Report for the Hearing delivered in Joined Cases 379 to 381/85 and 93/86
I — Facts and procedure
1. The national legislation at issue
In France, a Fonds national de solidarité [National Solidarity Fund] was set up with a view to promoting a general welfare policy for old people, in particular by improving retirement and other pensions and old-age allowances. The fund grants an allocation supplémentaire (supplementary allowance) to the recipients of old-age or invalidity benefits where their resources are inadequate. At the present time, the conditions for the grant of the allowance are laid down in particular by Articles L 815-1 to 815-11 of the Code de la sécurité sociale [Social Security Code]. It appears from those provisions that the supplementary allowance is financed out of lax revenue and that there is no requirement that the person to whom it is granted should be a retired employed or self-employed worker. The benefit is paid as a supplement to resources of any kind, including contributory benefits, so as to achieve what is regarded as the indispensable minimum level, having regard to the cost of living in France. Under Article L 815-11 of the Code, the supplementary allowance is payable to foreign nationals residing in France only in accordance with reciprocal international agreements. Article 815-11 also provides that payment of the supplementary allowance is to cease where the recipient transfers his residence outside the territory of the French Republic.
2. Background to the main proceedings
The facts of the main proceedings may be summarized as follows:
The respondent in the main proceedings in Case 379/85, Mrs A. Giletti, an Italian national, is in receipt of a widow's pension under the French scheme on the basis of work by her husband as an employed person in France from 1930 until his death in 1961. Since then, Mrs Giletti has lived in Italy. In 1981, she applied for the supplementary allowance, but her application was rejected on the ground that she was not resident in France. Cases 380 and 381/85 are concerned with two migrant workers of Italian nationality, D. Giardini and F. Tampan, who worked in France and, after their retirement, received an old-age pension and also a supplementary allowance from the Fonds national de solidarité. When they indicated that they intend to return to their country of origin, the French authorities notified them that, as a result, the supplementary allowance would no longer be paid to them; in Mr Tampan's case (Case 381/85) payment was actually stopped. The appellant in the main proceedings in Case 93/86, S. Severmi, is an Italian national who has received an invalidity pension in France since 1964, together with the supplementary allowance. In 1982, however, the latter allowance was withdrawn after he transferred his residence to Italy; the institution responsible for payment also claimed that he should repay the amount improperly paid after he left France.
In the course of the proceedings before the national court, those pensioners relied upon Article 10 (1) of Regulation No 1408/71 of the Council of 14 June 1971 (Official Journal, English Special Edition 1971 (II), p. 416), which sutes that invalidity, old-age or survivors' ... benefits ... and death grants acquired under the legislation of one or more Member Sutes 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 Sute other than that in which the institution responsible for payment is situated'. For their part, the authorities concerned maintained that that provision was not applicable in this case since the supplementary allowance is a social assisunce benefit within the meaning of Article 4 (4) of Regulation No 1408/71 and is not therefore covered by the Community provisions at issue.
3. The questions submitted for a preliminary ruling
When the matter was brought before it, the Cour de cassation decided pursuant to Article 177 of the EEC Treaty to submit questions in each of the above cases, in identical terms, asking the Court to give a ruling:
According to the grounds of its judgments, the Cour de cassation is above all concerned to know whether a solidarity allowance which is financed out of taxation, intended to guarantee a general minimum means of substance paid as a supplement to another benefit, contributory or not, and granted on the basis of the applicant's resources but without regard to his occupation and which may under certain circumstances be recovered from the recipient's estate falls within the scope of that regulation as defined in Article 4. In the event of an affirmative answer, the Court of Cassation also wishes to know whether such a benefit constitutes a benefit acquired within the meaning of Article 10 of Regulation No 1408/71 where the person concerned resides in another Member State (Case 379/85) or else subsequently transfers his residence to another Member State (Cases 380 and 381/85 and 93/86).
4. Procedure
The orders for reference were received at the Court Registry on 28 November 1985 (Cases 379, 380 and 381/85) and 3 April 1986 (Case 93/86).
By decision of 15 January 1985 the Court joined Cases 379, 380 and 381/85 for the purposes of the written and oral procedure and the judgment. By decision of 3 October 1986, the Court joined Case 93/86 to Joined Cases 379, 380 and 381/85 for the purposes of the oral procedure and the judgment.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted:
By decisions of 18 June and 3 October 1986, adopted pursuant to Article 95 (1) and (2) of the Rules of Procedure, the Court assigned Joined Cases 379 to 381/85 and Case 93/86 to the Fourth Chamber. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, it also decided to open the oral procedure without any preparatory inquiry.
III — Summary of the written observations submitted to the Court
The Caisse régionale d'assurance maladie Rhône-Alpes, the Direction régionale des affaires sanitaires et sociales de Lorraine, the Caisse primaire centrale d'assurance maladie and the French Government consider that the legislation on the supplementary allowance paid by the Fonds national de solidarité falls outside the scope of Regulation No 1408/71 since it is concerned with assistance.
In support of that view, the abovementioned parties state that the supplementary allowance in question cannot be classified as a social security benefit. In the first place, the allowance is not financed by contributions but by payments from public funds. The payment is therefore a matter of national solidarity and is definitely not associated with the exercise of any profession or occupation. Furthermore, the allowance is intended to alleviate a state of need, at the same time as supplementing benefits of different kinds such as invalidity, old-age and other benefits. Finally, the allowance at issue is subject to conditions relating to the resources of the recipient; as a result, and by contrast with a social security benefit, it can be suspended or adjusted according to the recipient's current financial position. Having regard to those characteristics, it is clear that the supplementary allowance in question is in fact a social assistance measure within the meaning of Article 4 (4) of Regulation No 1408/71. Moreover, because of those very characteristics, it is not possible to maintain that the allowance in question can be acquired' in the same way as social security benefits. The term acquired, as used in Article 10 (1) of Regulation No 1408/71, can refer only to benefits in respect of which a beneficiary has, with respect to the future, established rights during his period of occupational activity. By contrast, a benefit in respect of which the recipient has established no rights and which can be adjusted at any time according to the resources of the recipient cannot be described as acquired.
If the Court should adopt an interpretation different from that given above, the French Government also expresses the view that it would be reasonable for any new interpretation of Regulation No 1408/71 to take effect only as from the date of the Court's judgment, in view of the considerable expenses which would arise from any amendment to the national legislation in question.
Referring to the judgments of the Court of 22 June 1972 (Case 1/72 Frili [1972] ECR 457), of 9 October 1974 (Case 24/74 Biason [1974] ECR 999) and of 5 May 1983 (Case 139/82 Piscitello [1983] ECR 1427), Mrs Giletti, the respondent in the main proceedings in Case 379/85, Mr Giardini, the respondent in the main proceedings in Case 380/85, the United Kingdom, the Italian Government and the Commission of the European Communities point out that it is not always possible to determine clearly whether given legislation relates to a social security scheme or a social assistance scheme. In that connection, the Court itself has recognized that it is difficult to give a comprehensive classification in view of the existence of hybrid noncontributory benefits. It should however be noted that, having regard to Article 4 (2) of Regulation No 1408/71, noncontributory benefits are certainly not excluded from the scope of that regulation and that Article 1 (2) thereof defines the term benefit rather broadly as covering all benefits, including all elements thereof payable out of public funds, revalorization increases and supplementary allowances. Moreover, it is apparent from the decisions cited above that a benefit such as a social aid allowance is in principle classifiable as social security within the meaning of Article 51 of the EEC Treaty and is not excluded from Regulation No 1408/71 by virtue of Article 4 (4) thereof where the benefit in question confers upon the recipients a legally defined position which involves no individual and discretionary assessment of personal needs and also can supplement the income of the recipients of social security benefits.
According to the abovementioned parties, it is apparent from the aforementioned legislation and case-law that the supplementary allowance in question does not fall within the scope of Regulation No 1408/71 unequivocally and in all cases but only where the allowance is paid without any assessment of individual needs and as a supplement to social benefits. Mrs Giletti, Mr Giardini, the Italian Government and the Commission add that, in the present cases, the allowance at issue does in fact come within the scope of Regulation No 1408/71. In all the cases referred to the Court by the Cour de cassation, the supplementary allowance was paid (Cases 380 and 381/85 and 93/86) or was applied for (379/75) as a supplement to a social security benefit payable under a contributory scheme (a survivor's pension, a worker's pension and an invalidity pension). In addition, the institution responsible for payment, by which the decision whether to withhold or grant the allowance is taken, has only compétence liée (nondiscretionary powers) regarding the question whether the conditions for the grant of the allowance laid down by the regulation have been fulfilled; in other words, there is no individual assessment of needs.
The Commission also points out that the allowance in question is paid only to elderly people or invalids and accordingly it is certainly not comparable with the subsistence allowance described as minimum de moyens d'existence provided for by Belgian legislation which the Court classified as a social assistance benefit in its judgment of 27 March 1985 (Case 249/83 Hoeckx [1985] ECR 973). In those circumstances, it proposes that the first question should be answered as follows:
As regards the second question, which concerns the meaning of acquired in Article 10 (1) of Regulation No 1408/71, Mrs Giletti, the United Kingdom, the Italian Government and the Commission, referring to the text of the provision and to its purpose, and also to the judgment of the Court of 10 June 1982 (Case 92/81 Caracciolo née Camera [1982] ECR 2213) state that the person concerned cannot be precluded from acquiring or claiming the right to the benefits, pensions and allowances referred to in that provision, for the sole reason that he does not reside in the territory of the State in which the institution responsible for payment is situated.
1 Language of the Case: French.