JUDGMENT OF 13. 11. 1974 — CASE 39/74 COSTA v BELGIUM

In Case 39/74 Reference to the Court under Article 177 of the EEC Treaty by the Tribunal du Travail of Liège (Belgium) for a preliminary ruling in the action pending before that court between

THE COURT composed of: R. Lecourt, President, C. Ó Dálaigh and Lord Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco (Rapporteur), J. Mertens de Wilmars, P. Pescatore, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The judgment making the reference and the written observations submitted under Article 20 of the EEC Statute of the Court may be summarized as follows:

I — Facts and written procedure

1. Mrs Luciana Mazzier, nee Costa, permanently resident in Belgium since July 1956, made an application to the Belgian authorities on 29 September 1971, for the payment of an allowance for the handicapped provided for under the Belgian Law of 27 June 1969. By the European Interim Agreement of 11 December 1953‘on social security schemes in respect of old age, invalidity and survivors’ approved under Belgian law by the Law of 26 March 1957, the Belgian State has allowed the nationals of other Member States to. receive this benefit, provided they fulfil the conditions laid down in Article 2 of the Agreement, under the terms of which: By decision of 8 March 1972 the Department of Allowances for the Handicapped rejected the plaintiff's application on the grounds that she had not established her normal residence on Belgian territory before the first diagnosis of the illness giving rise to the invalidity. On 13 May 1972 Mrs Mazzier appealed against this decision to the Tribunal du Travail of Liege arguing in particular that the allowance in question constitutes a “social advantage” within the meaning of Article 7 of Regulation No 1612/68 of the Council of 15 October 1968 (OJ L 257, 19. 10. 1968) and that, since she is unable to satisfy the conditions of the Interim Agreement, she is entitled to rely on the provisions of the said Regulation. The Belgian State on the other hand argued that the Regulation applied to her does not arise from Community Law, the allowance for the handicapped being a “social assistance” payment, awarded apart from any question of occupation, whilst “social advantages” under Article 7 of Regulation No 1612/68 are linked to the performance of and remuneration for work. The Tribunal du Travail of Liège, considering inter alia that; decided by judgment of 29 March 1974 to stay the proceedings and to refer the following preliminary questions to the Court under Article 177 of the EEC Treaty:

‘the nationals of the contracting parties shall be entitled to benefit from the laws and regulations of any of the other parties under the same conditions as the other party's own nationals provided that,

1) in relation to invalidity benefits under a contributory or non-contributory scheme they have established their normal residence on the territory of another Member State before the first medical diagnosis of the illness causing the invalidity,

2) …’

“it must be concluded that Community Regulations replacing the Interim Agreements do not afford Community nationals greater advantages”,

this application is however only possible “if the law on allowances for the handicapped is covered by the regulations”,

“1) Is the legislation on allowances for the handicapped (Law of 27 June 1969) social assistance legislation falling, ratione materiae, within the ambit of Article 2 (3) of Regulation No 3?

2) If the answer to Question 1 is in the negative, does the legislation on the handicapped constitute a social advantage covered by Article 7 (2) of Regulation No 1612/68?”

2. An office copy of the judgment referring the matter was registered at the Court on 5. 2. 1974. The plaintiff in the national proceedings, represented by Jean Jadin, the Belgian State, represented by the Minister for Social Security, the Government of the Italian Republic, represented by Ambassador Adolfo Maresca, assisted by Giorgio Zargari, and the Commission of the European Communities, represented by Norbert Koch, legal adviser, assisted by Marie-Jose Jonczy, member of the Legal Service, submitted written observations pursuant to Article 20 of the Protocol on the Statute of the Court of Justice. The Court on the report of the Judge-Rapporteur, after hearing the Advocate-General, decided to open the oral proceedings without any preparatory inquiry.

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court

A — Observations submitted by Mrs Luciana Mazzier

On the first question, the plaintiff in the national proceedings, having observed that it is important to know whether Belgian legislation on allowances for the handicapped falls within the area of application of Community law laid down by Article 4 of Regulation No (EEC) 1408/71 of the Council, concludes that such a legislation is covered by this Article, which also, by clause (2) thereof, expressly refers to general and special social security schemes, “whether contributory or non-contributory”.

The said legislation is not a social assistance legislation: it allows no room for an individual assessment and provides for the grant of legally defined advantages.

It matters little that the beneficiaries of the allowances are “workers” within the meaning of Article 1 (a) of Regulation No 1408/71, for the notion of “social security” decreed by Article 4 (2) of this Regulation applies to legislations of the kind involved in this case. It is moreover of no importance whether the beneficiaries are “insured” or not, within the meaning of Article 1 (a) aforementioned, since the allowance is granted on the basis of a certain degree of incapacity.

As regards the second question, the plaintiff in the national proceedings argues that the expression “social advantages” contained in Article 7 (2) of Regulation No 1612/68 must be interpreted in the light of the fundamental objectives of the Community rules. The system of free movement of workers, which this Regulation is intended to ensure, necessarily excludes the possibility of a change in the place of work depriving a worker and his family of a social advantage, such as an allowance for the handicapped.

The expression in question must therefore be understood in a wide sense: it does not relate exclusively to benefits linked to remuneration for work, but applies to all benefits of whatever kind. The Belgian allowance for the handicapped might therefore be termed a “social advantage” within the meaning of Article 7 (2) of Regulation No 1612/68. This classification is correct even on the assumption that it is reserved for advantages that are linked to an employment. The said allowance is in fact awarded to persons who do not possess sufficient resources and is based on a certain degree of permanent incapacity for work.

The plaintiff in the national proceedings suggests that the two questions be answered as follows:

“The Belgian legislation on allowances for the handicapped may be considered an invalidity benefit within the meaning of Article 4 (1) of Regulation No 1408/71, provided the beneficiaries are workers within the meaning of Article 1 (a) of this Regulation or members of the family. The allowances paid within the framework of Belgian legislation relating to allowances for the handicapped are social advantages within the meaning of Article 7 (2) of Regulation No 1612/68.”

B — Observations submitted by the Belgian State

The Belgian State observes, first of all, that the Court's interpretation must be necessary for the national court to give its final judgment. In the present case the interested party stated she was a “housewife”. Moreover, nothing appearing on the Court file makes it possible to call here a former worker. Consequently the interpretation given by the Court to Regulations No 3 and 1612/68 can have no bearing on the possible award of benefits provided for within the framework of the Belgian Law of 27 February 1969.

As for the first question, the Belgian Government observes that under Article 2 thereof, the field of application of Regulation No 3 extends to the nine fields of social security set out in Convention No 102 on the minimum norms of the ILO.

In the absence in Article 1 of Regulation No 3 of any definitions of these branches, it is necessary, for the purpose of deciding whether a legislation relating to allowances for the handicapped is covered by one of these branches, to refer to the aforementioned Convention, which is not affected by Regulation No 3. From the conditions for and the manner of granting the ordinary allowance for the handicapped, in particular Article 5 (1) and (2) of the Law of 27 June 1969, it can be seen that only an approximation to the invalidity benefits provided for by Article 2 (1) (b) of Regulation No 3 seems possible. The question referred thus amounts to asking whether an allowance granted under the conditions of Article 4 of the Belgian Law of 27 June 1969 is an invalidity benefit within the meaning of Article 2 (1) (b) aforesaid.

By virtue of Article 54 of Convention No 102 the possibility covered is “the inability to work to a prescribed degree where it is probable that such incapacity will be permanent or where it continues after the sickness benefit has ceased”. It refers solely to inability to work and any other type of invalidity falls outside the area of application of the Convention, including physical incapacity which consists in diminution in strength or health as compared with that of a normal person who possesses all his faculties and is in a good state of health. This is precisely the type of invalidity to which the Belgian Law of 27 June 1971 relates. Thus the ordinary allowance for the handicapped is not an invalidity benefit within the meaning of Article 2 (1) (b) of Regulation No 3 unless it complies with the two aforementioned conditions of Article 54 of Convention No 102, that is to say a benefit that implies, apart from a permanent state of incapacity, a link between the reduction in earning capacity and the amount of the benefit.

There is however, no such link in the present case. It appears from the medical guidance scale laid down by the legislation relating to the award of allowances for the handicapped (cf. Arrêté ministériel of 19 March 1969, Moniteur Belge 21 April 1969) that the rates of invalidity that would allow the degree of permanent incapacity to work on the part of the parties involved to be assessed, were evaluated by the medico-social service of the Ministry of Social Security without reference to a specific occupation. This guidance scale was established in a global manner, independent of any occupational or social consideration.

In contrast to invalidity benefits, the allowance for the handicapped is not therefore a replacement income having the purpose of compensating for a reduction in earning capacity on the part of the person entitled; it might even be granted to persons who have never worked. Moreover, as regards incapacitated workers the replacement income is made up of payments in respect of incapacity to work which are possibly converted into invalidity payments. The allowance for the handicapped is granted in respect of a percentage of invalidity different from that which results from legislation relating to invalidity and cannot amount to a supplementary invalidity benefit.

As for the second question, the Belgian State considers that in conformity with the first recital of Regulation No 1612/68 the “social advantages” referred to in Article 7 (2) of this Regulation are those attaching to employment. As is shown by the observations previously outlined, the benefits in question in this case have on the other hand no link with imployment. Moreover only a person who is a worker (cf. Judgment 76/72, paragraph 9) can benefit from the aforementioned provisions.

The Belgian State concludes by asserting that:

“1. The interpretation of Article 2 (3) of Regulation No 3 and of Article 7 (2) of Regulation No 1612/68 is not necessary to enable the Tribunal du Travail of Liege to give judgment in the case before it. 2. In any event, the replies to be given to the two questions referred must be in the negative.”

C — Observations submitted by the Italian Government

On the first question the Italian Government recalls the Court's case law and in particular the judgment given on 28 May in the Callemeyn case (No 187/73). The principles outlined by the Court on that occasion permit a solution of the basic problems which arise in the present case and enable a reply to be given to the first question in the sense suggested by the plaintiff in the national proceedings. So as nor to overload its statement the Italian Government refrains from repeating the observations it made in that case.

As for the second question, the Italian Government considers that a positive reply to the second question is not affected by a negative response to the first one, since the system of allowances for the handicapped, though having a social security function, equally constitutes a social advantage within the meaning of Article 7 (2) of Regulation No 1612/68. As a matter of logic, the two concepts of social security and social assistance are not rigidly opposed to one another and do not exclude one another, but can more easily be seen in a framework of complementary functions.

The diversity between the two systems does not depend so much on the purpose and the nature of the advantages granted to workers; it is above all related to the different degree of legal force which characterizes the claimant's entitlement to these benefits. In the event of such a claim amounting to a subjective right, one has a measure of social security; if on the other hand it seems linked to a discretionary assessment by the public authorities, it falls within the field of social assistance within the meaning of Article 2 (3) of Regulation No 3. Accordingly, even a measure having the characteristics of social security within the meaning of Regulation No 3 might be called a “social advantage” for the purpose of interpretation of Article 7 (2) and Regulation No 1612/68. This being said, the Italian Government considers that there can be no doubt in this case that the allowances granted to handicapped persons by national law constitute a “social advantage”. It is pointless to object that these allowances are laid down by provisions of a general character that make no reference to the existence of a work link; if in the case of migrant workers one only applied national provisions that expressly concern workers, it would be easy to avoid Community provisions by generalizing in favour of all nationals any system whatever of social security. In the present case, on the contrary, it is right to treat as sufficient the fact that national workers may (also) benefit from these national provisions; the principle of non-discrimination in Article 7 of the EEC Treaty implies that these same provisions may equally benefit the nationals of other Member States who work or have worked in the State in question.

D — Observations submitted by the Commission of the European Communities

According to the Commission of the European Communities the wording of the questions submitted by the national court suggests a certain confusion. Since Article 2 (3) of Regulation No 3 excludes “social assistance” from its field of application and since the Court has in its case law laid down that the notion of “social advantages” within Article 7 (2) of Regulation No 1612/68 only comes into play where it is not a matter of social security benefit within the meaning of Regulation No 3, the second question can only arise if the first question is answered in the affirmative, in the sense that the legislation in question indeed constitute a social assistance legislation. Nevertheless the judgment of the national court taken as a whole shows that the question which the Tribunal du Travail of Liège intended to ask is whether the allowances for the handicapped under the Belgian Law of 27 June 1969 fall within the area of application of Regulation No 3 and whether, in the event of the reply being in the negative, they constitute “social advantages” within the meaning of Article 7 (2) of Regulation No 1612/68. Besides, it would appear that the party involved is the wife of a Belgian employee, working in Belgium and that she neither is nor has ever been an employed person or a person treated as such. Thus, there is another question implicitly contained in the judgment referring the matter, that is whether the condition of nationality applied to the grant of the allowance for the handicapped is removed in the case of members of the family of an employed person or a person treated as such by the application of either Regulation No 3 or Regulation No 1612/68.

In conformity with the principle laid down by the Court under which in this sphere it would not be right to give way to a formalism incompatible with the nature and the purpose of the Article 177 mechanism of the Treaty, the questions referred in essence amount to enquiring:

“(a) are the allowances for the handicapped provided for under a national legislation included amongst the benefits referred to under Article 2 (1) (b) of Regulation No 3? (b) or are they social advantages within the meaning of Article 7 (2) of Regulation No 1612/68? (c) is the condition om nationality to which the grant of these benefits is subject, not applicable to members of the family of a employed person, by reason of the provisions of either Regulation No 3 or Regulation No 1612/68?”

As for the first of these questions, the fact that the Law of 27 June 1969 does not appear in Annex 3 to Regulation No 3 does not imply that it is necessarily excluded from the field of application of the said Regulation.

To resolve the present problem it is necessary to define the benefits provided for by the law in question in the light of the criteria which define the material extent of Regulation No 3. Even if it be true that the Court cannot within the framework of the Article 177 procedure of the Treaty define the Belgian Law, it can nevertheless provide the national courts with elements of interpretation under Community law which can guide these courts in applying the effects of the Law.

Having analysed the Belgian Law of 27 June 1969 on the subject of the conditions attaching to and the manner in which allowances to the handicapped are granted and having referred to the Court's case law in the matter as well as to the structure of Regulation No 1408/71, the Commission points out that the benefits mentioned in Article 2 (1) (b) of Regulation No 3 include those under national provisions granting allowances to the handicapped insofar as these provisions concern employed persons or persons treated as such within the meaning of this Regulation and confer on them a legally protected right to the grant of such advantages. Equally, if Madame Mazzier had been an employed person or a person treated as such within the meaning of Regulation No 3 one could not plead against her the nationality condition and apply to her the Interim Agreement “to the extent that this Regulation is more favourable than the said Agreement to the person entitled”.

As regards the second question, the Commission considers that it has lost its purpose on the grounds that since the party interested in an employed person or a person treated as such within the meaning of Regulation No 3, the allowances in question are social security benefits.

As for the third question, the Commission points out that on the face of the Court record, one must envisage the possibility that the party interested is not herself a worker but simply the spouse of one, employed in Belgium. Accordingly the question to be resolved is whether as a member of a worker's family the person interesred can under the provisions of either Regulation No 3 or Regulation No 1612/68, benefit from allowances for the handicapped that are provided under national legislation such as the Belgian Law of 27 June 1969.

a) As regards Regulation No 3, the Commission recalls the Court's case law which shows that allowances for the handicapped such as those provided for under the Belgian legislation fall within the provisions of Article 4 (1) (b) of Regulation No 1408/71 to the extent that the provisions governing them concern workers within the meaning of Article 1 (a) of this Regulation. An analogous principle was expressed by the Court in connexion with the “guaranteed income”, as regards the area of applicability of Regulation No 3. While this latter Regulation does not define the notion of “employed person or person treated as such”, Article 1 (a) of Regulation No 1408/71 does on the other hand contain such a definition. It is above all paragraph (a) (ii) of this provision which applies to systems such as that under the Belgian Law for the handicapped, that is “a social security scheme for all residents”. Under the terms of this paragraph, in particular its second subparagraph, one must amongst all the persons insured under such a system consider as employed persons those “insured for some other contingency specified in Annex V under the scheme for employed persons”. But the members of a family, who are not themselvers workers are not insured within the framework of such systems, but enjoy only the rights derived from the workers' insurance. Hence the consequence that Mrs Mazzier, not herself being an employed person or a person treated as such within the meaning of the aforementioned provision cannot claim to have the said Regulation, and more particularly the provision as to equality of treatment intended by this provision, applied to her. Besides, assuming that the capacity of ‘employed person or person treated as such’ is not a condition precedent for extending the area of applicability of Regulation No 3 to systems such as that in question in these proceedings, it would be a matter of determining the rights which Community law holds members of the family to be entitled to. Under Article 4 (1) of Regulation No 3 ‘dependants’ of a worker, referred to by. Article 51 of the EEC Treaty are the very ‘members of the family’ and the ‘survivors’ defined by Article 1 (n) and (o) of the said Regulation. It follows that the Community law applies to members of a worker's family only to the extent that these rights are by the legislations of a Member State recognized as belonging to them as such, that is to say to the extent that such legislation grants them rights derived from the worker's insurance. Thus the provisions of Regulation No 3 do not provide the possibility of ensuring equality of treatment of the members of the family of a worker employed in a Member State, from the point of view of the legislation of that State when such legislation, which makes the right to the allowance for the handicapped subject to a condition of nationality, makes that right depend on the beneficiaries residing in the territory of such State, and not on the worker being insured.

b) As regards Regulation No 1612/68, the Commission recalls that the provisions thereof expressly refer to workers who, being nationals of a Member State, seek work or are working in another Member State. Similarly, as regards members of the worker's family, Article 10 of this Regulation lays down that it refers to relatives in the descending and ascending line of ‘a worker who is a national of one Member State and who is employed in the territory of another Member State’. Equally, assuming Mrs Mazzier is the spouse of a Belgian worker working in Belgium, then Regulation No 1612/68 does not apply to her. Besides, the possibility of applying the said Regulation to the present case is also excluded by reason of the fact that in conformity with the Court's case law .'social advantages' within Article 7 are those which relate to employment and which benefit the workers themselves, the advantages intended for members of the family being excluded from the application of the said Article. The only rights provided in favour of a worker's spouse are those set out in Articles 10 and 11 of the Regulation which, in conjunction with Article 12 deal precisely with ‘worker's families’.

On the basis of these observations the Commission suggests the following reply to the three questions:

‘1. The benefits to in Article 2 (1) (b) of Regulation No 3 of the Council include those provided by national provisions that grant benefits to the handicapped to the extent that these provisions concern employed persons or persons treated as such within the meaning of that Regulation and confer on them a legally protected right to the grant of such advantages. 2. Consequently, Regulation No 1612/68 of the Council on the freedom of movement for workers within the Community is not relevant. 3. Neither the provisions of Regulation No 3 of the Council nor those of Regulation No 1612/68 of the Council allow the equality of treatment of members of the family of a worker, employed in a Member State, to be ensured in relation to the legislation of such Member State which makes the entitlement to the grant of a benefit for the handicapped subject to a condition of nationality, when such right derives not from the worker's insurance or from his employment, but from the residence of the protected persons on the territory of the said Member State.’

Ill — Oral procedure

The oral observations of the plaintiff in the national proceedings, of the Belgian State, assisted by Jacques Bovy and of the Commission of the European Communities were made at the hearing on 1 October 1974.

Nothing new emerged from these observations in relation to those submitted in the course of the written procedure. The Advocate-General delivered his opinion on 22 October 1974.

Law

1. By judgment dated 29 March 1974, received at the Registry of the Court on 5 June 1974, the Tribunal du Travail of Liège referred to the Court of Justice, under Article 177 of the Treaty, preliminary questions on the interpretation of certain provisions of Regulation No 3 of the Council on social security for migrant workers and of Regulation No 1612/68 of the Council on freedom of movement for workers within the Community.

2. These questions were submitted in the course of proceedings concerning the refusal of the Kingdom of Belgium to grant the plaintiff in the national proceedings — an Italian national married to a Belgian and residing in Belgium since July 1956 — the benefit of the Belgian Law of 27 June 1969 relating to the grant of benefits to handicapped persons, on the grounds that the party interested cannot by reason of her nationality benefit from the provisions for equal treatment with the State's own nationals, otherwise than under the provisions of the European Interim Agreement of 11 December 1953 on Social Security Schemes in respect of old-age, invalidity and. survivors, and that she does not satisfy the conditions of Article 2 of the said agreement.

3. The first question asks whether ‘the legislation on allowances for the handicapped (Law of 27 June 1969) [is] social assistance legislation falling, ratione materiae, within the ambit of Article 2 (3) of Regulation No 3’.

4. Under the terms of Article 1 (b) thereof, Regulation No 3 applies to all legislation of Member States relating to ‘the social security schemes and branches of social security’ set out in Article 2 (1) and (2) thereof.

5. Under the provisions of Article 2 (3), the Regulation shall not on the other hand apply to ‘social and medical assistance’.

6. Although it may seem desirable, from the point of view of the application of the Regulation, to distinguish between legislation concerning social security and assistance respectively, the possibility cannot be excluded that by reason of the persons covered thereby, its objectives and its manner of application, a legislation may at the same time fall within both categories, and thus not be amenable to any overall classification.

7. Whilst in some of its features, legislation concerning the grant of benefits to handicapped persons is akin to social assistance, especially when need is the essential criterion in its implementation and there are no conditions as to periods of employment, of membership or of contributions, yet it is nevertheless close to social security to the extent that, departing from the consideration of each case on its merits — a characteristic feature of assistance — it confers upon beneficiaries a legally defined position.

8. In view of the widely-drawn definition of people entitled to benefit, such a legislation fulfils in fact a double function, which is on the one hand to guarantee a minimum income to handicapped persons who are entirely outside the social security system and, on the other hand, to provide supplementary means to persons who are entirely outside the social security system and, on the other hand, to provide supplementary means to persons entitled to social security benefits who are permanently incapacitated from work.

9. Under the provisions of Article 2 (1) (b) thereof, Regulation No 3 applies to ‘invalidity benefits, including benefits granted for the purpose of maintaining or improving earning capacity’.

10. Under Article 1 (s) of the same Regulation, the term benefits shall be interpreted in the widest possible sense as meaning all benefits ‘including all fractions thereof chargeable to public funds, increments, revaluation allowances or supplementary allowances’.

11. Accordingly, a national legislation giving a legally protected right to a benefit for the handicapped falls, as regards the persons covered by Regulation No 3, within the area of social security within the meaning of Article 51 of the Treaty and of the Community Regulations thereunder.

12. The second question asks whether in the event of the answer to Question 1 being in the negative the legislation on the handicapped constitutes a social advantage covered by Article 7 (2) of Regulation No 1612/68.

13. It is shown by the judgment referring the matter that this question is only submitted in the event of its being found that the legislation in question, by virtue of Article 2 (3) of Regulation No 3, is excluded from that Regulation.

14. Since this is not the case here, an examination of the second question becomes pointless.

Costs

15/16. The costs incurred by the Belgian State, the Government of the Italian Republic and the Commission of the European Communities, which have submitted their observations to the Court, are not recoverable, and as these proceedings are, insofar as the parties to the main action are concerned, a step in the action pending before the national court, costs are a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Tribunal du Travail of Liege by judgment of 29 March 1974, hereby rules: