C-356/89
ECLI:EU:C:1991:98
- Súd
- Súdny dvor Európskej únie
- IČS
- 61989CC0356
- Zdroj
- eur-lex.europa.eu ↗
NEWTON
O P I N I O N OF MR ADVOCATE GENERAL D A R M O N delivered on 5 March 1991 *
Mr President, walk or virtually unable to do so'. The Members of the Court, Mobility Allowance Regulations 1975 determine in greater detail the medical preconditions for entitlement to such an allowance. They are not in issue in this case.
1. The questions referred to the Court in these proceedings for a preliminary ruling by a Social Security Commissioner require the Court once again to define the scope of Articles 4 and 10 of Council Regulation 4. The difficulty here is created by the (EEC) No 1408/71 of 14 June 1971 on the requirement of residence or presence in application of social security schemes to Great Britain laid down by those Regu- employed persons, to self-employed persons lations. According to the Social Security and to members of their families moving Commissioner, 2 Mr Newton settled perma- within the Community, as amended and nently in France on 4 April 1984 and updated by Council Regulation (EEC) ceased from that date to be entitled to the No 2001/83 of 2 June 1983.' mobility allowance. His appeal to the Social Security Appeal Tribunal was unsuccessful. He then appealed to a Social Security Commissioner, who has made this reference for a preliminary ruling on the following 2. The appellant in the main proceedings is questions: a British citizen who paid contributions to the French social security system as a self- employed person. He suffers from complete tetraplegia as a result of injuries sustained in a car accident. On returning to the United Kingdom he was granted a mobility allowance by the British authorities with 'In the case of an employed or self- effect from 4 March 1981, the date of his employed person who has acquired under claim, until, in principle, 21 August 2023, United Kingdom legislation alone a right to the day before his 75th birthday. a mobility allowance under Section 37A of the Social Security Act 1975 but who is not entitled to any other benefit under United Kingdom legislation:
3. Section 37A of the Social Security Act 1975 confers entitlement to a mobility allowance for any period throughout which the victim 'is suffering from physical disablement such that he is either unable to (a) is mobility allowance a benefit within the scope of Article 4(1 )(b) of Council * Original language: French. 1 — OJ 1983 L 230, p 6. 2 — Paragraph 2 of the reference for a preliminary ruling.
I - 3027
O P I N I O N OF MR DARMON — C A S E C-356/89
Regulation (EEC) No 1408/71 without those intended for the maintenance or being excluded under Article 4(4) : and improvement of earning capacity'. Conversely, Article 4(4) of Regulation No 1408/71 provides that the regulation is not to apply to social and medical assistance. (b) if so, may that person continue to receive mobility allowance by virtue of Article 10 of Council Regulation (EEC) No 1408/71 while residing in another 7. It is therefore essential to determine, for Member State?' the purposes of applying Regulation No 1408/71, whether the benefit falls within the category of invalidity benefits or that of social assistance.
5. In relation to such a specific question I should point out first of all that, as the Commission has rightly stated, 3 the Court 8. The United Kingdom 5observes that the has already held with regard to requests for mobility allowance has not been included in rulings on provisions of national law in the the United Kingdom's declaration pursuant light of Regulation No 1408/71 that, to Article 5 of Regulation No 1408/71. According to that provision, 'the Member States shall specify the legislation and schemes referred to in Articles 4(1) and (2) . . . in declarations to be notified and 'whilst the Court, acting within the published in accordance with Article 96'. framework of Article 177, has no juris- diction to apply the Community rule to a specific case, nor, consequently, to pronounce on a provision of national law 9. Although the Court considers 6that the with regard to such rule, it can however fact that a Member State has specified a law provide the national court with the factors in its declaration must be accepted as proof of interpretation depending on Community that the benefits granted on the basis of that law which could be useful to it in evaluating law are social security benefits within the the effects of such provision'. 4 meaning of the regulation, the Court has also held 7that
6. The Social Security Commissioner's first 'the fact that a domestic law is not question is therefore whether such a benefit mentioned in the declaration made by a falls within the sphere of Article 4(1) of Member State does not mean that that law Regulation No 1408/71 and is not must be deemed to lie outside the scope of excluded by Article 4(4). Under Article 4(1), the regulation', 'this regulation shall apply to all legislation concerning the following branches of social 5 — Written observations, paragraph 4.6. security: . . . (b) invalidity benefits, including 6 — Judgment of 29 November 1977 in Case 35/77 Beerens v Rijksdienst voor Arbeidsvoorziening [1977] ECR 2249, at p. 2255 (operative part). 3 — Written observations, paragraph 6. 7 - Judgment of 27 January 1981 in Case 70/80 Vigier v 4 — Judgment of 17 June 1975 in Case 7/75 Mr and Mrs F. v Bundesversicherungsanstalt får Angestellte [1981] ECR 229, Belgian Slate [1975] ECR 679, at paragraph 10. at paragraph 15.
I - 3028
NEWTON
and that 12. Does the mobility allowance provided for in the Social Security Act have links with both those categories of schemes? The Commission considers it to be a hybrid benefit.10 On the one hand, it appertains to 'that circumstance is not decisive'. social assistance inasmuch as it is not based on periods of employment or insurance. On the other hand, it appertains to social security, inasmuch as no criterion of need is 10. It has, moreover, been clearly affirmed applied and it is granted as of right to those by the Court that the distinction between who fulfil the conditions, without any indi- benefits which are excluded from the field vidual or discretionary assessment of the of application of Regulation No 1408/71 situation of the person concerned. and benefits which come within it
'rests entirely on the factors relating to each benefit, in particular its purpose and the conditions for its grant'. 8 13. In ruling on the grant of certain allowances to handicapped persons the Court has already alluded to these two categories of benefits. 11 The legislative provisions at issue in those cases were even 11. At the same time, it has been consis- more closely linked to social assistance, tently held that, since they took account of personal need. However, the key point in the Court's view was that since they had not opted for a system of individual assessment, a charac- 'whilst it may seem desirable from the point teristic feature of assistance, the provisions of view of applying the Community regu- in question conferred upon beneficiaries a lations on social security to establish a clear legally defined position. The Court held that distinction between legislative schemes that since the legislation in question granted a fall respectively within social security and legally protected right to benefit for handi- assistance, the possibility cannot be excluded capped persons it fell, as regards the persons that by reason of the persons covered, its referred to by Regulation No 3, the prede- objectives and its methods of application, cessor of Regulation No 1408/71, within national legislation may, at one and the the ambit of social security. In the case of same time, have links to both those the mobility allowance the criterion of need categories'. 9 does not feature amongst the conditions for obtaining such a benefit, which should a 8 — Judgment of 6 July 1978 in Case 9/78 Directeur Regional fortiori mean that it can be regarded as de la Sécurité Sociale de Nancy w Cillard [1978] ECR 1661, falling within the sphere of social security. ai paragraph 12; and judgment of 5 May 1983 in Case 139/82 Pisatelia v INPS (1983] ECR 1427, at paragraph As the Social Security Commissioner points 10 out, the basic statutory test of entitlement to 9 — Judgment of 24 February 1987 in Joined Cases 379 to benefit contained in Section 37A of the 381/85 and 93/86 CRAM Rhõne-Alpes v Citmi [1987] ECR 955, at paragraph 9; see also the judgment of 22 lune 1972 in Case 1/72 Fnlli v Belgium [1972] ECR 457, at paragraph 13; judgment of 28 May 1974 in 10 — Written observations, paragraph 9. Case 187/73 Callemeyn v Belgium [1974] ECR 553, at 11 — See the Callemeyn judgment, cited above, at paragraph 7, paragraph 6; judgment of 9 October 1974 in Case 24/74 and the judgment of 13 November 1974 in Case 39/74 CRAM vBaison [1974] ECR 999, at paragraph 9. Cojrav Belgium [1974] ECR 1251, at paragraph 7
I - 3029
OPINION OF MR DARMON — CASE C-356/89
Social Security Act 1975 is that the claimant intended for the maintenance or is 'suffering from physical disablement such improvement of earning capacity'. The word that he is either unable or virtually unable to emphasized confirms that such benefits, walk'. 12 which must be 'interpreted in the widest possible sense', 15 are not confined to cases of incapacity for work.
14. Accordingly, it remains to be examined whether the other features characterizing such an allowance may nullify its primary 17. Finally, the United Kingdom submits nature which enables it to be classified that the mobility allowance is not a amongst the invalidity benefits referred to in supplementary payment linked to any other Article 4(1) of Regulation N o 1408/71. benefit paid in the United Kingdom. 16 The Social Security Commissioner mentioned in her question that Mr Newton was not entitled, under United Kingdom legislation, to any benefit other than the mobility 15. First of all, it is not based on contri- allowance. The Court has on several butions, but that factor is not significant, occasions given rulings in situations where since Article 4(2) of Regulation the allowance in issue was supplementary to No 1408/71 provides that non-contributory another benefit. 17 However, that factor benefits are not excluded from its scope. does not appear to me to be in any way The Court has held in that respect that decisive. It does not appear in the regu- lation. Moreover, from a practical point of view, any such requirement would restrict the benefit of the rules on the coordination of social security schemes to persons already 'the classification of an allowance as a social in receipt of a principal benefit, which security benefit covered by the regulation would scarcely be compatible with the logic does not depend upon the manner in which of the Community system. Finally, the the allowance is financed'. 13 Court has already held that allowances for handicapped persons which are not supplementary to other benefits fall within the scope of Regulation No 1408/71. 18
16. The United Kingdom has stated that the mobility allowance may not be regarded as an invalidity benefit since its purpose is not to provide compensation for any 18. I therefore consider that national legis- reduced earning capacity as a result of a lation granting a legally protected right to disability. 14 It is true that it may be granted the mobility allowance falls, as regards the to persons aged from 5 to 75 years irres- persons covered by Regulation pective of any incapacity for work. No 1408/71, within the ambit of social However, it should be pointed out that security as defined in Article 4(1)(b) of that Article 4(1)(b) of Regulation No 1408/71 regulation. refers to 'invalidity benefits, including those 15 — See Costa v Belgium, cited above, at paragraph 10. 12 — Paragraph 8 of the reference for a preliminary ruling, 16 — Written observations, paragraph 4.6. emphasis added. 17 — See Callemeynv Belgium, cited above, at paragraph 11; and 13 — See Giletti, cited above, at paragraph 7. Giletti, cited above, at paragraph 11. 14 — Written observations, paragraph 4.6. 18 — See Costa v Belgium, cited above, at paragraph 11.
I - 3030
NEWTON
19. Should the mobility allowance be held Kingdom points out that the conditions as to be an invalidity benefit within the to residence and presence laid down in meaning of Article 4(1) of Regulation Article 37A of the Social Security Act are No 1408/71, the Social Security Commis- not intended merely as a restriction on the sioner asks the Court, in her second enjoyment of the benefit but are 'positive question, whether Article 10 of Regulation criteria for the acquisition of, and No 1408/71 permits a recipient to receive continuing entitlement to, the benefit'. the mobility allowance even though he is Article 10(1), it says, is not concerned with resident in another Member State. the criteria for the award of benefit. 2 '
20. Article 10(1) of Regulation No 1408/71 provides: 'save as otherwise provided in this regulation, inval- 23. Such a distinction does not appear to idity . . . cash benefits . . . acquired under the me to be well founded. First of all, it would legislation of one or more Member States enable the prohibition laid down in Article shall not be subject to any reduction, modi- 10 of the regulation to be circumvented very fication, suspension, withdrawal or confis- easily, and thus diminish its usefulness cation by reason of the fact that the considerably. The legislature would merely recipient resides in the territory of a have to include the residence condition Member State other than that in which the amongst the conditions for entitlement in institution responsible for payment is order to allow it to evade that prohibition. situated'. Furthermore, the objections raised by the United Kingdom run counter to the Court's case-law, according to which Article 10(1) of the regulation implies that 'the person 21. The aim of that provision, as the Court concerned retains the right to receive has confirmed on several occasions, is to pensions and benefits acquired under the 'promote freedom of movement for workers legislation of one or more Member States and members of their families by protecting even after taking up residence in another them against any adverse consequences Member State, but also that he may not be which might arise as a result of the transfer prevented from acquiring such a right of their residence from one Member State merely because he does not reside in the to another'. 19 territory of the State in which the institution responsible for payment is situated'. 22
22. The argument turns above all on the scope of that provision. The appellant in the main proceedings considers that Article 10(1) of the regulation should allow him to 24. In the Giletti judgment 23 the Court held continue to receive the mobility allowance that Article 10(1) imposed a prohibition 'in even though he resides in another Member general terms' and that the only exceptions State, since the words of that provision which it allowed had to be 'expressly appear to him to be 'clear'. 20 The United 21 — Written observations, paragraphs 5.5 and 5.6. 22 — See the Giletti judgment, cited above, at paragraph 15; see 19 — See the Piscitello judgment, cited above, at paragraph 15; also the judgment of 10 June 1982 in Case 92/81 Camera v see also the ludgmenl of 7 November 1973 m Case 51/73 INAMI [1982] ECR 2213, at paragraph 14, judgment of Sonale Verzekeringsbank v Smieja [1973] ECR 1213, at 23 October 1986 in Case 300/84 Van Roosmalen v Bestuur paragraph 20; and the Giletti judgment, cited above, at van de Bedrijfsvereniging voor de Gezondheid [1986] paragraph 14. ECR 3097, at paragraph 39. 20 — Written observations, paragraph 10. 23 — Cited above, at paragraph 16.
I-3031
OPINION OF MR DARMON —CASE C-356/89
provided for in Community legislation'. No exception provided for in Community legis- exception to that rule is so provided for at lation. 28 However, if the Member States present. The Commission has issued a wish to prevent or reduce cases of over- proposal for the amendment of the regu- lapping, it is open to them, in appropriate lation in such a way as to prevent certain cases, to apply their legislation to that benefits, including the mobility allowance, effect, in accordance with the provisions of from being paid in a Member State other Article 12(2) of the regulation. than the Member State of the institution responsible for payment, 24 but that provision has not been adopted. In an action against a Member State for failure to fulfil 27. Finally, at the hearing the Commission its obligations the Court recently remarked, submitted a closing argument to which the obiter, with regard to that proposal that the representative of the United Kingdom fact that the matter was before the Council subscribed only in the alternative. According did not alter the obligations laid down by to the Commission, the mobility allowance, the Community provisions in force. 25 It a non-contributory benefit, can be exported follows, as the Commission 26 indeed from the Member State in which the acknowledges, that the regulation must be institution responsible for payment is interpreted in its current form in the light of situated only if the person concerned has the case-law of the Court. worked in that Member State. That additional condition seems to be inspired by the concern that a Community national might apply for benefits from Member States in which he has never worked, or 25. The representative of the United even lived, in order for them to be paid to Kingdom further pointed out, at the him in another Member State in which he hearing, that if the residence requirement resides. were to be waived for such benefits surprising consequences would ensue, since M r Newton, although resident in France, would be entitled to receive the mobility allowance under United Kingdom legis- 28. It is true that the Court's case-law, 29 lation and the handicapped person's according to which the person concerned allowance under French legislation. He added that Mr Newton would even be able to settle in a third Member State and receive three benefits cumulatively. 'may not be prevented from acquiring such a right merely because he does not reside in the territory of the State in which the institution responsible for payment is 26. That argument, which reveals a situated', legitimate preoccupation on the part of the Member States, 27 is not, however, sufficient to negate the significance of Article 10, which must apply unless there is any if taken literally, could suggest that no link is required between the person concerned 24 — OJ 1985 C 240, p. 6. and the Member State applied to. Such an 25 — Judgment of 12 July 1990 in Case 236/88 Commission v interpretation would be excessive and would France [1990] ECR 3163, at paragraph 19. 26 — Written observations, paragraph 18. 28 — See the Giletti judgment, cited above, at paragraph 16. 27 — See also the Belgian Government's position, in its written observations at paragraph 2.3. 29 — Cited in footnote 22.
I - 3032
NEWTON
go beyond the purpose attributed by the family of a Community worker was not Court to Article 10 of the regulation, which disputed. 32 is to 'promote freedom of movement for workers and members of their families by protecting them against any adverse conse- 30. Nobody appears to be disputing the fact quences which might arise as a result of the that Mr Newton is a Community worker transfer of their residence from one Member who did carry on activities in France. 33 State to another'. 30 That provision is thus Consequently, he is one of the persons quite specific in its context, and cannot be covered by Article 2(1) of Regulation applied in the improper situations described No 1408/71 to whom that Regulation by the Commission. applies. Moreover, the obstacle he has encountered seems clearly to be the result of a change of residence from one Member 29. It should also be recalled that Article 10 State to another. Those are the only two speaks of benefits 'acquired under the legis- matters which the Social Security lation of one or more Member States', not Commission must check. benefits acquired as an employed person under the legislation of one or more Member States. Indeed, the Court held in 31. It must therefore be acknowledged that its Piscitello judgment of 5 May 1983 31 that the mobility allowance is covered by the a Community national was entitled to elimination of residence requirements export a benefit acquired in Italy although provided for in Article 10(1) of the regu- she had never worked in that Member State. lation when the recipient no longer resides in The key factor was that her status as a the Member State where the institution Community worker or member of the responsible for payment is situated.
32. Consequently, I p r o p o s e that the Court should rule that:
'(1) Article 4(1)(b) of Council Regulation N o 1 4 0 8 / 7 1 / E E C of 14 June 1971 must be interpreted as applying to a mobility allowance, that is to say a benefit for handicapped persons paid under the legislation of a M e m b e r State to which an employed or self-employed national of a Member State has been subject, provided that such benefit confers on its recipient a legally protected position which is n o t dependent upon any individual and discretionary assessment of the needs or situation of the person concerned, the latter being a characteristic feature of the social assistance referred to in Article 4(4) of Regulation N o 1 4 0 8 / 7 1 ;
30 — Sec the Piscitello judgment, cited above, at paragraph 15, 32 — See the Opinion of Mr Advocate General Mancini, at emphasis added paragraph 7. 31 — Cited above. 33 — Paragraph 7 of the reference for a preliminary ruling.
I - 3033
OPINION OF MR DARMON —CASE C-356/89
(2) Article 10 of Regulation No 1408/71/EEC must be interpreted as meaning that the payment of such a benefit may not be withdrawn from a Community worker on the sole ground that he no longer resides within the territory of the Member State in which the institution responsible for payment is situated.'
I - 3034