C-307/89
ECLI:EU:C:1991:167
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OPINION OF MR VAN GERVEN — C A S E C-307/89
OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 24 April 1991 *
Mr President, (Article L 815-2 of the CSS, as amended by Members of the Court, Law No 87-39 of 27 January 1987). 2
Article 3(1) of Regulation No 1408/71 concerning equal treatment states, however, 1. In the present case the Commission is that: asking the Court to declare that the French Republic has failed to fulfil its obligations under Article 3(1) of Council Regulation (EEC) No 1408/71 on the application of 'Subject to the special provisions of this social security schemes to employed Regulation, persons resident in the territory persons, to self-employed persons and to of one of the Member States to whom this members of their families moving within the Regulation applies shall be subject to the Community. 1 same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State'. 3
2. Pursuant to Article L 815 of the French Code de la Sécurité Sociale (hereinafter 3. During the pre-litigation stage of this referred to as 'the CSS'), the recipients of a procedure under Article 169, the French French invalidity, old-age or widow's Government maintained that the pension who are nationals of other Member supplementary allowance granted by the States but reside in France, are entitled to Fund constituted social assistance to which claim supplementary allowance from the Regulation (EEC) No 1408/71, including Fonds National de Solidarité (hereinafter Article 3(1) thereof, did not apply. 4 The referred to as 'the Fund') only if two Court has, however, repeatedly held that conditions are satisfied, namely that, first, a Regulation (EEC) No 1408/71 applies also reciprocal international agreement has been to supplementary allowances 5and has again signed with the Member State of which the explicitly confirmed it in respect of pensioner is a national (Article L 815-5 of supplementary allowances granted by the the CSS) and, secondly, the pensioner has resided in France for a specified period 2 — The arrangements for implementing the second requirement were to be laid down by decree. 3 — OJ 1983 L 230, p. 13. * Original language: Dutch. 4 — Sec Article 4(4) of Regulation (EEC) No 1408/71. 1 — As amended and updated by Council Regulation (EEC) However, the French Government used that argument No 2001/83 of 2 June 1983 amending and updating only in its reply of 7 March 1986 to the Commission's Regulation (EEC) No 1408/71 on the application of letter of 4 December 1985. social security schemes to employed persons, to self- 5 — See, for example, judgments in Case 24/74 Caisse employed persons and to members of their families moving Régionale d'Assurance Maladie v Bìason [1974] ECR 999, within the Community and also amending and updating paragraphs 9 to 12; Joined Cases 379/85, 380/85, 381/85 Regulation (EEC) No 574/72 laying down the procedure and 93/86 CRAM Rhône-Alpes v Cileni [1987] ECR 955, for implementing Regulation (EEC) No 1408/71 (OJ paragraphs 9 to 12; Case 147/87 Zaoui v OĽfAf/F[1987] 1983 L 230, p. 6). ECR 5511, paragraph 9.
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COMMISSION v FRANCE
Fund, in its judgment of 12 July 1990. 6 In competent authorities had been informed of the light of that case-law, the French this by Ministerial Circular No 1370 of Government no longer disputes that the 5 November 1987.8 As regards the French legislation at issue is indeed incom- requirement of a specified period of patible with Community law and it has residence in France, the French Government taken steps to modify its legislation. In the observes that the necessary implementing autumn of 1990, a draft law was introduced decrees have never been adopted and the before the French Parliament for that requirement has therefore remained a dead purpose.7 But that circumstance does not letter. remove the failure to comply with Treaty obligations. It should, however, be pointed out that, the fact that legislation which is in itself 4. While it no longer disputes that the legis- discriminatory does not, as a result of lation at issue is incompatible with instructions given to the competent auth- Community law, the French Government orities or the absence of implementing states that in practice the legislation is not decrees, lead in practice to discrimination (or no longer) applied to nationals of other against nationals of other Member States, is Member States of the Community and such not such as to make that legislation unob- persons now enjoy the same rights as jectionable. To retain such legislation might French nationals, as required by Article 3(1) lead to a situation which is ambiguous and of Regulation (EEC) No 1408/71. On uncertain for the competent authorities of 26 November 1987 in its reply to the the Member State in question, and Commission's reasoned opinion, the French especially for the nationals of other Member Government stated that the existence of a States who are concerned.9 That view is reciprocal international agreement for confirmed by the Commission's finding that citizens of other Member States was no in practice the supplementary allowance has longer required for the purpose of granting sometimes nonetheless been refused to a supplementary allowance and that all the nationals of other Member States.10
5. I therefore propose that the Court rule that the French Republic has failed to fulfil its obligations under Regulation (EEC) N o 1408/71, in particular Article 3(1), and order it to pay the costs pursuant to Article 69(2) of the Rules of Procedure.
6 — Case C-236/88 Commusion v France (Fonds National de Solidarité) [1990] ECR 1-3163). That case concerned a graat of the same supplementary allowance to pension- holders residing in another Member S a t e of the Community. See also my Opinion of 12 June 1990 in that case. 7 — See the annex to the French Government's rejoinder. It should be noted that at the end of 1989 and beginning of 8 — Annex V to the Commission's application. 1990, the French Government had already made a first attempt to amend the legislation at issue. The draft law to 9 — See, for example, the judgment in Case 167/73 Commission amend Article L 815-5 of the CSS was, however, then v French Republic [197'•] ECR 359, paragraphs 41 and 42. declared invalid by the Conseil Constitutionnel. 10 — See the Report for the Hearing, section I., 2.
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