Opinion of Advocate General
Mr President,
Members of the Court,
1. These proceedings relate to a request for a preliminary ruling from the Belgian Cour de Cassation (Court of Cassation) on the scope of the principle of equal treatment of migrant and national workers enshrined in Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.
Background
2. Noushin Taghavi is an Iranian national. She has been resident in Belgium since 29 November 1971. On 5 October 1977 she married Filippo Iannino, an Italian national, who has been resident in Belgium since the age of twelve and works there.
3. On 14 November 1985, Noushin Taghavi applied for an allowance for handicapped persons under a Belgium law of 27 June 1969. Under Article 4 of that law, an allowance may be claimed by handicapped persons who
4. On appeal, the Cour de Travail (Labour Court), Brussels, decided on 8 January 1990 that Noushin Taghavi was nevertheless entitled to the allowance in question on the basis of Article 3 of Regulation No 1408/71, which I shall be considering later. The Belgian State appealed against that judgment to the Cour de Cassation, which, on 9 September 1991, decided to refer the following question to the Court of Justice for a preliminary ruling:
Application of Regulation (EEC) No 1408/71
5. Article 2(1) of Regulation No 1408/71 provides as follows with regard to the persons covered by the regulation:
6. Since Noushin Taghavi is married to an employed person who is an Italian national to whom the legislation of a Member State (Belgian legislation) applies, she falls prima facie within the scope ratione personae of Regulation No 1408/71. Since, in addition, she resides in Belgium, she also appears to satisfy the conditions for the application of Article 3 of that regulation. Nevertheless, that article does not automatically entitle her to obtain benefits on the same terms as Belgian nationals. This is because a distinction has to be drawn in this sphere between personal rights or own rights and so-called derived rights, obtained in the capacity of a member of a worker's family.
7. In the judgment in Kermaschek, the Court ruled that, under Regulation No 1408/71, a member of an employed person's family was entitled to claim only derived rights:
8. According to the national court's question, entitlement to the pecuniary benefit which handicapped persons may obtain from the Belgian public authorities is a personal right, guaranteed by statute. I infer from this that that right is not conferred on handicapped persons in their capacity of members of a worker's family and is therefore a personal right in the meaning given to that expression in Community law. Consequently, according to the case-law cited above, Noushin Taghavi cannot rely on Regulation No 1408/71 in order to avail herself of that right vis-à-vis the Belgian State.
Application of Regulation (EEC) No 1612/68
9. It should first be observed that the national court's question is confined to the interpretation of Regulation No 1408/71 and does not extend to Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. However, in order to provide a satisfactory answer to a national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in the text of its question. On several occasions in the past, the Court has, in judgments giving a preliminary ruling, considered the applicability of Regulation No 1612/68, even though the national court referred only to Regulation No 1408/71.
10. In this case, too, it is appropriate to consider whether Noushin Taghavi can rely on Regulation No 1612/68. Indeed, the parties have submitted observations thereon to the Court. Article 7(2) of Regulation No 1612/68 provides that a worker who is a national of a Member State must enjoy the same social and tax advantages as national workers in the territory of other Member States. In the judgment in Lebon, the Court expressly stated that that principle of the equal treatment of migrant and national workers also applies to the advantages conferred on members of workers' families, and that those family members may therefore rely on that principle indirectly.
11. There can be no doubt that allowances for handicapped persons fall within the scope ratione personae of Regulation No 1612/68 in so far as they may constitute a social advantage which may accrue to a worker who is a national of a Member State. As the Court has consistently held, social advantages within the meaning of Article 7(2) are all those which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community. In addition, in the judgment in Inzirillo, the Court stated that
12. However, the Belgian State refers to the judgment in Zaoui in order to contest that Noushin Tagliavi also falls within the scope rattorte personae of Regulation No 1612/68, on the ground that her husband has lived in Belgium since the age of twelve and has therefore never exercised his right of free movement within the Community. As I understand this reasoning, in his case the allowance for handicapped persons could not facilitate the mobility of the worker in question. I disagree.
13. I therefore consider, in common with the Commission, that Regulation No 1612/68 applies both ratione materiae and ratione personae to the case at issue.
14. Since it appears that the Belgian Law of 27 June 1969 does not grant allowances for handicapped persons to the non-EEC spouses of national workers, the question arises as to whether that is sufficient reason for refusing to grant the allowance to Noushin Taghavi, who is the non-EEC wife of a migrant worker from another Member State. In more abstract terms, that question may be put as follows: does the prohibition of discrimination set out in Article 7(2) of Regulation No 1612/68 mean that social advantages which, on grounds of nationality, are refused to members of the family of national workers may also be refused for the same reason to members of the family of migrant workers from other Member States?
15. In the 1985 judgment in Deak, cited above, the Court answered that question in the negative.
16. In my opinion, the point of view set out in the judgment in Deak, which is based on the principle of free movement, goes further than that which is required by the prohibition of discrimination alone, as I formulated it above (in section 13). Nevertheless, it prompts me to adhere to the view taken by the Commission and to decide that, as the case-law stands at present, Noushin Taghavi is entitled to rely on Regulation No 1612/68 in order to obtain from the Belgian State the handicapped person's allowance. Indeed, if the Belgian State were authorized to refuse to grant the handicapped person's allowance to Noushin Taghavi because of her nationality, her husband, to use the wording of the judgment in Deak, might be induced not to remain in the Member State where he had established himself and found employment.
17. In conclusion, I propose that the Court should give the following reply to the national court's question:
1 Original language: Dutch.
2 As annexed to Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983, L 230, p. 6).
3 Law of 27 June 1969 on the grant of allowances to handicapped pereons (Belgisch Staatsblad of 15 July 1969, p. 6935).
4 Judgment in Case 40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669.
5 Part of this paragraph does not appear in the Dutch version printed in the European Court Reports, although it does in the French and German [and English] versions. German was the language of the case.
6 Judgment in Kermaschek, paragraphs 5, 6 and 7.
7 Case 157/84 Frascogna [1985] ECR 1739, paragraph 15.
8 Case 94/84 Deak [1985] ECR 1873, paragraphs 10 to 16.
9 Case 147/87 Zaoui [1987] ECR 5511.
10 See also my Opinion in Case C-18/90 Kziber [1991] ECR I-208.
11 While Article 4 of the 1969 Law imposes nationality and residence conditions, it does not impose conditions relating to family relationship.
12 OJ, English Special Edition 1968(11), p. 475. The amendments made to Regulation No 1612/68 by Regulation (EEC) No 312/76 of 9 February 1976 (OJ 1976 L 39, p. 2) are not relevant to this case.
13 Judgment in Case 35/85 Tissier [1986] ECR 1207, paragraph 9. See also the judgment in Case C-241/89 SARPP [1990] ECR I-4695, paragraph 8, and the following footnote.
14 In particular in the judgments in Case 249/83 Hoeckx [1985] ECR 973, and in Frascogna and Deak.
15 Judgment in Case 316/85 Lebon [1987] ECR 2811, paragraphs 11 and 12.
16 Judgments in Case 207/78 Ministère Public v Even [1979] ECR 2019, paragraph 22, in Case 65/81 Reina [1982] ECR 33, paragraph 12, in Case 261/83 Castelli [1984] ECR 3199, paragraph 11, in Hoeckx, cited above, paragraph 20, in Case 122/84 Scrivner and Cole [1985] ECR 1027, paragraph 24, in Frascogna, cited above, paragraph 20, in Deak, cited above, paragraph 20, in Case 59/85 Reed [1986] ECR 1283, paragraph 26, and in Case 39/86 Lair [1988] ECR 3161, paragraph 21.
17 Judgment in Case 63/76 Inzirillo [1976] ECR 2057, paragraph 21.
18 Paragraphs 15 and 16.
19 Judgments in Case 175/78 Regina v Saunders [1979] ECR 1129, paragraph 11, in Case 180/83 Moser v Land Baden-Württemburg [1984] ECR 2539, paragraph 15, and in Case 298/84 Iorio v Azienda Autonoma delle Ferrovie dello Stato [1986] ECR 247, paragraph 14. See also the next three footnotes.
20 Judgment in Joined Cases 35 and 36/82 Morson and Jhanjan v State of the Netherlands [1982] ECR 3723, paragraphs 15, 16 and 17.
21 Paragraphs 15 and 16.
22 Judgment in Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3763, paragraphs 23 to 28.
23 See also mv Opinion of 6 May 1992 in Case C-78/91 Rose Hughes, still pending.
24 Judgment in Ministère Public v Even, cited above, paragraph 21.
25 Its applicability rattene loci is — correctly — not contested.
26 Judgment in Case 32/75 Cristini v SNCF [1975] ECR 1085, paragraphs 14 and 15. The Court held that If the widow and infant children of a national of the Member State in question are entitled to such cards [cards for reduced rail fares] provided that the request had been made by the father Defore his death, the same must apply where the deceased father was a migrant worker and a national of another Member State (paragraph 15).
27 The Court held in paragraph 24 that a requirement that relatives in the ascending line of workers who are nationals of other Member States must have resided in the territory of a Member State for a specified number of years constitutes discrimination contrary to Article 7(2) of Regulation No 1612/68, if that requirement is not also imposedon relatives in the ascending line of workers who are nationals of that Member State.
28 Judgment in Case C-3/90 Bernini [1992] ECR I-1071, paragraph 29. In that case, the Court held that a child of a migrant worker from a Member State was entitled to obtain funding for education on the same conditions as those applying to children of national workers, at least where the migrant worker was still responsible for the maintenance of his child.
29 See the judgment in Case 131/85 Gul [1986] ECR 1573, in which the Court appears to reiterate the views which it expressed in Deak in relation to Article 11 of Regulation No 1612/68.