Report for the Hearing in Case C-310/91

I — Facts and procedure

1. Legal background to the dispute

(a) The Community legislation

Article 1(f) of Regulation (EEC) No 1408/71, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), defines ‘member of the family’ as follows:

‘(f) “member of the family” means any person defined or recognized as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Articles 22(1)(a) and 31, by the legislation of the Member State in whose territory such a person resides; where, however, the said legislation regard as a member of the family or a member of the household only a person living under the same roof as the employed or self-employed person, this condition shall be considered satisfied if the person in question is mainly dependent on that person. Where the legislation of a Member State on sickness or maternity benefits in kind does not enable members of the family to be distinguished from the other persons to whom it applies, the term “member of the family” shall have the meaning given to it in Annex 1’.

Article 1(1) of Council Regulation (EEC) No 1247/92 of 30 April 1992 (entry into force: 1 June 1992; OJ 1992 L 136, p. 1), added point (ii) to this definition:

‘(ii) where, however, the benefits concerned are benefits for disabled persons granted under the legislation of a Member State to all nationals of that State who fulfil the prescribed conditions, the term “member of the family” means at least the spouse of an employed or self-employed person and the children of such a person who are either minors or dependent upon such person. ’.

Article 2 of Regulation No 1408/71 which concerns the persons covered by the regulation is worded as follows:

‘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. (...) 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(1) provides that:

‘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.’

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

‘(A worker who is a national of a Member State) shall enjoy the same social and tax advantages as national workers.’

Article 7 of Commission Regulation No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition 1970 (II), p. 402) states that:

‘The right to equality of treatment, established by Council Regulation (EEC) No 1612/68, shall apply also to persons coming under the provisions of this regulation.’

(b) National legislation

The Law of 27 June 1969 concerning disability allowances as amended, is the applicable legislation ratione temporis. The provisions relevant to this case are as follows:

‘Article 2. Paragraph 1. The disabled, maimed, congenitally disabled, blind, deaf and dumb and disabled persons in one of the categories designated by a royal decree adopted following deliberation by the Council of Ministers may receive standard allowance. Paragraph 2. Disabled persons who do not belong to one of the categories for which a standard allowance may be granted, may receive a special allowance. (...) Paragraph 4. An allowance for the assistance of a third person may be granted to disabled persons receiving a standard special or supplementary allowance under the conditions and in accordance with the procedures determined by the King. The King may also establish under what conditions and in accordance with what procedures this allowance can be granted to persons other than those covered by paragraph 1. The King establishes the amount of this allowance; it may vary depending on the category of disability and on the extent to which the assistance of a third person is necessary under conditions which the King shall determine. The King may make the grant of this allowance conditional on the need for the assistance of the third person being imperative; in this case, the King shall determine how it is to be proved that the need is imperative. Article 4. The standard allowance shall be granted to disabled persons who: 1. are Belgian and actually reside in Belgium. The King may, under such conditions as he shall determine, make exceptions to this provision; should the King extend this law to cover Stateless persons, persons of undetermined nationality shall be treated as Stateless persons for the purposes of this measure. (...) 5. do not possess means exceeding the limits laid down by the King. The King may exempt, wholly or in part, certain categories of disabled persons from this condition or may provide that certain means are not to be taken into consideration. He may also determine the manner in which those means are to be assessed. Title IV. Special benefits Article 9. A special allowance shall be granted to disabled persons who are incapacitated for work in a manner other than that mentioned in Article 2(1) and who are not receiving the standard benefit. Article 10. In order to be entitled to the special allowance, the disabled person must: 1. meet the requirements laid down in Article 4(1) and (5); 2. be aged between at least 25 and 65 years or, in the case of women, 60 years; 3. suffer from permanent 100% incapacity for work; 4. not be excluded from entitlement to standard benefit under Article 3.’

(c) International law laid down by Conventions

Article 24 of the International Convention relating to Cooperation for the Safety of Air Navigation (Eurocontrol) amended in Brussels in 1981 (Law of 16 November 1984), Moniteur belge, 30 April 1985, p. 6014) provides that:

‘By reason of its own social security scheme, the Organization, the Director general and staff of the Organization shall be exempt from all compulsory contributions to national social security bodies, without prejudice to arrangements between the Organization and Contracting Parties existing at the entry into force of the Protocol opened for signature at Brussels in 1981.’

2. Background to the dispute

Mr Schmid, the appellant in the case before the national court, is a German national. He was originally a civil servant in the Bundesanstalt für Flugsicherung (Federal Administration of Aviation Safety) and, at the beginning of the 1960s, was recruited by the European Organization for the Safety of Air Navigation (hereinafter ‘Eurocontrol’) and settled in Belgium. Mr Schmid was a member of the aforementioned organization's social security scheme. He is now retired.

Mr Schmid's daughter, Suzanne, who is a German national like her father, was born on 28 February 1961. She has been handicapped from birth and, as a result, has never worked. In Belgium she received a grant from the Fonds National de Reclassement Social des Travailleurs Handicapés (National Fund for the Social Rehabilitation of Invalids), family allowances and a supplementary allowance for disabled children.

Mr Schmid, acting as his daughter Suzanne's guardian, claimed adult invalidity benefits (special allowance and allowance for the assistance of a third person) under Belgian law. That claim was rejected by the Belgian State, the respondent, on the ground that Mr Schmid's daughter had never been an employed person subject to a social security scheme either in Belgium or in another Member State, and that she was a German national. Mr Schmid brought an action against this decision before the Arbeidsrechtbank (Labour Tribunal), Leuven.

The Arbeidsrechtbank upheld the decision, adding that Article 2(3) of Regulation (EEC) No 1408/71 applies to civil servants and to persons treated as such but not to members of their families.

Mr Schmid appealed against this judgment to the Arbeidshof, Brussels.

3. The questions submitted for a preliminary ruling

In its judgment of 25 November 1991, the Arbeidshof (Fifth Chamber) referred to the Court of Justice the following three questions for a preliminary ruling:

‘Must Articles 2 and 3 of Regulation (EEC) No 1408/71 be interpreted as meaning that the application of Member State's legislation which confers an individual legally protected right to disability allowances extends to a handicapped person who is a national of a Member State but has never been employed, self-employed or a civil servant within the meaning of Article 2 of that regulation and who, in the Member State under whose law on disability allowances a claim is made, was previously in receipt of certain allowances, albeit exclusively on the basis of her status as a handicapped person and without her or her father being subject to any obligation under the legislation or social security scheme of that Member State, though her father, also a national of a Member State, possessed the status of an employed person or civil servant within the meaning of the aforesaid Article 2(1) and (3) but was not subject to the social security scheme, statutory or otherwise, of the Member State under whose legislation she made her claim, or to that of any other Member State as provided for in the regulation? As a subsidiary matter and if the first question is answered in the affirmative: 1. How is the term “civil servant” in Article 2(3) of Regulation (EEC) No 1408/71 to be interpreted, in particular does it cover a national civil servant of a Member State on unpaid leave who is an official of an international organization with its own staff regulations and its own social security scheme which grants exemption “from all compulsory contributions to national social security bodies”? If so, does protection also extend to members of the family and descendants, even though that is not expressly provided for? 2. Can an individual right be claimed by reference to the status of “member of family” within the meaning of Article 2(1)? Is that so even if the claimant resides in a subsidized institution supported by a social fund, where the legislation on disability allowances under which the claim is made makes the grant of those allowances conditional on an investigation into the means of subsistence and no longer takes account (after the age of majority has been reached) of the parents' income?’

4. Procedure before the Court

The order for reference was registered at the Court on 2 December 1991.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice, written observations were submitted:

on 17 March 1992 on behalf of Mr Schmid by Mr Hemmerechts, of the Brussels Bar,

on 15 April 1992 on behalf of the United Kingdom by Ms Cochrane of the Treasury Solicitor's Department, acting as Agent,

on 25 March 1992 on behalf of the Commission of the European Communities by Mr Drijber and Ms Patakia, of its Legal Service, acting as Agents.

Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the procedure without any preparatory inquiry and to assign the case to the Sixth Chamber.

II — Written observations submitted to the Court

5. First of all, Mr Schmid points out that Article 7(1) of the Treaty prohibits discrimination on the basis of nationality. He then invokes the judgment in Joined Cases 389 and 390/87 Echternach and Moritz v Minister for Education and Science [1989] ECR723, paragraph 11, where the Court held that ‘a Community national working in a Member State other than his State of origin does not lose his status of worker within the meaning of Article 48(1) of the Treaty through occupying a post within an international organization, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement concluded between the international organization and the State in which it is established’. The Court also confirmed, in Case 63/76 Inzmllo v Caisse Allocations Familiales Lyons [1976] ECR2057, that allowances for handicapped persons came within the substantive scope of Regulation (EEC) No 1408/71. Mr Schmid claims that the expression ‘dvii servant’ in Article 2(3) of Regulation (EEC) No 1408/71 must be interpreted in the light of the Court's case-law relating to Article 48(4) of the Treaty according to which posts in the public service are such as involve direct or indirect participation in the exercise of powers conferred by public law and duties concerned with the safeguarding of the general interests of the State or other public authorities. Reference is made to Case 149/79 Commission v Belgium [1980] ECR3881. Mr Schmid therefore maintains that his duties at Eurocontrol meant that he was a worker and not a civil servant within the meaning of Regulation (EEC) No 1408/71 on the ground that he had no involvement at all in the exercise of public powers. Mr Schmid also relied on Echternacb and Moritz, cited above. Mr Schmid claims that the fact that his daughter received family allowances plus a supplementary allowance for handicapped children, and a grant under the provisions of the Law of 16 April 1963 concerning the social rehabilitation of the disabled shows that she has always been covered by the Belgian social security scheme. Mr Schmid draws attention to Case 7/75 Mr and Mrs F. v Belgian State [1975] ECR 679 where the Court ruled that a handicapped child, who from his minority fulfils the conditions required to qualify for benefits for the handicapped as member of an employed person's family, shall continue to enjoy that equality of treatment if, by reason of his handicap, he is prevented from acquiring the status of an employed person within the meaning of the regulation. As regards the reply to the third question, Mr Schmid considers that, in accordance with Article 1(f) of Regulation (EEC) No 1408/71, the concept of ‘member of the family’ refers to the legislation under which benefits are paid. In this case Belgian civil law refers to the internal law of the State of which the applicants are nationals. The fact that Suzanne Schmid is the legitimate daughter of Mr Schmid is a sufficient ground for conferring upon her the status of a member of the family; the fact that she is residing in a specialized institution rather than with her parents is irrelevant. A handicapped Belgian national so residing is not deprived of entitlement to a special allowance. Mr Schmid claims that Belgian law confers a personal entitlement upon his daughter on the ground of her personal handicap and not on the basis of her family status: under the Belgian system entitlement to allowances is not conditional upon a person's status as a member of a family. Mr Schmid therefore proposes that the answer to the first question should be in the affirmative, namely that a handicapped person in his daughter's position is entitled to benefit. He proposes that the answer to the second question should be that the expression ‘civil servant’ must be interpreted in the light of the Court's case-law on Article 48(4), with the conclusion that employment at Eurocontrol confers the status of worker rather than civil servant. He proposes that the answer to the third question should be that the status of member of a family must be determined in accordance with the civil law of the Member State of which the applicant is a national.

6. The United Kingdom submitted observations on the first and second questions and did not therefore address the problems stemming from the duties performed by Mr Schmid at Eurocontrol. First of all, it notes that, in the light of the Inzirillo case, cited above, an allowance for handicapped adults comes within the substantive scope of Regulation (EEC) No 1408/71. It then points out that in Case 40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR1669, the Court made a distinction between workers on the one hand and the members of their family and their survivors on the other. The latter could only claim derived rights, that is to say rights acquired through their status as member of family of a worker. This case-law has been confirmed in Case 94/84 Office National de l'Emploi v Deák [1985] ECR 1873, in Case 157/84 Frascogna v Caisse de Dépôt et Consignation [1985] ECR 1739 and in Case 147/87 Zaoui v Caisse Régionale d'Assurance Maladie de l'Ile de France [1987] ECR 5511. The United Kingdom takes the view that this case-law applies whenever the benefit claimed comes within the substantive scope of Regulation (EEC) No 1408/71. It goes on to mention the Inzirillo and Mr and Mrs F cases cited above. There, the Court did not distinguish between a worker's rights and those of his family. However since those judgments predate the Kermaschek judgment, the United Kingdom considers that the Court should apply the latter. The application of that case-law to the facts in Inzirillo and Mr and Mrs F. would not in practice have led to a different result since Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on the free movement of workers within the Community entitles migrant workers to the same social advantages as national workers. And the disability allowance constitutes a social advantage of this type. Alternatively if the Court were to conclude that the principle laid down in Kermaschek was not applicable to the present case, the United Kingdom submits that the Inzirillo and Mr and Mrs F judgments should be treated as constituting a limited exception to it. Those cases concerned persons who had been handicapped as minors and whose handicap was such that they could never become workers and hence be able to rely on Regulation (EEC) No 1408/71 in their own right. The exception would, in the United Kingdom's view, have to be limited so strictly in order to avoid undermining the Zaoui judgment in which the Court applied the principle in Kermaschek to supplementary allowances for handicapped persons. However, Mr Zaoui was not found to have been handicapped as a minor nor in such a way as to prevent his ever acquiring the status of a worker. The United Kingdom therefore suggests that scope of the exception to the Kermaschek principle should be circumscribed in accordance with those different circumstances. For the sake of completeness and although the national court did not mention this matter, the United Kingdom adds that it is possible that Regulations (EEC) No 1612/68 and No 1251/70 may apply to this case and allow Mr Schmid to claim the disability allowance on the ground that it is a social advantage within the meaning of Article 7(2) of Regulation (EEC) No 1612/68. The United Kingdom invites the Court to give the following answer to the first and third questions referred by the national court: Alternatively the United Kingdom invites the Court to reply as follows:

‘Article 2(1) of Council Regulation (EEC) No 1408/71 enables a claim for disability benefit to be made on behalf of a handicapped member of the family of a worker who falls within the scope of Article 2(1) of that regulation, only where that person's entitlement to that benefit derives from that person's status as a member of the worker's family. Such a benefit may, however, constitute a social advantage as referred to in Article 7(2) of Council Regulation (EEC) No 1612/68’.

‘Article 2(1) of Council Regulation (EEC) No 1408/71 enables a claim for disability benefit to be made on behalf of a handicapped member of the family of a worker who falls within the scope of Article 2(1) of that Regulation, where that person, by reason of his disability, is, and always has been, unable to enter employment’.

7. The Commission differentiates between Regulation (EEC) No 1408/71 and Regulation (EEC) No 1612/68 noting that the benefits concerned come within the material scope of the latter, according to the judgment of the Court in Inzirillo cited above. However, members of the family of a worker may rely on derived rights only, according to the Kermaschek judgment cited above. Moreover the Commission considers that Mr Schmid does not come under Article 2(3) of Regulation (EEC) No 1408/71: this provision only covers the social security schemes of the Member States and not those of an international organization such as Eurocontrol. The Commission concludes that Mr Schmid's daughter may not rely upon Article 3(1) of Regulation (EEC) No 1408/71. The Commission then examines whether Mr Schmid's daughter may rely on Article 7(2) of Regulation (EEC) No 1612/68, which entitles migrant workers to ‘the same social and tax advantages as national workers’ to obtain the allowances concerned. The Commission first notes that Mr Schmid acquired the status of a migrant worker as a result of his employment as an international civil servant at Eurocontrol, in accordance with the Court's judgment in Echtemach and Moritz. He retained this status upon retirement as provided for in Article 7 of Commission Regulation (EEC) No 1251/70. Social security benefits are part of the ‘social advantages’ to which migrant workers are entitled (Inzirillo judgment). The principle of equal treatment also extends to the dependent children of workers (Deak judgment, and Case C-3/90 Bernini [1992] ECR I-1071 (paragraph 25 et seq.). As the child of a Belgian worker may obtain the allowances for handicapped adults in question, the Commission claims that the refusal to grant them to Mr Schmid's daughter constitutes discrimination based on nationality which is prohibited by Article 7(2) of Regulation (EEC) No 1612/68. The Commission therefore invites the Court to reply as follows to the questions referred to it for a preliminary ruling:

‘1. A national of a Member State may not rely on the provisions of Regulations (EEC) No 1408/71, and in particular Article 3(1), to claim benefits under the legislation of a Member State which provides for a personal entitlement to disability allowances, unless he is personally subject to the legislation of that Member State by virtue of his status as an employed person, a self-employed person or a civil servant.

2. A national of a Member State as referred to in (1) may nevertheless rely on Article 7(2) of Regulation (EEC) No 1612/68 if his father is a migrant worker and he is dependent on him and if the children of national workers may claim the abovementioned benefits.’

G. C. Rodriguez Iglesias

Judge-Rapporteur

1 Language of the case: Dutch.

2 The second recital in the pramble to this regulation states that ‘it is necessary to extend the definition of “member of the family” in regulation (EEC) No 1408/71 to conform with the case-law of the Court of Justice concerning the interpretation of that expression’.