C-63/76

Regulation No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the

Community,

THE COURT (First Chamber)

composed of: A. M. Donner, President of Chamber, J. Mertens de Wilmars and G. Bosco, Judges,

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

gives the following

who resides in France where he is ground that the applicant is not a French

employed, applied to the Caisse national. As Mr Inzirillo considered that

INZIRILLO v CAISSE ALLOCATIONS FAMILIALES LYON

the refusal given was contrary to 2. A copy of the judgment making the

Community law and, in particular, to reference was received at the Court of

Regulations Nos 1612/68 (OJ, English Justice on 7 July 1976. Special Edition 1968 (II), p. 475) and

remuneration, and excludes those its Legal Adviser, Marie-José Jonczy, which are inherent in social welfare; acting as Agent.

Although, under the community —

rules, the grant of the allowance in Upon hearing the report of the

question to the nationals of the Judge-Rapporteur and the views of the

Member States is not dependant upon Advocate-General, the Court decided to

any condition of nationality, the open the oral procedure without holding allowance itself does not fall within any preparatory inquiry. By order dated the terms of the provisions of 19 October 1976 the Court referred the

A — Observations submitted by the After the Cour d'Appel, Lyon, dismissed Caisse d'Allocations Familiales his appeal, Mr Inzirillo appealed to the Cour de Cassation, which by a judgment The Caisse maintains that Regulation No given on 26 May 1976 decided to stay 1408/71 states clearly that, although it the proceedings and, in accordance with applies to legislation on social security, it Article 177 of the EEC Treaty, to refer to is not applicable to social assistance. the Court of Justice the question

to Regulation No Article 4 (1) by implication and Article 4 whether, pursuant

1408/71, (4) expressly exclude social assistance

from the matters covered by the

'A handicapped adult Italian national regulation.

who has himself never worked in France must benefit from the allowance for As regards the criteria laid down by handicapped adults introduced by the Community law for distinguishing Law of 13 July 1971 solely for the between social security and social

According to the Caisse the judgments (a) As regards the first point, the

relating to those two regulations show provisions of the Law of 13 July 1971 that: show clearly that, as regards Bernardo — Although legislation is akin to social Inzirillo considered individually, the Law assistance when need is the essential of 13 July 1971 forms part of a system of criterion for its implementation and social assistance rather than of social

there are no conditions as to periods security. The wording of the first very of employment, of membership or of paragraph of Article 7 of the Law leaves contributions, it nevertheless con­ no doubt on that point. That conclusion

stitutes social security where, is not modified in any way by the fact departing from the consideration of that certain provisions of the law contain each case on its merits, which is a references to the social security system.

feature of assistance, it confers on Thus, for example, the third paragraph of beneficiaries a legally defined Article 7 provides that persons who

position; under the security system are in social

in relation to a wage earner or social security system.

assimilated worker who has completed periods of employment in Moreover, even supposing that, against all a Member State, resides there and is possibility, the allowance in question is covered by the social security system to be regarded as coming under the

in force there, whereas it will be social security system, it cannot be regarded as being concerned with awarded to Bernardo Inzirillo on the

social assistance in relation to those basis of Article 4 (1) and (2) of Regulation persons who can only refer to their No 1408/71. The allowance in question

need in order to benefit from it. is claimed by way of family benefit. Although it is true (1) (h) that Article 4 In order to determine the manner in refers 'family benefits', nevertheless, to

which those criteria may be applied in when drafting that provision the authors

the Law of 13 July 1971 froms part of between them, retaining some and

the French system of social security. excluding others. In those circumstances Secondly — the negative aspect — it is it must be admitted that the authors of

INZIRILLO v CAISSE ALLOCATIONS FAMILIALES LYON

the regulation could not have intended to although family benefits were introduced refer to benefits which were not yet in in the interests of the family unit and are

existence on the adoption of the therefore determined by reference to

regulation (14 June 1971). That is dependent children, they are only paid if

manner provided for thereby. The within the meaning of the social

legislation referred to in the judgments security legislation, even if such

in question was not different in nature person is handicapped; from that referred to by the regulation — the recipient or any benefit paid

itself, whereas the benefit in question in would be Bernardo Inzirillo himself the present case is of a wholly new kind and not his father. For this reason, and is not related to any of the benefits the only matter at issue is the

which were in existence when the individual rights to social security of regulation was adopted. the adult Bernardo Inzirillo himself. His father's rights to social security Therefore in the absence of any cannot, therefore, be taken into international agreement and of any account in the present case;

legislative provision enabling the —

enjoyed by his father. It is necessary to ascertain whether Vito Inzirillo, an B — Observations submitted by the Italian national employed in France and Commission of the European covered by the social security system in Communities force there, may claim his son must, that

as a member of the family, be entitled to The Commission of the European receive the allowance in question by way Communities points out that the

of thefamily benefits to which he (Vito essential problem in the present case is

Inzirillo) is entitled. to discover whether under Regulation No 1408/71 a person of full age who is not

First of all, however, as the allowance in and never has been a migrant worker

question was introduced by a law which within the meaning of that regulation was adopted after entry into force of the but whose father is a migrant worker is the regulation, it cannot be covered by entitled through his father to receive an

come within the area of application Having made that point, the

of Regualtion No 1408/71 and, more Commission also states that according to

precisely, if he is not a worker, may the case-law of the Court it is he nevertheless be regarded as a unnecessary to comply with formal 'member of the family within the requirements which would be contrary to

meaning of that regulation? the very nature of the procedure under —

Secondly, do the provisions of Article 177 of the EEC Treaty; on the Regulation No 1408/71 enable the contrary, the national court must be condition of nationality to be waived provided with factors of interpretation so as to ensure for the members of depending on Community law which

the family of a worker who is might be useful to it for the purposes of

that question would only arise if an handicapped persons introduced by a affirmative answer were given to a national law fall within the area of

preliminary question, namely application of Regulation (EEC) No whether the legislation in question 1408/71 of the Council of 14 June falls within the area of application of 1971 on the application of social

Regulation No 1408/71. security schemes to employed

persons and their families moving In addition, the Commission regrets that within the Community? the question referred contains no 2. Must a migrant worker 's handicapped reference to Regulation No 1612/68. child of full age who is prevented by Although before the Cour d'Appel, Lyon, his handicap from acquiring for Mr Inzirillo relied on both that himself the status of worker within

regulation and Regulation No 1408/71, the meaning of Regulation No before the Cour de Cassation he relied 1408/71 be regarded, notwithstanding

only on Regulation No 1408/71. his age, as a member of the family of According to the judgment of the Cour a worker within the meaning of that

of that very article, the Court of Justice dependent upon the residence of the

ruled in its judgment of 30 September persons protected rather than on the

1975 (Case 32/75, Anita Cristini v insurance of the worker?'

INZIRILLO v CAISSE ALLOCATIONS FAMILIALES LYON

Going on to examine the substance of payable to persons who are not entitled

those questions the Commission makes to receive an old-age or invalidity benefit inter alia the following observations: of an amount at least equal to the

It is designed in the first place to create a legally protected right to the allowance.

benefit to compensate for the family In accordance with the case-law of the

expenses inevitably incurred by the Court, therefore, it must be concluded

existence in the family of a seriously that the Law in question falls within the

handicapped person of whatever age. In substantive area of application of

addition, by introducing an allowance in Regulation No 1407/71. favour of handicapped adults (Article 7), it enables such persons to benefit from a 2. The second question

for automatic affiliation to a voluntary legislation under which benefits are

insurance scheme. It would of course provided ...; where, however, the said

have been possible to establish a system legislations regard as a member of the

under which a handicapped adult could family ... only a person living under the continue to benefit from the sickness same roof as the worker, this condition

insurance of his parents even after he shall be considered satisfied if the person

reached the age of 20. However, such a in question is mainly dependant on that

when it established a scheme of social the age of 20 he no longer constitutes a

protection for handicapped persons, the member of the family of a worker and

Law in question intended to substitute a that the equality of treatment with the

legally protected right for the social nationals of his State of residence

assistance to which they were entitled in guaranteed by Article 3 of Regulation No the past. 1408/71 therefore came to an end on his

attaining the age of 20 years, precisely Finally, when it introduced the al­ the age as from which he could be lowance in question the French Law also entitled to receive the allowance for intended to provide an income for handicapped adults.

assumed that Bernardo Inzirillo is for migrant workers.

dependant upon his father who is a

migrant worker employed in France. He 3. The third question

is therefore entitled under Article 10 (1) The French legislation on allowances for (a) of Regulation No 1612/68 to reside in that country —

or, more precisely, to handicapped adults was not expressly designed for workers as such. It is install himself there with his father —

applicable to all nationals and makes the regardless of his age. acquisition of the right dependant upon

application of the legislation of any That conclusion is confirmed by the Member State under the same conditions case-law of the Court of Justice which, in as the nationals of that State, it follows its judgment of 17 June 1975 in Case that the condition of nationality cannot 7/75, (Mr and Mrs F v Belgian State, be used against Bernardo Inzirillo in [1975] ECR 691), held that a order to refuse him the allowance for handicapped child who is prevented handicapped adults, any more than the from himself acquiring the status of an absence of reciprocal agreement any employed person remains a member of between France and Italy may be used an employed person's family even after against him for the same purpose. the end ofhis minority for the purposes of the application of Regulation No On the basis of the foregoing 1408/71. The reasons underlying that observations the Commission considers

INZIRILLO v CAISSE ALLOCATIONS FAMILIALES LYON

that the following reply must be given to which are covered by the material

the question referred: ambit of that regulation;

(c) therefore, the handicapped son of a

The provisions of Regulation No migrant worker may not, as compared 1408/71 must be interpreted as meaning with the nationals of the State of his

the of the principle of

freedom of movement for workers The Caisse d'Allocations Familiales de who are nationals of Member States, l'Arrondissement de Lyon and the they must guarantee to workers and Commission of the European members of their families who, by Communities presented oral argument at virtue of their right of free the hearing on 17 November 1976. movement, reside in the territory of a Member State, equality of treatment The Advocate-General delivered his with the nationals of that State in the opinion at the hearing on 7 December application of those national laws 1976.

Law

1 By judgment of 26 May 1976, received at the Court Registry on 7 July 1976, the Cour de Cassation of France referred to the Court under Article 177 of

the EEC Treaty certain questions concerning the interpretation of Regulation No 1408/71 in relation to an allowance for handicapped adults.

2 Those questions were raised in the context of procedures relating to the refusal of the Caisse d'Allocations Familiales de l'Arrondissement de Lyon to allow a handicapped adult Italian national, residing in France with his father who is employed there as a worker within the meaning No of Regulation

by the Law of 13 July 1971 solely for the benefit of French nationals residing in France, if he resides there and if his father, an Italian migrant worker, is

employed there'.

5 In order to reply to this question it is first necessary to define the substantive

area of application of Regulation No 1408/71 in relation to the provisions of

national law providing for the allowance in question.

6 Whilst the Court, acting within the framework of Article 177, has no

Community Regulations thereunder'.

8 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 to which they determine the matters covered by that regulation.

9 It follows that a national scheme to provide allowance for handicapped

persons, such as that at issue in the present case, which gives a legally protected right to such allowances constitutes social security within the

meaning of Article 51 of the Treaty as regards the persons referred to by Regulation No 1408/71.

family'

12 Although, in defining the term 'member of the of the worker, Article 1 (f) of that regulation refers to the national legislation under which the

benefit is provided, nevertheless the interpretation of that reference must

respect the principles of Community law on which Regulation No 1408/71 is based.

13 According to the fifth recital of the preamble, the provisions of that

regulation 'fall within the framework of freedom of movement for workers

14 To this end, Article 3 (1) enshrines the fundamental principle of equality of treatment by providing that 'subject to the special provisions of this

regulation, persons resident in the territory of one of the Member States to

whom this regulation applies shall be subject to the same obligations and

enjoy the same benefits under the legislation of any Member State as the

nationals of that State'.

15 As is recognized by the Law which governs the benefit in question in this

17 If that were not the case, a worker anxious to ensure to his child the lasting

enjoyment of the allowances 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 would run counter

to the object sought to be attained by the principle of freedom of movement for workers within the Community, bearing in mind inter alia the right

recognized under this principle to employed persons and to members of their

families to remain within the territory of a Member State in which the

employed person was employed under the conditions determined by Regulation No 1251/70 of the Commission of 29 June 1970 (OJ English Special Edition 1970 (II), p. 402).

tobring about and taking account of the provisions of that regulation as a whole, the matters covered by Article 7 (2) must be defined in such a way as to include every social and tax advantage, whether or not linked to a contract of employment, such as an allowance for handicapped adults which is awarded by a Member State to its own nationals under legislation which gives a legally protected right thereto.

22 The answer to the question referred must therefore be that pursuant to

Regulation No 1408/71 of the Council of 14 June 1971, national legislation

which, in a Member State, gives a legally protected right to an allowance for

INZIRILLO v CAISSE ALLOCATIONS FAMILIALES LYON

handicapped adults to the nationals of that State who reside there also applies

concerned, in the nature of a step in the action pending before the national

court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber)

in answer to the question referred to it by the Cour de Cassation of France by

judgment of 26 May 1976, hereby rules:

Donner Mertens de Wilmars Bosco

Delivered in open court in Luxembourg on 16 December 1976.

A. Van Houtte A. M. Donner

Registrar President of the First Chamber