C-236/88

COMMISSION v FRANCE

OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 12 June 1990 *

Mr President, 'Save as otherwise provided in this regu- Members of the Court, lation, 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, 1. In this action based on Article 169 of the withdrawal or confiscation by reason of the EEC Treaty, the Commission is asking for a fact that the recipient resides in the territory declaration that, by refusing to grant the of a Member State other than that in which supplementary allowance of the Fonds the institution responsible for payment is national de solidarité (National Solidarity situated.' Fund) to recipients of a French invalidity, old-age or survivor's pension who reside in or transfer their residence to another Member State of the Community, the French Republic has failed to fulfil its obli- gations under Articles 48 to 51 of the Treaty and Article 10 of Regulation (EEC) The obligation incumbent on the Member No 1408/71 of the Council of 14 June 1971 States is clear from the wording of Article on the application of social security schemes 10; there remains the question whether the to employed persons, to self-employed supplementary allowance from the Fonds persons and to members of their families national de solidarité which is at issue here moving within the Community. 1 forms part of the legislation to which Regu- lation No 1408/71 applies.

(c) old-age benefits; 'In its judgment of 9 October 1974 in Case 24/74 Biason [1974] ECR 999 the Court took the view that, whilst it may seem desirable from the point of view of applying (d) survivor's benefits; the Community regulations on social security, to establish a clear distinction between legislative schemes that fall respectively within social security and assistance, the possibility cannot be excluded that by reason of the persons covered, its objectives and its methods of application, 4. This regulation shall not apply to social national legislation may, at one and the and medical assistance . . . ' same time, have links to both those categories' (paragraph 9).

I-3174

COMMISSION v FRANCE

'Accordingly, the answer to the first However, it is impossible to predict either question must be that Article 4(4) of Regu- the course of the discussions within the lation No 1408/71 must be interpreted as Council or whether any future rules (on not excluding from the matters covered by interpretation) could have retroactive effect; that regulation a supplementary allowance moreover, the question could arise whether paid by a fonds national de solidarité individuals can in that way be retroactively financed from tax revenue and granted to divested of rights derived from the social the recipients of old-age, survivors' or inva- legislation of the Community. lidity pensions with a view to providing them with a minimum means of subsistence, provided that the persons concerned have a legally protected right to the grant of such an allowance' (paragraph 12). It is not for the Court to anticipate any amendments which may be made to the Community legislation.

In its judgment in Zaoui on the same supplementary allowance, the Court again This argument is therefore untenable. followed its previous decisions.4

6. Secondly, the French Republic refers to a number of practical problems to which the 4. There is nothing in the French Republic's Court's interpretation gives rise and to defence and rejoinder which may cast doubt which the provisions of Regulation No on the applicability of those decisions here. I 1408/71 do not provide a satisfactory therefore consider the Commission's solution. Those practical questions are application to be well founded. Never- concerned, in particular, with the difficulty theless, for the sake of completeness, I shall of ascertaining the actual income of persons briefly consider the arguments on which the residing in another Member State, taking French Republic relies in its defence and out a mortgage on any immovable property rejoinder. and so on.

In that connection, the Commission refers national territory of a Member State to the possibility of finding a solution to because the amount thereof is closely those difficulties within the Administrative connected with a specified economic and Commission on Social Security for Migrant social environment. The aim of the EEC Workers, which was specifically set up for Treaty, and in particular Articles 48 to 51 that purpose by Article 81(d) of Regulation thereof, and of Article 10 of Regulation No No 1408/71. Furthermore, the Commission 1408/71, is to promote the mobility of points out that practical difficulties of that workers within the Community and, conse- kind in connection with the implementation quently, to preserve the benefits for migrant of obligations resulting from the Treaty and workers and their families unchanged Article 10 of the regulation may also arise in regardless of their place of residence within other circumstances. the Community or of differences in economic and social circumstances. 6 The argument that economic and social circum- stances vary from one place to another, for instance differences in the cost of living, is In my view, the Commission is right. no more applicable as between Member States than it is as between different regions in a single Member State. Furthermore, it takes no account of the costs resulting from 7. Nor, finally, is it possible to accept the mobility itself. Policy arguments based on French Republic's argument to the effect general economic considerations of that that the supplementary allowance at issue in kind are a matter of domestic politics and this case cannot be exported outside the have no place before the Court.