C-139/82

ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE (INPS) [National Social "Welfare Institution]

o n t h e interpretation of Regulation ( E E C ) N o 1 4 0 8 / 7 1 of t h e Council of 14 J u n e 1971 o n t h e application of social security schemes t o employed persons a n d their families moving within t h e C o m m u n i t y (Official J o u r n a l , English Special Edition 1971 (II), p . 416),

T H E C O U R T (Third C h a m b e r )

composed of: U . Everling, President of C h a m b e r , Lord M a c k e n z i e Stuart and Y. Galmot, J u d g e s ,

Advocate G e n e r a l : G. F. M a n c i n i Registrar: P . H e i m

gives the following

The facts of the case, the procedure and Enna, and subsequently appealed to the the written observations submitted under Tribunale di Enna [District Court, Enna] Article 20 of the Protocol on the Statute but her claim was rejected in both cases. of the Court of Justice of the EEC may be summarized as follows: In her appeal to the Corte di Cassazione against the decision of the Tribunale di Enna, the plaintiff argued that the conditions applicable to the social aid I — F a c t s and w r i t t e n p r o c e d u r e pension provided for in Article 26 of the Italian law previously referred to were subject to the provisions of Article 10 of From 1 January 1973 Paola Piscitello, an Regulation No 1408/71 of the Council Italian national, was in receipt of the of 14 June 1971, which relates to the social aid benefit, known as "pensione waiving of residence clauses, even sociale", provided for in Article 26 of though the benefit was non-contributory. Law No 153 of 30 April 1969. By order of 14 January 1982 the Corte By virtue of that provision every Italian di Cassazione decided to refer the citizen who is 65 years of age, resides in following question to the Court for a the national territory and whose income preliminary ruling: from all sources is below the minimum income fixed by law, receives the social "In view of the 'waiving of residence aid pension. clauses' provided for in Article 10 of Regulation No 1408/71 of the Council of 14 June 1971, must the provisions of On 25 February 1976 the Regional Article 26 of Law No 153 of 30 April Secretariat of the Associazione Cristiana 1969 to the effect that the grant and dei Lavoratori Italiani, [Christian enjoyment of the social aid pension Association for Italian Workers], Liège, provided for in that article arc informed the Istituto Nazionale della conditional upon an Italian national's Previdenza Sociale [hereinafter referred residence within the national territory be to as "the Institution"] that the plaintiff considered as abrogated and therefore in the main proceedings had changed her may that pension be suspended or residence on 1 August 1975 and was withdrawn by reason of the fact that the living with a member of her family in recipient transfers his residence to the Belgium. territory of another Member State, regard being had to the fact that, on the By a decision notified to the plaintiff on one hand, the pension is granted by way 26 June 1976 the Institution informed of assistance (cf. judgment No 157 of the her that her social aid pension had been Corte Costituzionale [Constitutional discontinued with effect from 1 August Court] of 15 December 1980) and, on 1975. the other hand, that it is classifiable as an old-age benefit, account also being taken Mrs Piscitello challenged that decision of the provisions of Article 4(1) of before the Pretura [Magistrate's Court], Regulation No 1408/71 of the Council

according to which that regulation 'shall 1408/71 of 14 June 1971 (Official apply to all legislation concerning the Journal, English Special Edition 1971 following branches of social security: (II), p- 416))? . . . old-age benefits'?" 3. Was she, in Belgium, a dependant of The order making the reference was a member of her family (Article 2 of received at the Court Registry on 30 Regulation No 1408/71, cited above, April 1982. and Article 10 of Regulation No 1612/68 of 15 October 1968 (Official In accordance with Article 20 of the Journal, English Special Edition 1968 Protocol on the Statute of the Court of (II), p. 475))? Justice of the EEC written observations were submitted by the plaintiff in the The Institution was asked to reply to the main proceedings, Paola Piscitello, following question: represented by Ugo Novelli, advocate with the right of audience before the Were other benefits granted to Paola Corte di Cassazione, by the Institution, Piscitello in addition to the social aid represented by its President, Ruggero pension? If so, which benefits? Ravenna, by the Italian Government, The replies of the Institution and the represented by Pier Giorgio Ferri, plaintiff were received at the Court on Avvocato dello Stato, by the United 13 and 20 January 1983 respectively. Kingdom, represented by G. Dagtoglou, of the Treasury Solicitor's Department, Pursuant to Article 95 (1) and (2) of the acting as Agent, assisted by Henry Rules of Procedure the Court assigned Knorpel, Solicitor to the Department of the case, by order of 15 December 1982, Health and Social Security, and by to the Third Chamber. the Commission of the European Communities, represented by Oreste Montako, a member of its legal II — S u m m a r y of t h e written Department, acting as Agent. observations submitted to Upon hearing the report of the Judge- the C o u r t Rapporteur and the views of the Advocate General, the Court decided, According to the plaintiff the fact that pursuant to Article 21 of the Statute of the social aid pension provided for in the Court and Article 45 of the Rules of Article 26 of Italian Law N o 153 of 30 Procedure, to conduct a preparatory April 1969 is paid even where the inquiry. beneficiary has not been in employment has no effect on the character of the By letter of 16 December 1982 the benefit. In so far as the social aid pension Registrar invited the parties to the main is payable by the Institution to all action to reply before 11 January 1983 to citizens over the age of 60 years, whose a number of questions put by the Court. income is insufficient, it is a compulsory benefit. She is also of the opinion that The following questions were put to Mrs the waiving of residence clauses provided Piscitello : for in Article 10 of Regulation No 1. Had she pursued any professional or 1408/71 of the Council applies to this trade activity and had she been case and as a result the residence insured under a social security scheme requirement contained in Article 26 of prior to the grant of the social aid the Italian law cited above is inoperative. pension? The Institution considers that the 2. Was she the widow of a migrant Community rules do not apply to this worker (Article 2 of Regulation No case and consequently the request for a

preliminary ruling made by the Corte di referred to in Article 4(1) (c) of that Cassazione is neither well founded nor regulation. admissible. In its opinion Article 10 of Regulation According to the Institution it is No 1408/71 concerning the waiving of necessary, in relation to social security residence clauses cannot apply to benefits, to distinguish between those, retirement benefits arising under a social like the social aid pension at issue, which assistance scheme in view of the fact that are granted under a social assistance that regulation applies radone personae et scheme and those which are paid by matériáé. virtue of social insurance.

December 1980). Cassazione requires an examination of the nature of the social aid pension in question in order to determine whether The second category of social security or not it falls within the scope of Regu- benefit, which falls within the scope of lation No 1408/71. the second paragraph of Article 38 of the Constitution, reflects the duty of mutual The Italian Government states that by assistance imposed upon various groups virtue of Article 26 of Law No 153 of 30 by the compulsory insurance scheme April 1969 the social aid pension is (Corte Costituzionale, Judgment No 85 granted automatically to any elderly of 26 July 1979). person not in receipt of any other social assistance or social security benefit who, The Institution considers that the social on the basis of his taxable income, does aid pension does not fall within the not have sufficient means to meet his spirit, purpose, terms or objectives of the vital needs.

paid employment. Therefore, the social pension in question, the solution adopted aid pension in question is not to be by the Court in Case 24/74 Caisse equated with the old-age benefits Régionale d'Assurance Maladie de Paris v

Giuseppina Biason [1974] ECR 999 the one hand, the criteria by which to should not be extended to the present determine whether a minimum income case in so far as that case was concerned for elderly persons constitutes an old-age with a supplementary allowance paid to benefit falling within Article 4 (1) (c) of a person who was entitled to an Regulation No 1408/71 or a social invalidity pension by virtue of her assistance benefit falling outside the employment. scope of that regulation by virtue of Article 4 (4) thereof and on the other hand, to state in what circumstances that minimum income is subject, to the waiver According to the Italian Government it is of residence clauses for which Article 10 clear from the provisions of Regulation of Regulation No 1408/71 makes No 1408/71 which identify the subject- provision. matter of the regulation and the persons to whom it applies that it concerns social security benefits granted by Member States to their nationals by virtue of the According to the United Kingdom the fact that they are employed persons or Court has held consistently that members of the family of employed legislation concerning both social persons within the meaning of Articles 1 security benefits and social assistance and 2 of that regulation. In its opinion, it benefits may not be amenable to any all- is necessary to distinguish between those embracing classification with regard to social security benefits listed in Article 4 the provisions of Community law. of Regulation No 1408/71 and social assistance benefits for elderly persons, by reason of their different functions and the different conditions for their award. According to the case-law of the Court social assistance benefits fall within the field of application of Community rules if, on the one hand, the benefit is applied for by a migrant worker in addition In the view of the United Kingdom the to social security benefits to which he question formulated by the Corte di is entitled as an employed person Cassazione relates directly to the effect (judgment of 22 June 1972 in Case 1/72 upon Article 26 of the Italian Law No Rita Frilli v Belgian State [1972] ECR 153 of 30 April 1969 of Articles 4 and 10 457; judgment of 28 May 1974 in Case of Regulation No 1408/71. 187/73 Odette Callemeynv Belgian State [1974] ECR 553; judgment of 9 October 1974 in the Biason case, cited above) and if, on the other hand, the grant by the The United Kingdom states that whilst, authorities of a Member State of a according to well-established case law, benefit to a member of a migrant the Court has no jurisdiction to worker's family helps to protect that pronounce on a provision of national law worker's freedom to work in that with regard to a Community rule, it may Member State (judgment of 13 provide the national court with the November 1974 in Case 39/74 Luciana factors of interpretation depending on Mazzier (née Costa) v Belgian State Community law which might be useful to [1974] ECR 1251; judgment of 17 June it in evaluating the effects of such 1975 in Case 7/75 Mr and Mrs F. v provision. Accordingly, the United Belgian State [1975] ECR 679; judgment Kingdom considers that it would be of 7 December 1976 in Case 63/76 Vito helpful if the Court were to define, on Inzirillo v Caisse d'Allocations Familiales

In the opinion of the United Kingdom, if The United Kingdom states that it shares the social aid pension is to be regarded the view of the Advocate General as forming part of a branch of social expressed in the Biason case, cited above, security falling under Article 4 (1) of that it may probably be deduced "at the Regulation No 1408/71, it constitutes very least that there can be no question specifically an old-age benefit within the of a general application of the possibility meaning of Article 4(1) (c) because the of exportation provided in Articles 10 of condition for entitlement laid down by Community Regulations No 3 and No Italian law is attainment of the age of 65. 1408/71 to all cases of supplementary social security payments or guaranteed minimum incomes". The United Kingdom emphasizes that in paragraphs 20 and 21 of the Court's judgment of 22 June 1972 in the Frilli In the opinion of the United Kingdom case, cited above, it stated that, although three major principles may be derived the difficulties which may occur as from an examination of the provisions of regards the Community rules as a result Community law and from the juris- of the application of general systems of prudence of the Court. social protection which are intended to protect simultaneously employed persons First, Article 10 comes within the covered as such by social security and framework of Article 51 of the EEC persons who are not thus covered and Treaty and is intended to ensure that a which are based on requirements of migrant worker and his dependants are nationality and residence, can only be not deprived of the fruit of his labours resolved as a whole in the context of by reason of a change of residence to legislative action taken by the another Member State. Community, nevertheless that fact cannot adversely affect the right and Secondly, it does not seem to be duty of courts and tribunals to ensure necessary to decide the question whether that migrant workers receive protection the plaintiff in the main proceedings may under the principles of the social continue to enjoy a minimum income if legislation of the Community without she transfers her residence to another

Member State on the basis of an in- Social Security for Migrant Workers of terpretation of Article 10 of Regulation the European Communities is based on a N o 1408/71. That right is secured, memorandum of 24 March 1981 according to the judgments of the Court prepared by the International Labour in Case 187/73 Callemeynv Belgian State Office at the request of the Commission. and Case 63/76 Inzirillo v Caisse In that memorandum the International d'Allocations Familiales de l'Arrondisse- Labour Office emphasized the residual ment de Lyon, cited above, by Article nature of the proposed system of coordi- 3 (1) of Regulation No 1408/71 and by nation since Regulation No 1408/71 Article 7 of Regulation N o 1612/68 of already applies to certain non-con- the Council of 15 October 1968 on the tributory benefits. freedom of movement for workers within the Community. That right is further protected, in particular, by the European According to the Commission, the Convention on Social and Medical majority of the members of the Assistance of 11 December 1953, which Administrative Commission seem to be has been ratified by all the Member moving towards the view that if, after States. becoming entitled to a non-contributory benefit, the beneficiary left the territory of the Member State by which that Thirdly, the United Kingdom states that benefit is payable, he would no longer to attempt to impose the principle of comply with the conditions for exportability on social assistance benefits entitlement to the benefit in question but would cause the system set up by the should be entitled to the corresponding national legislation of the various benefits under the legislation of the Member States to be upset, in the Member State to whose territory he has absence of Community mechanisms transferred his residence. designed in particular to assess incomes in another Member State and to apportion the costs between the Member According to the Commission those pre- States involved. liminary observations must not influence the reply which it proposes should be For the various reasons stated above the given to the Corte di Cassazione on the United Kingdom considers that the basis of Community law at present in social aid pension in question should not force. be extended beyond those cases in which national legislation confers upon employed (and now self-employed) In order to enhance the clarity of its persons and members of their families a observations the Commission divides the right to benefits which constitute a sup- question referred to the Court into three plementation of other benefits under the parts. legislation of the same Member State which are themselves made exportable by Article 10 of Regulation N o 1408/71. With reference first to the question whether the social aid pension in question is a social security benefit The Commission states it has begun within the meaning of Article 51 of the preparatory work with a view to Treaty and of Regulation No 1408/71, presenting a new regulation concerning the Commission states that that benefit is the coordination of mixed non-con- not fundamentally different from other tributory benefits. The work undertaken mixed non-contributory benefits held by by the Administrative Commission on the Court to fall within the area of

application of the Community rules. In old-age benefit within the meaning of addition to the cases cited by the United Article 4 (1) (c) of Regulation No Kingdom the Commission cites the 1408/71. The Commission's view is that judgment of 12 July 1979 in Case the Italian Government's failure to make 237/78 Caisse Régionale d'Assurance the declaration provided for in Article 5 Maladie, Lille, v Diamante Palenno of that regulation cannot justify the [1979] ECR 2645. exclusion of that benefit from the specific area of application of that provision. The Commission draws attention to the view expressed by the Court in Cases 1/72, 187/73, 24/74 and 39/74, cited The second question considered by the above: Commission is whether Regulation No 1408/71 applies to the plaintiff as an employed person or as a member of the "Although it may seem desirable from family of a migrant worker. the point of view of application of the regulation, to distinguish between legislation concerning social security and The Commission states that in its view assistance . .., the possibility cannot be the recipient of an Italian social aid excluded that by reason of the persons pension is not a worker in so far as that covered thereby, its objectives and its benefit is awarded only in the absence of manner of application, legislation may at other income, that is, a normal social the same time fall within both categories, security pension. and thus not be amenable to any overall classification." The Commission points out that by virtue of Article 1 (f) the term "member of the family" means any person defined The Commission points out that in or recognized as a member of the family paragraph 14 of its judgment in Case "by the legislation under which benefits 1/72, cited above, which is repeated in are provided . . . ; where, however, the similar terms in Cases 187/73, 39/74 and said legislations regard as a member of 7/75, cited above, the Court stated as the family or a member of the household follows : only a person living under the same roof as the worker, this condition shall be "Although, by virtue of certain of its considered satisfied if the worker in features, national legislation on question is mainly dependent on that guaranteed income has certain affinities worker". with social assistance . . ., nevertheless it approximates to social security because it The Commission states that the Italian does not prescribe consideration of each social aid pension is based on a individual case, which is a characteristic subjective right of the national who of assistance, and confers on recipients a fulfils the requirements laid down in Law legally defined position giving them the No 153 of 30 April 1969, which makes right to a benefit which is analogous to no reference to the concept of member the old-age pensions mentioned in of the family. Article 2 of Regulation No 3."

meaning of Regulation N o 1408/71, Biason case, cited above, in relation to must be interpreted in the light of the the interpretation of Article 10 of Regu- fifth recital in the preamble to that regu- lation No 3 of the Council. In the light lation and in the light of Article 10 (1) of that judgment the Commission (a) and (b) of Regulation No 1612/68 of considers that Article 10 of Regulation 16 October 1968 on freedom of No 1408/71, which is virtually identical movement for workers within the in wording to Article 10 of Regulation Community, the provisions of which are No 3, provides for the abolition of all as follows: residence clauses "save as otherwise provided in this regulation". In fact, "(1) The following shall, irrespective of Regulation No 1408/71 does not provide their nationality, have the right to instai otherwise as regards the Italian social aid themselves with a worker who is a pension. national of one Member State and who is employed in the territory of another The Commission proposes that the Member State: question submitted be answered as follows : (a) his spouse and their descendants who are under the age of 21 years or are "The Italian social aid pension provided dependants; for in Article 26 of Law No 153 of 30 April 1969 falls within the specific (b) dependent relatives in the ascending area of application of Regulation (EEC) line of the worker and his spouse." No 1408/71 of the Council. Since she is a member of the family within the meaning of Regulation (EEC) No Having concluded that Regulation No 1408/71, Mrs Piscitello is entitled, 1408/71 applies ratione materine to the pursuant to the provisions of Article 10 Italian social aid pension and ratione of that regulation, to continue to receive personae to Mrs Piscitello, the that benefit in Belgium, the country to Commission considers, in the third place, which she has transferred her residence." whether Article 10 of that regulation permitted the plaintiff to continue to receive the benefit in question in Belgium. I l l — S u m m a r y of t h e w r i t t e n o b s e r v a t i o n s s u b m i t t e d in The Commission states that the principle r e p l y to t h e q u e s t i o n s p u t of the "exportability" of social assistance by t h e C o u r t benefits may give rise to considerable difficulties, such as those connected with assessment of the financial position of an In reply to the questions put to the applicant resident in another Member plaintiff in the main proceedings, Mr State, the possibility of taking into Rossini, a member of Associazione account food credits or death duties, and Cristiana dei Lavoratori Italiana, the apportionment of the obligations, Brussels, states that the plaintiff has where applicable, between the paying never worked and has never been insured institutions in the country of origin and in her own right under the Italian social the country of residence. security scheme.

Decision

1 By o r d e r of 14 J a n u a r y 1982, which was received at the C o u r t registry on 30 April 1982, the Corte di Cassazione [Court of Cassation] referred to the C o u r t of Justice for a preliminary ruling u n d e r Article 177 of the E E C T r e a t y a question on the interpretation of Regulation (EEC) N o 1408/71 of the Council of 14 J u n e 1971 on the application of social security schemes to employed persons and their families moving within the C o m m u n i t y (Official Journal, English Special Edition 1971 (II), p. 416).

2 T h e question is submitted in the context of a dispute between Mrs Piscitello and the Istituto N a z i o n a l e della Previdenza Sociale [National Social Welfare Institution, hereinafter referred to as " t h e Institution"].

3 Mrs Piscitello, an Italian national, received as from 1 J a n u a r y 1973 the social aid pension provided for in Article 26 of Law N o 153 of 30 April 1969. By virtue of that provision, the social aid pension is paid to nationals w h o are 65 years of age and reside within Italian territory and whose annual income,

JUDGMENT OF 5. 5. 1983 — CASE 139/82

including, if they are married, that of their spouse, is below the amount provided for by the Law.

"In view of the 'waiving of residence clauses' provided for in Article 10 of Regulation N o 1408/71 of the Council of 14 June 1971, must the provisions of Article 26 of Law N o 153 of 30 April 1969 to'the effect that the grant and enjoyment of the social aid pension provided for in that article are conditional upon an Italian national's residence within the national territory be considered as abrogated and therefore may that pension be suspended or withdrawn by reason of the fact that the recipient transfers his residence to the territory of another Member State, regard being had to the fact that, on the one hand, the pension is granted by way of assistance (see Judgment No 157 of the Corte Costituzionale [Constitutional Court] of 15 December 1980) and, on the other hand, that it is classifiable as an old-age benefit, account also being taken of the provisions of Article 4 (1) of Regulation N o 1408/71 of the Council according to which that regulation 'shall apply to all legislation concerning the following branches of social security: . . . old-age benefits'?"

PISCITELLO v INPS

7 As is clear from its wording, the question submitted by the Corte di Cassazione seeks to ascertain, in the first place, whether a benefit such as the Italian social aid pension falls within the substantive field of application of Regulation No 1408/71 and, secondly, whether the waiver of residence clauses provided for in Article 10 (1) of that regulation applies to that benefit.

First p o i n t

8 By virtue of Article 4 (1) (c) and Article 4 (2) of Regulation No 1408/71, the regulation is to apply to all legislation concerning the branches of social security which relate to old-age benefits, whether the schemes established under such legislation are contributory or non-contributory. Article 1 (t) of the regulation provides that the term "benefits" means all benefits granted under national legislation "including all elements thereof payable out of public funds". Article 4 (4) provides that the regulation does not apply to "social and medical assistance".

12 It must be observed, in the second place, that in view of the broad terms in which the beneficiaries are defined, such legislation in fact fulfils a dual purpose which consists not only in guaranteeing a minimum means of subsistence to persons who are entirely outside the social security system but also in supplementing the income of recipients of inadequate social security benefits.

13 In those circumstances, it must be recognized that a benefit such as the social aid pension provided for in Article 26 of Italian Law N o 153 of 30 April 1969 which, in the first place, confers on the recipients thereof a legally defined status, which is not conditional upon any discretionary individual assessment of their personal needs or circumstances, and, secondly, may be paid as a supplement to the income of recipients of social security benefits, in principle falls within the field of social security referred to in Article 51 of the EEC Treaty and is not excluded from the scope of Regulation N o 1408/71 by the provisions of Article 4 (4) thereof.

Second point

1 4 The first paragraph of Article 10 (1) of Regulation No 1408/71 provides as follows :

" 1 . Save as otherwise provided in this regulation, invalidity, old-age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated."

2. A pension of the kind provided for in Article 26 of the above-mentioned Italian law is paid in accordance with the conditions and on the basis of objective criteria laid down by that law to elderly nationals in order to provide them with minimum means of subsistence. Such a pension must therefore be assimilated to an old-age benefit within the meaning of Article 4 (1) (c) of Regulation No 1408/71. Consequently, it is included amongst the benefits referred to in the first subparagraph of Article 10(1) of Regulation No 1408/71. Since Regulation No 1408/71 does not

JUDGMENT OF 5. 5. 1983 — CASE 139/82

contain any specific provisions relating to that pension, it must be recognized that the waiver of residence clauses provided for in Article 10 (1) of that regulation applies to the benefit in question.

Costs

is The costs incurred by the Italian Government, the United Kingdom and the Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

Everling M a c k e n z i e Stuart Galmot

Delivered in open court in L u x e m b o u r g on 5 M a y 1983.

For the Registrar H . A. Rühi U. Everling Principal Administrator President of the Third Chamber

OPINION OF MR ADVOCATE GENERAL MANCINI D E L I V E R E D O N 10 M A R C H 1983 '

Mr President, Mrs Paola Piscitello, the plaintiff in the Members of the Court, main proceedings, is an Italian national. 1. In this reference for a preliminary On 30 December 1972 she applied to the ruling the Court of Justice is requested Enna branch of the Istituto Nazionale to interpret certain provisions of Regu- della Previdenza Sociale [National Social lation (EEC) No 1408/71 of the Council Welfare Institution, hereinafter referred of 14 June 1971 on the application of to as "the Institution"], and obtained as social security schemes to employed from 1 January 1973 the social aid persons and their families moving within pension for elderly persons living in the Community (Official Journal, conditions of financial hardship provided English Special Edition 1971 (II), p. 416) for in Article 26 of Law No 153 of 30 in relation to the Italian Law which April 1969. By decision of 26 June 1976, provides for the award of a social aid however, the Enna branch of the pension to Italian nationals aged over 65 Institution discontinued her pension as living in conditions of financial hardship. from 1 August 1975 on the ground that 2. I shall summarize the facts of the she had ceased to fulfil one of the case. requirements laid down by that Law,

1 — Translated from the Italian.