Opinion of Advocate General

Mr President,

Members of the Court,

1. This case concerns a reference from the Social Security Commissioner in Belfast for a preliminary ruling on the interpretation of, first, Articles 4(1) and 73 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and members of their families moving within the Community and, second, Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community. The questions put to the Court arose in a dispute between Rose Hughes, the appellant (whom I shall call Mrs Hughes) and the Chief Adjudication Officer in Belfast, the respondent, concerning Mrs Hughes' entitlement to Family Credit.

Factual and legal background

2. Family Credit is a weekly cash benefit for low-income families provided for by the Social Security (Northern Ireland) Order 1986 and the Family Credit (General) Regulations (Northern Ireland) 1987. Article 21 of the Social Security (Northern Ireland) Order 1986 provides as follows:

3. Mrs Hughes, the appellant in the main action, lives with her husband and three children in Ireland. She is not employed or self-employed. Her husband, a national of the United Kingdom, works in Northern Ireland for the Department of Agriculture and has never worked outside Northern Ireland. On 30 March 1988 Mrs Hughes applied to the United Kingdom authorities for Family Credit. Her application was refused first by the Adjudication Officer and later, on appeal, by the Enniskillen Social Security Appeal Tribunal on the ground that she did not satisfy the residence requirement laid down in Article 21(5) of the Social Security Order (cited above) as implemented by Regulation No 3(l)(a) and (b) of the Family Credit (General) Regulations. It is provided by the latter that:

4. By a decision of 14 January 1991 the Social Security Commissioner, before whom the case came, referred the following questions to the Court of Justice for a preliminary ruling:

The scope of Regulation No 1408/71 ratione materiae and ratione personae (first and second questions)

5. It is well-established case-law that a benefit is a social security benefit within the meaning of Article 4(1) of Regulation No 1408/71 — and not social assistance within the meaning of Article 4(4) of that regulation — if the benefit is payable to the beneficiary by virtue of a situation which has been legally defined, without any individual and discretionary assessment of personal needs, and is connected with one of the risks exhaustively listed in Article 4(1). Mrs Hughes and the Commission claim that Family Credit satisfies those conditions and is thus a social security benefit. The United Kingdom and the German Government do not share that view.

6. The United Kingdom has also pointed out that the main purpose of Family Credit is to supplement the incomes of low-paid workers with families whose income would otherwise be greater were they unemployed. In view of that purpose Family Credit, according to the United Kingdom, is not a supplementary social security benefit and has no link with the social security system as defined in the abovementioned Article 4(1). I do not share that view. Although I am willing to accept that Family Credit is intended to keep low-paid workers in employment, it cannot in my view be denied that Family Credit is a benefit intended to help meet the needs of the family. That is at least the manner in which the purpose invoked by the United Kingdom is achieved. The benefit thus falls within the category of Article 4(l)(h), family benefits, as defined in Article l(u)(i) of Regulation No 1408/71.

7. Once it is accepted that Family Credit is a social security benefit and Regulation No 1408/71 thus applies, there remains the question whether Mrs Hughes is entitled to claim Family Credit on that basis. Article 73 of the regulation provides only that employed (or self-employed) persons Are entitled to family benefits for members of his or her family residing in the territory of another Member State. There is no mention of the spouse or other family members of the employed person. The German Government concludes that it is only Mr Hughes, and not his spouse, the claimant in the main action, who can rely on Article 73.

The ambit of Regulation No 1612/68, in particular Article 7(2) (third, fourth and fifth questions)

8. Mrs Hughes argues in the alternative that Family Credit is a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, and that the residence requirement laid down in the national legislation constitutes disguised discrimination against migrant workers which is prohibited by that article.

9. The United Kingdom and the German Government, and also the Commission, nevertheless consider that Article 7(2) does not apply in this case. That is because Article 7(2) is intended to abolish provisions in the legislation of the Member State of employment which subject a worker who is a national of another Member State to stricter treatment, as regards social and fiscal advantages, or which place him in a less advantageous position of law or of fact compared to nationals of the Member State of employment in similar circumstances. As already stated, the spouse of Mrs Hughes is, on the contrary, a national of the United Kingdom who works in the United Kingdom and has always done so. Since he is thus not a national of a Member State other than the Member State of employment Article 7(2) does not apply. I agree, particularly as the Court has consistently held that the Treaty provisions regarding free movement of workers and secondary legislation adopted in order to implement those provisions cannot be applied to situations in which there is no connection with the situations governed by Community law. That is certainly the case of workers who, like Mr Hughes, have never exercised their right of free movement within the Community and whose mobility within the Community has thus not been hindered by not having been granted social or fiscal advantages.

10. Should the Court nevertheless take the view that Regulation No 1612/68 does apply, the Social Security Commissioner wishes to know whether and under what conditions Mrs Hughes, as the spouse of an employed person, may also claim under Article 7(2) the same social advantages as national employed persons. The United Kingdom is of the opinion in that connection that Mrs Hughes, as a dependent family member of an employed person, may only rely on Article 7(2) if she lives with the employed person in the relevant Member State. I do not think that that is correct.

Conclusion

11. On those grounds I propose that the Court answer the questions as follows:

1 Originai language: Dutch.

2 In the version codified by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and in particular Article 73 as last amended by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1).

3 OJ, English Special Edition 1968 (II), p. 475.

4 Article 7 of Regulation No 1612/68 reads as follows:1. A worker who is a national of a Member State may not, in the territory of another Member Sute, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or reemployment; 2. He shall enjoy the same social and tax advantages as national workers. (...)

5 Case C-356/89 Newton v Chief Adjudication Officer [1991] ECR I-3017, paragraph 10.

6 See, for instance, Joined Cases 379/85 to 381/85 and 93/86 CRAM Rhône-Alpes v Oletti [1987] ECR 955, paragraph 11, Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Wehijn Kalmthout [1985] ECR 973, paragraphs 12 to 14, and recendy the judgment in Newton referred to in footnote 4, at paragraphs 11 and 19.

7 In Case 187/73 Callemeyn [1974] ECR 553 the Court held that a benefit, for which the Court itself pointed out that the essential criterion of entitlement was need, could nevertheless be a social security benefit if entitlement to it did not depend on the individual assessment which is the characteristic of social assistance, and the beneficiaries enjoyed a legally protected right to the benefit (paragraphs 7-11). In its recent judgment of 20 June 1991 in Newton (see footnote 4) the Court held that a benefit can only be regarded as a social security benefit if entitlement to it depends on objective criteria (paragraph 19).

8 See paragraph 7 of the judgment cited in footnote 5.

9 Case 40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669, paragraph 7.

10 See also, inter alia, Case 94/84 RVA v Deák [1985] ECR 1873, paragraphs 14, 15, and Case 147/87 Zaoui v CRAMIF [1987] ECR 5511, paragraphs II-13.

11 The fact that Mrs Hughes neither lives nor works in the United Kingdom and never has done is no obstacle to making a claim based on that derived right. Article 73 does not in fact require that the spouse of the employed person must also work in the Member State whose legislation is applicable and applies precisely to the situation in which the family of the employed person resides in another Member Sute.

12 The question whether it is compatible with Article 73 for national legislation such as that of the United Kingdom to require for entidement to Family Credit the spouse of the employed person, if employed, to be so in the same Member Sute, does not arise in this case because Mrs Hughes is not employed.

13 See for example Hoeckx, cited in footnote 5, paragraph 20.

14 See, for example, Case 207/78 Openbaar Ministerie v Even [1979] ECR 2019, paragraph 21.

15 See, for instance, Case 180/83 Moser v Land Baden- Württemberg [1984] ECR 2539, paragraph 15, Joined Cases 35/82 and 36/82 Morsoti and Jbanjan v State of the Netherlands [1982] ECR 3723, paragraph 15, Hid Case 175/78 Saunders [1979] ECR 1129, paragraph 11.

16 See the judgment cited in footnote 9, Zaoui, paragraph 16.

17 Case 316/85 Centre Public d'Aide Sociale de Courcelles v Lebon [1987] ECR 2811, paragraph 12.

18 Case 3/90 Bernini v Minister van Onderwijs en Wetenschappen [1992] ECR I-1071, paragraphs 27 and 28. See also my Opinion in that case of 11 July 1991, paragraph 22.

19 That is how I interpret the judgments of 27 March 1985, Hoeckx and Scrivner. There the Court declared that a benefit guaranteeing a minimum means of subsistence constitutes a social advantage within the meaning of Regulation No 1612/68 of the Council, which may not be denied to a migrant worker who is a national of another Member State ana is resident within the territory of the State paying the benefit, nor to his family (Hoeckx, paragrapn 22, my emphasis). In those cases the Belgian legislation required even in the case of Belgian nationals that they be resident in Belgium in order to claim the minimum means of subsistence. However, Belgian nationals were not subject to the condition applied to migrant workers that they have already resided in Belgium for a particular period.

20 See Case 152/73 Solgin [1974] ECR 153, paragraph 11. Of recent judgments, see Case 33/88 Allué et Coonan [1989] ECR 1591, Case C-175/88 Biehl [1990] ECR I-1779, paragraph 13, and Case C-27/91 URSSAF v U Manoir [1991] ECR I-5531, paragraph 10.

21 See paragraph 14 of Biehl, cited in footnote 19.