C-147/87
ECLI:EU:C:1987:539
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ZAOUI v CRAMIF
OPINION OF MR ADVOCATE GENERAL DA C R U Z VILAÇA delivered o n 9 D e c e m b e r 1 9 8 7 *
Mr President, applicable in the main proceedings, the Members of the Court, contested benefit may be granted only to French nationals or to nationals of States with which France has concluded a 1. A — The tribunal des affaires de convention based on reciprocity. A minis- sécurité sociale (Social Security Tribunal), terial circular equated stateless persons, for Nanterre, has submitted two questions to the purposes of the grant of the benefit, the Court for a preliminary ruling regarding with refugees, who qualify for the benefit in the scope ratione materiae (in the first question if they fulfil the conditions laid question) and the scope ratione personae (in down in Article L 685 et seq. of the Social the second question) of the Community Security Code. regulations on social security.
5. The specific nature of these proceedings, 2. The national court refers to Regulation in relation to others in which the Court has (EEC) N o 1408/71 of the Council of 14 already had occasion to state its views on June 1971 on the application of social the aforementioned benefit, stems from the security schemes to employed persons and status of the claimant. their families moving within the Community 1 but its questions extend to 'any other Community regulation'. As the 6. Mr Saada Zaoui, who was denied the Commission points out in its observations, supplementary allowance by decision of the the latter category would appear to include competent French institution, was unable to only Regulation (EEC) No 1612/68 of 15 claim either French nationality or the October 1968 on freedom of movement for nationality of another Member State of the workers within the Community. 2 Community or that of any State with which France has concluded an international convention based on reciprocity. 3. The questions arose in proceedings concerning the recognition of entitlement, if any, to the grant by the French fonds national de solidarité of a supplementary 7. Furthermore, the French authorities allowance payable to recipients of old-age refused to grant him the status of a stateless and invalidity pensions who lack sufficient person, and he does not have refugee status means of their own. either.
4. According to Articles L 685 and L 707 of 8. Mr Zaoui, who was born in Algeria, lives the French Social Security Code, which is in France where he is in receipt of invalidity pension and of an allowance for handi- * Translated from the Portugese. capped adults; he is married to a French 1 — Official Journal, English Special Edition, 1971 (II), p. 416. citizen, although he has not acquired 2 — Official Journal, English Special Edition, 1968 (II), p. 475. French nationality by virtue of his marriage.
OPINION OF MR DA CRUZ VILAÇA —CASE 147/87
9. B — The questions referred by the without regard to his occupation and it may national court, as well as the observations under certain circumstances be recovered submitted by the French Government and from the recipient's estate. the Commission, are set out or summarized in the Report for the Hearing. 15. (d) I propose to consider in the first place how the problem raised can be resolved from the point of view of Regu- 10. C — (a) In its first question, the lation No 1408/71. national court seeks to ascertain whether a benefit such as the supplementary allowance payable by the fonds national de solidarité 16. The answer can undoubtedly be gleaned falls within the scope ratione materiae of from the case-law of the Court. Regulation No 1408/71, as defined in Article 4 thereof, or within that of any other Community regulation, in particular Regu- 17. As is laid down by Article 4 (2) lation No 1612/68. of Regulation No 1408/71 and as the Court has most recently pointed out in para- 11. (b) A negative answer to the second graph 7 of its judgment in Giletti, question submitted by the national court 'non-contributory benefits are not excluded might make it unnecessary, in these from the scope of the regulation'. Similarly, proceedings, to answer the first question. by virtue of Article 1 (t) of the regulation, which is referred to in paragraph 8 of the same judgment, the concept of benefit comprises 'revalorization increases and 12. However, in response to the request supplementary allowances'. made by the national court, I shall clarify once again the issue of the applicability of the Community rules to benefits of the kind 18. Furthermore, whilst social assistance allocated by the fonds national de soli- measures fall outside the scope of the regu- darité. lation by virtue of Article 4 (4) thereof, the Court did not rule out the possibility that by reason of the persons covered, its objectives 13. (c) I shall briefly recall the chief charac- and its methods of application, national teristics of the benefit in question, which legislation may, at one and the same time, have already been summarized by the Court have links to both social security and in its judgment in Giletti.3 assistance (Giletti, paragraph 9 of the decision).
14. The supplementary allowance is a soli- 19. As the Court stated, that is precisely the darity allowance financed from tax revenue, case with regard to legislation such as that it is intended to guarantee in general a adopted by France in relation to the fonds minimum means of subsistence, it is paid as national de solidarité, which 'in fact fulfils a a supplement to another benefit, whether dual function, in so far as, in the first place, contributory or otherwise, it is granted on it guarantees a minimum means of the basis of the claimant's resources but subsistence to persons in need and, in the second place, it provides additional income 3 — Judgment of 24 February 1987 in Joined Cases 379 to 381/85 and 93/86 Giletti and Others v Caisa régiónak for the recipients of social security benefits d'assurances maladie Rhône-Alpes and Others [1987Ī ECR which are inadequate' (Giletti, paragraph 10 955, paragraphs 3 and 4 of the decision. See also my Opinion of 21 January 1987 in those cases. of the decision).
ZAOUI v CRAMIF
20. 'In so far as such legislation confers a wording, on the status of the person relying right to supplementary benefits designed to upon it; in these proceedings, therefore, it is increase the amount of pensions paid by sufficient to consider the problem in relation way of social security, without any to the second question submitted by the assessment of individual needs or circum- national court. stances, which is a characteristic of assistance, it comes within the social 26. Accordingly, it would not seem to be security scheme within the meaning of necessary to ascertain whether or not a Regulation No 1408/71' (Giletti, paragraph 'social advantage' within the meaning of 11 of the decision). Article 7 (2) of Regulation No 1612/68 is involved in the case under consideration.4
21. Accordingly, there is no doubt that the benefit from the fonds national de soli- 27. D — In its second question the darité falls, as a social security benefit, national court seeks to ascertain whether a within the scope ratione materiae of Regu- person who is not a national of a Member lation No 1408/71, as defined in Article 4 State or of another State with which a thereof, when it is granted as a supplement convention based on reciprocity has been to an invalidity pension of the kind awarded concluded, and . who is denied, in the to the plaintiff in this case (Article 4 (1) Member State in which he resides, the legal (b))· status of a stateless person, may, in his capacity as a member of the family of a worker who is a national of the Member
22. In a specific case, however, everything State in which she resides and has always depends on the question whether or not the resided and, at the same time, as a recipient recipient of the benefit comes within the of one or more invalidity benefits, rely on scope ratione personae of Regulation No Community Regulations Nos 1408/71 and 1408/71 and, consequently, on the answer 1612/68 for the purpose of obtaining entit- to be given to the second question. lement, in the Member State in which he resides, to a benefit such as that paid by the fonds national de solidarité. 23. (e) Before I turn to the second question, however, it is necessary to deal with the 28. It is therefore necessary to define the problem whether the allowance from the scope ratione personae of those Community fonds national de solidarité comes within regulations in relation to the context of the the scope ratione materiae of another question submitted by the national court. Community regulation, to be more precise, Regulation No 1612/68. 29.
It must be said in that regard that the principles to be applied in order to resolve the problem cannot be the same in the case 24. The relevant provision is Article 7 (2) of of each of those two regulations since, as is that regulation, which provides that workers clear from its case-law, the Court has given who are nationals of other Member States are to enjoy, in the State in which they are 4 — Since the supplementary allowance from the fonds national employed, 'the same social and tax de solidarité falls within the scope ratione materiae of Regulation N o 1408/71, it would appear useful to recall advantages as national workers'. the reasoning adopted by the Court in its judgment of 27 March 1985 in Case 122/84 ScriiAier [1985] ECR 1027 at p. 1034, paragraph 16 of the decision, in which it
Ē roceeded from the premise that the classification of a enefit (in that case the Belgian 'minimex') in relation to 25. The application of that provision, which the concept of 'social advantage' referred to in Article 7 of merely implements the principle of equal Regulation N o 1612/68 falls to be considered 'only if it is established that the benefit is not a social security benefit treatment, depends, as is clear from its for the purposes of Regulation N o 1408/71'.
OPINION OF MR DA CRUZ VILAÇA —CASE 147/87
an interpretation of the regulations on social 35. Instead, the Commission would appear security that goes beyond the scope of the to be right in taking the view that Mr provisions on freedom of movement for Zaoui, although married to a French workers. 5 worker, cannot rely on Regulation No 1408/71, and in particular Articles 2 (1) and 3 thereof, in order to receive a social 30. (a) I shall consider Regulation No security benefit such as that granted by the 1408/71 first. fonds national de solidarité to recipients who are entitled to it in their own right and not as holders of a derived right, that is to say as a result of the incorporation of the 31. That regulation, according to Article 2 necessary status of member of a worker's (1) thereof, is to 'apply to workers who are family in the definition. or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or w h o are stateless persons or refugees 36. Like the Commission, I would refer in residing within the territory of one of the the first place to the Court's judgment of 23 Member States, as well as to the members November 1976 in Kermascbek6 which was of their families and their survivors'. concerned with the right to German unem- ployment benefits claimed, on the basis of Articles 67 and 69 of Regulation N o 32. It was on the basis of that provision that 1408/71, by a national of a non-member M r Zaoui claimed that he came within the country who was married to a German scope ratione personae of the regulation in national. his capacity as a member of the family (the husband) of a worker who is a national of a Member State and subject to its legislation. 37. The Court stated in paragraph 7 of its judgment that Article 2 (1) of Regulation 33. H e therefore maintains that the N o 1408/71 'refers to two clearly distinct principle of equal treatment laid down in categories: workers on the one hand, and Article 3 of the regulation is applicable to the members of their family and their him and enables him to come within the survivors on the o t h e r . . . Whereas the scope of national legislation on the same persons belonging to the first category can terms as French nationals, particularly since claim the rights to benefits covered by the he is already in receipt of a benefit (the regulation as rights of their own, the allowance for handicapped adults) which persons belonging to the second category was granted to him in his capacity as a can only claim derived rights, acquired member of a worker's family in accordance through their status as a member of the with a procedure which makes it possible to family or a survivor of a worker, that is to assimilate to that benefit the supplementary say of a person belonging to the first allowance from the fonds national de soli- category". darité.
38. In other words, the equality of 34. However, that view would appear t o be treatment to which a relative of a worker incorrect. belonging to the first category is entitled by 5 — See the judgment of 19 March 1964 in Case 75/63 Hoekstra [1964] ECR 177. 6 — Case 40/76 [1976] ECR 1669.
ZAOUI v CRAMIF
virtue of Article 2 (1) in conjunction with 43. The analogy which the plaintiff draws Article 3 of the regulation must be estab- between that benefit and the allowance from lished by reference not to the legal position the fonds national de solidarité in order to and the rights of workers who are nationals substantiate his claim to the latter allowance of the Member State in question but to the is not a problem which needs to be resolved legal position of members of the family of on the basis of Community law. Moreover, workers who are nationals of that Member the conditions for the grant of the two State and their derived rights. benefits would appear to coincide only in part.
39. The principle laid down by the Court in Kermascbek was subsequently upheld by the 44. (b) As for Article 7 (2) of Regulation judgment of 6 June 1985 in Frascogna7 and No 1612/68, which provides that workers by the judgment of 20 June 1985 in Deak 8 who are nationals of other Member States are to enjoy, in the Member State in which they are employed, the same social advantages as national workers, it would 40. Accordingly, as Mr Zaoui is neither a seem not to apply to a person in a situation worker who is a national of another such as that of Mr Zaoui, who is not a Member State, nor a stateless person or a national of any Member State. person treated as such, but only a member of the family of a national worker, he can rely only on the rights conferred on members of the family of national workers as such, that is to say, in their capacity as 45. Admittedly, it follows from the Court's relatives of those workers. previous decisions that the principle of equal treatment applies not only to migrant workers themselves but also to members of their family — even though they are not nationals of a Member State — who have 41. The supplementary allowance from the exercised the right to install themselves with fonds national de solidarité is granted to those workers in the territory of the recipients in their own right and not to Member State of employment in accordance members of the worker's family as a derived with Article 10 of Regulation N o 1612/68. 9 right, with the result that a person in Mr Zaoui's position cannot rely on the provisions of Regulation No 1408/71 in order to claim the grant of the allowance in question. 46. As the Commission points out in its observations, the rights conferred on members of a migrant worker's family by Articles 7 and 10 of Regulation N o 1612/68 42. That conclusion is not affected by the are connected with the rights conferred on fact that the plaintiff is in receipt (rightly or the worker himself by Article 48 of the wrongly) of an allowance for handicapped Treaty and by its implementing provisions. adults. 9 — See Frascogna, paragraph 23 of the decision, and Lkak, paragraph 22 of the decision. See also the judgment of 30 7 — Case 157/84 [1985] ECR 1739, at p. 1748, paragraphs 15 September 1975 in Case 32/75 Cristini [1975] ECR 1085, to 17 of the decision. at p. 1095, paragraph 14 et seq. of the decision; judgment 8 — Case 94/84 [19851 ECR 1873, at pp. 1884 and 1885, para- of 16 December 1976 in Case 63/76 Inzirillo [1976] ECR graphs 14 to 16 of the decision. 2057, at p. 2068, paragraphs 19 and 20 of the decision.
OPINION OF MR DA CRUZ VILAÇA —CASE 147/87
47. As the Court recalled in its judgment of documents before the Court, worked in 18 June 1987 in Lebon,10 the equality of another Member State — is not the spouse treatment enjoyed by workers who are of a worker for the purposes of Article 10 nationals of Member States, 'as regards the of Regulation No 1612/68. Hence that advantages which are granted to the regulation is not applicable to him. members of a worker's family, contributes to the integration of migrant workers in the 50. The Court has already given a ruling to working environment of the host country in the same effect in its judgment of 27 accordance with the objectives of the free October 1982 in Monon and Jhanjan11 movement of workers'. concerning the position of two Surinam nationals wishing to install themselves with their children, who were Netherlands 48. Accordingly, members of a worker's nationals, were working in the Netherlands family may, as indirect beneficiaries with a and had never been employed in another derived right, rely on the Community rules Member State. The Court stated in to their own advantage only in so far as the paragraph 13 of the judgment that the worker has exercised the aforesaid right. In provisions of Regulation No 1612/68 do other words, for Article 7 (2) of Regulation not cover dependent relatives of a worker No 1612/68 to be applicable, those who who is a national of the Member State rely upon it must be members of the family within whose territory he is employed. In of a 'worker who is a national of one paragraph 16 of the same judgment, the Member State and who is employed in the Court further explained that the Treaty territory of another Member State' (Article provisions on freedom of movement for 10 of the regulation). workers (in particular Article 48) and the rules adopted to implement them (including Regulation No 1612/68) 'cannot be applied 49. As the Commission points out, in this to cases which have no factor linking them case, the plaintiff — whose wife is a French with any of the situations governed by national and has never, according to the Community law\ 12
51. E — I therefore suggest that the Court answer the questions submitted by the tribunal des affaires de sécurité sociale, Nanterre, as follows:
'(1) Article 4 of Regulation N o 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families
11 — Joined Cases 35 and 36/82 [1982] ECR 3723, at p. 3736, paragraph 13 et seq. of the decision. 12 — Along the same lines, see the judgment of 28 June 1984 in Case 180/83 Moser [1984] ECR 2539, at p. 2547, para- graphs 14 to 16 of trie decision; judgment of 23 January 10 — Case 316/85 [1987] ECR 2811, paragraph 11 of the 1986 in Case 298/84 Iorio [1986] ECR 247, paragraph 14 decision. of the decision.
ZAOUI v CRAMIF
moving within the Community must be interpreted as meaning that the scope ratione materiae of that regulation covers a supplementary allowance granted by a national solidarity fund to recipients of invalidity pensions, with a view to providing them with a minimum means of subsistence, provided that they have a legally protected right to the grant of that allowance.
(2) Articles 2 (1) and 3 of Regulation No 1408/71 may not be relied upon by members of the family of a worker who is a national of a Member State, regardless of their nationality, for the purpose of obtaining an allowance such as that granted by the fonds national de solidarité to recipients as their personal entitlement, whether or not they are members of a worker's family.
(3) Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community is not applicable to situations which have no factor linking them with Community law. That regulation cannot therefore be relied upon by members of the family of a worker who is a national of a Member State where, although not being nationals of a Member State, they reside with that worker in the Member State of which he is a national and in which he is employed without ever having exercised his right to freedom of movement within the Community.'