C-9/78

JUDGMENT OF THE COURT OF 6 JULY 1978 <apnote>1</apnote>

Directeur Régional de la Sécurité Sociale de Nancy v Paulin Gillard and Caisse Régionale d'Assurance Maladie du Nord-Est, Nancy (preliminary ruling requested by the Cour d'Appel, Nancy)

Case 9/78

1. Social security for migrant workers — Community rules — Substantive field of application — Benefits covered and benefits excluded — Distinction (Regulation No 1408/71 of the Council, Article 4(1) and (4))

2. Social security for migrant workers — Community rules — Substantive field of application — Benefits excluded — Old-age benefits for former prisoners of war (Regulation No 1408/71 of the Council, Article 4 (4))

and

1. Paulin Gillard, Belgium, and

2. Caisse Régionale d'Assurance Maladie du Nord-Est (North-East Regional Sickness Insurance Fund), Nancy,

on the interpretation of certain 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 (Official Journal, English Special Edition 1971 (II), p. 416),

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe and A. Touffait, Judges,

DIRECTEUR REGIONAL DE LA SÉCURITÉ SOCIALE DE NANCY v GILLARD

The latter, old-age pension at the rate of 50% in having regard to the case-law of the pursuance of: Court of Justice relating to the (a) Article L 382 (2) of the Code de la prohibition of discrimination based on Sécurité Sociale (Social Security nationality, repeated in Article 8 of Code), as provided for by Law No Regulation No 3 of the Council, took 73-1051 of 21 November 1973, the view that Mr Gillard was entitled to the benefit of the Law of 21 November

(b) Alternatively, Article 13 (2) (d) of prove that he was a former prisoner of the said regulation designates, as war except by means of a document the legislation applicable for the issued by the Belgian Ministry for Defence whereas the benefit claimed purpose also of taking into consideration any periods of could only be awarded to insured military service, the legislation of persons who proved the length of their the Member State for which the captivity and military service in wartime in the French or Allied Forces "by military service was performed and not the legislation of the Member producing their service record or a certi Sute of affiliation; ficate issued by the competent military authority or by the Ministry for Ex- (c) In any event the French Law of Servicemen or the Office National des 21 November 1973 applies only to Anciens Combattants (National Ex- nationals and those assimilated to Servicemen's Office)". nationals or at least to the nationals

pursuance of Article 177 of the EEC Treaty, put the following questions to 3. A copy of the judgment referring the matter to the Court reached the the Court of Justice for a preliminary ruling: Court Registry on 27 January 1978. "1. Must Anide 4 (4) of Regulation The Fund, represented by the Chairman of its Board of Administration, and the No 1408/71, pursuant to which that regulation is not to apply to 'benefit Commission of the European Com­ schemes for victims of war or its munities, represented by its Legal Adviser, Armando Toledano-Laredo, consequences', be interpreted as submitted written observations in meaning that benefits which are not pursuance of Article 20 of the Protocol strictly in the nature of on the Sutute of the Court of Justice of compensation and are payable to the EEC. those workers who were victims of the war only in so far as it detri­ Upon hearing the repon of the Judge- mentally affected their acquisition Rapponeur and the views of the of old-age pension rights or similar Advocate General, the Court decided to rights, such as the old-age benefits open the oral procedure without any instituted by the French Law of preparatory inquiry. 21 November 1973 — Article L 332 (2) of the Code de la Sécurité II — Observations submitted in Sociale — are also excluded? pursuance of Article 20 of 2. If the answer to the first question is the Protocol on the Statute in the negative, must Article 13 (2) of the Court of Justice of (d), pursuant to which a worker the EEC who is called up or recalled for service in the Armed Forces of a A — The Fund takes the view that, Member State is subject to the having regard to the viewpoint adopted legislation of that Sute, be by the Members of its Arbitration interpreted as meaning that it is also Committee in identical cases, namely applicable to the particular old-age that: benefits which a national law may (a) The provisions relating to the con­ provide specifically for veterans and ditions for the grant of pensions are former prisoners of war? provisions of general application not 3. If the question set out above is taking the concept of nationality answered in the negative, does the into account; principle of non-discrimination as (b) Subsequent provisions cannot laid down with regard to social restrict the general scope of the security in Article 3 (1) of that regu­ earlier ones, a fortiori because lation prevent a national law such Decree No 74-54 of 23 January as the French Law of 21 November 1974 provides that the persons 1973 from excluding from old-age concerned must prove the duration benefits accorded to veterans and of their captivity or their military former prisoners of the 1939-1945 service in wartime in the French or war, on the grounds of the hardship Allied Forces;

it can only leave the matter in the hands which is applicable in pursuance of of the Court. Article 13 (2) (d) of Regulation No 1408/71. In that case, since, in B — The Commission of the European pursuance of Article 13 (1) of tne Communities makes the following obser­ said regulation, a worker is to oe vations : subject to the legislation of a single — With regard to the first question, the Member State only, and having answer must be in the negative. In regard to the judgment of the Court fact, Article 4 (4) of Regulation No of Justice in Case 92/63 (Moebs (née 1408/71, in excluding from the sub­ Nonnenmacher) v Sociale Verzeker­ stantive field of application of the ingsbank [1964] ECR 281) French regulation "benefit schemes for legislation would appear to be victims of the war or its applicable in so far as France his consequences", is referring to not required the person concerned benefit schemes granted in the to contribute to the financing of a context of legislation other than social security institution which is social security legislation. However, unable to provide him with the French Law No 73-1051 of 21 additional benefits in respect of the November 1973 which has been same risk and the same period. referred to in this matter — the — With regard to the third question, implementation of which is effected finally, the answer whould be that by Decree No 74-54 of 23 January 1974 — constitutes indeed social the old-age benefit in question must be applied without the possibility of security legislation since it supplements the French Code de la any derogation from the provisions Sécurité Sociale. of Article 3 (1) of Regulation No 1408/71, which prohibits all discrim­ — With regard to the second question, ination between the workers of two cases may be envisaged : Member States. Such workers have (a) either captivity or military the right to benefit therefrom, service in the French or Allied naturally to the extent to which the Forces constitutes an objective competent authority or court condition for the grant of the decides that the two conditions advantage in question; or required are fulfilled, namely the (b) the captivity and the military minimum of insurance and the service are assimilated to an minimum length of captivity or insurance period under French military service in wartime in the legislation. French or Allied Forces.

4 According to those provisions, the old-age pension granted to workers, ex- servicemen or former prisoners of war is calculated at the rate normally applicable at 65, namely 50 % of the basic wage, when, at their request, their pension is awarded at an age between 61 and 60, for those whose captivity lasted for at least 54 months.

5 By virtue of the last subparagraph of Article 1 (1) and of paragraph (2) of the same article of Decree No 74-1199 of 31 December 1974, amending Decree No 74-54 of 23 January 1974, in implementation of the above­ mentioned law, the said benefit is only granted if the persons concerned prove the duration of their captivity and their military service in wartime in the French or Allied Forces "by producing their service record or a certi­ ficate issued by the competent military authority or by the Ministry for Ex-Servicemen or the National Ex-Servicemen's Office".

DIRECTEUR REGIONAL DE LA SÉCURITÉ SOCIALE DE NANCY v GILLARD

6 The social security institution rejected that application, pointing out inter alia that the entitlement of former prisoners of war conferred by the French law constitutes one of the "benefit schemes for victims of war or its consequences" referred to by Article 4 (4) of Regulation No 1408/71 and therefore does not come within the field of application of that regulation.

7 Consequently, it stated, the insured person could not rely on the provisions of Regulation No 1408/71 to claim the benefit in question in this case in pursuance of the principle of non-discrimination laid down by those provisions.

JUDGMENT OF 6. 7. 1978 — CASE 9/78

13 It appears from the file that the benefit granted in pursuance of the national provisions in question has the essential purpose of providing for former prisoners of war who prove that they underwent a long period of captivity testimony of national gratitude for the hardships endured between 1939 and 1945 on behalf of France and its Allies and thus granting them, by an increase in the rate of old-age pension, a quid pro quo for the services rendered to those States.

14 Having regard to that purpose and those conditions of grant such a benefit does not exhibit the characteristics constituting a social security benefit within the meaning of Article 4 (1) of Regulation No 1408/71.

15 Article 4 of Regulation No 1408/71, in defining the material field of application of that provision, provides in paragraph (4) that the regulation is not to apply inter alia "to benefit schemes for victims of war or its consequences".

16 For those reasons the reply to the first question must be that Article 4 (4) of Regulation No 1408/71 must be interpreted as meaning that the regulation does not apply to social benefits for former prisoners of war such as the benefit provided under the French Law of 21 November 1973, Article L 332 (2) of the Code de la Sécurité Sociale.

17 Asf a result, the other questions put by the national court lose their point.

in answer to the question referred to it by the Cour d'Appel, Nancy, by judgment of that court of 24 January 1978, hereby rules:

Article 4 (4) of Regulation No 1408/71 must be interpreted as meaning that the regulation does not apply to social benefits for former prisoners of war such as the benefit provided under the French Law of 21 November 1973, Article L 332 (2) of the Code de la Sécurité Sociale.

Kutscher Serensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

Delivered in open court in Luxembourg on 6 July 1978.

A. Van Houtte H. Kutscher