C-212/00

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household by the legislation under which amount of benefits varies with the number benefits are provided or, in the cases of members of the family, shall take into referred to in Article 22(1)(a) and Arti- account also members of the family of the cle 31, by the legislation of the Member person concerned who are residing in the State in whose territory such person resides; territory of another Member State, as where, however, the said legislations regard though they were residing in the territory as a member of the family or a member of of the competent State. This provision shall the household only a person living under not apply if, in the country of residence of the same roof as the worker, this condition the members of the family, another person shall be considered satisfied if the person in is entitled to unemployment benefits for the question is mainly dependent on that calculation of which the members of the worker... .' family are taken into consideration.'2

4. Article 3(1) of Regulation No 1408/71 (not subsequently amended) provides:

6. To be borne in mind, finally, although it refers to family benefits, is Article 74 of Regulation No 1408/71 in the version of Regulation No 118/97 (which is identical 'Subject to the special provisions of this in substance to the former Article 74(1) of Regulation, persons resident in the territory Regulation No 1408/71, as amended by of one of the Member States to whom this Regulation No 1390/81), which provides: Regulation applies shall be subject to the same obligations and enjoy the same ben- efits under the legislation of any Member State as the nationals of that State.'

7. Under Article 66 of the Royal Decree of (a) one or more children, provided that he 25 November 1991 on unemployment can claim family allowances for at least (Moniteur belge 31 December 1991, one of them, or that none of them has p. 29888; hereinafter 'the Royal Decree'), income from a trade or profession or unemployment benefit is issued exclusively other income; to unemployed persons actually residing in Belgium. Those 'with dependent family members', furthermore, receive benefits at a higher rate, known as the 'head of household' rate. To that end, Article 110(1) of the Royal Decree provides: 4 (b) one or more children and other rela- tives by blood or marriage, to the third degree inclusive, provided that he can claim family allowances for at least one of those children and that the other relatives by blood or marriage have '"Worker with a dependent family" means neither income from a trade or profes- a worker who: sion nor other income;

(1) lives with a spouse who has neither (c) one or more relatives by blood or income from a trade or profession nor marriage, to the third degree inclusive, other income; in such a case no account who have neither income from a trade shall be taken of the existence of any or profession nor other income.

3 — As well as Article 74 mentioned above, Regulation No 1408/71 contains a similar provision. Article 73, con- cerning employed workers whose family members reside m a Member State other than the competent State (the current Article 71 of Regulation No 1408/71, as updated by Regulation No 118/97, is identical in substance to the former Article 73( I ) of Regulation No 1408/71 as amended (3) lives alone and who has been ordered to by Regulation No 1390/81). pay maintenance by a court or pursuant to 4 — Unofficial translation of the national provisions. a legal document in the context of divorce

9. Regarding the concept of 'living toge- ther' referred to in Article 110 of the Royal Decree, Article 59 of the Ministerial Decree III — Facts and the question for prelimin- of 26 November 1991 setting out enforce- ment provisions of the Royal Decree (Mon- ary ruling iteur belge of 25 January 1992, p. 1593; hereinafter 'the Ministerial Decree') pro- vides that: 10. Mr Stallone, of Italian origin, obtained unemployment benefit for the first time in Belgium on 20 February 1978, after work- ing from 16 May 1977 until 19 February 1978. From the documents in this case it emerges that, having received benefit at the 'Living together means the fact that two or rate for persons without dependent family more persons live together under the same members during the period 1991-1993, Mr roof and principally decide household Stallone applied on 20 September 1993 to questions jointly. the Office National de l'Emploi (National Employment Office ('ONEM')) for the benefit to be paid at the 'head of house- 5 — See Articles 65 to 69 of the Ministerial Decree of hold' rate, stating that, although they had 26 November 1991 mentioned below regarding the concept of average daily earnings. returned to Italy and resided there since

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1991, his wife and children were still unemployment benefit subject to a condi- dependent on him. The National Employ- tion that the unemployed person lives with ment Office, defendant in the main pro- certain members of the family, and not ceedings, rejected the application, relying solely to the condition that they are actu- on the national provisions mentioned ally or mainly dependent on the unem- above, in particular Article 110 of the ployed person?' Royal Decree. Mr Stallone was informed that the application had been refused on 1 December 1993 when he went in person to the offices of the competent authority for payment.

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B — Applicability of Regulation contingencies covered by the branches of a No 1408/71 social security scheme for employed or self- employed persons'; 7Article 2(1) states that the regulation is to apply to employed or self-employed persons who 'are or have been subject to the legislation of one or more Member States.' In addition, accord- 13. The Belgian Government objects, by ing to the fifth recital of Regulation way of a preliminary point, that Regulation No 1408/71, in the original text, the rules No 1408/71 is not applicable to this matter on coordination of national social security because Mr Stallone's case constitutes a legislations provided for in the regulation situation purely internal to a Member also include cases where the family mem- State. He was permitted to receive unem- bers themselves move within the Commu- ployment benefit on the basis of work nity. Consequently, it must be taken that a carried out exclusively in Belgium, and in worker such as Mr Stallone who receives his application for unemployment benefit unemployment benefit in a Member State he stated that he lived in Belgium with his and is therefore 'insured' within the mean- wife and one child. Moreover, the Belgian ing of Article l(a)(i) of Regulation Government submits, he cannot be classi- No 1408/71, and whose family has fied as a migrant worker simply because his returned to its country of origin, falls family has returned to Italy. within the scope ratione personae of the regulation, even where he has carried out his work only in the Member State paying the benefit. 8

legal basis of Regulation No 1408/71 is which expressly prohibits any discrimina­ Article 51 of the EC Treaty (now, after tion based on nationality. a m e n d m e n t , Article 42 EC) which authorises the Council to adopt measures in the field of social security with the purpose of facilitating, in this respect too, freedom of movement for workers within the Community, as set out in Article 48 of the EC Treaty (now, after amendment, Article 39 EC). The object was to ensure that the worker's right to social security benefits would not be reduced without justification if he were to migrate, thus avoiding the concern that such reductions might discourage or penalise the exercise of 17. As is well known, and as the Court has freedom of movement. 9 consistently held, the principle of equality of treatment is to be construed very widely, going beyond a mere prohibition on dis­ crimination on grounds of nationality and extending to any restriction affecting work­ ers (and, in general terms, those entitled to free movement) simply because they have exercised that freedom. According to abun­ dant, settled case-law of the Court, '[the principle of equality of treatment of which Article 48(2) of the Treaty constitutes a specific expression], prohibitļs] not only overt discrimination based on nationality 16. To achieve this the Community legisla­ but also all covert forms of discrimination tion, in this area also, is based on the which, by applying other distinguishing fundamental principle of the freedoms criteria, lead in practice to the same enshrined in the EC Treaty, that is to say result.' 1 0 Therefore, equality of treatment on the principle prohibiting discrimination must be fully guaranteed and thus implies a on grounds of nationality. Article 3(1) of strict prohibition on any national measure Regulation No 1408/71, which explicitly which, exclusively or predominantly, with mentions the principle of equality of treat­ respect to Community citizens established ment between migrant workers and citizens in another Member State, prevents or of the host Member State, simply gives restricts, in law or in fact, the exercise of effect (within the field of application of the freedom of movement, whether the mea­ regulation) to the principle laid down in sure is direct and unambiguous, or whether Article 48(2) of the EC Treaty and, in more general terms, to Article 6 of the EC Treaty (originally Article 7 of that Treaty and 10 — Case C-87/99 Zurstrassen [2000] ECR I-3337, paragraph 18; emphasis added. On this point see also, amongst many now, after amendment, Article 12 EC) others, Case 237/78 Toia [1979] ECR 2465, paragraph 12; Case C-278/94 Commission v Belgium [1996] ECR I-4307, paragraphs 28 to 30; Case C-131/96 Mora Romero [1997] ECR I-3659, p a r a g r a p h 3 2 ; Case C-57/96 Meints [1997] ECR I-6689, paragraphs 45 to 9 — With reference to Article 5 1 , see Case 4/66 Hagenbeek 46; Case C-350/96 Clean Car Autoservice [1998] ECR [1966] ECR 425, and Case 69/79 jordens-Vosters [1980] I-2521, paragraphs 29 to 30 and Case C-35/97 Commis­ ECR 75, paragraph 11. sion v France [1998] ECR I-5325, paragraph 39.

11 — Amongst the many judgments laying down those principles see, besides those already cited, Case 152/73 Sotgiu [1974] ECR 153, paragraph 11; Case 41/84 Pinna I [1986] ECR 1, paragraph 23; Case 313/86 Lenoir [1988] ECR 5391, paragraph 14; Case C-27/91 Le Manoir [1991] ECR I-5531, paragraph 10; Case C-419/92 Scholz [1994] ECR I-505, paragraph 7, which includes further references, and Case C-266/95 Merino Garcia [1997] ECR I-3279, paragraph 33. 20. The Belgian Government and ONEM, 12 — See, to this effect, Pinna I, cited above, paragraph 24; however, raise against that conclusion a Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira [1997] ECR I-511, paragraph 38; Merino Garcia, cited whole series of objections which I shall above, paragraph 35; and Zurstrassen, cited above, paragraph 19. now consider, distinguishing between those 13 — See Case 228/88 Bronzino [1990] ECR 531, paragraph 12 referring exclusively to Article 68(2) of and Joined Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR I-4895, paragraph 34, where addi- Regulation No 1408/71 and those which tional references are given, both referring to Article 73; are also based on the specific features of the and Case C-12/89 Gatto [1990] ECR I-557, Summary Publication, referring to Article 74. Belgian legislation in issue.

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22. As is apparent, the objection echoes in part that which I examined and rejected 23. Still with a view to justifying the above regarding the applicability of Reg- inapplicability of Article 68(2) in the case ulation No 1408/71. However, apart from of Mr Stallone, ONEM goes on to invoke that fact and the fact that, as we shall see, it the administrative difficulties which it contradicts other arguments developed in would face if migrant workers in the same defence of the Belgian legislation in issue, I situation as Mr Stallone were permitted, must confess that I fail to understand on under that article, to receive unemployment what basis the distinction drawn by ONEM benefit at the 'head of household' rate, rests. Given that there is no trace of it in the text of Article 68(2), I must take it that it arises from an arbitrary interpretation of 14 — Lor example, with reference to the prohibition on dis- the article, all the more questionable in that crimination in the area of social advantages as set out in Article 7(2) of Council Regulation (LLC) No 1612/68 of it draws on criteria diametrically opposed 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 to those which, according to settled case- (II), p. 475), the Court has recognised tnat it also applies to education grants paid to the children of migrant workers law of the Court, must take precedence in who have returned to studv i n their country of origin (see the interpretation of provisions designed to Case C-308/89 Di Leo [1990] LCR I-4185, paragraph 4; sec also Case C-3/90 Bernini [1992] ECR I-1071, para- encourage freedom of movement in the graphs 3 and 4).

24. In that respect, I must point out first and foremost that, as Mr Stallone's repre- sentative emphasised at the hearing, Arti- cle 84 of Regulation No 1408/71, entitled 'Cooperation between competent authori- ties', provides that, for the purposes of implementing the regulation, those autho- E — Arguments based on the specific rities are to lend their good offices and act features of the Belgian legislation in issue as though implementing their own legisla- tion. ONEM would therefore be able to ask for collaboration from the competent Ita- lian institution in order to verify whether the members of Mr Stallone's family are actually dependent on him. That aside, however, I must also point out that the 1. Relevance of the Acciardi case difficulties mentioned by ONEM in the case of members of a Community worker's family who have returned to the country of origin in no way differ from those which might arise if those family members have 25. For the purposes of answering the not from the outset wished or been able to question referred by the Belgian court, that accompany the migrant worker, a case court, but also certain participants in these which, as I have just pointed out, ONEM proceedings, have made mention of a considers to be definitely covered by Arti- previous judgment by the Court which cle 68(2). Finally, I might also point to the appears to confirm fully the allegation of fact that the alleged difficulties are, in all the discriminatory nature of the Belgian likelihood, of a lesser order than the rules in issue. I am alluding, of course, to difficulties which ONEM has to face in the judgment in Acciardi, 16 where the verifying compliance with the condition, Court held that 'subject to the second required under Belgian legislation as we shall see shortly, that family members are living under the same roof, since the checks 15 — With reference specifically to the case of application of a Community regulation, see, lastly, Case C-333/99 Com- for that purpose might actually be more mission v France [2001] ECR I-1025, paragraph 44, where there are further references. complex than those necessary to verify 16 — Case C-66/92 [1993] ECR I-4567.

26. Firstly, ONEM submits, in particular, that the Netherlands legislation in issue in Acciardi made the amount of the benefits dependent on the number of family mem- bers dependent on the recipient; this there- 27. Truth to tell, my impression is that the fore fell squarely within the scope of Netherlands rules considered in Acciardi Article 68(2) of Regulation No 1408/71 were not very different in substance from which refers specifically to legislation in the Belgian rules. However, it seems unne- which 'the amount of benefits varies with cessary to linger on this point, as, in my the number of members of the family' and view, the argument which has just been for this reason expressly requires those mentioned amounts to straining the sense family members resident abroad to be of Article 68(2) of Regulation No 1408/71 taken into account. On the other hand, and proposes an interpretation of that again according to ONEM, in accordance provision which, by its extremely and with Article 110( 1 ) of the Royal Decree the unjustifiably restrictive nature, is diametri- 'head of household' rate for unemployment cally opposed to the stated aims of the benefit, once it has been granted, does not Community rules and makes a complete vary according to the 'number of family mockery of the interpretative criteria which

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Thus, as ONEM itself recognises, a provision which 28. The other difference, according to the is designed to protect migrant workers and Belgian Government and ONEM, which which for this reason excludes any limita- Acciardi presents in relation to the circum- tion on increasing the rate of benefit on the stances under consideration here is that, basis of the place of residence of family whilst that case was concerned with a members, is said actually to authorise, for national rule which expressly made the that very reason, a refusal to grant the amount of benefits dependent on residence

on freedom of movement. If the logic of the Belgium, whatever their nationality and system and the indications in the legislation independently of whether the members of (Article 68(2) of Regulation No 1408/71 the family who do not live with the worker itself and also the definition of 'family reside in Belgium or elsewhere. member' under Article 1(f)(i) above) unequivocally militate in favour of preclud- ing penalisation of a worker by reason of the residence of the members of his family in another Member State, an interpretation which purports to be consistent with those 29. The first objection to be raised against indications and not simply to play with that contention, as mentioned in the order words must take it that the 'plus' of the for reference itself, is that it appears to be contradicted in Article 1(f)(i) of Regulation

No 1408/71, a provision whose general which, in my view, is decisive, that namely scope in this field is clear, and which that, in reality, in the cases listed above, the requires national legislation that 'regard[s] persons are 'living together', but only in as a member of the family or a member of law and not in fact. In other words, the the household only a person living under second paragraph of Article 59 of the the same roof as the worker' to deem that Ministerial Decree establishes a legal pre- condition to be met where the person is sumption of living together which treats the dependent on the worker. To expect them persons listed in that provision as 'living to live under the same roof, as the Belgian together' and, precisely because this is a legislation requires, amounts, therefore, to legal presumption, it precludes any verifi- infringing that obligation. cation of the facts. Moreover, in these cases, it is certain that the persons con- cerned are not in fact living together; however, thanks to the legal rule, it is 'pretended' that they are. This means that the cases listed constitute, not an exception, 30. The response on the part of the Belgian but a confirmation of the rule on living Government and ONEM is that, in reality, together, given that in order to offset the Article l(f)(i) of Regulation No 1408/71 is consequences of particular situations whilst not in any sense applicable in the case here, preserving the rule, the law has recourse to because it concerns legislation which that presumption. Article l(f)(i) is therefore 'regard[s] as a member of the family or a fully applicable also to the national legisla- member of the household only a person tion in issue here. living under the same roof as the worker', while the Belgian legislation authorises the grant of the 'head of household' rate also where the parties concerned do not live under the same roof. This is so, in parti- cular, in the cases listed in the second paragraph of Article 59 of the Ministerial Decree, that is to say, persons who are called up, persons who are carrying out a 32. The Belgian Government and ONEM service as conscientious objector, persons in object, however, that whilst the last-men- prison or in a similar situation or persons tioned Community provision simply men- who are temporarily abroad for profes- tions the fact of living under the same roof, sional reasons. the Belgian legislation speaks of living together; the Belgian law thus lays down a further, different condition which quali- fies that laid down in the Community provision in that, much more openly and directly, it emphasises the idea of a family 31. Apart from the fact that, put in these 'community', that is to say the idea, as is terms, the argument is in conflict with the made clear in Article 59 of the Ministerial next argument I shall deal with, which is Decree, of a group of persons who not only strictly based on the requirement of living live under the same roof, but who deal with together in order to justify the grant of the and settle domestic matters jointly. In my social advantage in question, I must point view, however, that clarification, too, on out that it fails to address a consideration which much stress was laid during the

proceedings, cannot succeed in preserving Article 59 of the Ministerial Decree prove the compatibility of the Belgian legislation that living under the same roof is not with Community law. always indispensable in order to be able to speak of living together, and that where the law has considered it necessary to have recourse to a legal presumption of this kind in order to deal with legitimate require- 33. I would observe, first of all, that while ments, then there is all the more reason to living under the same roof is not in itself proceed along the same lines in cases of synonymous with 'living together', as the separation brought about by the exercise of Belgian legislation acknowledges, the fact freedom of movement, thus bringing the of not doing so does not in turn necessarily national legislation into conformity with imply the absence of a family community. Community law.

family group. For this purpose, what regards living under the same roof, in the appears to me to be really decisive is not case also of members of the family of a so much living under the same roof, which migrant worker who have returned to their at most may give rise to a presumption, but State of origin. the animus, the will to preserve the unity and the cohesion of the family. Nor, more- over, in that sense, can one rule out that a family, forced by legitimate obligations to live apart, but in spite of that determined to maintain and preserve the family commu- nity, may sometimes succeed in doing so, and even more so and better than those who live or who are presumed to live under

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17— For all other cases see Case C-153/91 Petit |1992] ECR I-4973, paragraphs 8 and 10, including additional refer- ences, and Case C-206/91 Koua Poirrez [1992] ECR I-6685, paragraphs 10 et seq., including additional refer- ences. 36. In my opinion, however, that reasoning 18 — Koua Poirrez, cited above, paragraph 12. once more overlooks the fact that the two 19 — Koua Poirrez, cited above, paragraph 15 and operative situations mentioned are not identical and part; on the same subject see Joined Cases C-64/96 and C-65/96 Uecker and Jacquet (1997] ECR I-3171, para- that, precisely for this reason, in accor- graphs 16 to 21.

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V — Conclusion

38. On the basis of the considerations set out above, I therefore propose that the Court should declare that:

The rules of Community law, and in particular Articles 1(f) and 68(2) of Council Regulation (EEC) No 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, both in the original version and as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, must be interpreted as meaning that they preclude, without prejudice to the second sentence of Article 68(2), legislation of a Member State such as the first and second subparagraphs of Article 110(1) of the Belgian Royal Decree of 25 November 1991 on unemployment which makes the award of a higher rate of unemployment benefit to an unemployed worker with a dependent family subject to the requirement that he live together with certain members of the family in the territory of the competent Member State.