Opinion of Advocate General Lenz delivered on 6 May 1993

1 Original language: German.

2 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, as consolidated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) and last amended by Council Regulation (EEC) No 1249/92 of 30 April 1992 (OJ 1992 L 136, p. 28).

3 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).

4 By way of clarification, it should be noted that the benefits under this law arc paid to two categories of persons: elderly unemployed persons on the one hand and unemployed persons suffering from partial incapacity to work on the other.

5 As the representative of the Netherlands Government explained during the oral procedure, classification of the applicant as a worker without children is based on Arti cle 3(7) of the IOAW. Under that provision a child belonging to the household of a third person is not deemed to be a chdd for the purposes of the IOAW. During the hearing, counsel for Mr Acciardi stated that in the main proceedings Mr Acciardi had claimed in the alternative that he should at least be classified as a worker with a child. It is beyond dis pute that the questions submitted do not address this issue, so that the Court is not required to rule thereon. However, the following observations on the questions from the national court are also relevant to the question of whether the applicant's son should be taken into account

6 See paragraph 17 in the written observations of the Commission of 9 June 1992.

7 Case C-45/90 Paletta [1992] ECR I-3423, paragraph 16. See also the recent judgment in Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 28.

8 Case C-356/89 Newton [1991] ECR I-3017, paragraph 12. Sec also Case 187/73 Callemeyn [1974] ECR 553, paragraph 6, and Case 39/74 Costa [1974] ECR 1251, paragraph 6.

9 Ose C 111/91, tiled in footnote 6. paragraph 29, and Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15.

10 The phrase used in the Callemeyn judgment, cited in foot note 7, at paragraph 7.

11 In Germany, for example, there is a legally enforceable right to social assistance

12 Case 122/84 [1985] ECR 1027.

13 Scrivner, paragraph 20.

14 Case 139/82 [1983] ECR 1427.

15 Piscitello, paragraph 11.

16 The IOAW also contains more favourable provisions than the ABW with regard to the taking of income into consideration (cf. Article 8 of the IOAW).

17 Sec lor example Joined Cases 379/85 lo 381/85 and 93/86 Giletti 1987; LCR 955. paragraph 7

18 Case 15/77 Beerens [1977] LCR 2249. paragraphs 9 and 10.

19 Case 70/80 Vigivr [1981] LCR 229, paragraph 15.

20 Sec paragraph 3 above.

21 Case C-228/88 [1990] LCR I 531.

22 Case C-12/89 [1990] LCR I-557 (summary publication)

23 See the Report (or the Hearing in the Bronzino case. [1990] LCR I 537

24 Bronzino, cited in footnote 23, paragraph 12.

25 Bronzino, paragraph 14. The Bronzino and Gatto cases concerned the interpretation of Article 73 of Regulation No 1408/71, which relates to family benefits.

26 If the spouse has a sufficiently high income, the unemployed worker may lose his entitlement entirely. 26 — See Case 316/85 Lebon [1987] ECR 2811, paragraph 10.

27 See Case 316/85 Lebon [1987] ECR2811, paragraph 10.

28 See Case C 111/93, cited in footnote 6, paragraph 21, and the Opinion of Advocate General Jacobs delivered in that case on 16 December 1992 (particularly paragraphs 32 and 34). See also my Opinion delivered on 12 January 1993 in Case C-310/91 Schmid [1993] ECR I-3011, point 54 el seq.

29 See for example Case 249/83 Hoeckx [1985] ECR 973, paragraph 20.

30 See Cases 122/84 and 249/83, cited in footnotes 11 and 28 respectively, which related to a benefit designed to ensure generally a minimum means of subsistence.

31 Case 152/73 Sotgiu [1974] ECR 153, paragraph 11. See also for example Case 175/88 Biehl [1990] ECR I-1779, paragraph 13, and Case 111/91, cited in footnote 6, paragraph 9.

32 See Case 41/84 Pinna (I) [1986] ECR 1, paragraph 24.

33 I would remind the Court that, in the context of the discussion of the third question in the alternative, I am assuming this to be the case.

34 Case 249/83, cited in footnote 28, paragraph 25 (emphasis added).

35 Case C-3/90 Bemini [1992] LCR I-1371. paragraph 28.

36 Case 137/84 Frascogna [1985] LCR 1739.

37 Frascogna, paragraph 23 (emphasis added), It is worth not ing that in this case likewise the Court did not object to the residence criterion as such. It emphasized rather that the grant of such a social advantage may not be made subject to a condition requiring actual residence in the territory of a Member State for a specified number of years if such a con dition is not laid down in respect of nationals of that Mem ber Slate (paragraph 25).

38 Cited in footnote 6 This case concerned childbirth benefit and maternity benefit under Luxembourg law.

39 Opinion of 16 December 1992. paragraph 25.

40 Amended proposal for a Council Regulation (LLC) amend ing Regulation (LLC) No 1612/68 on freedom of move ment for workers within the Community, OJ 1990 C 119, p. 10.

41 See for example my Opinion in Case 375/85 Campana [1987] ECR 2395, point 39.