Report of the Judge-Rapporteur in Case C-243/91

I — Facts and procedure

1. Legal background

(a) Community law

Article 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, in the version in Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), reads as follows:

‘Persons covered 1. This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors. 2. In addition, this Regulation shall apply to the survivors of employed or self-employed persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such employed or self-employed persons, where their survivors are nationals of one of the Member States, or stateless persons or refugees residing within the territory of one of the Member States. 3. This Regulation shall apply to civil servants and to persons who, in accordance with the legislation applicable, are treated as such, where they are or have been subject to the legislation of a Member State to which this Regulation applies.’

Article 3 of that regulation provides as follows:

‘Equality of treatment 1. 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. 2. The provisions of paragraph 1 shall apply to the right to elect members of the organs of social security institutions or to participate in their nomination, but shall not affect the legislative provisions of any Member State relating to eligibility or methods of nomination of persons concerned to those organs. 3. Save as provided in Annex III, the provisions of social security conventions which remain in force pursuant to Article 7(2)(c) and the provisions of conventions concluded pursuant to Article 8(1), shall apply to all persons to whom this Regulation applies.’

Article 7(1) and (2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) provide as follows:

‘1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or reemployment. 2. He shall enjoy the same social and tax advantages as national workers.’

(b) National law

Article 4(1) of the Law of 27 June 1969 on the grant of allowances to handicapped persons (Moniteur Belge of 15 June 1969) provides as follows:

‘The following handicapped persons shall qualify for the ordinary allowance: 1. handicapped persons who are Belgian and genuinely reside in Belgium. Under such circumstances as He shall determine the King may derogate from this provision.’

2. Background to the case

Noushin Taghavi, an Iranian national and the respondent on a point of law, is married to Filippo Iannino, an Italian national. They are resident in Belgium.

On 14 November 1985, Noushin Taghavi applied for a handicapped person's allowance. Her application was rejected by administrative decision of 21 April 1986.

However, by judgment of 27 May 1987, the Tribunal de Travail (Labour Tribunal), Brussels, held that Noushin Taghavi was entitled to that allowance. The Cour de Travail (Labour Court), Brussels, upheld that judgment by judgment of 8 January 1990.

The Belgian State appealed on a point of law.

3. The preliminary question

The Belgian Cour de Cassation (Court of Cassation) (Third Chamber) referred the following question for a preliminary ruling by interlocutory judgment of 9 September 1991:

‘Are Articles 2 and 3 of Regulation (EEC) No 1408/71 to be interpreted as meaning that the benefit of the national legislation of a Member State conferring a personal right, guaranteed by statute, to a handicapped person's allowance may be enjoyed by a handicapped person who, although neither possessing the nationality of a Member State nor claiming the status of an employed person, is resident in the territory of the Member State providing for that personal right and is the spouse of an employed person who is subject to the legislation of that Member State but is a national of one of the other Member States?’

4. Procedure before the Court of Justice

The national court's judgment was received at the Court Registry on 20 September 1991.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice, written observations were lodged:

on 13 December 1991, by the Belgian State, represented by the Minister of Social Affairs, assisted by Georges van Hecke, avocat attached to the Belgian Cour de Cassation;

on the same date, by the Commission of the European Communities, represented by Dimitrios Gouloussis, Legal Adviser, acting as Agent.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, with the parties' agreement, to dispense with the oral procedure and to refer the case to the First Chamber without any preparatory inquiry.

II — Written observations submitted to the Court

The Belgian State, represented by the Minister of Social Affairs, the appellant on a point of law, started by stating that, owing to the date on which the application for a handicapped person's allowance was lodged, the Law of 27 June 1969, and not the Law of 27 February 1987, applies to this case.

The conditions for the grant of the allowance laid down by the Law of 1969 relate to the applicant's nationality, age, residence, degree of handicap and resources. The nationality condition is at issue in this case.

In contrast, no condition is laid down with regard to working or to family ties with a person in work. According to the Belgian State, it is therefore a personal right and not a derived right. Moreover, the Cour de Cassation described it as such in the text of the question referred for a preliminary ruling.

The Belgian State goes on to state that the Court's case-law distinguishes between personal rights and derived rights. The nationality of members of the family is irrelevant only in the case of derived rights (judgment in Case 40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669). A member of a family of a worker who is a national of a Member State cannot rely on Regulation No 1408/71 in order to claim benefits payable to a person in a capacity other than that of a member of a worker's family (judgment in Case 147/87 Zaoui v Caisse régional d'assurance maladie de l'île de-France [1987] ECR 5511).

Since Noushin Taghavi claims the allowance in question in a capacity other than that of a member of a worker's family, she cannot rely on Regulation No 1408/71.

The Belgian State also considers the possible application to this case of Regulation No 1612/68. It dismisses this possibility, however, on the ground that Noushin Taghavi's husband has lived in Belgian since the age of twelve and, in its contention, has therefore not exercised the right of free movement within the Community.

It goes on to argue on the basis of the judgment in Zaoui, cited above, that a member of the family of a worker who has never exercised the right to freedom of movement within the Community cannot rely on Regulation No 1408/71.

The Belgian State therefore suggests that the reply to the national court's question should be as follows:

‘A handicapped person who is not a national of a Member State, a refugee or a stateless person cannot rely on Regulation No 1408/71 in order to be eligible under the national legislation of a Member State providing for a personal right to an allowance for handicapped persons’.

The Commission first observes that the Cour de Cassation has asked for an interpretation of only Articles 2 and 3 of Regulation No 1408/71. However, it draws attention to the Court's case-law according to which, although the Court will not rule on the relevance of the national court's question, it may provide the national court with all those elements by way of interpretation of Community law which may enable it to decide on the substance. The Commission therefore considers that it should also consider the national court's question from the point of view of Regulation No 1612/68.

As regards Regulation No 1408/71, the Commission points out that, in the judgment in Case 63/76 Inzirillo [1976] ECR 2057, the Court has already held that a benefit similar to the one at issue in these proceedings constituted social security within the meaning of Article 51 of the Treaty. The Commission refers to the distinction drawn by the Court in the judgment in Kermaschek, cited above, between personal and derived rights. The Commission shares the Belgian State's view that the allowance in question is a personal right. It also considers that Noushin Taghavi is therefore not entitled to that allowance since she is not a national of a Member State.

Turning to free movement, the Commission argues that the allowance at issue constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68. The Commission refers to the judgment in Inzirillo, cited above.

Since the principle of equal treated enshrined in that article also applies to a migrant worker's spouse even if he or she is not a national of a Member State, the Commission concludes that Noushin Taghavi is entitled to claim the allowance in question.

The Commission therefore suggests that the Court should reply as follows to the national court's question:

‘It is not contrary to Articles 2 and 3 of Regulation No 140Ś/71 for a Member State to refuse the benefit of the allowance for handicapped persons to an employed person's spouse where that spouse is a national of a nonmember country; that spouse is entitled to claim that allowance by virtue of Article 7(2) of Regulation No 1612/68’.

G. C. Rodriguez Iglesias

Judge-Rapporteur

1 Language of the case: French.