Opinion of Mr advocate-general Reischl

Mr President,

Members of the Court,

The Fonds National de Solidarité was established in France by Law of 30 June 1956. It has the purpose of granting persons in need, i.e. persons whose income does not exceed certain limits, supplementary benefits for the purpose of supplementing various benefits paid in respect of old-age that are sufficient. Such supplements are paid to French citizens having their residence in France, if they are legally entitled to an old-age pension and are at least sixty-five years of age, or sixty in the case of incapacity to work. Pursuant to a Law of 2 August 1957 the supplement is also granted to those entitled to an invalidity pension for life, if their inability to work or earn is reduced by two-thirds or more and they have not yet attained the age of sixty. However, it is expressly laid down in Article L 699 of the Code de la Securité sociale that the supplement is withdrawn if a beneficiary transfers his residence outside the territory of the French Republic.

After the Law of 2 August 1957 had been passed, a supplementary agreement to the Franco-Italian Protocol on Social Security of 11 January 1957, was concluded on 6 February 1960. Under its provisions Italian nationals also are entitled to claim payment of the supplement where in case of invalidity they draw benefits pursuant to a French system of social security. Here too however, it is expressly laid down that only persons having their residence in metropolitan France are entitled to claim and that payment will cease upon the person entitled transferring his residence outside the territory of metropolitan France.

This provision is of importance for Miss Giuseppina Biason, the defendant in the national proceedings that have led to the reference before the Court today. Miss Biason, an Italian national was for a time in paid employment in France, where she also had her residence. Since 15 June 1971 she has been in receipt of the French invalidity pension. As from that date and having regard to the small amount of the invalidity pension as well as her financial need, she has also received a supplement from the Fonds National de Solidarité Français. However, with effect from 1 April 1972, after Miss Biason had transferred her residence to Italy and had informed the French social security insurance of this fact, the supplement was stopped.

This cessation resulted in proceedings, instituted by Miss Biason before the Commission de Première Instance du Contentieux de la Securité Sociale, of Paris. On 21 March 1973 that court made an order staying the proceedings and referring to the Court of Justice of the European Communities for a preliminary ruling the question whether payment of the said supplementary allowance ought to be continued, notwithstanding the change of residence, especially having regard to the provisions of the Franco-Italian Convention on Social security of 31 March 1948 and the Convention of 19 January 1951 between France, Belgium and Italy.

It did not however get as far as proceedings for a preliminary ruling, since the Caisse Rigionale d'Assurance Maladie de Paris, the defendant in proceedings at first instance, appealed to the Cour d'Appel of Paris against the said decision.

The Cour d'Appel considered that in judging the case a distinction could be drawn between the time before 1 October 1972, when Regulation No 3 on social security for migrant workers was still in force, and the period after 1 October 1972, as from which date Regulation No 1408/71 of the Council had replaced Regulation No 3. As regards the last-mentioned period it arrived at the view that the provisions of Regulation No 1408/71 are quite clear and not in need of interpretation. Since under Article 4 (1) (b) thereof, the Regulation applies to invalidity benefits, and since Article 1 (t) states that benefits and pensions within the meaning of the Regulation mean all benefits and pensions including all elements thereof payable out of public funds, revalorisation increases and supplementary allowances, therefore the French supplementary allowance mentioned, which is linked with invalidity, falls within the area of application of the Regulation. From Article 6 of the Regulation one can further deduce that it has replaced certain social security conventions, i.e. also the Franco-Italian Convention on Social Security of 31 March 1948, the Convention between Belgium, France and Italy of 19 January 1951 and the supplementary agreement of 6 February 1960 to the Franco-Italian Protocol of 11 January 1957. Since Article 10 of the Regulations moreover lays down that save as otherwise provided in this Regulation invalidity benefits acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated, the Caisse Régionale must be considered bound to continue paying Miss Biason the supplementary allowance after 1 October 1972.

As for the period prior to 1 October 1972 on the other hand, the Cour d'Appel arrived at the view that the Franco-Italian Convention of 31 March 1948 and the supplementary agreement of 6 February 1960 to the Franco-Italian Protocol of 11 January 1957 do not apply, since the provisions thereof which are of interest in the present case are not mentioned in Annex D to Regulation No 3. As for this period, the Cour d'Appel takes the view that a decision in the present case therefore depends on an interpretation of Article 2 (1) (b) of Regulation No 3, pursuant to which the Regulation shall apply to legislation governing invalidity benefits, including benefits granted for the purpose of maintaining or improving earning capacity. Accordingly, by a judgment of 2 March 1974 the Court, besides granting the application for the supplementary allowance for the period subsequent to 1 October 1972, stayed the proceedings and referred the following question for a preliminary ruling in accordance with Article 177 of the EEC Treaty:

On this question, in relation to which the Government of the French Republic, the Government of the Italian Republic and the Commission of the European Communities have expressed their views, I will state my position as follows:

1. From the pleading of the French Government it appears that an appeal in cassation was lodged against the judgment of the Cour d'Appel for a preliminary reference. This appeal in cassation may result in the judgment of the Cour d'Appel being quashed and the decision of the Court of Justice of the European Communities on the request for a preliminary ruling becoming pointless. Thus we have the questions whether the proceedings before this Court ought not to be allowed to remain in abeyance until after the appeal in cassation has been decided.

2. As I have just explained, the Cour d'Appel wishes to know whether in respect of the period before the coming into force of Regulation No 1408/71, i.e. on the basis of the provisions of Regulation No 3 on social security for migrant workers, it must be assumed that an insured person who receives an invalidity pension in one Member State by reason of paid employment, and who in that Member State is also entitled to a supplementary allowance based on that pension, retains this entitlement even where he transfers his residence to another Member State.

3. In the light of what I have said, I suggest the following answer to the request for a preliminary ruling on the part of the Cour d'Appel of Paris:

1 Translated from the German.