C-261/83

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES (ONFTS) [ N a t i o n a l Pensions Office for Employed P e r s o n s ] ,

o n the interpretation of Articles 1, 2, 3 a n d 4 of Regulation N o 1 4 0 8 / 7 1 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 J o u r n a l , English Special Edition 1971 (II), p. 416) a n d of Articles 7 and 10 of Regulation N o 1612/68 of the Council of 15 October. 1968 on freedom of m o v e m e n t for workers within the C o m m u n i t y (Official J o u r n a l , English Special Edition, 1968 (II), p. 475),

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

composed of: T . K o o p m a n s , President of C h a m b e r , G. Bosco and R. Joliét, Judges,

Advocate G e n e r a l : P. V e r L o r e n van T h e m a a t Registrar: D . L o u t e r m a n , Administrator

gives the following

The facts of the case, the course of survivor's pension in Belgium; she did the procedure and the observations not therefore fulfil the conditions set out submitted pursuant to Article 20 of the in Article 1 of the Law of 1 April 1969. Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows: Referring inter alia to the judgments of the Court of Justice of 22 June 1972 (Case 1/72 Frilli, [1972] ECR 457) and 16 December 1976 /Case 63/76 Inzirillo, [1976] ECR 2057), Mrs Castelli con- I — Facts and written p r o c e d u r e tested that decision before the Tribunal du Travail [Labour Tribunal], Liège. By judgment of 23 May 1980 the Tribunal Carmela Castelli, born on 16 February dismissed her application, taking the 1890, left her country of origin, Italy, view that the Law of 1 April 1969 was a after the death of her husband to settle social assistance law falling within the in Belgium with her son who worked ambit of social security, which was there as an employed person and is now covered by EEC rules, only to the extent entitled to a pension there. to which it supplemented an advantage granted to a national of a Member State by the Belgian social security system. As Mrs Castelli has a partial survivor's she was not entitled to a Belgian pension pension granted on the basis of the the plaintiff could not obtain the pen- insurance periods completed in Italy by sion supplement represented by the her late husband as an employed person. guaranteed income. She has lived in Belgium since May 1957 but has never had the status of Mrs Castelli appealed to the Cour du an employed person there. Travail, Liège, claiming that the absence of a reciprocal agreement was of no By a decision of 22 December 1978 the consequence in the case of a Community Office National des Pensions pour citizen. She requested that Regulations Travailleurs Salariés (hereinafter referred Nos 1408/71 and 1612/68 be applied, to as "the National Office") refused to stressing that the concept of reciprocity allow her the guaranteed income for old was inherent in the Community regu- persons under the Law of 1 April 1969 lations, which embodied the principle of (Moniteur Belge of 29 April 1969) on the equality of treatment, the corollary of ground that she was not of Belgian which was the principle of reciprocity. nationality or a national of a country with which Belgium had concluded a On 4 November 1983 the Cour du reciprocal agreement in the matter, was Travail, Liège (Sixth Chamber), decided, not a Stateless person or a refugee within in pursuance of Article 177, to stay the the meaning of the Law of 28 March proceedings and to submit the following 1952 on aliens control and was not questions to the Court of Justice for a entitled to a retirement pension or a preliminary ruling:

"(a) In the light of the principle of In pursuance of ' Article 20 of the equality of treatment laid down by Protocol on the Statute of the Court of the Community regulations on Justice of the EEC written observations social security, is the fact that there were submitted by Carmela Castelli, the is no reciprocal agreement between appellant before the Cour du Travail, two Member States of the Com- represented by D. Rossini, a trade union munity capable of precluding the representative; by the National Office, grant of the guaranteed income for the respondent before the Cour du old people, when the claimant, Travail, represented by R. Masyn, although never having been an general manager; by the Commission of employed person in the territory of the European Communities, represented the State in which she resides at the by J. Griesmar, a member of its Legal time of making her application, Department, acting as Agent, assisted by duly satisfies the minimum F. Herbert, of the Brussels Bar; by the residence requirement under the Government of the Italian Republic, legislation of that State for the represented by O. Fiumara, Avvocato provision of the benefit claimed, is dello Stato, acting as Agent; and by the dependent on her son, who has Government of the United Kingdom, worked in Belgium and draws represented by G. Dagtoglou of the an early retirement pension or Treasury Solicitor's Department, acting ordinary retirement pension in as Agent. Belgium, and receives a proportion of a pension at the expense of her country of origin, namely Italy, an Upon hearing the report of the Judge- EEC Member State, under the Rapporteur and the views of the Italian employed persons' scheme? Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. (b) In view of the fact that the appellant receives a proportion of a pension under the Italian scheme, By order of 11 April 1984 the Court also may her case be treated in the same decided, in pursuance of Article 95 (1) way as that of a person who, in and (2) of the Rules of Procedure, to Belgium, receives a proportion of a assign the case to the First Chamber. Belgian retirement or survivor's pension thereby justifying payment of a supplement in the form of the guaranteed income for old people? II — W r i t t e n o b s e r v a t i o n s s u b - mitted pursuant to Article (c) May the appellant be regarded as a 20 of t h e P r o t o c o l on t h e member of the family of 'her son, S t a t u t e of t h e C o u r t of who was, successively, an employed J u s t i c e of t h e E E C person, the recipient of an early retirement pension and the recipient of an ordinary retirement pension in Belgium, for the purposes of the In her observations Carmela Castelli Community regulations, particu- points out that her Italian survivor's larly Regulation N o 1408/71 and pension amounts to BFR 9 650 per Regulation No 1612/68?" month, whereas the monthly income guaranteed to old persons by the Belgian The judgment making the reference was Law of 1 April 1969 is BFR 11297. lodged at the Court Registry on 21 She considers herself entitled to the November 1983. difference between those two amounts

and explains that she is not entitled to judgment, previously cited). She claims the Italian "social aid pension", which in that the concept of reciprocity is inherent principle corresponds to the Belgian in the Community regulations and that guranteed income, because in Italy she is equality of treatment between citizens of entitled to a survivor's pension of a one and the same Community cannot larger amount that the social aid pension. therefore depend on any reciprocal agreement between the States which have signed the Treaty establishing that Community. Mrs Castelli therefore draws the conclusion that she should be entitled to the income guaranteed for old persons on an equal footing with Belgian In claiming the Belgian guaranteed nationals, even though she has never income Mrs Castelli relies an Articles 2 worked in Belgium and has never (1) and 3 (1) of Regulation No 1408/71, acquired the right to a personal pension as interpreted by the Court of Justice. in Belgium. She refers to the wording of Article 2 (1), which provides that: "This regu- lation shall apply to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States . . . as well as to the members of their Irrespective of the definition of the families and their survivors," and points guaranteed income for old persons as a out that Article 1 (f), for the definition personal right, that is to say dependent of the expression "member of the upon the status of the person as such, family", refers to the relevant national Mrs Castelli considers the argument that legislation. However, in Belgium the the existence of such a right must depend income guaranteed to old persons is not on activity as an employed person in granted on the basis of the recipient's Belgium. She concedes that if the capacity as a worker or member of the argument is correct she does not possess family of a worker but solely on the basis such a right directly. However, she of a "personal right" conferred on possesses it indirectly as the mother of a persons who fulfil conditions as to age, worker who has been employed in residence and income. Belgium for several years and who has acquired the right to a pension there. Relying on the Kermaschek judgment of 23 November 1976 (Case 40/76, [1976] ECR 1669) she claims a derived right in her capacity as a member of the family of a worker. Mrs Castelli considers that the condition of reciprocity, introduced by the Belgian Law of 1 April 1969, before an old person of foreign nationality may receive the guaranteed income in Belgium must be set aside for nationals of Member States of the EEC. Such a condition is In the alternative Mrs Castelli observes incompatible with "the rule of equality that if the guaranteed income for old of treatment which is one of the persons cannot in this case be regarded fundamental principles of Community as an advantage arising from social law" (paragraph 19 of the Frilli security by reason of the fact that she

The National Office takes the view that in that judgment the Court of Justice is In conclusion Mrs Castelli proposes that stating that the grant of the guaranteed the Court should reply as follows to the income is reserved to persons entitled to preliminary questions put to it by the a pension based on a period of Cour du Travail, Liège: employment in the Member State which recognizes a right to a pension. Not having herself had the status of an employed person in Belgium, Mrs Castelli is thus not entitled to claim the "Regard being had to the principle benefit of Regulation No 1408/71 on of equality of treatment applied by which she relies in claiming the income the Community regulations on social guaranteed to old persons by the Belgian security, the grant of a benefit such as Law. the 'guaranteed income' for old persons made available by the legislation of a Member State cannot be dependent upon the existence of a reciprocal agreement between two Member States. By frequent references to cases decided by the Belgian courts and to ad- ministrative practice, the National Office shows that, as regards both case-law and administration, its interpretation of the Where all other legal conditions are Frilli judgment has prevailed, so that the satisfied, the grant of such a benefit legal position regarding the grant of the cannot be refused to nationals of another income guaranteed by the Belgian Law Member State who, though never having of 1 April 1969 to old persons entitled to had the status of employed persons a pension paid by Belgium is settled. within the State concerned, regularly Furthermore, its reading of the position reside there and are members of the is corroborated by Article 122 of the family of a migrant worker." Belgian Law of 8 August 1980 relating to

the 1979/1980 Budget proposals which supplement represented by the replaced the first subparagraph of Article guaranteed income for old persons." 1 (2) of the Law of 1 April 1969 by the following provision: "Every recipient must be either Belgian, a Stateless person As to Questions (a) and (c) the National or a refugee recognized under the Law Office makes a detailed analysis of the of 28 March 1952 on aliens control, or a judgments of the Court of 11 April 1973 national of a country with which in Case 76/72 Michel S., [1973] ECR Belgium has concluded a reciprocal 457, 17 June 1975 in Case 7/75 Mr and agreement or has recognized the Mrs F., [1975] ECR 679 and 16 existence of de facto reciprocity in the December 1976 in Case 63/76 Inzirillo, matter, or any other person of foreign cited above, and of the opinions of the nationality who has acquired a right in Advocates General preceding those Belgium to an employed person's judgments and reaches the conclusion retirement or survivor's pension." that hitherto the Court has delivered judgment in substance only on certain specific cases of handicapped children of employed persons. Without giving rise to abuses and in that way overturning the spirit of Regulations Nos 1408/71 and The working documents preceding the 1612/68, it cannot therefore validly be adoption of that Law show clearly that maintained that the right of the mother the amendment to the first subparagraph of an employed person to install herself of Article 1 (2) of the Law of 1 April in a Member State leads to an obligation 1969 was intended to adapt Belgian on the part of that State to guarantee a legislation to the exact import of the certain monthly income. From the Frilli judgment. philosophy behind those regulations it follows that the members of the family enjoy only rights derived from an occupation pursued by a worker who is a national of another Member State. The Consequently the National Office guaranteed income, however, is a purely suggests that the answer to be given to personal advantage, since there is no Question (b) submitted by the Cour du correlation between the grant of that Travail, Liège, should be as follows: advantage and the status of a member of the family as a worker, and the question whether or not there are children does not affect the matter.

Hence the National Office considers it The Commission notes that in the Frilli appropriate to reply as follows to judgment the Court ruled: "The Questions (a) and (c) submitted by the guaranteed income granted by legislation Cour du Travail, Liège : of general application of a Member State giving old people who are resident in that State a right to a minimum pension must be considered, as regards employed and assimilated persons within the "Since the grant of the guaranteed meaning of Regulation No 3 " (now income is a purely personal advantage, a Regulation No 1408/71) "who have a person claiming it must fulfil personally right to a pension in the same State, as the conditions laid down by the an old-age benefit within the meaning of legislation providing for that advantage. Article 2 (1) (c) of the same regulation" (now Article 4 (1) (c) of Regulation No 1408/71). The Commission regards the problem as limited to the question whether that answer, given by the Court The concept of 'member of the family' as to one of the preliminary questions defined by Regulations Nos 1408/71 and raised in the Frilli case, is exhaustive in 1612/68 has therefore no relevance as the sense that it sets out the only regards the grant of that advantage. circumstances in which the advantage of the guaranteed income for old persons is to be considered a social security benefit. In fact Mrs Castelli, who has no Even if it were relevant, an applicant entitlement to a pension in Belgium, is would have to prove that he was not one of the persons to whom Regu- dependent upon a national of a Member lation No 1408/71, as described in the State, as provided by Article 10 of Regu- Frilli judgment, applies. lation No 1612/68."

same State to a pension by virtue of a lation No 1408/71 may receive the previous professional or trade activity. guaranteed income as a social security The same principle is moreover corrob- benefit, the Commission takes the view orated in the judgments of 22 May 1974 that the fact that that income. is a in Case 187/73 Callemeyn, [1974] ECR supplement to a social security benefit 553, 9 October 1974 in Case 24/74, referred to in Article 4 of the regulation Biason, [1974] ECR 999, 13 November implies that one and the same person 1974 in Case 39/74, Costa, [1974] ECR must be involved. In view of the express 1251 and 5 May 1983 in Case 139/82 provisions of Articles 2 (1) and 1 (f) of Piscitello, [1983] ECR 1427. The Regulation No 1408/71 the connection Commission regards as wholly correct between the Belgian guaranteed income paragraph 12 of the last-mentioned for old persons and Regulation No judgment which states: ". . . in view of 1408/71 by the indirect means of Mrs the broad terms in which the Castelli's possible status as a member of beneficiaries are defined, such legis- the family of a worker would then not lation" (that is, legislation making be possible. provision for a guaranteed income for old persons) "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 Moreover the Commission is of the of inadequate social security benefits". opinion that Mrs Castelli's position is governed by Article 10 of Regulation No 1612/68, according to which: "The following shall, irrespective of their It draws the conclusion that if it were to nationality, have the right to install be considered that entitlement to an themselves with a worker who is a Italian pension provided entitlement in national of one Member State and who Belgium to the guaranteed income for is employed in the territory of another old persons, thus by that very fact giving Member State: . . . (b) dependent that benefit the status of a social security relatives in the ascending line of the benefit within the meaning of Regulation worker and his spouse." No 1408/71, that would mean that, in the interpretation of Article 42 of that regulation, a social security right would be created in a Member State in which the claimant has never worked and is accordingly not insured. Regulation No 1408/71 would thus no longer be Since the personal applicability of Regu- restricted to the coordination envisaged lation No 1612/68 is established, the by Article 51 of the EEC Treaty but Commission has no doubt, that the would be playing a part in the actual income guaranteed in Belgium for old creation of the social security right. persons is a social advantage within the meaning of Article 7 (2) of that regu- lation. In that case, the grant of that advantage is subject to the principles of equal treatment by the application of As regards the question to what extent a Article 7 (1). It refers to the judgment of member of the family of a worker within 30 September 1975 in Case 32/75 the meaning of Article 2 (1) of Regu- Cristini, [1975] ECR 1085, the judgment

The Commission concludes that the 3. Article 7 (2) of Regulation No guaranteed income granted by a Member 1612/68 must be interpreted in such State to old persons living within its a way that a social advantage such territory cannot depend, as regards a as the guaranteed income for old member of a migrant worker's family persons provided for by the referred to in Article 10 of Regulation legislation of a Member State cannot N o 1612/68, upon the existence of a be made subject, as regards its grant reciprocal agreement with the Member to members of the family of the State of which the member of the family worker referred to by Article 10 of is a national. Regulation N o 1612/68, to con- ditions different from those governing the grant of the same advantage to the members of the Finally the Commission suggests that the family of a national worker." Court should reply as follows to the question referred to it by the Cour du Travail, Liège: The Government of the Italian Republic states, in its observations submitted to the Court, that the court making the " 1 . Article 4 of Regulation No 1408/71 reference was of the opinion that the must be interpreted in such a way facts underlying the Frilli judgment that legislation providing for a referred to above were different from guaranteed income for old persons those alleged in the case now before it.

CASTELLI v ONPTS

The United Kingdom observes that the By way of illustration of that point the second question referred to the Court, United Kingdom cites the example of a

JUDGMENT OF 12. 7. 1984 — CASE 261/83

person who has been employed in one entitled whilst resident in the other two Member State only. He receives from countries. If, later, the person concerned that State a retirement pension which is returns to the first Member State where paid under legislation covered by Article the minimum level of subsistence is 4 (1) of Regulation No 1408/71. His lower, he would lose entitlement to that resources are such that he also qualifies State's guaranteed minimum pension for for a guaranteed minimum pension for old persons. He would, however, retain old persons. According to the afore- entitlement to the minimum level of mentioned Frilli judgment that pension subsistence awarded in Member State must be regarded as a social security No 2 even though he had never worked benefit within the material scope of in that State or contributed to its Regulation No 1408/71. economy.

CASTELLI v ONPTS

Decision

1 By judgment of 4 November 1983 which was received at the Court on 21 November 1983, the Cour du Travail [Labour Court], Liège, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty, three questions on the interpretation of Regulation (EEC) N o 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) and of Regulation (EEC) N o 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) in relation to the application of the Belgian Law of 1 April 1969, which provides for a guaranteed income for old persons.

2 The questions were raised in the course of proceedings between Mrs Castelli and the Office National des Pensions des Travailleurs Salariés (ONPTS) [National Pensions Office for Employed Persons, hereinafter referred to as "the National Office"].

3 Mrs Castelli is an Italian national and is entitled in Italy to a partial survivor's pension. Since May 1957 she has lived in Belgium with her son who receives a Belgian retirement.pension. Mrs Castelli has never worked in Belgium.

4 By a decision of 22 December 1978, the National Office refused to allow Mrs Castelli the income guaranteed to old people under the Law of 1 April 1969, on the ground that she did not fulfil the conditions set out in Article 1 of that law, since she was not a Belgian national, or a national of a country with which Belgium had concluded a reciprocal agreement, and she was not entitled to a retirement pension or a survivor's pension in Belgium.

(c) May the appellant be regarded as a member of the family of her son, who was, successively, an employed person, the recipient ot an early retirement pension and the recipient of an ordinary retirement pension in Belgium, for the purposes of the Community regulations, particularly Regulation N o 1408/71 and Regulation N o 1612/68?"

7 The questions concern the position of a national of a Member State who receives a social security benefit in that State and who moves to another Member State where she has never worked and where she is dependent on her son, who is himself in receipt of a social security benefit in the latter State They are intended to establish whether that person is entitled to receive the guaranteed income for old people provided for by the legislation of the second State, or at least the difference between that income and the lowest amount of the social security benefit paid by the first Member State either by way of old age benefit under Regulation N o 1408/71, or by way of social advantage under Regulation N o 1612/68.

CASTELLI v ONPTS

8 It is appropriate to consider that problem in the first place in relation to Regulation No 1612/68, to which the third question submitted by the national court refers specifically.

9 Under Article 10 of Regulation No 1612/68 dependent relatives in the ascending line have the right, irrespective of their nationality, to instai themselves with a worker who is a national of one Member State and is employed in the territory of another Member State. In addition, Regulation (EEC) No 1251/70 of the Commission (Official Journal, English Special Edition 1970 (II), p. 402) estended the right to remain in the territory of a Member State to the dependent relatives in the ascending line of a national of another Member State who has been employed in the first State. It is therefore clear that the appellant in the main proceedings comes within the class of beneficiaries of Regulation No 1612/68.

1 3 Since that reply enables the national court to decide the dispute in the main proceedings, it is not necessary to consider whether, in the situation in question, a national of a Member State is entitled to obtain the income guaranteed to old people by the legislation of another Member State under Regulation No 1408/71, either as the member of the family of a migrant worker established in that State or as a beneficiary in her own right of a social security benefit in her State of origin.

Costs

H 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 action pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

T H E C O U R T (First Chamber)

in answer to the questions referred to it by the Cour du Travail, Liège, by judgment of 4 November 1983, hereby rules:

O P I N I O N OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT D E L I V E R E D O N 21 J U N E 1984 '

Mr President, written observations, attaches too much Members of the Court, importance to the text of the Belgian Law in question. The wording of a Of the written observations submitted in national Law clearly cannot be decisive this case, which were very well . in interpreting Community law. summarized in the Report for the Hearing, in my view only those of the Commission are entirely convincing. I The factual arguments which its rep- must say immediately that the new resentative has just put forward at the arguments put forward this morning hearing cannot be decisive for the Court have not altered my view in that respect. in proceedings for a preliminary ruling, as the Commission has correctly pointed I consider that the Belgian National out. I too take the view that the Court Pensions Office, particularly in its must proceed on the basis of the facts as

1 — Translated from rhc French.