C-17/75

Under a combined sickness/invalidity must be regarded as pensions within the insurance scheme cash benefits paid as meaning of Article 42 of Regulation invalidity benefits, howsoever designated, No 3.

In Case 17/75

Reference to the Court of Justice under Article 177 of the EEC Treaty by the Cour du Travail (Labour Court of Appeal), Brussels, for a preliminary ruling in the action pending before that court between

ANTONIO ANSELMETTI

and

CAISSE DE COMPENSATION DES ALLOCATIONS FAMILIALES DE L'INDUSTRIE CHARBONNIÈRE, Brussels,

gives the following

JUDGMENT

Facts

The facts of the case, the procedure and pursuant to the bilateral Italo-Belgian the observations submitted under Article Social Security Convention until 16 20 of the Protocol on the Statute of the November 1965 inclusive. Court of Justice of the EEC may be summarized as follows: As from 17 November 1965, the Caisse de Compensation des Allocations Familiales de l'lndustrie Charbonnière I — Facts and procedure (hereinafter referred to as the 'Caisse de Compensation") on the ground that the The plaintiff in the main action, Antonio children of the person concerned were Anselmetti, of Italian nationality, was no longer resident in Belgium and that employed as a mine-worker in Belgium. Regulation No 3 of the Council did not entitle the applicant to family allowances He became ill and was recognized as at the increased rate, thereafter paid to unfit for work and consequently him such allowances at the basic rate benefited from the allowances provided only. It puts forward the argument that by Belgian legislation concerning periods of invalidity within the meaning sickness and invalidity. During the first of the Belgian law on sickness/invalidity six months of his incapacity for work he insurance must be treated as equivalent received family allowances at the basic to periods of work, as the benefits rate for his children resident in Belgium. granted to invalids under this insurance Then as from the seventh month of his constitute mere 'allowances' which may invalidity he was paid family allowance at always be withdrawn when the unfitness an increased rate pursuant to Article 40, for work of the insured persons no the third paragraph of Article 50 and longer reaches the level laid down by the Article 56 (2) of the consolidated laws law, whilst 'pensions' as referred to in concerning family allowances. Article 42 of Regulation No 3 are undeniably permanent. After his return to Italy in 1965 Mr Anselmetti continued to receive there the The Caisse de Compensation nevertheless family allowances at the increased rate recommenced paying Mr Anselmetti

The Cour du Travail, Brussels, II — Written observations lodged considering that it was faced with a with the Court question of interpretation of a Community measure, decided, by a The plaintiff in the main action points judgment of 20 December 1974 entered out that the Caisse de Compensation in the Registry of the Court of Justice on whilst denying him the status of a person 11 February 1975, to stay the entitled to a pension, has paid him proceedings and to put the following family allowances on the basis of the questions to the Court of Justice of the provisions of Article 41 of Regulation No European Communities for a preliminary 3 of the Council although it should have ruling in accordance with Article 177 of paid these allowances on the basis of the EEC Treaty: Article 42 (1) as amended by Regulation 1. Do Articles 10 and 42 (the latter as No 1/64 of the Council of 18 December substituted by Regulation No 1/64) of 1963 (OJ 1964, p. 1). The invalidity Regulation No 3 in referring to allowance paid by Belgian mutual 'beneficiaries of a pension' include insurance companies within the migrant workers who are the framework of the general system of beneficiaries of what is termed in sickness/invalidity insurance is an Belgium 'invalidity allowance' invalidity benefit of Type A within the according to the strict wording of meaning of Article 24 of Regulation No Article 53 of the Belgian Law of 3, that is to say a benefit granted without 9 August 1963 concerning the reference to the duration of the periods sickness/invalidity insurance referred of insurance completed by the worker. to in Annex F to such Regulation Article 42 of the same regulation, which No 3? governs the grant of family allowances to 2. If the answer to Question 1 is in the persons entitled to pensions makes no negative: do the fundamental distinction between insured persons principles of vested rights and of the receiving an invalidity benefit of Type A

Since 1 October 1972, the date of entry It must be deduced from the case-law into force of the new Regulations Nos that among such beneficiaries of a 1408/71 and 574/72, the invalidity pension are mentioned in Article 42 of allowance of the general scheme has Regulation No 3 must also appear been classified as a benefit equivalent to beneficiaries of an invalidity benefit. A an invalidity pension. It would be different conclusion would furthermore illogical for the Caisse to regard that be contrary to the prohibition of allowance as a pension as from 1 October discrimination set out in Article 10 of 1972 and as a temporary incapacity Regulation No 3 and made clear by the allowance until 30 September 1972, Court of Justice in judgment 24/74, when no new provision of Belgian law mentioned above. Among the has given a different classification to that beneficiaries of pensions mentioned in benefit. Article 42 and in Article 10 of Regulation No 3 appear the persons As the grant of family allowances is entitled to invalidity allowances, the directly linked to the enjoyment of the nature of which as a social security pension or of the invalidity allowance, measure is not even discussed. these allowances cannot be subject in case of the transfer of the residence of Consequently family allowances must be paid to the persons entitled to the the beneficiary to any reduction by virtue invalidity benefits indicated in of Article 10 of Regulation No 3. accordance with the rates laid down by In support of its argument the plaintiff the legislation of the country liable for relies on the judgment of the Court of payment, even if the dependent children reside in another Member State. Justice of 7 November 1973 in Case 51/73 Sociale Verzekeringsbank v Smieja [1973] ECR 1213. The provisions of No other conclusion would be reached Article 10 of Regulation No 3 have a even if the special nature of Belgian general scope and ensure the full legislation concerning invalidity as a enjoyment of pensions and related prolonged illness during which an benefits acquired under the legislation of 'allowance' calculated as a percentage of one or several Member States whatever the salary previously earned is paid. The the place of residence of the holder. invalidity benefit is termed an 'allowance' As the reply to the first question is in the during the whole period when it is paid affirmative there is no need to reply to until old-age: it is then replaced by the the second question raised by the Cour corresponding pension. Furthermore, du Travail. periods of unfitness for work because of invalidity are assimilated to periods at The Italian Government refers to the work for the purpose of fulfilling the case-law of the Court of Justice: the conditions required by the old-age judgment of 22 June 1972 in Case 1/72 pension, granted according to the work

As a subsidiary matter the Italian — the primary incapacity allowance, Government mentions that the concept paid during a period of one year; of 'social advantages' within the meaning — the extended incapacity allowance of Article 7 (2) of Regulation No 1612 of paid during a period of two years the Council of 15 October 1968 on starting at the expiration of the freedom of movement for workers within period of primary incapacity; the Community (OJ 1968, L 257; OJ (English Special Edition) 1968 (II), — the invalidity allowance paid as from p. 475) includes also social security the fourth year of incapacity for work measures and facilities which workers until the age as from which those may enjoy after the ending of their concerned can claim an old-age service as employed persons. If however pension, except of course where the the invalidity allowance established by state of invalidity ceases meanwhile. the Belgian national law in question were to be regarded as not coming within the As from the payment of the invalidity framework of Regulation No 3 for the allowance, Belgian legislation grants purpose of the granting of family family allowances at a higher rate. allowances, the said allowance would undoubtedly put a 'social advantage', One might conclude that this change in within the meaning of Article 7 (2) the payment of family allowances at the mentioned above, into concrete form, time of the change from the incapacity and consequently prohibit discrimination allowance to the invalidity allowance on the ground of nationality or of would in itself imply a change in the residence. The prohibition of character of that allowance and that there discrimination would extend also to the would be a change from sickness granting of family allowances, as allowances to payments termed representing among other things a right allowances or pensions. belonging to the worker. In the present case, the person The Commission states that the essential concerned had a right immediately after problem in the present case is to the primary incapacity allowance to the

The Commission continues the Annex F to Regulation No 3, to which examination of the question raised by the reference is made in the present question Cour du Travail to decide whether, for on which a preliminary ruling is sought, the application of Article 42 of specifies whether the legislation of the Regulation No 3, an invalidity allowance Member States concerning invalidity provided for by the legislation of a payments is of Type A or B, as defined Member State is or is not a pension. in Article 24 (1) of Regulation No 3. It cannot be deduced from the wording of It disputes the argument of the Caisse de Article 24, which mentions only Compensation that the invalidity payments under the heading 'Invalidity, allowance has not the characteristics of a that Regulation No 3 contains no pension because it is compensatory and provisions for invalidity pensions. Such a revocable. In the Commission's view all restrictive interpretation would exclude social security is by definition of a the application of Regulation No 3 to the compensatory nature and furthermore, legislation of the Member States the fact that a payment is termed a providing expressly for invalidity pension does not thereby imply that it is pensions and that would be contrary to of a permanent nature. For example the very spirit of Article 51 of the Treaty, widows pensions paid so long as the which moreover mentions only benefits. widow does not remarry are none the less This expression 'benefit' must be survivors' pensions mentioned expressly understood in a generic sense as in Chapter 3 of Regulation No 3 including both benefits as such and concerning pensions. The fact that a pensions. It may well be that an change in circumstances leads to the allowance mentioned as such in the

3 The first question asks whether Articles 10 and 42 of Regulation No 3 include 'migrant workers who are the beneficiaries of what is termed in Belgium "invalidity allowance" according to the strict wording of Article 53 of the Belgian Law of 9 August 1963 concerning sickness/invalidity insurance referred to in Annex F to such Regulation No 3'.

4 According to the wording of Article 42 as amended by Regulation No 1/64 (OJ 1964, p. 1), 'Beneficiaries of a pension due in pursuance of the legislation of one Member State only, and who permanently reside in the territory of another Member State, are entitled to family allowances in accordance with the provisions of the legislation of the country liable for payment of the pension as though they were permanently resident in that country'.

5 The national court asks whether that provision is applicable in the present case in preference to Article 40 of the same regulation which, as amended by

JUDGMENT OF 25. 6. 1975 —CASE 17/75

Regulation No 73/63 (OJ 1963, p. 2011), provides that 'a wage-earner or assimilated worker who has children who are permanently resident or are being brought up in the territory of a Member State other than the competent country shall be entitled, in respect of the said children, to family allowances in accordance with the legislation of the Member State in whose territory such children permanently reside or are being brought up'.

6 The two provisions however concern clearly different situations, Article 40 applying to an employed worker whose children reside elsewhere probably in his country of origin, whilst Article 42 applies to a worker who is the recipient of a pension, has ceased employment and has changed his place of residence, probably also to his country of origin.

ANSELMETTI v CAISSE DE COMPENSATION DES ALLOCATIONS FAMILIALES

11 Furthermore even in the case of transfer of residence before this stage the worker would retain his rights to family allowances under Article 19 (6) so long as the transfer were carried out in accordance with the conditions laid down in Article 19 (2).

12 It is therefore appropriate to reply, without its being necessary for the Court to go into the details of the Belgian Law to which the national court refers, that under a combined sickness/invalidity insurance scheme cash benefits paid as invalidity benefits, howsoever designated, must be regarded as pensions within the meaning of Article 42 of Regulation No 3.

13 As the second question has been raised only in the case of a negative reply to the first, it does not call for consideration.

Costs

14 The costs incurred by the Government of the Italian Republic and the Commission of the European Communities which submitted their observations to the Court are not recoverable.

be regarded as pensions within the meaning of Article 42 of Regulation No 3.

Lecourt Mertens de Wilmars Mackenzie Stuart Donner Monaco

Pescatore Kutscher Sørensen O'Keeffe

Delivered in open court in Luxembourg on 25 June 1975.

A. Van Houtte R. Lecourt

Registrar President

1 — Translated from the German.