C-297/96

4. AA is a non-contributory, non-means tested benefit payable, irrespective of a prior finding of incapacity for work, to persons dependent by reason of a physical or mental disability. The amount payable varies accord­ ing to the degree of attendance necessary. Grant of the benefit is subject to conditions in respect of the claimant's residence and 2. As the judgment in Snares has in the presence in Great Britain. meantime been delivered, I shall be referring extensively to it and to my Opinion, deliv­ ered on 6 May 1997, since very little distin­ guishes the two cases. The observations of the United Kingdom Government, the Council and the Commission also refer sub­ stantially to those submitted in Snares. 5. Since the reform of 1 April 1992 in Great Britain, this benefit has, in most cases, been replaced by DLA, grant of which is subject * Original language: French. to identical conditions. AA continues, how­ 1 — Case C-20/96 Snares v Adjudication Officer [1997] ECR I-6057. ever, to be paid to persons aged 65 and over 3 2 — Council Regulation (EEC) No 1408/71 of 14 June 1971 on who require special care and attention. the application of social security schemes to employed per- sons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 Tune 1983 (OJ 1983 L 230, p. 6), as subsequently amended by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 3 — The national legislation is set out in points 3 to 6 of my 1992 L 136, p. 1). Opinion in Snares.

9. The Social Security Commissioner, before 5 — Paragraph 21 of the order for reference. whom the matter was brought on appeal, 6 — On the similarities between the two benefits, MA and AA, formed the view that the decision of the see in particular points 5 and 60 of my Opinion in Snares. 7 — Case C-356/89 Newton v Chief Adjudication Officer [1991] Appeal Tribunal ought to be set aside as ECR I-3017. In that judgment (to which particular reference being wrong in law inasmuch as it failed to is made at points 25, 43, 44 and 45 of my Opinion in Snares), which predated the 1992 reform, the Court treated MA in take account of the relevant Community leg­ the same way as an invalidity benefit within the meaning of 4 Article 4(1 )(b) of the Regulation in cases where it was islation. granted to beneficiaries who were or had been insured under United Kingdom legislation. 8 — Point L of the Council Communication updating the decla- rations of the Member States provided for in Article 5 of Regulation No 1408/71, as most recently amended in 4 — For an outline of the Community legislation, I would refer December 1986 (OJ 1986 C 338, p. 1). I refer to this declara- to points 7 to 20 of my Opinion in Snares. tion at points 9, 39 and 60 of my Opinion in Snares.

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PARTRIDGE v ADJUDICATION OFFICER

12. In that capacity, and in accordance with could continue to be paid despite a change of Article 10(1) of Regulation No 1408/71, AA residence; in the second case, pursuant to the benefited from the principle of the waiver of new Article 10a, the benefit in question residence clauses and could be granted irre­ could be awarded subject to the condition of spective of the fact that its holder had residence. 9 changed residence.

14. Within the context of that amended leg­ 16. The Social Security Commissioner 14 islation, the Social Security Commissioner adds that if the Court were to rule in a notes that the question arises as to whether manner favourable to Mr Snares, by holding AA must, in accordance with the law in that there was a continued right to export an force prior to the 1992 amendment, continue invalidity benefit such as DLA under Article to be treated as an invalidity benefit within 10(1), notwithstanding its inclusion in 1992 the meaning of Article 4(1) of the Regu­ in the category of special non-contributory lation, or whether it must, since that date, be benefits, then it would seem inevitable that classified as a 'special non-contributory ben­ the claimant in the main proceedings in the efit' within the meaning of the new Article present case would also be entitled to export 4(2a). In the first case, waiver of the resi­ the AA which she receives. He points out dence clauses provided for under Article 10 that if, on the other hand, as the defendant in would apply, and the benefit in question the main proceedings argues, the Court

9 — Ibid., point 39. 12 — Paragraph 25 of the order for reference. 10 — Paragraph 23 of the order for reference. 13 — The claimant's case in Snares 'is set out in point 25 of my 11 — See in this regard, by way of analogy, point 68 of my Opin- Opinion in that case. ion in Snares. 14 — Paragraph 26 of the order for reference.

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OPINION OF MR LÉGER — CASE C-297/96

17. In the light of those considerations, the Social Security Commissioner decided to stay the proceedings and refer the following question to the Court for a preliminary rul­ ing: 19. In reply to the second question submit­ ted, the Court ruled that 'Examination of Regulation No 1247/92, in so far as it sets aside, in the case of disability living allow­ ance, the principle of waiver of residence clauses laid down in Article 10 of Regulation 'How, if at all, would the answers given to No 1408/71, has not disclosed any factor of the questions referred in the case of Snares v such a kind as to affect its validity'. Adjudication Officer (Case C-20/96) differ in Although the Social Security Commissioner the case of a claimant entitled under United also appears in the present case to be raising Kingdom legislation to attendance allowance the question of the validity of Regulation as an employed or self-employed person, in No 1247/92, referring to the 'answers given the light of the terms of the United King­ to the questions referred in the case of dom's declaration of 31 December 1986 Snares', I shall not return to this issue in under Article 5 of Council Regulation (EEC) 15 what follows, since no fresh argument on No 1408/71 and of Point 11 of Section O this point has been advanced during the (previously Section L) of Annex VI to that present proceedings. Regulation?'

The Snares judgment

20. I take the view that the Court's reason­ ing in reply to the first question in

18. In its judgment in Snares, the Court ruled along lines contrary to those proposed 15 — The question of the validity of Regulation No 1247/92 was dealt with in points 70 to 104 of my Opinion in Snares, to by the Social Security Commissioner, taking which I shall refer as and when the need arises.

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OPINION OF MR LÉGER — CASE C-297/96

benefits henceforth covered by Article 4(2a) 28. In accordance with the transitional pro­ of the Regulation. visions set out under Article 2 of Regulation No 1247/92, according to which that regu­ lation does not affect the maintenance of the rights of persons who, prior to its entry into force, were already entitled to the benefit (Article 2(1)) or who fulfilled the conditions for the grant of that benefit (Article 2(2)), the 25. The only conclusive distinction between allowance in question awarded prior to the AA and DLA, which was the subject of the entry into force of Regulation No 1247/92 Snares judgment, lies, as the Social Security continues, in accordance with the previous Commissioner points out, in the fact that, system, to be regarded as a benefit coming although AA is classified, as I have noted, in within the scope of Article 4(1) of the Regu­ the category of 'special non-contributory lation, as confirmed by its mention at Point benefits' in the new Annex Ha to the Regu­ 11 of Section L of Annex VI. AA awarded lation, to which Article 10a henceforth prior to ljune 1992 thus still continues at applies, it none the less continues at the same present to benefit from the principle of the time to feature in both the unchanged Annex waiver of residence clauses, as set out in VI (at Point 11 of Section L) to the Article 10 of the Regulation. Regulation — which treats it as an 'invalidity benefit' for the application of Article 10 — and the United Kingdom's declaration pursuant to Article 5 of the Regulation, also unchanged, under the 'legislation and schemes referred to in Article 4(1) and (2)' of the Regulation. 29. On the other hand, the fact that this ref­ erence continues to feature in Annex VI to the Regulation has no bearing on those situ­ ations in which AA first became payable after the 1992 reform. Given that AA has, since that date, been mentioned by the 26. That contradiction is in fact merely United Kingdom in Point (d) of Section L of apparent. Annex Ha, the provisions of Article 10a are applicable to it, and this benefit, regarded as coming within the scope of the new Article 4(2a), can be granted only subject to the con­ dition of residence, in accordance with Article 10a.

31. In the circumstances of this case, it is common ground that the claimant in the main proceedings first became entitled to AA after Regulation No 1247/92 had entered into force. In accordance with the principle of the immediate temporal application of 33. From this I conclude that AA awarded 21 law, her position thus falls under the new after 1 June 1992, the date on which Regu­ provisions set out in Articles 4(2a) and 10a, lation No 1247/92 entered into force, must by reason of the fact that AA is mentioned be treated as a 'special non-contributory in Annex Ha to the Regulation. The claimant benefit' within the meaning of Article 4(2a) cannot, however, rely on the principle of the of Regulation No 1408/71, award of which, maintenance of acquired rights in order to provided that the claimant's acquired rights claim entitlement to benefit under the are respected, may, by virtue of the fact that scheme applicable to AA granted before the it is mentioned in Annex IIa to Regulation 1992 reform, mentioned in Annex VI to the No 1408/71, validly be made subject to a 22 Regulation, since her entitlement first condition of residence within the territory of arose after 1 June 1992. the issuing Member State.

32. These views are not affected by the fact that, in the above declaration made pursuant 34. Consequently, neither the wording of to Article 5 of Regulation No 1408/71, Annex VI to the Regulation nor the United the United Kingdom mentioned AA under Kingdom's declaration under Article 5 thereof can preclude the solution which the Court upheld in its judgment in Snares from 21 — See, by analogy, points 66 and 67 of my Opinion in Snares. being applied to the AA granted in the cir­ 22 — Ibid., point 68, by way of analogy. cumstances of the present case.