Michel S. v Fonds national de reclassement social des handicapés (76/72)

II —Observations submitted before the Court

The observations submitted before the Court may be summarized as follows:The plaintiff in the main action is of the opinion that Regulation No 1612/68 has a general application and applies equally to the members of the family of the worker who need vocational retraining or rehabilitation to enable them to work. In the case in issue, if the plaintiff in the main action does not gain such retraining, he will remain unemployed for the rest of his life. Such a result would infringe the fifth recital of the said Regulation, whereby ‘the right of freedom of movement requires the elimination of obstacles which impede the mobility of workers, especially as regards the right of the worker to be reunited with his family and the conditions of integration of such family in the environment of the host country’. It would likewise be incompatible with Article 12 of the same Regulation, which reads as follows:‘The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to courses of general education, of apprenticeship and of vocational training on the same conditions as nationals of that state, if they reside within its territory.Member States shall encourage steps which permit such children to attend the abovementioned courses under the best conditions’.The argument supported by the Fonds likewise runs counter to the fact that it receives subsidies from the European Social Fund according to Decision No 72/74/EEC of the Commission of 22 November 1971 (OJ L 20 of 24 January 1972, p. 4). It was, therefore, abnormal for the Fund to place nationals of Member States on the same footing as nationals of third countries.The defendant in the main action explains in detail the task and organization of the Fonds.Article 7 of Regulation No 1612/69 only relates to workers themselves. That follows not only from the clear wording of this provision but also from the fact that the rights conferred especially on the close relations of the workers are governed by Articles 10 to 12 of the Regulation under the heading ‘Families of workers’, (cf the rectification made in the said Regulation and published in OJ No L 295 of 7 December 1968 p. 12). These rights are much more restricted than those which the Regulation confers on workers. In particular, the expression ‘courses of general education, of apprenticeship and vocational training’ which appear in Article 12 of the Regulation, do not refer to the handicapped, but only to persons in good health. Besides, this expression has a more limited scope than the expressions ‘rehabilitation’ and ‘re-training’ used in Article 7 (3).Moreover, even if one supposes that the plaintiff in the main action can be considered a worker, he could not claim the application of the abovementioned Article 7. The expression ‘social benefits’ used in this provision relates only to benefits having a direct or indirect relation with an occupation, whereas the scope of the Belgian law of 16 April 1963 is independent of the exercise of such an activity.The Italian Government submits that in accordance with the spirit of the Court's case law and in particular with the judgment of 22 June 1972 (Frilli v État beige, Case 1/72, ‘guaranteed income to the elderly’, Rec. 1972, p. 457) the expression ‘social benefits’ must be given a wide interpretation, in such a way as to embrace benefits granted under the heading of rehabilitation.The prohibition on ‘any discrimination on grounds of nationality’ which has been established as a principle by Article 7 of the EEC Treaty leads to the conclusion that every national of a Member State resident in Belgium must enjoy the benefits provided for by the Belgian law of 16 April 1963 on the same basis as Belgian nationals. The principle set out in the provision cited applies to all the spheres of activity governed by the Treaty, including that of employment; and likewise it controls the interpretation of Community secondary law.The rehabilitation of the handicapped, within the meaning of the law referred to above, constitutes a ‘social benefit’ for Belgian workers and must therefore be extended to workers of other Member States residing in Belgium. The fact that the grant of this benefit is independent of a relationship of employment is of no importance.According to the Commission it could be asked whether Article 7 (2) of Regulation No 1612/68 is the only provision which can be invoked in the question at issue.The Fonds is a body governed by public law within the jurisdiction of the Ministre de l'Emploi et du Travail and administered by a board of management composed inter alia, of organizations which represent employers and workers. By the terms of Article 3 of the Belgian law of 16 April 1963, its task is, in particular, to promote the training and vocational rehabilitation and retraining of the handicapped. Throughout the whole duration of this training, rehabilitation and retraining, the Fonds grants the handicapped allowances and supplementary remuneration. It also arranges for them to be placed in suitable employment. In accordance with Article 24 of the abovementioned law, the expenses of the Fonds are met, inter alia, in addition to state subsidies, ‘by the proceeds of an additional premium or contribution for compensation for injury resulting from accidents at work, collected by insurers approved for the purpose of compensation for accidents’, and ‘by the proceeds of employers’ contributions'. The law confers a right on the persons fulfilling the conditions which it has laid down.It follows from all these factors that the benefits granted by the Fonds do not arise either from social security or from assistance in the classic sense of the term. That is, moreover, confirmed by the fact that the European Social Fund, whose task, by the terms of Article 123 of the EEC Treaty, is that ‘of rendering the employment of workers easier and of increasing their geographical and occupational mobility within the Community’, has granted its aid to the Belgian Fonds, the defendant in the main action.Furthermore, the social benefits referred to in Article 7 (2) of Regulation No 1612/68 do not arise from social security. In this respect, there is no difficulty in admitting that this expression likewise covers the benefits granted by the Fonds. But it could be asked if it is not rather Article 7 (3) which mentions in particular ‘teaching in vocational schools and rehabilitation or retraining centres’ which is applicable in such cases as this. It is true that this provision is only aimed at workers themselves, whereas the plaintiff in the main action has never been a worker. Strictly speaking, he could however be considered, within the meaning of Article 1 of the law of 16 April 1963, as a worker whose possibilities of employment are effectively reduced because of an inadequacy or a diminution of at least 30 % in (his) physical capacity or of at least 20 % in (his) mental capacity. ‘But in any case, the plaintiff in the main action is the son of a worker, so that Article 12 of Regulation No 1612/68 applies to him.’ In these circumstances the plaintiff in the main action has the right, by virtue of the Community rule, to enjoy the benefits provided for by the Belgian legislation in question. By refusing him these benefits the Fonds would seem to accept the erroneous argument according to which its task lies outside the sphere of freedom of movement for workers, covered by Articles 48 to 51 of the EEC Treaty and the Regulations enacted to implement these provisions. In support of its interpretation the Commission also invokes the judgment delivered by the Court in December 1972 in Case 44/72 (Marsman v Firma Rosskamp) in which it was held that ‘the prohibition against discrimination in conditions of work and employment, which Article 48 of the Treaty and Article 7 of Regulation No 1612/68 of the Council enact, concerns also the special protection, in particular against dismissal, which the laws of a Member State grant for reasons of a social nature to specific categories of workers’.Thus the reply to the question raised by the Tribunal du Travail of Brussels should be as follows:‘Workers who are nationals of Member States and the members of their families have the right to take advantage of the benefits provided for by the Belgian law of 16 April 1963, which relates to the rehabilitation of the handicapped, on the same basis as nationals of that State’.