Report for the Hearing in Case C-310/91

I — Facts and procedure

1. Legal background to the dispute

(a) The Community legislation

Article 1(f) of Regulation (EEC) No 1408/71, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), defines member of the family as follows:

Article 1(1) of Council Regulation (EEC) No 1247/92 of 30 April 1992 (entry into force: 1 June 1992; OJ 1992 L 136, p. 1), added point (ii) to this definition:

Article 2 of Regulation No 1408/71 which concerns the persons covered by the regulation is worded as follows:

Article 3(1) provides that:

Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968 (II), p. 475) provides that:

Article 7 of Commission Regulation No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition 1970 (II), p. 402) states that:

(b) National legislation

The Law of 27 June 1969 concerning disability allowances as amended, is the applicable legislation ratione temporis. The provisions relevant to this case are as follows:

(c) International law laid down by Conventions

Article 24 of the International Convention relating to Cooperation for the Safety of Air Navigation (Eurocontrol) amended in Brussels in 1981 (Law of 16 November 1984), Moniteur belge, 30 April 1985, p. 6014) provides that:

2. Background to the dispute

Mr Schmid, the appellant in the case before the national court, is a German national. He was originally a civil servant in the Bundesanstalt für Flugsicherung (Federal Administration of Aviation Safety) and, at the beginning of the 1960s, was recruited by the European Organization for the Safety of Air Navigation (hereinafter Eurocontrol) and settled in Belgium. Mr Schmid was a member of the aforementioned organization's social security scheme. He is now retired.

Mr Schmid's daughter, Suzanne, who is a German national like her father, was born on 28 February 1961. She has been handicapped from birth and, as a result, has never worked. In Belgium she received a grant from the Fonds National de Reclassement Social des Travailleurs Handicapés (National Fund for the Social Rehabilitation of Invalids), family allowances and a supplementary allowance for disabled children.

Mr Schmid, acting as his daughter Suzanne's guardian, claimed adult invalidity benefits (special allowance and allowance for the assistance of a third person) under Belgian law. That claim was rejected by the Belgian State, the respondent, on the ground that Mr Schmid's daughter had never been an employed person subject to a social security scheme either in Belgium or in another Member State, and that she was a German national. Mr Schmid brought an action against this decision before the Arbeidsrechtbank (Labour Tribunal), Leuven.

The Arbeidsrechtbank upheld the decision, adding that Article 2(3) of Regulation (EEC) No 1408/71 applies to civil servants and to persons treated as such but not to members of their families.

Mr Schmid appealed against this judgment to the Arbeidshof, Brussels.

3. The questions submitted for a preliminary ruling

In its judgment of 25 November 1991, the Arbeidshof (Fifth Chamber) referred to the Court of Justice the following three questions for a preliminary ruling:

4. Procedure before the Court

The order for reference was registered at the Court on 2 December 1991.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice, written observations were submitted:

Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the procedure without any preparatory inquiry and to assign the case to the Sixth Chamber.

II — Written observations submitted to the Court

5. First of all, Mr Schmid points out that Article 7(1) of the Treaty prohibits discrimination on the basis of nationality.

6. The United Kingdom submitted observations on the first and second questions and did not therefore address the problems stemming from the duties performed by Mr Schmid at Eurocontrol.

7. The Commission differentiates between Regulation (EEC) No 1408/71 and Regulation (EEC) No 1612/68 noting that the benefits concerned come within the material scope of the latter, according to the judgment of the Court in Inzirillo cited above.

1 Language of the case: Dutch.

2 The second recital in the pramble to this regulation states that it is necessary to extend the definition of member of the family in regulation (EEC) No 1408/71 to conform with the case-law of the Court of Justice concerning the interpretation of that expression.