C-20/96

* Original language: French. 1 — Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed per- 2 — I. e. its award is not subject to payment of social security sons, to self-employed persons and to members of their contributions. families moving within the Community, as amended and consolidated by Council Regulation (EEC) N o 2001/83 of 2 3 — It is provided for by sections 71 to 76 of the Social Security June 1983 (OJ 1983 L 230, p. 6), as subsequently amended Contributions and Benefits Act 1992 and the Social Security by Council Regulation (EEC) N o 1247/92 of 30 April 1992 (Disability Living Allowance) Reguladons 1991. (OJ 1992 L 136, p. 1), hereinafter 'Regulation N o 1408/71' 4 — Pursuant to the Disability Living Allowance and Disability or 'the Regulation'. Working Allowance Act 1991.

I - 6059

OPINION OF MR LÉGER — CASE C-20/96

-means-tested benefits under national law, scheme for workers and members of their covering the same subject-matter as the two families moving within the Community, nor components of DLA: attendance allowance aim to harmonize — still less to unify — the (hereinafter 'AA'), payable at two rates, various national laws applicable in that area, equivalent to the two highest rates of the it does coordinate those laws by superimpos- care component of DLA, and mobility ing a set of rules, with the overall aim of allowance (hereinafter 'MA'), payable at a removing any situation liable to discourage rate equivalent to the higher rate of the the exercise of the right of freedom of move- mobility component of DLA. 5 ment conferred by the Treaty.

I - 6060

SNARES v ADJUDICATION OFFICER

cUuses for the benefits covered by the Regu- 12. Basing itself on the consideration that '... lation: the distinction between benefits which are excluded from the scope of Regulation N o 1408/71 and benefits which come within it rests entirely on the factors relating to each benefit, in particular its purpose and the con- ditions for its grant', 8 the Court adopted a wide interpretation of the legislation and ' 1 . Save as otherwise provided in this Regu- schemes referred to in Article 4(1), which lation, invalidity, old-age, or survivors' cash was independent of national classifications benefits, pensions for accidents at work or and included benefits which 'because of the occupational diseases and death grants classes of persons to which they apply, their acquired under the legislation of one or more objectives and the detailed rules for their Member States shall not be subject to any application', 9 simultaneously contain ele- reduction, modification, suspension, with- ments of social assistance 10 and of social drawal or confiscation by reason of the fact security. n that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situ- ated.'

13. The Court has held that such a 'mixed' or 'hybrid' benefit should be 'regarded as a The amendments made by Regulton No social security benefit [where] it is granted, 1247/92 without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and

I - 6061

O P I N I O N OF MR LÉGER — CASE C-20/96

provided that it concerns one of the risks excluded by virtue of paragraph 4, where expressly listed in Article 4(1) ...'. I2 such benefits are intended:

The new provisions (a) either to provide supplementary, substi- tute or ancillary cover against the risks covered by the branches of social secu- rity referred to in paragraph 1(a) to (h), or

14. In view of that case-law, 13 Council Regulation N o 1247/92, adopted on the basis of Articles 51 and 235 of the EC Treaty, inserted into Regulation N o 1408/71 specific (b) solely as specific protection for the dis- coordinating rules applicable to certain non- abled.' contributory benefits which have since then been expressly included within the scope of the Regulation. The benefits concerned are non-contributory benefits intended to pro- vide supplementary, substitute or ancillary cover against the risks covered by the 16. Article 5 was amended so as to provide branches of social security referred to in that the Member States are to specify in their Regulation N o 1408/71 and those intended declarations also the legislation and schemes as specific protection for the disabled. referred to in Article 4(2a). It should 'be noted that the United Kingdom has not made such a declaration.

15. It sets out the new Article 4(2a) of Regu- lation N o 1408/71 in the following terms: 17. The coordinating scheme instituted for those benefits is the subject of a new article, Artice 10a, paragraph 1 of which authorizes a derogation from the principle of the waiver '2 a.This Regulation shall also apply to spe- of residence requirements for such of those cial non-contributory benefits which are benefits as have previously been the subject- provided under legislation or schemes other matter of a declaration to that effect by the Member State which introduced them: than those referred to in paragraph 1 or

20. The application of that reform, which entered into force on 1 June 1992, is subject '2. The institution of a Member State under to transitional measures which are intended whose legislation entitlement to benefits cov- in particular to preserve rights which existed ered by paragraph 1 is subject to the comple- prior to its adoption (Article 2 of Regulation tion of periods of employment, self- N o 1247/92). employment or residence shall regard, to the extent necessary, periods of employment, self-employment or residence completed in the territory of any other Member State as periods completed in the territory of the first Facts and procedure Member State.

3. Where entitlement to a benefit covered 21. Mr Snares ('the applicant in the main by paragraph 1 but granted in the form of a proceedings'), a British national, worked as

I - 6063

O P I N I O N OF MR LÉGER — CASE C-20/96

an employee and paid contributions to the 25. Mr Snares then appealed to the Social United Kingdom social security scheme for Security Commissioner, claiming, inter alia, almost 25 years. that DLA is an invalidity benefit within the meaning of Article 4(l)(b) of Regulation N o 1408/71, as were AA 15 and MA 16 which it replaces, and that that allowance must there- fore continue to be awarded to him in Spain, 22. After suffering a serious accident in in accordance with Article 10(1) of the Regu- April 1993, he applied for and obtained DLA lation. for life — at the middle rate of the care com- ponent and at the higher rate of the mobility component — with effect from 1 September 1993. 1 4

15 — Because of its inclusion in the declaration made by the United Kingdom under Article 5 of the Regulation, con- cerning the schemes referred to in Article 4(1) and (2) (see 14 — The United Kingdom Government points out (paragraphs point 9 above). 1.1, 1.2 ind 1.5 of its observations) that since his accident Mr Snares has also been in receipt of a contributory benefit 16 — This allowance is not included in the United Kingdom's ('invalid benefit', which has been replaced since 13 April declaration, but in the judgment in Newton, cited above, 1995 by 'incapacity benefit', governed by sections 30A to the Court held that it was a 'social security benefit' within 30E of the Social Security Contributions and Benefits Act the meaning of Article 4(l)(b) of the Regulation. 1992). 17 — Paragraph 25 of the order for reference.

I - 6064

SNARES v ADJUDICATION OFFICER

scope of Article 4(1), with the consequence rattorte personae of Regulation N o 1408/71, that a person who after 1 June 1992 becomes which is defined by Article 2(1) as follows: entitled to such a benefit under the legisla- tion of one Member State may not rely on the provisions of Article 10(1) of Regulation 1408/71 in order to challenge a withdrawal of entitlement on the sole ground that the person resides in the territory of another Member State? ' 1 . This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States ...'.

2. If the answer to Question 1 is yes, is Council Regulation (EEC) 1247/92 made within the powers granted by the Treaty of Rome, and in particular by Articles 51 and 29. As the Social Security Commissioner 235 of that Treaty?' points out, there is scarcely any doubt in that regard, 'since [Mr Snares] had been subject to the legislation of the United Kingdom as an employed person and was a national of the United Kingdom'. , 8

32. That is precisely the position of Mr Snares, who may therefore rely on the provisions of the Regulation.

35. I propose to take the same approach, the only one which, in my view, is capable of being adopted, having regard to the rules applicable at the time when the events at The scope of Articles 4(2a) and 10a of Regu- issue in the main proceedings occurred. Ution No 1408/71

36. Let me point out, first of all, that two periods must be clearly distinguished. 33. The purpose of the first question is t o ascertain whether DLA falls within the scope rattorte materiae of Article 4(1 )(b) of Regu- lation N o 1408/71, in that it is an invalidity benefit, to which, as such, the principle of the waiver of residence clauses laid down in 37. Before 1 June 1992, the date of the entry Article 10(1) applies, or whether it must be into force of Regulation N o 1247/92, there regarded as a 'special non-contributory ben- were three types of scheme arising from the efit' intended 'as specific protection for the application of the relevant provisions of disabled', within the meaning of Article Community law. 4(2a)(b) of the Regulation, which may be awarded subject to a residence requirement, in conformity with Article 10a.

20 — Let me point out in passing, as does S. Van Raepenbusch in: 38. To begin with, let us disregard social and 'La sécurité sociale des personnes qui se déplacent à medical assistance benefits, which, since they l'intérieur de la Communauté', Joly Communautaire, Vol 2, Paris 1995, paragraph 20 m fine, that the scope ratione per- were expressly excluded from the scope of sonae of the regulation, as so denned, goes quite consider- Regulation N o 1408/71, could not be cov- ably beyond the strict framework of the free movement of persons guaranteed by the Treaty. ered by the measures coordinating social

AA thus fell within that category, on account of the declaration made by the United King­ 42. The Court has, for example, taken the dom under Article 5. view that the following benefits fell within the scope of the Regulation: guaranteed income for old persons in Belgium 2 4 and in 25 26 France; United Kingdom 'family credit'; the social benefit accorded by Netherlands 27 law to certain unemployed p e r s o n s and 40. Moreover, although Regulation N o 1408/71 did not expressly provide for it in those terms, the category of benefits known 23 — Judgment in Newton, cited above, paragraph 12. 24 — Judgments in Frilli, cited above, and in Case 261/83 Castelli [1984] ECR 3199. 25 — Judgments in Biason and Giletti and Others, cited above; 21 — Judgment in C u e 51/73 Śmieja [1973] ECR 1213, para­ Case C-236/88 Commission v France [1990] ECR 1-3163 graph 14. and Case C-307/89 Commission v France [1991] ECR 1-2903. 22 — Ibid., paragraph 20. See also the judgments in Case 92/81 Camera [1982] ECR 2213, paragraph 14, and C-293/88 26 — Judgment in Case 78/91 Hughes, cited above. mnter-Lutzins [1990] ECR 1-1623, paragraph 15. 27 — Judgment in Acciardi, cited above.

I - 6067

O P I N I O N OF MR LÉGER — CASE C-20/96

disabled persons' allowances provided for by 44. However, the Court stated that such a Belgian, 28 French 29 and United Kingdom 30 benefit could be treated in the same way as legislation. an invalidity benefit within the meaning of Article 4(1 )(b) only in the case of 'an employed or self-employed person who by reason of his previous occupational activity is already covered by the social security sys- tem of the State whose legislation is invoked, ... although in the case of other categories of 43. It was against the background of that beneficiaries it may be deemed not to [be]'. 32 case-law that the Court was asked, in the judgment in Newton, cited above, to appraise the characteristics of MA.

as a 'mixed' benefit equivalent to an invalid- whom such laws apply, their objectives and ity benefit within the meaning of Article their manner of application; 4(1 )(b) of the Regulation in regard to those recipients who were or who had been insured under the United Kingdom legisla- tion. Only those persons could, therefore, claim to be entitled to export that benefit, in accordance with the principle laid down in Article 10(1) of the Regulation. Other recipi- ents of that benefit could not rely on the Regulation, since for them MA was a benefit whereas the Court of Justice has stated that, falling under Article 4(4). in some of its features, legislation under which such benefits are granted is akin to social assistance in that need is an essential criterion in its implementation and the con- ditions of entitlement are not based upon the aggregation of periods of employment or contributions, whilst in other features it is close to social security to the extent that 46. Since 1 June 1992, the date on which there is an absence of discretion in the man- Regulation N o 1247/92 entered into force, ner in which such benefits as are provided the situation has been modified somewhat, in thereunder are awarded and in that it confers the interests of clarity and certainty. a legally defined position upon beneficiaries'.

47. A reading of the third and fourth recitals in the preamble to Regulation N o 1247/92 shows that the reason for the adoption 48. Since that reform, the following classifi- of those amendments to Regulation cations should essentially be made. N o 1408/71 was in essence the need to take account of the abovementioned case-law on 'hybrid' benefits which the rules had hith- erto disregarded:

52. The new Article 10a applies to such of those benefits as have been specified by a Member State in Annex Ha to the Regu- lation, and they may be awarded subject to a residence requirement. However, for benefits of that type which have not been so speci- fied, it is necessary to refer to the 'basic' '... whilst the fact that a national law or regu- scheme laid down in Article 10(1) and, like lation has not been mentioned in the declara- social security benefits, their award cannot tions referred to in Article 5 of Regulation be made conditional on residence. N o 1408/71 is not of itself proof that that law or regulation does not fall within the field of application of the regulation, the fact that a Member State has specified a law in its declaration must be accepted as proof that the benefits granted on the basis of that law are social security benefits within the mean- ing of Regulation N o 1408/71'. 36 53. D L A is specified by the United King- dom in Annex IIa to Regulation N o 1408/71. 35 36 — Judgment in Joined Cases C-88/95, C-102/85 and C-103/85 Martínez Losada and Others [1997] ECR 1-869, paragraph 21, which refers to the judgment in Case 35/77 Beerens [1977] ECR 2249, paragraph 9. Sec also, more generally, the judgments in Case 100/63 Kabbeek [1964] ECR 565, and 35 — Section L(f). Case 24/64 Dmgemans [1964] ECR 647.

I - 6070

SNARES v ADJUDICATION OFFICER

56. That case-law is wholly capable of being benefits displayed the same characteristics as applied to the matters specified in Annex Ha. each of the two components of DLA which Just as the specification of a national law in replaced them, with the exception of one the declarations referred to in Article 5 of the rates at which each component may establishes that the benefits granted under be paid. that law are social security benefits for the purposes of the Regulation, the specification of a benefit, such as DLA, in Annex Ha as being a special non-contributory benefit to which Article 1 Oa applies, is, in my view, suf- ficient to bring it unambiguously within the scope of Article 4(2a).

58. Moreover, although that reference by itself seems to me sufficient to establish that DLA is a 'special non-contributory benefit', other arguments would seem to support the 61. Although the Court then deemed that view that DLA falls within that category of benefit to fall under Article 4(1) of the Regu- benefits. lation in classifying it as a 'social security benefit' and so covered by the principle of the waiver of residence clauses laid down in Article 10(1), it did so, as we have seen, because, in the absence of specific rules, at the time only Article 10(1) was capable of bringing 'mixed benefits' within the scope of 59. First, reference may usefully be made to the Regulation where they displayed the the benefits which DLA replaced in national essential characteristics of such benefits. I law, since, as all the parties agree, those have pointed out, moreover, that this classi- fication was not systematic and was contin- gent on the fact that the recipient of MA was covered by the United Kingdom social secu- 37 — Judgment in Case 70/80 Vigier [1981] ECR 229, paragraph 15. rity scheme.

I - 6071

OPINION OF MR LÉGER — CASE C-20/96

I - 6072

SNARES v ADJUDICATION OFFICER

of Regulation N o 1247/92 40 gives the holder citizens of the Union. It hinders and weak- of a right that arose prior to the reform a ens economic and social cohesion instead of guarantee that he will retain that right, promoting and reinforcing it, since it makes Mr Snares cannot rely on it, since his entitle- it more difficult for citizens to live and work ment to DLA arose after the entry into force in countries other than their country of ori- of Regulation N o 1247/92. gin. Consequently, the amendment in ques- tion goes beyond the scope of the powers given to the legislature by Article 235 and Article 51 of the Treaty.

41 — Council Regulation (EEC) N o 1390/81 of 12 May 1981 extending to self-employed persons and to members of 40 — That article has now been incorporated in Article 95b of their families Regulation (EEC) N o 1408/71 on the applica- Regulation N o 1408/71, as amended by Council Regulation ûon of social security schemes to employed persons and (EC) N o 3095/95 of 22 December 1995 (OJ 1995 L 335, their families moving within the Community (OJ 1981 pl). L 143, p. 1).

I - 6073

OPINION OF MR LÉGER — CASE C-20/96

Treaty, taken in isolation, which merely b) payment of benefits to persons resident guarantees the free movement of workers. in the territories of Member States.' We have seen that, while the Community rules at issue aim to implement the objectives assigned to Article 51 of the Treaty, the scope of those rules ratione personae is wider. 42

73. It should be borne in mind that the amending rules were adopted to take account of the Court's case-law, which, having adopted a broad interpretation of the con- cept of 'social security benefit' within the meaning of Article 4(1) of Regulation N o 72. I will therefore consider the question of 1408/71, allowed certain 'mixed' benefits to compatibility in the light of the principles come -within the scope of the Community laid down in Article 51 of the Treaty, which coordinating scheme established. is worded as follows:

74. The problem raised in the present case is 'The Council shall, acting unanimously on a therefore not so much to ascertain whether proposal from the Commission, adopt such the Council was entitled to bring benefits of measures in the field of social security as are that type within the scope of Regulation N o necessary to provide freedom of movement 1408/71, since that was already apparent for workers; to this end, it shall make from the Court's case-law, but to ascertain arrangements to secure for migrant workers whether it was entitled to allow such of and their dependents: those benefits as are specified in Annex Ha to be awarded subject to a residence require- ment in derogation from the principle laid down in Article 10(1).

78. Consequently, even before the amend- ments made in 1992, Regulation N o 1408/71 contained provisions allowing the grant of 81. Moreover, the Court itself did not certain benefits to be made conditional on exclude that possibility of derogation when residence. holding that the principle in Article 10(1) applied '... in the absence of express provi- sions to the contrary'. 47 The Court therefore implicidy acknowledged the right of the Community legislature to adopt specific pro- visions of that kind when it held, this time more explicitly, arguing a contrario, that '... 79. Let me quote, for example, Article 69 of in the absence of specific rules applicable to the Regulation — under which the require- the non-contributory benefits in question, ment concerning the export of unemploy- the solution to the problems raised ... must ment benefits is imposed only for a limited be found in the existing provisions of the period of three months — whose validity regulations concerned, as interpreted by the was upheld by the Court in its judgment in Court.' 48 Case C-272/90 Van Noorden" in the fol- lowing terms: '... the relevant Community legislation, in particular Articles 67(3), 69 44 — Paragraph 12. and 70 of [Regulation N o 1408/71] does not 45 — Regulation of the Council of 25 September 1958 on social security for migrant workers (JO 1958, 30, p. 561), which preclude a Member State from refusing to Regulaùon N o 1408/71 replaced with effect from 1 October grant a worker unemployment benefit for 1972. 46 — Judgment in Biosan, cited above, paragraphs 18 to 20. more than the maximum period of three 47 — Judgment in Case 87/76 Bozzone [1977] ECR 687, para- graph 21. See also the judgments in Pisciteüo, cited above, paragraph 16, and Giletti and Others, cited above, para- graph 16. 48 — Judgment in Case C-236/88 Commission v France, cited 43 — Case C-272/90 [1991] ECR 1-2543. above, paragraph 16.

87. The socio-economic, even the cultural or domestic, context of each State of residence 84. The highly specific nature of the benefits underlies the conditions for the award of at issue seems to me to remove any doubt in such benefits. For example, apart from aver- that regard. age earnings and the cost of living, the exist- ence of other need-related benefits or allow- ances is essential when determining the rules for awarding benefits of that kind. Those benefits or allowances may, for example, take the form of housing assistance, financial or 85. As the French Government points out, 49 practical assistance to disabled persons, a the residence requirement in this case is jus- suitable hospital network, or even public or tified from two points of view. First, the community infrastructures satisfying the benefits at issue are awarded in a specific needs of disabled persons. Member State and are closely linked to the standard and the cost of living in that State. Second, the non-exportation of those ben- efits takes account of the fact that beneficia- ries may apply for benefits of the same kind in the Member State to which they transfer their residence. 88. Taking into account the context in which they came into being, when such benefits are awarded to a recipient residing in another Member State they may, in view of the social, economic or cultural environment in that Member State, prove to be wholly 86. Having regard to the special nature of unsuitable, extravagant or insufficient. It is benefits which, like DLA, are of a composite fanciful to believe in harmonization through- nature, straddling the usual type of social out all the Member States in that regard. A disabled person will not necessarily have the same financial needs in Spain as in the 49 — Point 8 of its observations. United Kingdom.

The court drew a distinction between ben- 90. The main proceedings concerned the efits paid exclusively by reference to the question whether the competent French number and, where appropriate, the age of institution was entitled to cease payment of the members of the family, the grant of the 'rentrée scolaire' (school expenses) allow- which '... continues to be justified wherever ance and the 'salaire unique' (single wage or the recipient and his family reside', and 'ben- salary) allowance to the plaintiff in the main efits of another kind or subject to other con- proceedings, on account of the transfer of his ditions, as in the case, for example, of a ben- residence from France to the United King- efit intended to cover certain costs incurred dom. The national court therefore referred to at the beginning of the school year [which] the Court a question on the interpretation of are in most cases closely linked with the Article 77 5° of Regulation N o 1408/71. social environment and therefore with the place where the persons concerned reside'. 5 3

ture in parallel to the rule that the legislation 95. In the present case, reference should of the State of residence applies. therefore be made to the relevant provisions of Spanish legislation, the State of residence, without referring to the United Kingdom provisions, even if the latter provisions are more advantageous for Mr Snares. Otherwise the principle that the legislation of a single Member State only is applicable, which underlies the relevant Community rules, would be impaired. 55 The binding force of 93. In accordance with that rule, the Mem- the rules on connecting factors contained in ber States are required to grant the special the Regulation undoutedly flows from the non-contributory benefits provided for by primacy of Community law. It follows from their legislation to all their residents who fall this that the persons concerned cannot have within the scope of the Regulation, whatever freedom of choice as regards the national their nationality, provided they fulfil the legislation applicable where they fulfil the conditions for entitlement laid down by qualifying conditions under several national national legislation and the benefits in ques- schemes, just as '... the Member States are tion are specified in Annex Ha. [not] entitled to determine the extent to which their own legislation or that of another Member State is applicable' since '... the application of national legislation is determined by reference to criteria drawn from the rules of Community law'. 56

99. Article 4(2a) moreover increased the 97. It is worth noting that the supplemen- rights of persons falling within the scope of tary provisions inserted by Regulation N o the Regulation in respect of special non- 1247/92 into Regulation N o 1408/71 are not contributory benefits, since it provides that restricted to Article 10a(l), the provision at those benefits all fall within the scope of the issue, but constitute a coherent whole which Regulation and not merely, as had previously allows the objective pursued to be achieved. been the case, pursuant to the case-law of the Court of Justice, solely in cases where those benefits displayed the essential characteristics of social security.

98. The new coordinating rules laid down thus expressly take into account facts or cir- cumstances occurring in a Member State other than the State of residence. Article 100. The protection given by the new legis- 10a(2) to (4) require the State of residence: lation is, moreover, in certain respects wider than that afforded by the case-law of the Court. Thus, entitlement to a benefit is no longer conditional, as it was following the judgment in Newton, on the claimant having previously been subject to the social security — to have regard to periods completed in legislation of the State from which the ben- other Member States, in conformity with efit is sought. Article 51(a) of the Treaty (Article 10a(2));

101. Consequently, contrary to the view — to treat benefits due under the legislation taken by Mr Snares, by adopting the amend- of other Member States as if they had ing regulation, N o 1247/92, the Council does been granted under the legislation appli- not seem to me to have breached its obliga- cable, so far as concerns the right to tion under Article 51 of the Treaty to take supplementary benefits (Article 10a(3)) 'such measures ... as are necessary to provide and; freedom of movement for workers'. More-

102. For the sake of completeness, allow me to deal with two other points discussed at the hearing, which, according to Mr Snares, cast doubt on the validity of the new rules laid down. 104. Mr Snares also indicated that, by pre- venting the export of the benefits at issue, the new provisions might constitute an obstacle to a person's right of residence in another Member State where that State can make that right conditional on possession of 103. M r Snares has raised the spectre of sufficient resources. 60 Article 8 of the European Convention on the Protection of Human Rights and Fundamen- tal Freedoms 5S in arguing that, in his view, the impossibility of exporting the award of D L A to Spain, where his mother lives, might infringe his right to the respect for family life guaranteed by that provision. Let me point out, first of all, that there is no such problem in the present case, since Mr Snares continues to be entitled in Spain, •where he has now been living for more than three years, to the award of 'incapacity ben- I would merely point out, quite apart from efit', a benefit that is contributory in any doubts as to the relevance of that argu- nature, 61 in accordance with Article 10(1) of ment which is based on a provision whose '... Regulation N o 1408/71. Furtheremore, even scope ... is concerned with the development before the adoption of Regulation N o of man's personal freedom ...', 5 9 that the 1247/92 it was accepted that certain benefits system introduced, far from constituting a would be granted subject to a residence brake on the establishment of the person requirement. 62

(1) After 1 June 1992, the date of the entry into force of Council Regulation (EEC) N o 1247/92 of 30 April 1992 amending Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, the award of a 'special non-contributory ben- efit' within the meaning of Article 4(2a) of Regulation N o 1408/71 as amended, specified in Annex IIa to that Regulation, may — subject to the retention of acquired rights by the claimant — validly be made conditional on residence in the territory of the State which provides it, in accordance with Article 10a(l) of Regulation N o 1408/71, as amended, even if, before that date, an equivalent benefit could be regarded in certain cases as falling under Article 4(1) of Regulation N o 1408/71, and the grant of which could not at the time, pursuant to Article 10(1) of that Regulation, be made subject to a residence requirement.

(2) Consideration of Regulation N o 1247/92, which was adopted within the framework of the powers conferred on the Council by the EC Treaty, in par- ticular Articles 51 and 235 thereof, has not revealed any factors of such a kind as to call its validity into question.

I - 6081