Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The facts which gave rise to these two references for a. preliminary ruling are simple. The plaintiffs in the main proceedings, who are nationals of Member States of the Community, applied for the grant of a subsistence allowance, the minimum means of subsistence (known and hereinafter referred to as the minimex), provided for by a Belgian Law of 7 August 1974.

2. Vera Hoeckx appealed against that refusal to the Labour Tribunal of Antwerp which submitted the following four questions to this Court for a preliminary ruling:

3. It is clear from those questions, taken as a whole, that the two Belgian courts are in doubt as to whether the relevant Community rules confer a right to the minimex on nationals of other Member States. In order to answer the questions properly, it is necessary to set out the main features of the Belgian legislation which created that right.

4. The special features of the Belgian legislation, which I have just briefly described, explain the difficulties experienced by the courts making these references in regard to the classification ratione materiae of the right to the minimex. For they do not dispute that the plaintiffs in the main proceedings satisfy the requirements ratione personae for receiving the benefit of Community regulations.

5. Before examining the first branch of the question, namely how the minimex is to be classified in relation to Article 4 of Regulation No 1408/71, it is appropriate to review the main points of the observations submitted by the parties to the main proceedings in Case 122/84 and by the United Kingdom in Case 249/83. It may be pointed out that in Case 249/83 neither the plaintiff nor the defendant in the main proceedings has submitted observations.

6. Adopting here the approach taken by the Commission in its observations, I think it useful to rehearse the main points of the Court's previous decisions in this field before going on to apply them for the purposes of classifying the minimex.

7. How do those principles apply here? It is clear from the legislation at issue that the rules relating to the grant of the minimex are essentially objective and confer on recipients a legally defined position. In particular, a claimant's state of need is established by the mere fact that he is without work and that his resources are below the minimum income guaranteed by the Law. Furthermore, the right to the minimex is given the same judicial protection as social security benefits.

8. It must be noted that the Court has not yet had occasion to rule on that condition. In earlier cases, the Court was concerned with hybrid legislation where the benefits to be classified could be related unequivocally to one of the risks falling within the material scope of the Community regulations, namely old age or invalidity. That classification of those benefits was made easier by the broad interpretation of the concept of benefits as defined by the relevant Community regulations.

9. The remaining question asked by the referring courts is whether the right to a minimum means of subsistence may, as Mr and Mrs Scrivner and the Commission submit, be assimilated to one of the social advantages which, under Article 7 (2) of Regulation No 1612/68, are to be enjoyed equally by migrant workers and national workers.

10. As the Commission has shown, if nationals of other Community countries alone are required to have actually lived in Belgium for the five years immediately preceding the grant of the minimex, that constitutes discrimination contrary to Article 7 (2) of Regulation No 1612/68 and to the prohibition of discrimination on grounds of nationality contained in Article 7 of the EEC Treaty itself.

11. In conclusion, I propose that the Court should rule that:

1 Translated from the French.

2 Moniteur belge of 18 September 1974, p. 11363.

3 Moniteur belge of 13 January 1976, p. 311.

4 Article 1 of the Law of 1974, Article 1 of the Royal Decree of 1976 mentioned above and Article 26 of the implementing Royal Decree of 30 October 1974 (Moniteur belge of 19 November 1984, p. 13829).

5 Official Journal, English Special Edition 1971 (II), p. 416.

6 Official Journal, English Special Edition 1968 (II), p. 475.

7 Case 9/78 Gillard v Directeur régional de la sécurité sociale [1978] ECR 1661, paragraph 12 of the decision; Case 139/82 Piscitello v INPS [1983] ECR 1427, paragraph 10 of the decision.

8 Case 1/72 Frilli v Belgium (1972] ECR 457, paragraph 14 of the decision; see also Case 139/82 Piscitello, above, paragraph 11 of the decision.

9 Case 1/72 Frilli, above, paragraph 15 of the decision; see also Case 139/82 Piscitello, above, paragraph 12 of the decision.

10 Case 1/72 Frilli, above and Case 139/82 Piscitello, above.

11 Case 187/83 Callemeynv Belgium [1974] ECR 553; Case 24/74 Biason v Caisse Régionale d'Assurance Maladie [1974] ECR 999; Case 39/74 Costa v Belgium [1974] ECR 1251; Case 7/75 Mr and Mrs F. v Belgium [1975] ECR 679.

12 Case 1/72 Frilli, above, paragraph 17 of the decision.

13 Case 1/72 Frilli, above, paragraph 16 of the decision.

14 Case 1/72 Frilli, above, paragraph 14 of the decision; and Case 139/82 Piscitello, above, paragraph 11 of the decision.

15 Case 24/74 Biason, above, paragraph 12 of the decision.

16 Case 65/81 Reina v Landeskreditbank Baden-Württemberg [1982] ECR 33, paragraph 12 of the decision; also the recent judgment in Case 261/83 Castelli v ONPTS [1984] ECR 3199, paragraph 11 of the decision.

17 Case 65/81 Reina, above, paragraph 17 of the decision.

18 Case 152/73 Sotigu v Deutsche Bundespost [1974] ECR 153, paragraph 11 of the decision; and Case 237/78 CRAM v Tok [1979] ECR 2645, paragraphs 12 and 13 of the decision.