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

I — Facts and written procedure

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

A — Observations submitted by Mrs Luciana Mazzier

B — Observations submitted by the Belgian State

C — Observations submitted by the Italian Government

D — Observations submitted by the Commission of the European Communities

Ill — Oral procedure

Law

Costs

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.

2. An office copy of the judgment referring the matter was registered at the Court on 5. 2. 1974.

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

A —. Observations submitted by Mrs Luciana Mazzier

B —. Observations submitted by the Belgian State

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

D —. Observations submitted by the Commission of the European Communities

(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?

(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.

(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.

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

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.

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: