C-379/85

OPINION OF MR VILAÇA —JOINED CASES 379 TO 381/85 AND 93/86

OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 21 January 1987*

Mr President, forfeit entitlement to the allowance upon Members of the Court, taking up residence abroad (Article 815-11).

CRAM RHÔNE-ALPES v GILETTI

11. For their pan, the social security auth­ orities involved in the main proceedings 17. In the event of an affirmative answer, claim that the provision of Regulation No the French Cour de cassation asks the Court

OPINION OF MR VILAÇA-JOINED CASES 379 TO 381/85 AND 93/86

to state whether such a benefit constitutes a purpose of the allowance is to provide 'benefit acquired' within the meaning of additional income for persons in receipt of Article 10 of Regulation No 1408/71, social security benefits listed in Article 4 (1) where the applicant, to whom it has not yet of Regulation No 1408/71. That being so, been granted, resides in another Member the supplementary allowance must be assimilated to a social security benefit, and State. therefore residence clauses must be waived in the manner provided for in Article 10 (1).

CRAM RHONE-ALPES V GILETTI

essential points, relating them to the security system, and on the other hand in question at issue here. providing an income supplement for persons in receipt of inadequate social security benefits'.

25. In defining the scope of the social benefits falling within the scope of Regu­ lation No 1408/71 what is important is, 29. A scheme of that kind is assimilated to essentially, to determine 'the factors relating social assistance by virtue of certain of its to each benefit, in particular its purpose and characteristics — in particular where need is 4 the conditions for its grant'. specified as the essential criterion for its availability and it is freed from specific requirements concerning periods of employment, membership or subscription; 26. This is a problem of Community law to however, it approximates to social security be resolved in accordance with the 'because it does not prescribe consideration requirements of Community law, regardless of each individual case, which is a charac­ of how the allowance is described under teristic of assistance, and confers on reci­ national law and the nature of the legis­ pients a legally defined position', giving 5 lation which provides for it. them the right to a given benefit. 7

27. However, it is not always easy to 30. It was precisely that fact that the Court distinguish clearly, even in the context of considered to be decisive; as was made very Community law, between schemes which clear in the judgment in Fossi,' 'legislation constitute social security and those which which confers on the beneficiaries a legally constitute assistance: 'Certain laws, because defined position which involves no indi­ of the classes of persons to which they vidual and discretionary assessment of needs apply, their objectives, and the detailed rules or personal circumstances comes in principle for their application, may simultaneously within the field of social security within the contain elements belonging to both the meaning of Article 51 of the Treaty and categories mentioned and thus defy any Regulations Nos 3 and 1408/71'.» general classification'.*

exhaustive and ... as a result a branch of circumstances be granted to persons outside social security not mentioned in the list does the social security system (according to the not fall within that category even if it Commission, that is the case where it is confers upon individuals a legally defined granted to recipients of the special old-age 10 allowance, which, it appears, falls within the position entitling them to benefits'. category of social assistance) and it is designed essentially to provide additional income for the recipients of inadequate VI — 32. The characteristics of the social social security benefits. benefit provided by the Fonds national de solidarité are, in principle, such as to satisfy the requirements laid down by the previous decisions of the Court for inclusion within 36. In any event, as stated in the Biason the scope of Regulation No 1408/71. 1 judgment, 1'the fact that the same law also provides beneficiaries with advantages that come close to the concept of assistance 33. (a) The French Code de securité social cannot alter, for the purposes of the confers upon the persons entitled to that Community regulations, the intrinsic social benefit 'a legally defined position', in so far security character of a benefit linked to an as the competent social security authorities invalidity pension of which it is an enjoy no discretionary power to assess automatic appendage'. personal needs or situations in deciding whether or not to grant it. Their invol- vement is confined to the exercise of non-discretionary powers, which relate 37. Since all of the four cases now before merely to the checking of objective matters the Court relate to Fonds national de soli- such as age, resources, social security darité benefits which are automatic position, incapacity and other factors laid supplements to a social security benefit, this down by law for the grant of the benefit; problem does not have to be analysed in once it has been established that those depth. conditions are satisfied, the person concerned is entitled to receive the supplementary allowance from the Fonds national de solidarité, and may have 38. The Cour de cassation states that the recourse to the social security appeals allowance is 'intended to provide a general boards in order to enforce that right. guarantee of the minimum means necessary for subsistence, is paid to supplement another benefit, whether contributory or non-contributory, [and] is accorded on the 34. (b) The legislation on the Fonds basis of the applicant's resources but national de solidarité is of a mixed nature, without regard to his occupation'. capable of fulfilling the 'double function' referred to in the Frilli and Piscitello judgments. 39. The features mentioned do no more than emphasize the mixed nature of this 35. The Fonds national de solidarité legislation (and of other legislation to which supplementary allowance may in certain the Court has referred), which, by conferring upon the person concerned a 10 — Hoeckx, supra, paragraph 12 and Scrivner, paragraph 1?. See also the Opinion of Mr Advocate General Darmon in the same cases. 11 — Paragraph 12.

legally defined position, is such as to fall 47. Between 1959 and 1979, financing was within the scope of Regulation No 1408/71, provided by the resources of the general which expressly includes non-contributory social security system, with a grant from the benefits, of which some of the charac­ State which only partially covered the teristics mentioned are typical (the state of amounts payable by way of supplementary need and the lack of conditions concerning allowances. specific periods of employment, membership or the payment of subscriptions). 48. At the present time, it appears that the 40. (c) The scheme introduced by the State reimburses the general scheme in full Fonds national de solidarité legislation for the expenditure incurred in respect of covers a number of the risks enumerated in the Fonds national de solidarité. Article 4 (1) of Regulation No 1408/71. 49. In any event, the allowances at issue 41. First, the beneficiaries of the would not cease to come within the scope supplementary allowance must fulfil certain of Regulation No 1408/71 by virtue of conditions concerning age or incapacity for Article 1 (t) ('including all elements thereof work. payable out of public funds') or of Article 4 (2) ('this regulation shall- apply to ... social 42. Secondly, the main benefits to which it security schemes, whether contributory or relates are connected with the risks enum­ non-contributory'). erated in Article 4 (1) —they are old-age, survival and invalidity benefits (subpara­ graphs (b), (c) and (d) of Article 4 (1) of the 50. This consideration is equally valid with regulation). respect to those benefits to which the allowance paid by the Fonds national de solidarité is a supplement, in those cases 43. To that extent, the allowance at issue is also included within the scope of Article 1 where they are non-contributory. (t) of Regulation No 1408/71, which expressly covers 'supplementary allowances', 51. It should however be stated that all four not being comparable with the 'social cases under analysis here relate to situations benefit of a general nature' represented by in which the Fonds national de solidarité the Belgian 'minimex', to which the Hoeckx allowance is paid or applied for to and Scrivner judgments relate. supplement a main benefit payable by a contributory social security scheme. VII — 44. The foregoing conclusion is not affected by certain aspects of the legal provisions governing the Fonds national de 52. In the second place, the supplementary solidarité mentioned by the Cour de allowance is liable to be recovered, in cassation in the observations accompanying certain circumstances, by deduction from the questions which it submitted to the the assets of the estate of the beneficiary. Court. This likewise does not change the nature of the allowance as regards its classification under Community law: the allowance was 45. The first aspect is the method by which paid to the recipient as an allowance to they are financed. which he was entitled, and it is of no importance in that connection that third 46. The Fund was initially financed exclu­ parties (heirs) might be obliged to repay it sively by tax revenue generated specifically after the death of the recipient from the for the purpose. assets of the estate. What is at issue is the

VIII — 56. It having been established that legislation such as that governing the Fonds 53. Let me say in that connection that it national de solidarité falls within the scope also seems to me that an allowance such as of Regulation No 1408/71, the question to that granted by the Fonds national de soli­ be considered is whether Article 10 of that darité does not appear to fall outside the regulation is applicable and, in particular, scope of the Community regulation by whether the allowance in question must be virtue of the fact that it can be suspended, regarded as 'acquired' so that it will reviewed or withdrawn in the event of a continue to be payable in the event of a change in the income of the recipient. What change of residence to the territory of is at issue is not the right exercised by the another Member State. recipient upon applying for and being granted the allowance but rather the initial or continuing satisfaction of the objective requirements upon which the grant of the 57. It has been emphasized on other 13 allowance is conditional (as applies for occasions that, as Community law stands example in the case of unemployment or at present, the 'exportabilii/ of an sickness benefits which are payable for so allowance of that type may give rise to long as the situation which gave rise to them serious practical difficulties, relating for endures). example to the identification and calculation of resources or reimbursements to be recovered from estates.

54. Finally, it is to be emphasized that Article 5 of Regulation No 1408/71 58. It may also give rise to objections on requires the Member States to provide a list the grounds of reasonableness, having of the legislation and schemes referred to in regard to the differences in the cost of living Article 4, and the French Republic did not in the various Member States and therefore include in its list the Fonds national de soli­ the real value of the benefits payable. darité supplementary allowance.

systematic reluctance of the French social when they transfer their residence from one security authorities to pay benefits or with Member State to another', thus contributing the views reiterated by the French to the implementation of Article 51 of the Government, notwithstanding the previous Treaty. It follows, as stated in the decisions of the Court and indeed those of Caracciolo and Van Roosmalen judgments, the Cour de cassation itself and of other 'not only that the person concerned retains French courts. the right to receive pensions and benefits acquired under the legislation of one or more Member States even after taking up 60. The same difficulties and objections residence in another Member State, but also prompted the French Government to that he may not be prevented from submit, and the Commission to formalize, a acquiring such a right merely because he proposal for a review of Regulation No does not reside in the territory of the State 1408/71. in which the institution responsible for payment is situated'.

OPINION OF MR VILAÇA — JOINED CASES 379 TO 381/85 AND 93/86

lement were fulfilled, did not exercise it intended to provide minimum means of until after transferring their residence. subsistence for the recipients thereof, is independent of their occupation and may, in 68. Since there is no reason to treat them certain circumstances, be recovered out of differently from those who merely were the assets of the recipients' estate, falls more aware or better informed as to their within the scope of Regulation No 1408/71 rights, there is likewise no reason for in so far as it confers upon the recipients a treating the first category of persons in a legally defined position, not based on any discriminatory manner. discretionary assessment of their individual needs, and is intended to provide 69. In the last analysis, since reference is supplementary income for elderly or made to benefits acquired, for the purposes disabled people who are in receipt of any of of the waiving of residence clauses, the the social security benefits referred to in objective pursued by Article 10 is, by all Article 4 (1) of that regulation. appearances, to safeguard not only the 72. 2. The expression 'acquired' used in payment of such benefits but also the Article 10 (1) of Regulation No 1408/71 acquisition of entitlement to them. must be interpreted as not excluding from IX — 70. In conclusion, I propose that the the scope of that article the acquisition or Court should reply to the questions retention of entitlement to a benefit such as submitted by the Cour de cassation for a the supplementary allowance paid by the preliminary ruling as follows: Fonds national de solidarité where the person concerned resides or takes up 71. 1. A social benefit such as the residence in a Member State other than that supplementary allowance paid by the Fonds in which the institution responsible for national de solidarité, which is financed payment is situated. wholly or partly from tax revenue, is