C-207/78

JUDGMENT OF 31. 5. 1979 — CASE 207/78

benefits which come within it rests which, whether or not linked to a entirely on the factors relating to each contract of employment, are generally benefit, in particular its purposes and granted to national workers primarily the conditions for its grant. because of their objective status as 2. Article 4 (4) of Regulation No workers or by virtue of the mere fact of their residence on the national 1408/71 must be interpreted as also excluding from the field of territory and the extension of which to workers who are nationals of other application of that regulation special Member States therefore seems national schemes (such as that referred to in Article 1 (4) of the suitable to facilitate their mobility Belgian Royal Decree of 27 June within the Community. 1969), the essential objective of which is to offer to workers who fought in 4. A benefit based on a scheme of the allied forces between 1940 and national recognition, (such as the 1945 and who suffer incapacity for benefit granted by the Belgian Royal work attributable to an act of war a Decree of 27 June 1969), cannot be testimony of national recognition for considered as an advantage granted to the hardships suffered during that a national worker by reason primarily period and to grant them, by increas­ of his status of worker or resident on ing the rate of the early retirement the national territory and for that pension, a benefit by reason of the reason does not fulfil the essential services thus rendered to their characteristics of the "social country. advantages" referred to in Article 7 (2) of Regulation (EEC) No 1612/68. 3. It follows from all the provisions of Regulation (EEC) No 1612/68 of the It does not therefore come within the Council and from the objective substantive field of application of that pursued that the social and tax regulation and is not therefore, as advantages which this regulation regards the conditions for the grant of extends to workers who are nationals that benefit, subject to the provisions of other Member States are all those of the latter.

(2) Office National des Pensions pour Travailleurs Salariés (O.N.P.T.S.), Brussels,

on the interpretation of certain provisions of Regulation No 1408/71, in particular those of Articles 3 (1) and 4 (4),

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars, President of Chamber, A. O'Keeffe and G. Bosco, Judges,

Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

Under the system of that royal decree (2) … the normal retirement age for male workers is in fact 65 years. However, (3) … Article 5 (1) of the decree provides as follows: (4) are of Belgian nationality, have served in the allied forces between "The retirement pension … may at the choice and request of the person 10 May 1940 and 8 May 1945 and concerned start to run during the period are in receipt of a war service of five years preceding the normal invalidity pension granted by an pension age; in this case it shall be allied country for incapacity for work due to an act of war …" reduced by 5% per year of early payment."

After the Tribunal du Travail, Liège, had The decision granting Mr Even the granted this request by judgment of retirement pension thus reduced was the 7 February 1977, the Ministère Public subject-matter of an anion brought by [Public prosecutor's department] and the Mr Even before the Tribunal du Travail O.N.P.T.S. lodged appeals — a main [Labour Tribunal], Liège. In support of appeal and an appeal on a point of law this action, Mr Even called in aid Article respectively — before the Cour du 3 (1) of Regulation No 1408/71, which Travail [Labour Court], Liège. provides as follows:

The Cour du Travail, Liège, after taking "(a) Must Article 4 (4) of Regulation into consideration the above-mentioned (EEC) No 1408/71 of the Council provisions of Article 3 (1) of Regulation of 14 June 1971 on the application No 1408/71, pointed out moreover that of social security schemes to Article 4 (4) of the same regulation employed persons and their families specifies that it does not apply moving within the Community, which stipulates that the said regu­ lation does not apply to benefit schemes for victims of war or its consequences, be interpreted restrictively as meaning that it "… to benefit schemes for victims of applies only to a legislation or war or its consequences …" legislations 'taken as a whole' establishing or regulating a specific benefit scheme or schemes for victims of war or its consequences which are obviously outside the scope of the existing social security The problem therefore arises, in its schemes or on the contrary more opinion, whether, in so far as it grants to broadly as covering certain special various classes of beneficiaries under a legal provisions such as those which scheme of national recognition listed by are the subject-matter of the Royal it an early employed person's retirement Decree of 27 June 1969 laying pension without reduction, the financial down the conditions under which a burden of which is directly borne by the scheme of national recognition Belgian State instead of being borne at entitles an employed person to an least in the main by social security contri­ early retirement pension without butions paid by employers and workers, reduction (and in particular those the Royal Decree of 27 June 1968 referred to in Article 1 (4) of the should not be regarded as a benefit said royal decree) which conditions scheme for victims of war or its supplement the Belgian legislation consequences or at least as a scheme on pensions for employed persons which may be treated as such within the established and regulated by the meaning of the above-mentioned Article Royal Decree No 50 of 24 October 4 (4), so that it does not come within the 1967 by providing for the grant, scope of Regulation No 1408/71 and is payable directly and solely by the consequently not covered by the rule of Belgian State, of 'special' pension equality of treatment laid down in benefits in favour of the various Article 3 (1) of the regulation. classes of beneficiaries under a scheme of national recognition which those provisions list?

enshrines the principle of equality 20 of the Protocol on the Statute of the of treatment 'subject to the special Court of Justice of the EEC. provisions of this regulation' there could be, either in the afore­ mentioned regulation or in the After hearing the report of the Judge- Regulation (EEC) No 574/72 Rapporteur and the views of the fixing the procedure for im­ Advocate General, the Court decided to plementation, one or more special open the oral procedure without any provisions in the matter of the preparatory inquiry and to refer the case pensions in question preventing the to the First Chamber for examination application of the principle that pursuant to Article 95 of the Rules of 'persons resident in the territory of Procedure. one of the Member States to whom this regulation applies shall … enjoy the same benefits under the legislation of any Member State as II — Written observations sub­ the nationals of that State'? mitted pursuant to Article 20 of the Protocol on the Statute of the Court of (c) In the event of the principle of non­ Justice of the EEC discrimination contained in the aforementioned Article 3 being held to be applicable does this mean that a nationality clause such as that A — The Office National des Pensions which provides 'be of Belgian des Travailleurs Salariés, having set out nationality' in Article 1 (4) of the the facts forming the basis of the dispute, Royal Decree of 27 June 1969 must emphasizes that even if the Royal Decree be treated as not applicable and of 27 June 1969 laying down the conditions under which a scheme of consequently considered void as regards the non-Belgian nationals national recognition entitles an employed of the various Member States of the person to an early retirement pension European Communities?" without reduction is applied only to persons of Belgian nationality this does not involve an infringement of the principle of equality of treatment enshrined in Article 3 (1) of Regulation 2. A copy of the judgment making the No 1408/71. reference reached the Court Registry on 21 September 1978. The benefit provided for by that decree comes in fact within the social security The Office National des Pensions pour benefits introduced for victims of war Travailleurs Salariés, represented by its which Regulation No 1408/71 excludes General Administrator, Mr. R. Masyn, from its field of application. and the Commission of the European Communities, represented by Mrs Marie-José Jonczy, a member of the Referring to the judgment delivered by Commission's Legal Service, acting as the Court of Justice on 6 July 1978 in Agent, assisted by Messrs Henri Case 9/78, the Gillard case, [1978] ECR Scheyvaerts and Francis Herbert, 1661, the O.N.P.T.S. points out that in Advocates at the Brussels Bar, submitted view of the similarity between that case written observations pursuant to Article and the present case, the Court of Justice

As clearly shown by the statements made — The Royal Decree of 27 June 1969 by the Minister for Social Welfare was adopted pursuant to the last during the sitting of the Belgian Senate paragraph of Article 6 of Royal on 23 February 1955, the benefits Decree No 50 of 24 October 1967 granted to beneficiaries under a scheme according to which: "The King may of national recognition should in fact be also … determine in respect of each considered as a benefit scheme for category of beneficiaries under a victims of war or its consequences and scheme of national recognition the not as a benefit scheme coming within circumstances in which those social security. They are moreover beneficiaries are permitted to obtain directly financed by the State whereas an early retirement pension, the the pension scheme is financed by contri­ method of calculation of the pension butions from workers and employers, the and the manner in which the State merely in this case granting an financial burden resulting from the annual subsidy. application of the rules which he lays down shall be borne"; On the basis of these considerations, the O.N.P.T.S. considers that the first — All the cases set out in Article 1 of question might be answered as follows: the Royal Decree of 27 June 1968 make the benefit of the early "The provision contained in Article 4 (4) retirement pension without reduction of Regulation (EEC) No 1408/71 of the subject to a service rendered during a Council of the European Communities period of war or to a hardship of 14 June 1971 must be interpreted suffered during or as a result of such broadly as including the benefits a period of war. provided for by the Royal Decree of 27 June 1969." In view of these factors it therefore If the Court of Justice rules to that effect seems that the objectives of and the reply to the other questions becomes conditions for the grant of the early purposeless. pension without reduction granted by the Royal Decree of 1969 are the same as B — The Commission of the European those of the French legislation taken into Communities points out first of all that consideration by the Court in the the problem discussed in the present case judgment in the Gillard case. is similar to that settled by the Court in its judgment of 6 July 1978 in Case Having regard to the similarity in fact 9/78, the Gillard case. and in law between the two cases it therefore follows that the same reply As regards the first question, in its should be given to the first question opinion it is in particular clear from an asked by the court making the reference examination of the Belgian legislation as that given in the judgment of the referred to that: Court of 6 July 1978.

Whilst considering that such a reply specific application within the field makes the other questions purposeless covered by Article 51 of the Treaty of the Commission however takes the view the fundamental prohibition against that it is also necessary to adopt a discrimination laid down in Article 7 of viewpoint on the second and third the Treaty. This principle was restated as questions so as to deal with any regards freedom of movement for eventualities. workers in Article 48 (2) of the Treaty and implemented by Regulation (EEC) No 1612/68 of the Council on freedom It points out with regard to the second of movement for workers within the question that assuming that the grant of Community. Article 7 of that regulation an early retirement pension without prohibits all discrimination by reason of reduction by virtue of a scheme of nationality in respect of conditions of national recognition is considered as employment and work and Article 7 (2) being included among the schemes of provides that a migrant worker must social security coming within the sub­ enjoy in the host Member State the same stantive field of application of Regu­ social and tax advantages as national lation No 1408/71 it is necessary to workers. acknowledge that that regulation does not contain special provisions limiting the application of the principle of The problem thus arises in the present equality of treatment as regards old-age case whether the concept of social pensions. advantages must be interpreted as including advantages such as those With regard to the third question, the granted by the Royal Decree of 27 June 1969. reply which it calls for follows from many judgments in which the Court of Justice has stated that national provisions Having recalled the case-law of the contrary to the prohibition on all dis­ Court of Justice in this field according to crimination based on nationality may not which the scope of the concept of social be applied to the migrant worker in advantages laid down in Article 7 (2) of question who, in so far as he fulfils the Regulation No 1612/68 is as broad as other conditions to which the grant of a possible, the Commission expresses the benefit is subject, must therefore receive view that such a concept should be able that benefit in the same conditions as a to cover all advantages granted to national worker. nationals of the Member States which are intended to compensate wholly or in Having made these observations, the part for a loss of or inadequate income Commission considers it appropriate to or increased or excessive charges, or specify in addition, beyond the wording whose aim is to redress in a more general of the questions asked by the court way the underprivileged financial or making the reference and so as to material situation of certain categories of provide it with all factors of interpre­ person.

As regards the attainment of "real equality of treatment with the nationals If therefore that distinction expressed the … in regard to economic matters and concern of the Community legislature social benefits" mentioned by the generally to exempt from Community Advocate General in Case 7/75 the law schemes for victims of war, such a benefit of an early retirement pension principle would be illegal in the light of without reduction granted to national Article 48 (2) and (3) of the Treaty. workers within the context of a scheme of national recognition certainly comes within the concept of social advantages. This principle cannot in fact be covered by the power left to the Member States to adopt discriminatory measures justified on grounds of public policy, Article 7 (2) of Regulation No 1612/68 public security or public health. The therefore makes it impossible for the cases listed in Article 48 (3) ail relate to benefit thereof to be refused to a migrant the search for employment and the right worker solely on the basis of his of employment but they do not refer to nationality. the conditions of that employment. They cannot therefore concern the detailed rules for the grant of an early pension. It is of course possible to ask whether the fact that Article 4 of Regulation No 1408/71 makes a clear distinction It is moreover impossible in the present between benefit schemes for victims of case to obstruct the application of the war and social security and social principle of equality of treatment either assistance schemes does not indicate that, by the consideration of the special link more generally, schemes for victims of between a national and a Member State war are, in particular on account of the as regards the performance of the duty

As to the second point, it also follows In view of all these observations, the from the case-law of the Court of Justice Commission therefore considers that the that the prohibition on discrimination following replies might be given to the laid down in Article 7 of Regulation questions asked: (EEC) No 1612/68 must be interpreted as relating also to the special protection granted, for social reasons, by the "(1) Article 4 (4) of Regulation No legislation of a Member State to specific 1408/71 must be interpreted as categories of workers. meaning that that regulation does not apply to social security benefits introduced in favour of persons in It is of course conceivable that a receipt of a war service invalidity Member State might make the grant of pension such as the benefit an advantage subject, as regards the provided for in Article 1 (4) of the entitlement to pension rights, to one or Belgian Royal Decree of 27 June more objective conditions relating to the 1969.

services rendered or the hardships endured by a worker: in this case, the class of beneficiaries is restricted even However, the grant of such benefits amongst the nationals of the Member is, pursuant to Article 48 (2) of the State concerned and there is no dis­ EEC Treaty and Article 7 (2) of crimination against foreigners who do Regulation (EEC) No 1612/68 of not fulfil these conditions. the Council, subject to the prohibition on discrimination based on nationality. However, the principle of equality of treatment prohibits a refusal to grant a benefit solely on the ground of national­ (2) The second and third questions are ity where a national of another Member purposeless."

4 However, Article 1 (4) of the Royal Decree of 27 June 1969 laying down the conditions under which a scheme of national recognition entitles an employed person to an early retirement pension without reduction provides that the above-mentioned reduction does not apply to Belgian nationals who have served in the allied forces between 10 May 1940 and 8 May 1945 and

JUDGMENT OF 31. 5. 1979 — CASE 207/78

are in receipt of a war service invalidity pension granted by an allied nation for incapacity for work attributable to an act of war.

5 In the present case Mr Even, who was in receipt under the French legislation of a permanent war service 10% invalidity pension as a result of a war wound sustained on 13 May 1940, claims the benefit granted by that provision of an early retirement pension without reduction, relying upon the principle of equality of treatment between national workers and workers of another Member State enshrined in the Community rules.

6 He claims that he fulfils all the conditions required by Article 1 (4) of the Royal Decree of 27 June 1969 for the grant of the social advantage sought except that of nationality and that the refusal of that benefit amounts to discrimination based on nationality which is contrary to the Treaty.

7 In order to settle this problem, the Cour du Travail, Liège, delivering judgment on appeal from the judgment of the Tribunal du Travail, Liège, which had granted the plaintiff's request, referred to the Court of Justice the following questions:

(c) In the event of the principle of non-discrimination contained in the aforementioned Article 3 being held to be applicable does this mean that a nationality clause such as that which provides 'be of Belgian nationality' in Article 1 (4) of the Royal Decree of 27 June 1969 must be treated as not applicable and consequently considered void as regards the non-Belgian nationals of the various Member States of the European Communities?"

8 In order to reply to the first question it is important essentially to examine whether a benefit such as referred to in Article 1 (4) of the Belgian Royal Decree of 27 June 1969 may be regarded as a social security benefit within the meaning of Article 4 (1) (c) of Regulation No 1408/71 and on that account comes within the substantive field of application of that regulation defined by the above-mentioned Article 4.

9 As the national court specifies in its judgment making the reference, the provisions of Article 4 (4) of the Belgian Royal Decree of 27 June 1969 "supplement the Belgian legislation on pensions for employed persons established and regulated by the Royal Decree No 50 of 24 October 1967".

JUDGMENT OF 31. 5. 1979 — CASE 207/78

10 However, the fact that a provision of that kind does or does not come within national social security legislation is not by itself determining for the purpose of concluding that the benefit laid down in that provision is in the nature of a social security benefit within the meaning of Regulation No 1408/71.

11 In fact, as the Court stated in its judgment of 6 July 1978 in the Gillard case, Case 9/78, the distinction between benefits which are excluded from the field of application of Regulation No 1408/71 and benefits which come within it rests entirely on the factors relating to each benefit, in particular its purposes and the conditions for its grant.

17 However, the Commission has claimed in its observations that a benefit such as that in the present case must, although it does not constitute a social security benefit within the meaning of Regulation (EEC) No 1408/71, nevertheless be considered as a social advantage within the meaning of Article 7 (2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475) and thus comes within the field of application of the provisions of the latter regulation.

18 It concludes from this that the grant of such a benefit, although not covered by the provisions of Regulation (EEC) No 1408/71, including those of Article 3 (1), remains subject to the provisions of Regulation (EEC) No 1612/68, in particular those of Article 7 (2) according to which a worker who is a national of a Member State enjoys in the territory of the other Member States "the same social and tax advantages as national workers".

19 It is necessary to examine the validity of such an argument.

20 Regulation (EEC) No 1612/68, which was adopted in implementation of Articles 48 and 49 of the Treaty and within the context of the measures adopted by Regulation No 38/64 of the Council of 25 March 1964 (Journal Officiel 1964, No 62, p. 965), aims to achieve freedom of movement for workers within the Community.

21 For this purpose it provides for the abolition of all differences in treatment between national workers and workers who are nationals of the other Member States as regards conditions of employment, work and remuneration and gives workers who are nationals of the other Member States and members of their family access to the social and tax advantages from which national workers benefit in the State of employment.

Costs

26 The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable; as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court.

MINISTÈRE PUBLIC v EVEN

On those grounds,

THE COURT (First Chamber),

in answer to the questions referred to it by the Cour du Travail, Liège, by judgment of that court of 8 September 1978, hereby rules:

1 — Translated from the French.