JUDGMENT OF 31. 5. 1979 — CASE 207/78 MINISTÈRE PUBLIC v EVEN

In Case 207/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour du Travail, Liège, for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: J. Mertens de Wilmars, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Mr Gilbert Even, who was born on 4 July 1915 and is a French national residing in Belgium, has been in receipt of a permanent war service 10 % invalidity pension in France since 26 June 1944 as the result of a wound sustained as a soldier on 13 May 1940.

2. A copy of the judgment making the reference reached the Court Registry on 21 September 1978.

II —. Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. The Office National des Pensions des Travailleurs Salariés, having set out the facts forming the basis of the dispute, emphasizes that even if the Royal Decree of 27 June 1969 laying down the conditions under which a scheme of national recognition entitles an employed person to an early retirement pension without reduction is applied only to persons of Belgian nationality this does not involve an infringement of the principle of equality of treatment enshrined in Article 3 (1) of Regulation No 1408/71.

B —. The Commission of the European Communities points out first of all that the problem discussed in the present case is similar to that settled by the Court in its judgment of 6 July 1978 in Case 9/78, the Gillard case.

III —. Oral procedure

1. By judgment of 8 September 1978, received at the Court on 21 September 1978, the Cour du Travail, Liège, submitted to the Court several questions for a preliminary ruling on the interpretation of the provisions of Articles 3 and 4 of Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community.

2. These questions have been raised within the context of a dispute between the Office National des Pensions pour Travailleurs Salariés (hereinafter referred to as the O.N.P.T.S.), Brussels, and a French national who has been in receipt of an early retirement pension paid by the O.N.P.T.S. since reaching 60 years of age.

3. Pursuant to Article 5 of the Belgian Royal Decree No 50 of 24 October 1967, the retirement pension, paid at the normal rate at 65 years of age, may start to run at the choice and upon the request of the person concerned during the period of 5 years preceding the normal pension age but in that case it is reduced by 5 % per year of early payment.

4. However, Article 1 (4) of the Royal Decree of 27 June 1969 laying down the conditions under which a scheme of national recognition entitles an employed person to an early retirement pension without reduction provides that the above-mentioned reduction does not apply to Belgian nationals who have served in the allied forces between 10 May 1940 and 8 May 1945 and are in receipt of a war service invalidity pension granted by an allied nation for incapacity for work attributable to an act of war.

5. In the present case Mr Even, who was in receipt under the French legislation of a permanent war service 10 % invalidity pension as a result of a war wound sustained on 13 May 1940, claims the benefit granted by that provision of an early retirement pension without reduction, relying upon the principle of equality of treatment between national workers and workers of another Member State enshrined in the Community rules.

6. He claims that he fulfils all the conditions required by Article 1 (4) of the Royal Decree of 27 June 1969 for the grant of the social advantage sought except that of nationality and that the refusal of that benefit amounts to discrimination based on nationality which is contrary to the Treaty.

7. In order to settle this problem, the Cour du Travail, Liège, delivering judgment on appeal from the judgment of the Tribunal du Travail, Liège, which had granted the plaintiff's request, referred to the Court of Justice the following questions:

8. In order to reply to the first question it is important essentially to examine whether a benefit such as referred to in Article 1 (4) of the Belgian Royal Decree of 27 June 1969 may be regarded as a social security benefit within the meaning of Article 4 (1) (c) of Regulation No 1408/71 and on that account comes within the substantive field of application of that regulation defined by the above-mentioned Article 4.

9. As the national court specifies in its judgment making the reference, the provisions of Article 4 (4) of the Belgian Royal Decree of 27 June 1969supplement the Belgian legislation on pensions for employed persons established and regulated by the Royal Decree No 50 of 24 October 1967.

10. However, the fact that a provision of that kind does or does not come within national social security legislation is not by itself determining for the purpose of concluding that the benefit laid down in that provision is in the nature of a social security benefit within the meaning of Regulation No 1408/71.

11. In fact, as the Court stated in its judgment of 6 July 1978 in the Gillard case, Case 9/78, the distinction between benefits which are excluded from the field of application of Regulation No 1408/71 and benefits which come within it rests entirely on the factors relating to each benefit, in particular its purposes and the conditions for its grant.

12. It is clear from the file that the essential objective of the benefit granted under the national provisions in question is to offer to Belgian workers who fought in the allied forces between 10 May 1940 and 8 May 1945 and suffer incapacity for work attributable to an act of war a testimony of national recognition for the hardships suffered during that period and to grant them, by increasing the rate of the early retirement pension, a benefit by reason of the services thus rendered to their country.

13. In view of this objective and of these conditions for its grant, such a benefit does not exhibit the factors relating to a social security benefit within the meaning of Article 4 (1) of the regulation.

14. Article 4 (4) of Regulation No 1408/71, defining the substantive field of application of that provision, provides that the regulation does not apply inter aliato benefit schemes for victims of war or its consequences.

15. For those reasons it is necessary to reply to the first question that Article 4 (4) of Regulation No 1408/71 must be interpreted as referring also to special schemes such as that referred to in Article 1 (4) of the Belgian Royal Decree of 27 June 1969 laying down the conditions under which a scheme of national recognition entitles an employed person to an early retirement pension without reduction.

16. In view of this reply the other questions which have been asked by the national court become purposeless.

17. However, the Commission has claimed in its observations that a benefit such as that in the present case must, although it does not constitute a social security benefit within the meaning of Regulation (EEC) No 1408/71, nevertheless be considered as a social advantage within the meaning of Article 7 (2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475) and thus comes within the field of application of the provisions of the latter regulation.

18. It concludes from this that the grant of such a benefit, although not covered by the provisions of Regulation (EEC) No 1408/71, including those of Article 3 (1), remains subject to the provisions of Regulation (EEC) No 1612/68, in particular those of Article 7 (2) according to which a worker who is a national of a Member State enjoys in the territory of the other Member States the same social and tax advantages as national workers.

19. It is necessary to examine the validity of such an argument.

20. Regulation (EEC) No 1612/68, which was adopted in implementation of Articles 48 and 49 of the Treaty and within the context of the measures adopted by Regulation No 38/64 of the Council of 25 March 1964 (Journal Officiel 1964, No 62, p. 965), aims to achieve freedom of movement for workers within the Community.

21. For this purpose it provides for the abolition of all differences in treatment between national workers and workers who are nationals of the other Member States as regards conditions of employment, work and remuneration and gives workers who are nationals of the other Member States and members of their family access to the social and tax advantages from which national workers benefit in the State of employment.

22. It follows from all its provisions and from the objective pursued that the advantages which this regulation extends to workers who are nationals of other Member States are all those which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community.

23. As it has previously been stated, the main reason for a benefit such as that granted by the Belgian national legislation in question to certain categories of national workers is the services which those in receipt of the benefit have rendered in wartime to their own country and its essential objective is to give those nationals an advantage by reason of the hardships suffered for that country.

24. Such a benefit, which is based on a scheme of national recognition, cannot therefore be considered as an advantage granted to a national worker by reason primarily of his status of worker or resident on the national territory and for that reason does not fulfil the essential characteristics of the social advantages referred to in Article 7 (2) of Regulation (EEC) No 1612/68.

25. It therefore follows that the benefit in question does not come within the substantive field of application of Regulation (EEC) No 1612/68 and is not therefore, as regards the conditions for the grant of that benefit, subject to the provisions of that regulation.

26. The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable; 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 as to costs is a matter for that court.

On those grounds, THE COURT (First Chamber), in answer to the questions referred to it by the Cour du Travail, Liège, by judgment of that court of 8 September 1978, hereby rules: