JUDGMENT OF 16. 12. 1976 - CASE 63/76 INZIRILLO v CAISSE ALLOCATIONS FAMILIALES LYON
In Case 63/76 Reference to the Court under Article 177 of the EEC Treaty by the Cour de Cassation, France, for a preliminary ruling in the proceedings pending before that court between
THE COURT (First Chamber) composed of: A. M. Donner, President of Chamber, J. Mertens de Wilmars and G. Bosco, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
The facts, the procedure and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:
I — Facts and written procedure
1. Mr Vito Inzirillo, an Italian national who resides in France where he is employed, applied to the Caisse d'Allocations familiales de l'Arrondissement de Lyon (hereinafter referred to as ‘the Caisse’) for the allowance for handicapped adults provided for by French Law No 71/563 of 13 July 1971 on behalf of his son Bernardo, born on 23 September 1948. The Caisse refused the application on the ground that the applicant is not a French national. As Mr Inzirillo considered that the refusal given was contrary to Community law and, in particular, to Regulations Nos 1612/68 (OJ, English Special Edition 1968 (II), p. 475) and 1408/71 (OJ, English Special Edition 1971 (II), p. 416), he requested the Cour d'Appel, Lyon, to annul the decision of the Caisse. However, the Cour d'Appel, Lyon, found that: Regulation No 1612/68 and, in particular, Article 7 thereof only refers to the social advantages which are directly linked to employment and conditions of work and remuneration, and excludes those which are inherent in social welfare; Although, under the community rules, the grant of the allowance in question to the nationals of the Member States is not dependant upon any condition of nationality, the allowance itself does not fall within the terms of the provisions of Regulation No 1408/71 which, whilst protecting migrant workers, does not cover all the family benefits which are provided for by the legislation of each Member State. Although it is provided for by the French Law as a family benefit, the allowance in question is not, in fact, in the nature of such a benefit since it is not intended to compensate for family expenses. After the Cour d'Appel, Lyon, dismissed his appeal, Mr Inzirillo appealed to the Cour de Cassation, which by a judgment given on 26 May 1976 decided to stay the proceedings and, in accordance with Article 177 of the EEC Treaty, to refer to the Court of Justice the question whether, pursuant to Regulation No 1408/71,
‘A handicapped adult Italian national who has himself never worked in France must benefit from the allowance for handicapped adults introduced by the Law of 13 July 1971 solely for the benefit of French nationals residing in France, if he resides there and if his father, an Italian migrant worker, is employed there.’
2. A copy of the judgment making the reference was received at the Court of Justice on 7 July 1976. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by the Caisse d'Allocations Familiales de l'Arrondissement de Lyon, represented by Guillaume Delvolvé, Advocate at the Conseil d'État and the Cour de Cassation, and by the Commission of the European Communities, represented by its Legal Adviser, Marie-José Jonczy, acting as Agent. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General, the Court decided to open the oral procedure without holding any preparatory inquiry. By order dated 19 October 1976 the Court referred the present case to the First Chamber in accordance with Article 95 (1) of the Rules of Procedure.
II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
A — Observations submitted by the Caisse d'Allocations Familiales
The Caisse maintains that Regulation No 1408/71 states clearly that, although it applies to legislation on social security, it is not applicable to social assistance. Article 4 (1) by implication and Article 4 (4) expressly exclude social assistance from the matters covered by the regulation.
As regards the criteria laid down by Community law for distinguishing between social security and social assistance, the case-law of the Court shows that although a clear criterion exists, it is by no means easy to apply it. Furthermore, one cannot in this matter take as a basis the judgments of the Court on the interpretation of Regulation No 1612/68 of the Council, since the present case concerns only Regulations Nos 3 and 1408/71.
According to the Caisse the judgments relating to those two regulations show that:
Although legislation is akin to social assistance when need is the essential criterion for its implementation and there are no conditions as to periods of employment, of membership or of contributions, it nevertheless constitutes social security where, departing from the consideration of each case on its merits, which is a feature of assistance, it confers on beneficiaries a legally defined position;
By virtue of a secondary criterion whose application enables a distinction to be drawn between those legislations which belong to the first of the two abovementioned categories and those which belong to the second, legislation will be regarded as being concerned with social security in relation to a wage earner or assimilated worker who has completed periods of employment in a Member State, resides there and is covered by the social security system in force there, whereas it will be regarded as being concerned with social assistance in relation to those persons who can only refer to their need in order to benefit from it.
In order to determine the manner in which those criteria may be applied in this instance, the two aspects of the question referred must be considered separately. It is first necessary to discover whether, disregarding his family circumstances, Bernardo Inzirillo, a handicapped Italian national of full age who has never worked in France, is entitled to claim that in relation to him the Law of 13 July 1971 froms part of the French system of social security. Secondly — the negative aspect — it is necessary to determine whether that law forms part of that system as a result of the rights to which his father, an Italian migrant worker employed in France, is entitled.
a) As regards the first point, the provisions of the Law of 13 July 1971 show clearly that, as regards Bernardo Inzirillo considered individually, the Law of 13 July 1971 forms part of a system of social assistance rather than of social security. The very wording of the first paragraph of Article 7 of the Law leaves no doubt on that point. That conclusion is not modified in any way by the fact that certain provisions of the law contain references to the social security system. Thus, for example, the third paragraph of Article 7 provides that persons who under the social security system are in receipt of a benefit which is less than the allowance in question are entitled to be paid the difference. However, although the principles established by the Court show that in relation to such persons the allowance is a social security benefit, the same is not true in relation to persons who have no right to benefits under the social security system. Moreover, even supposing that, against all possibility, the allowance in question is to be regarded as coming under the social security system, it cannot be awarded to Bernardo Inzirillo on the basis of Article 4 (1) and (2) of Regulation No 1408/71. The allowance in question is claimed by way of family benefit. Although it is true that Article 4 (1) (h) refers to ‘family benefits’, nevertheless, when drafting that provision the authors of the regulation did not intend to refer to all types of such benefit. As is shown by Article 1 (u) of the same regulation, they only took into account those categories of benefits existing when the regulation was adopted: they drew up the regulation with reference to a list of specific benefits and made a choice between them, retaining some and excluding others. In those circumstances it must be admitted that the authors of the regulation could not have intended to refer to benefits which were not yet in existence on the adoption of the regulation (14 June 1971). That is precisely the case as regards the allowance in dispute, which was introduced by a Law of 13 July 1971. Such a conclusion is not invalidated by the judgments of the Court of Justice in which the Court has ruled that the term ‘legislation’ used in Regulation No 3 applies to all social security legislation, even if it came into force after the regulation and was not notified in the manner provided for thereby. The legislation referred to in the judgments in question was not different in nature from that referred to by the regulation itself, whereas the benefit in question in the present case is of a wholly new kind and is not related to any of the benefits which were in existence when the regulation was adopted. Therefore in the absence of any international agreement and of any legislative provision enabling the allowance to be awarded to foreign nationals, it must be awarded to French nationals alone.
b) Nor can this answer be avoided so far as the second aspect of the problem is concerned, if one looks for the rights to which Bernardo Inzirillo may be entitled under the social security system, not on his own account but through the rights enjoyed by his father. It is necessary to ascertain whether Vito Inzirillo, an Italian national employed in France and covered by the social security system in force there, may claim that his son must, as a member of the family, be entitled to receive the allowance in question by way of the family benefits to which he (Vito Inzirillo) is entitled. First of all, however, as the allowance in question was introduced by a law which was adopted after the entry into force of the regulation, it cannot be covered by the terms of that regulation. Secondly, although family benefits were introduced in the interests of the family unit and are therefore determined by reference to dependent children, they are only paid if the recipient, that is to say the person who is entitled to the benefit in his own right, satisfies certain conditions. That is not so in the present case, since Vito Inzirillo cannot claim to be the recipient of the benefit in question or maintain that his son is a dependent child. In fact: The Caisse therefore considers that a negative answer must be given to the question referred for a preliminary ruling.
under French law it is impossible for any person over the age of 20 years (in this instance Bernardo Inzirillo) to be regarded as a dependent child within the meaning of the social security legislation, even if such person is handicapped;
the recipient or any benefit paid would be Bernardo Inzirillo himself and not his father. For this reason, the only matter at issue is the individual rights to social security of the adult Bernardo Inzirillo himself. His father's rights to social security cannot, therefore, be taken into account in the present case;
However, as has been explained above, Bernardo Inzirillo does not in himself satisfy the conditions required for the acquisition of a right to the allowance in question.
B — Observations submitted by the Commission of the European Communities
The Commission of the European Communities points out that the essential problem in the present case is to discover whether under Regulation No 1408/71 a person of full age who is not and never has been a migrant worker within the meaning of that regulation but whose father is a migrant worker is entitled through his father to receive an allowance for handicapped persons which is provided for by the legislation of a Member State for the benefit of its nationals alone.
The Commission maintains that there are in fact two separate aspects to this problem:
In the first place, does such a person come within the area of application of Regualtion No 1408/71 and, more precisely, if he is not a worker, may he nevertheless be regarded as a ‘member of the family’ within the meaning of that regulation?
Secondly, do the provisions of Regulation No 1408/71 enable the condition of nationality to be waived so as to ensure for the members of the family of a worker who is employed in a Member State equality of treatment with the nationals of that State in relation to a law which makes the right to an allowance dependant on the residence of the persons protected rather than on the insurance of the worker? However, that question would only arise if an affirmative answer were given to a preliminary question, namely whether the legislation in question falls within the area of application of Regulation No 1408/71.
In addition, the Commission regrets that the question referred contains no reference to Regulation No 1612/68. Although before the Cour d'Appel, Lyon, Mr Inzirillo relied on both that regulation and Regulation No 1408/71, before the Cour de Cassation he relied only on Regulation No 1408/71. According to the judgment of the Cour d'Appel, Lyon, of 22 January 1975, against which an appeal was made on a point of law, it was impossible to rely on Article 7 of Regulation No 1612/68 in this instance, since that provision only refers to the social advantages which are linked to employment and condition relating, inter alia, to the interpretation of that very article, the Court of Justice ruled in its judgment of 30 September 1975 (Case 32/75, Anita Cristini v Société Nationale des Chemins de Fer Français, [1975] ECR 1085) that the substantive area of application of Article 7 (2) of Regulation No 1612/68 must be delineated so as to include “all social and tax advantages whether or not attached to the contract of employment…”
Having made that point, the Commission also states that according to the case-law of the Court it is unnecessary to comply with formal requirements which would be contrary to the very nature of the procedure under Article 177 of the EEC Treaty; on the contrary, the national court must be provided with factors of interpretation depending on Community law which might be useful to it for the purposes of its judgment. In the light of this principle and having regard to the foregoing considerations, the question referred by the Cour de Cassation must be answered by deducing from its wording the following three questions:
“1. Does a scheme of allowances for handicapped persons introduced by a national law fall within the area of application of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community? 2. Must a migrant worker's handicapped child of full age who is prevented by his handicap from acquiring for himself the status of worker within the meaning of Regulation No 1408/71 be regarded, notwithstanding his age, as a member of the family of a worker within the meaning of that regulation? 3. Do the provisions or Regulation No 1408/71 ensure for the members of a family of a worker who is employed in a Member State equality of treatment with the nationals of that State in relation to a law which makes the right to an allowance dependent upon the residence of the persons protected rather than on the insurance of the worker?”
Going on to examine the substance of those questions the Commission makes inter alia the following observations:
1. The first question
An analysis of the French Law of 13 July 1971 shows that, having regard to the wide definition of the circle of beneficiaries, the aims of that Law are two or even three in number.
It is designed in the first place to create a benefit to compensate for the family expenses inevitably incurred by the existence in the family of a seriously handicapped person of whatever age. In addition, by introducing an allowance in favour of handicapped adults (Article 7), it enables such persons to benefit from a continuous system of social welfare.
Secondly, again with the object of ensuring that handicapped adults have a legally protected right to sickness insurance and to avoid any break in the health insurance cover, the Law provides for automatic affiliation to a voluntary insurance scheme. It would of course have been possible to establish a system under which a handicapped adult could continue to benefit from the sickness insurance of his parents even after he reached the age of 20. However, such a solution would have involved the risk of leaving a handicapped person entirely dependant upon social assistance in the case of an illness occurring after the death of his parents, since he would have no personal right to social security. Thus, when it established a scheme of social protection for handicapped persons, the Law in question intended to substitute a legally protected right for the social assistance to which they were entitled in the past.
Finally, when it introduced the allowance in question the French Law also intended to provide an income for permanently disabled persons who receive social security benefits but are insufficiently protected, since it is payable to persons who are not entitled to receive an old-age or invalidity benefit of an amount at least equal to the allowance.
It follows from all these factors that the name given to the allowance for handicapped adults is of no importance. When it introduced the allowance, the French Law of 13 July 1971 established a social security scheme for handicapped persons and conferred upon them a legally protected right to the allowance. In accordance with the case-law of the Court, therefore, it must be concluded that the Law in question falls within the substantive area of application of Regulation No 1407/71.
2. The second question
Under Article 1 (f) of Regulation No 1408/71, the term “member of the family” means
“any person defined or recognized as a member of the family … by the legislation under which benefits are provided …; where, however, the said legislations regard as a member of the family … only a person living under the same roof as the worker, this condition shall be considered satisfied if the person in question is mainly dependant on that worker.”
If one adheres to the wording of the French legislation, which is at issue in the present case, it must be concluded that since Bernardo Inzirillo has reached the age of 20 he no longer constitutes a member of the family of a worker and that the equality of treatment with the nationals of his State of residence guaranteed by Article 3 of Regulation No 1408/71 therefore came to an end on his attaining the age of 20 years, precisely the age as from which he could be entitled to receive the allowance for handicapped adults.
Such a situation is not only unfair from the point of view of social security but also is unsatisfactory from the point of view of Community law.
From the facts of the case it may be assumed that Bernardo Inzirillo is dependant upon his father who is a migrant worker employed in France. He is therefore entitled under Article 10 (1) (a) of Regulation No 1612/68 to reside in that country — or, more precisely, to install himself there with his father — regardless of his age.
In the light of the close connexion which Article 51 of the Treaty establishes between social security and freedom of movement for workers and having regard to the aim of the provisions for coordination adopted by Regulation No 1408/71 within the framework of freedom of movement, it is inconceivable that when the Community legislature adopted the definition of ‘members of the family’ set out in Article 1 (f) of that regulation it wished to produce the effects brought about by the application of the provision in the present case as a result of the national legislation of reference. On the contrary, the fifth recital of that regulation shows that the intention of its authors was to guarantee equality of treatment under the various national legislations for all nationals of Member States who either directly, because they are workers themselves, or indirectly, because they are entitled to install themselves in a Member State with a worker, exercise the right of free movement within the Community conferred on them by the Treaty.
That conclusion is confirmed by the case-law of the Court of Justice which, in its judgment of 17 June 1975 in Case 7/75, (Mr and Mrs F v Belgian State, [1975] ECR 691), held that a handicapped child who is prevented from himself acquiring the status of an employed person remains a member of an employed person's family even after the end of his minority for the purposes of the application of Regulation No 1408/71. The reasons underlying that judgment are precisely those which are to be found in the fifth recital of the said regulation and are in keeping with the principle of the freedom of movement for migrant workers.
3. The third question
The French legislation on allowances for handicapped adults was not expressly designed for workers as such. It is applicable to all nationals and makes the acquisition of the right dependant upon the residence of the recipient rather than on the insurance of the worker. It thus gives handicapped persons an individual right which allows them direct access to social security. The question may therefore arise whether the condition of nationality fixed by the French legislation may not be used against a ‘member of the familiy’ of a migrant worker who has no individual right to freedom of movement but only a derived right from his father's status as a migrant worker.
It follows, however, from the foregoing considerations that on the one hand the French legislation in question comes within the field of social security within the meaning of Regulation No 1408/71 and that on the other hand the said regulation applies to Bernardo Inzirillo as a member of the family of a migrant worker. Since the principle of equality of treatment laid down in Article 3 (1) of Regulation No 1408/71 prevents a situation from arising in which the members of the family of a worker are not allowed to benefit from the application of the legislation of any Member State under the same conditions as the nationals of that State, it follows that the condition of nationality cannot be used against Bernardo Inzirillo in order to refuse him the allowance for handicapped adults, any more than the absence of any reciprocal agreement between France and Italy may be used against him for the same purpose.
On the basis of the foregoing observations the Commission considers that the following reply must be given to the question referred:
‘The provisions of Regulation No 1408/71 must be interpreted as meaning that: (a) they include a scheme established by national legislation which provides for a legally protected right to allowances for handicapped persons; (b) since the said provisions fall within the framework of the principle of freedom of movement for workers who are nationals of Member States, they must guarantee to workers and members of their families who, by virtue of their right of free movement, reside in the territory of a Member State, equality of treatment with the nationals of that State in the application of those national laws which are covered by the material ambit of that regulation; (c) therefore, the handicapped son of a migrant worker may not, as compared with the nationals of the State of his residence, be placed in a less favourable position for the sole reason that he does not possess the nationality of that State.’
III — Oral procedure
The Caisse d'Allocations Familiales de l'Arrondissement de Lyon and the Commission of the European Communities presented oral argument at the hearing on 17 November 1976.
The Advocate-General delivered his opinion at the hearing on 7 December 1976.
Law
1. By judgment of 26 May 1976, received at the Court Registry on 7 July 1976, the Cour de Cassation of France referred to the Court under Article 177 of the EEC Treaty certain questions concerning the interpretation of Regulation No 1408/71 in relation to an allowance for handicapped adults.
2. Those questions were raised in the context of procedures relating to the refusal of the Caisse d'Allocations Familiales de l'Arrondissement de Lyon to allow a handicapped adult Italian national, residing in France with his father who is employed there as a worker within the meaning of Regulation No 1408/71, to benefit from the allowance for handicapped adults instituted by Article 7 and 8 French Law No 71-563 of 13 July 1971.
3. The application was refused in the present case on the ground that the Law in question limits payment of the allowance for handicapped adults to French nationals alone.
4. The Cour de Cassation of France asks whether, pursuant to Regulation No 1408/71, ‘a handicapped adult Italian national who has himself never worked in France must benefit from the allowance for handicapped adults introduced by the Law of 13 July 1971 solely for the benefit of French nationals residing in France, if he resides there and if his father, an Italian migrant worker, is employed there’.
5. In order to reply to this question it is first necessary to define the substantive area of application of Regulation No 1408/71 in relation to the provisions of national law providing for the allowance in question.
6. Whilst the Court, acting within the framework of Article 177, has no jurisdiction to pronounce on a provision of national law with regard to a Community rule, it can however, provide the national court with the factors of interpretation depending on Community law which might be useful to it in evaluating the effects of such provision.
7. In its judgment of 13 November 1974 in Case 39/74 (Mazzier, nee Costa v Belgian State, [1974] ECR 1251), the Court held that ‘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’.
8. Since Regulation No 3 was replaced by Regulation No 1408/71 of the Council, the same interpretation applies to the provisions of the latter regulation to the extent to which they determine the matters covered by that regulation.
9. It follows that a national scheme to provide allowance for handicapped persons, such as that at issue in the present case, which gives a legally protected right to such allowances constitutes social security within the meaning of Article 51 of the Treaty as regards the persons referred to by Regulation No 1408/71.
10. Secondly, it is necessary to consider whether a handicapped adult whose circumstances are those described by the national court is one of the persons covered by the said regulation.
11. Article 2 (1) of Regulation No 1408/71 provides it shall apply ‘to workers 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…, as also to the members of their family and their survivors’.
12. Although, in defining the term ‘member of the family’ of the worker, Article 1 (f) of that regulation refers to the national legislation under which the benefit is provided, nevertheless the interpretation of that reference must respect the principles of Community law on which Regulation No 1408/71 is based.
13. According to the fifth recital of the preamble, the provisions of that regulation ‘fall within the framework of freedom of movement for workers who are nationals of Member States and should, to this end, contribute towards the improvement of their standard of living and conditions of employment, by guaranteeing within the Community firstly equality of treatment for all nationals of Member States under the various national legislations and secondly social security benefits for workers and their dependants regardless of their place of employment or of residence’.
14. To this end, Article 3 (1) enshrines the fundamental principle of equality of treatment by providing that ‘subject to the special provisions of this regulation, persons resident in the territory of one of the Member States to whom this regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State’.
15. As is recognized by the Law which governs the benefit in question in this instance, the term member of the family of a worker undoubtedly includes a minor child dependent on his parents.
16. As regards more particularly the case of a handicapped child who from his minority fulfils the conditions entitling him to benefit, as a member of the employed person's family, from allowances for the handicapped, the equality of treatment under Article 3 of Regulation No 1408/71 cannot terminate when he ceases to be a minor, if the child by reason of his handicap is prevented from himself acquiring the status of employed person within the meaning of the regulation.
17. If that were not the case, a worker anxious to ensure to his child the lasting enjoyment of the allowances necessitated by his condition as a handicapped person, would be induced not to remain in the Member State where he has established himself and has found his employment, which would run counter to the object sought to be attained by the principle of freedom of movement for workers within the Community, bearing in mind inter alia the right recognized under this principle to employed persons and to members of their families to remain within the territory of a Member State in which the employed person was employed under the conditions determined by Regulation No 1251/70 of the Commission of 29 June 1970 (OJ English Special Edition 1970 (II), p. 402).
18. Furthermore, the obligation to ensure that a handicapped adult child receives treatment equal to that accorded to the nationals of the State in which he resides is laid down in other provisions of Community law relating to freedom of movement for workers.
19. Article 10 (1) (a) of Regulation No 1612/68 of the Council of 19 October 1968 (OJ English Special Edition 1968 (II), p. 475) provides that the right to install oneself in a Member State with a worker who is employed there although a national of another Member State applies not only to those descendants of such a worker who are under the age of 21 years but also to those who are ‘dependants’.
20. Article 7 (2) of the same regulation provides that a worker who is a national of a Member State shall, in the territory of another Member State, enjoy ‘the same social and tax advantages as national workers’.
21. In the light of the equality of treatment which Regulation No 1612/68 seeks to bring about and taking account of the provisions of that regulation as a whole, the matters covered by Article 7 (2) must be defined in such a way as to include every social and tax advantage, whether or not linked to a contract of employment, such as an allowance for handicapped adults which is awarded by a Member State to its own nationals under legislation which gives a legally protected right thereto.
22. The answer to the question referred must therefore be that pursuant to Regulation No 1408/71 of the Council of 14 June 1971, national legislation which, in a Member State, gives a legally protected right to an allowance for handicapped adults to the nationals of that State who reside there also applies to a handicapped adult national of another Member State who has never worked in the State which adopted the legislation in question but who resides there and is dependant upon his father who is employed there as a worker within the meaning of the said regulation.
Costs
23. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable.
24. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds, THE COURT (First Chamber) in answer to the question referred to it by the Cour de Cassation of France by judgment of 26 May 1976, hereby rules: