 years the application was addressed, not being (384 C.C.), 21 years (389 C.C.) and 25 of Belgian nationality, 'had not since the years, these being the stages at which the age of 20 resided for at least 15 years in right is progressively vested in the all on Belgian territory'. It was handicapped person himself and no subsequently explained that the longer in the person responsible for him. application had been rejected on the It therefore seems that the wisest course basis of the European Interim Agreement is to follow the opinion of the Auditeur's of 11 December 1953 on social security Department and to make a reference to schemes in respect of old age, invalidity the Court of Justice of the European and survivors, which under certain Communities, on the basis of Article 177 conditions allows the Belgian Law to be of the EEC Treaty, requesting an answer applied to foreigners. to the two questions proposed, adding a third question reflecting the concern On 19 April 1974 Mr and Mrs F. expressed in the previous paragraph.' appealed against this refusal to the Tribunal du Travail of Nivelles. In the light of these consideratons, the Tribunal by order of 13 January 1975 In the course of his opinion as decided to suspend proceedings and to representative of the public interest, on refer the following questions to the Court 23 December 1974, the Auditeur du of Justice for a preliminary ruling, in Travail, considering that there was no accordance with Article 177 of the EEC

concern handicapped children of mitted to the Court employed persons? 1. Observations submitted by the appli­ 2. Does the scheme for the regulation of cants in the national proceedings benefits for handicapped persons set up by the Belgian Law of 27 June In the applicants' view one must — 1969, to the extent to which it bearing in mind the fact that in the light concerns the childeren of employed of the Court's judgment in the aforementioned Michel S., case of persons, fall within the ambit of Regulation (EEC) No 1408/71 of the Regulation No 1612/68 cannot apply in the matter — seek a solution to the Council of 14. 6. 1971 on the application of social security schemes problem by considering the persons and to employed persons and their matters covered by Regulation No 1408/71. families moving within the Comunity? They refer to the Court's judgment in the aforementioned Callemeyn case, in 3. In the event of a reply in the which the Court resolved the question of affirmative, do minors who are the matters covered by Regulation No entitled to benefit by reason of the 1408/71 by finding that: The benefits fact that their parents fulfil the mentioned in Article 4 (1) (b) of conditions at the time when that Regulation No 1408/71 include those scheme becomes applicable, remain provided by national provisions granting entitled to benefit at the various stages benefits to the handicapped to the extent of attainment of their majority, that these provisions concern workers without at that time having personally within the meaning of Article 1 (a) of to fulfil the conditions as to residence this Regulation and confer upon the required up to that time of their latter a legally protected right to the parents? grant of these benefits.' In the present case it is therefore in their 2. The order referring the matter was opinion a matter of determining whether registered at the Court of Justice on 27 such a right can be extended to members January 1975. of the worker's family. Referring in particular to Article 2 (1) of the Regulation which lays down its scope as The applicants in the national regards the persons covered and there proceedings, represented by D. Rossini, expressly includes members of the Director of the Social Service 'Patronato worker's family, as well as Article 3 (1) A.C.L.I.', the Belgian State, represented which requires equality of treatment by the Minister of Social Security, the between nationals and the citizens of Italian Government, represented by another Member State, the applicants Ambassador A. Maresca, acting as Agent, consider that their child, notwithstanding assisted by I. M. Braguglia, Vice-avvocato his nationality, is entitled to the benefits dello Stato and the Commission, for handicapped persons provided under represented by Marie-José Jonczy, Legal Belgian law. Adviser with the Commission, acting as Agent, submitted written observations. They consider that the strict application After hearing the report of the of the Belgian Law leads to the absurd Judge-Rapporteur and the opinion of the result of depriving the children of Advocate-General, the Court decided to migrant workers affected by a physical or open the oral procedure without any mental handicap of the minimum preparatory inquiry. subsistence level up to the age of 35,

preventing them from themselves of bringing about or improving their acquiring the status of a worker. suitability for employment. The benefits granted under this legislation are above Such a result runs counter to Articles 48 all concerned with compensation for and 117 of the EEC Treaty which have as invalidity or the consequences of fundamental objectives to abolish any invalidity. discrimination based on nationality and, as one is reminded in the fifth recital of As regards the second question, the Regulation No 1408/71, to promote the Belgian State considers that it deals improvement of living and working mainly with the persons covered by conditions of migrant workers. Whilst it Regulation No 1408/71 and it points out is correct that the system of benefits to that this problem has already, as regards handicapped persons is financed from the old Regulation No 3, been examined public funds it must not be forgotten by the Court in Case 39/74 (Costa v that State revenues are also financed from Belgian State, judgment of 13 November taxes paid by migrant workers. 1974, [1974] ECR 1251). It recalls that in its judgment the Court, à propos the Accordingly the applicants suggest that Belgian Law of 27 June 1969, said: 'In the following answers be given to the view of the widely-drawn definition of questions referred: people entitled to benefit, such a legislation fulfils in fact a double The invalidity benefits mentioned in function, which is on the one hand to Article 4 (1) (b) of Regulation No guarantee a minimum income to 1408/71 include those provided by handicapped persons who are entirely national legislation granting benefits to outside the social security system and, on handicapped persons to the extent that the other hand, to provide supplementary the beneficiaries are workers within the means to persons entitled to social meaning of the Regulation or members security benefits who are permanently of their family dependent upon them or incapacitated from work' (8th paragraph) living under the same roof as the worker. and the Court concludes by finding that The rights are acquired by the children 'a national legislation giving a legally of workers who are citizens of another protected right to a benefit for the Member State, irrespective of their age, handicapped falls, as regards the persons under the same conditions as those covered by Regulation No 3, within the imposed on the country's own nationals.' ambit of social security, within the meaning of Article 51 of the Treaty and of the Community Regulations 2.. Observations of the Belgian State thereunder'.

country of their residence, members of national legislation relied upon falls the worker's family can only be covered within the range of matters covered by by the legislation in question to the the Regulation only in so far as that extent that it grants them a right under legislation seeks to provide this heading, devolving from the worker's supplementary means to persons entitled own right. to invalidity benefits who are permanently incapacitated from work, or As regards the persons covered by grants to members of the family a right Regulation No 1408/71, which is derived from that of the worker. Since relevant in this case, the Belgian State the Belgian legislation grants a personal argues that only workers within the right without reference to the status of meaning of Article 1 (a) and members of worker or of member of a worker's their family within the meaning of family, neither of the two Article 1 (f) of the Regulation can claim aforementioned assumptions applies.' an entitlement to equality of treatment. This opinion is reinforced by the fact The Belgian State is of the opinion that that in the operative part of the the third question cannot fall within the aforementioned Costa judgment the Court's competence, since only national Court limits itself to applying Article 51 legislation, and not the Community of the EEC Treaty and the Community Regulations, which have the purpose of Regulations thereunder, without taking ensuring a coordination of systems of into account Article 7 which ensures social security of Member States without equality of treatment in the whole field modifying their basis, can define the of application of the Treaty. conditions required for the grant of benefits. Article 1 (f) lays down that the term ' "member of the family" means any 3. Observations of the Italian Govern­ person defined or recognized as a ment

MR AND MRS F. v BELGIAN STATE

has already decided in the Besides, the worker who is a citizen of a aforementioned Callemeyn and Costa Member State in which the benefit is judgments that a system such as that in granted to his handicapped child would question here falls within the scope of never establish himself in another the Regulation. Member State where for reasons of nationality or of residence such a benefit On the other hand the subjective aspect is not granted to him. This would mean of the question has a particular that the fundamental principle of free importance by reason of the fact that the movement of workers within the

Belgian Tribunal refers expressly to Community would not be applied. benefits for handicapped children of workers. The Government considers that It therefore seems necessary for the under this heading also the question Court in its reply to lay down that ought to be answered in the affirmative, Regulation No 1408/71 applies equally whether the national measure providing to members of workers' families as such the benefit is considered as a measure in as entitled in their own right and not favour of the parents in charge of the only as beneficiaries in respect of rights handicapped minor, or as a measure deriving from insurance effected by the taken directly for the benefit of the latter. worker.

JUDGMENT OF 17. 6. 1975 - CASE 7/75

4. Observations of the Commisssion wonders what better member of a family one can have than a worker's child, The Commission first of all recalls that designated by a legislation under which the Court must seek to extract from the family benefits are granted. It adds that wording of the questions referred to it one might object that benefits for the the questions which relate by way of handicapped under the Belgian Law of preliminary ruling to the interpretation 27 June 1969 are only granted as from of Community law, since it is not the the age of 14 years, i.e. the normal age Court's function either to decide a limit laid down under Belgian legislation specific case or to express an opinion on for family benefits. However, as regards

1408/71. This is the reason why the are cash benefits intended to compensate Commission deals first with the second for the burden falling on the family. This question. is all the more reasonable, since the term 'benefit' within the meaning of In the first place the Commission refers Regulation No 1408/71, Article 1 (t), back to the two judgments in the includes 'all elements thereof payable out Callemeyn and Costa cases aforesaid and of public funds, revalorization increases in particular to paragraphs 8 and 11 in and supplementary allowances'.

persons' and does not comprise measures that allow handicapped persons to The Advocate-General delivered his achieve or improve ability to work. The opinion on 10 June 1975.

Law

1 By judgment dated 13 January 1975, received at the Court on 27 January 1975, the Tribunal du Travail of Nivelles referred to the Court under Article 177 of the EEC Treaty for a preliminary ruling three questions on the interpretation of the Community Regulations on the free movement of workers within the Community and on the application of social security schemes to employed persons and their families moving within the Community, in relation to the Belgian Law of 27 June 1969 relating to the grant of benefits to the handicapped.

JUDGMENT OF 17. 6. 1975 - CASE 7/75

2 It appears from the order referring the matter that the national proceedings are concerned with an application made in 1973 by the parents of a handicapped minor with a view to benefiting from the said Law.

3 The parents, who are of Italian nationality, have since 1947 resided in Belgium where the father has been regularly employed and where the child was born in 1959 and has resided ever since.

MR AND MRS F. v BELGIAN STATE

various stages of attaining their majority, without at that time having personally to fulfil the conditions as to residence required up to that time of their parents.

9 The correct approach to the questions asked is to examine the problems of interpretation relating relating to Regulation No 1408/71 within the framework of Articles 2, 7 and 51 of the Treaty which form its basis.

10 Whilst the Court, acting within the framework of Article 177, has no jurisdiction to apply the Community rule to a specific case, nor, consequently, to pronounce on a provision of national law with regard to such rule, it can however provide the national court with the factors of interpretation depending on Community law which could be useful to it in evaluating the effects of such provision.

11 In its judgment of 13 November 1974 in Case 39/74 ([1974] ECR 1251) the Court found that '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 Since Regulation No 3 was replaced by Regulation No 1408/71 of the Council, the same interpretation applies to the provisions of the latter Regulation to the extent that they determine the matters covered by that Regulation.

16 It appears from this provision read in conjunction with Article 2 (1) that in the framework of the matters covered by the Regulation and in the absence of a specific provision to the contrary, the members of an employed person's family must be allowed the benefit of the legislation of the State of their residence under the same conditions as the nationals of that State.

17 Consequently, as regards the enjoyment of rights under a national legislation providing benefits for the handicapped, neither the employed person himself nor the members of his family may, as compared with the nationals of the State of their residence, be placed in a less favourable position for the sole reason that they do not possess the nationality of that State.

is The term member of the family of an employed person undoubtedly includes a minor child dependent on his parents, as is recognized by the Tribunal du Travail in its order referring the matter.

19 As regards more particularly the case of a handicapped child who from his minority fulfils the conditions required to benefit as a member of the employed person's family from benefits to the handicapped, the equality of treatment under Article 3 of Regulation No 1408/71 cannot terminate when he ceases to be a minor, if the child by reason of his handicap is prevented from himself acquiring the status of employed person within the meaning of the Regulation.

20 Indeed, if this were not the case, a worker anxious to ensure to his child the lasting enjoyment of the benefits necessitated by his condition as a handicapped person, would be induced not to remain in the Member State where he has established himself and has found his employment, which

THE COURT

in answer to the questions referred to it by the Tribunal du Travail of Nivelles by order of that court dated 13 January 1975, hereby rules:

The provisions of Regulation No 1408/71 must be interpreted as meaning (a) that they include a national legislative system which provides a legally protected right to benefits for the handicapped; (b) that in applying such a system the handicapped child of a worker must not, as compared with the nationals of the State of residence, be less favourably treated by reason only of the fact that he does not possess the nationality of that State; (c) that in the case of a handicapped child who from his minority fulfils the conditions required to qualify for benefits for the

OPINION OF MR TRABUCCHI - CASE 7/75

handicapped as a member of an employed person's family, the equality of treatment cannot cease at the end of his minority if the child by reason of his handicap is prevented from himself acquiring the status of an employed person within the meaning of the Regulation.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Mr President, 49/74, (Costa v Belgium [1974] ECR Members of the Court, 1251). It is clear from this case-law that legislation such as that which has just 1. The requests for a preliminary ruling been cited falls under social security made by the Tribunal du Travail, governed by Article 51 of the Treaty: Nivelles, concern Regulation (EEC) No more particularly, the benefits referred to 1612/68 on freedom of movement for in Article 4 (1) (b) of Regulation (EEC) workers within the Community and 1408/71 of the Council include those Regulation No 1408/71 on the provided for by such national legislation application of social security schemes to on benefits for physically handicapped employed persons and their families persons in so far as the letter relates to moving within the Community and are workers within the meaning of Article related to the application of the Belgian 1 (a) of that regulation. Although the Law of 27 June 1969 on the grant of Belgian legislation in question relates to allowances to handicapped persons. The the entire population of the State and application of this law has already given consequently was not envisaged in rise to two other applications for relation to workers as such, in the cases preliminary rulings: Case 17/73, just cited the Court has recognized the Callemeyn [1974] ECR 553) and Case right of the latter to benefit from it.

1 — Translated from the Italian.