Contents
In Case 63/76Reference to the Court under Article 177 of the EEC Treaty by the Cour de Cassation, France, for a preliminary ruling in the proceedings pending before that court betweenVITO INZIRILLO, Lyon,andCAISSE D'ALLOCATIONS FAMILIALES DE L'ARRONDISSEMENT DE LYON,THE COURT (First Chamber)composed of: A. M. Donner, President of Chamber, J. Mertens de Wilmars and G. Bosco, Judges,Advocate-General: G. ReischlRegistrar: A. Van Houttegives the following
Judgment
Facts
The facts, the procedure and the written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows:
I —Facts and written procedure
II —Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC
A —Observations submitted by the Caisse d'Allocations Familiales
The Caisse maintains that Regulation No 1408/71 states clearly that, although it applies to legislation on social security, it is not applicable to social assistance. Article 4 (1) by implication and Article 4 (4) expressly exclude social assistance from the matters covered by the regulation.As regards the criteria laid down by Community law for distinguishing between social security and social assistance, the case-law of the Court shows that although a clear criterion exists, it is by no means easy to apply it. Furthermore, one cannot in this matter take as a basis the judgments of the Court on the interpretation of Regulation No 1612/68 of the Council, since the present case concerns only Regulations Nos 3 and 1408/71.According to the Caisse the judgments relating to those two regulations show that:— Although legislation is akin to social assistance when need is the essential criterion for its implementation and there are no conditions as to periods of employment, of membership or of contributions, it nevertheless constitutes social security where, departing from the consideration of each case on its merits, which is a feature of assistance, it confers on beneficiaries a legally defined position;— By virtue of a secondary criterion whose application enables a distinction to be drawn between those legislations which belong to the first of the two abovementioned categories and those which belong to the second, legislation will be regarded as being concerned with social security in relation to a wage earner or assimilated worker who has completed periods of employment in a Member State, resides there and is covered by the social security system in force there, whereas it will be regarded as being concerned with social assistance in relation to those persons who can only refer to their need in order to benefit from it.In order to determine the manner in which those criteria may be applied in this instance, the two aspects of the question referred must be considered separately. It is first necessary to discover whether, disregarding his family circumstances, Bernardo Inzirillo, a handicapped Italian national of full age who has never worked in France, is entitled to claim that in relation to him the Law of 13 July 1971 froms part of the French system of social security. Secondly — the negative aspect — it is necessary to determine whether that law forms part of that system as a result of the rights to which his father, an Italian migrant worker employed in France, is entitled.(a) As regards the first point, the provisions of the Law of 13 July 1971 show clearly that, as regards Bernardo Inzirillo considered individually, the Law of 13 July 1971 forms part of a system of social assistance rather than of social security. The very wording of the first paragraph of Article 7 of the Law leaves no doubt on that point. That conclusion is not modified in any way by the fact that certain provisions of the law contain references to the social security system. Thus, for example, the third paragraph of Article 7 provides that persons who under the social security system are in receipt of a benefit which is less than the allowance in question are entitled to be paid the difference. However, although the principles established by the Court show that in relation to such persons the allowance is a social security benefit, the same is not true in relation to persons who have no right to benefits under the social security system.Moreover, even supposing that, against all possibility, the allowance in question is to be regarded as coming under the social security system, it cannot be awarded to Bernardo Inzirillo on the basis of Article 4 (1) and (2) of Regulation No 1408/71. The allowance in question is claimed by way of family benefit. Although it is true that Article 4 (1) (h) refers to ‘family benefits’, nevertheless, when drafting that provision the authors of the regulation did not intend to refer to all types of such benefit. As is shown by Article 1 (u) of the same regulation, they only took into account those categories of benefits existing when the regulation was adopted: they drew up the regulation with reference to a list of specific benefits and made a choice between them, retaining some and excluding others. In those circumstances it must be admitted that the authors of the regulation could not have intended to refer to benefits which were not yet in existence on the adoption of the regulation (14 June 1971). That is precisely the case as regards the allowance in dispute, which was introduced by a Law of 13 July 1971.Such a conclusion is not invalidated by the judgments of the Court of Justice in which the Court has ruled that the term ‘legislation’ used in Regulation No 3 applies to all social security legislation, even if it came into force after the regulation and was not notified in the manner provided for thereby. The legislation referred to in the judgments in question was not different in nature from that referred to by the regulation itself, whereas the benefit in question in the present case is of a wholly new kind and is not related to any of the benefits which were in existence when the regulation was adopted.Therefore in the absence of any international agreement and of any legislative provision enabling the allowance to be awarded to foreign nationals, it must be awarded to French nationals alone.(b) Nor can this answer be avoided so far as the second aspect of the problem is concerned, if one looks for the rights to which Bernardo Inzirillo may be entitled under the social security system, not on his own account but through the rights enjoyed by his father. It is necessary to ascertain whether Vito Inzirillo, an Italian national employed in France and covered by the social security system in force there, may claim that his son must, as a member of the family, be entitled to receive the allowance in question by way of the family benefits to which he (Vito Inzirillo) is entitled.First of all, however, as the allowance in question was introduced by a law which was adopted after the entry into force of the regulation, it cannot be covered by the terms of that regulation. Secondly, although family benefits were introduced in the interests of the family unit and are therefore determined by reference to dependent children, they are only paid if the recipient, that is to say the person who is entitled to the benefit in his own right, satisfies certain conditions. That is not so in the present case, since Vito Inzirillo cannot claim to be the recipient of the benefit in question or maintain that his son is a dependent child. In fact:— under French law it is impossible for any person over the age of 20 years (in this instance Bernardo Inzirillo) to be regarded as a dependent child within the meaning of the social security legislation, even if such person is handicapped;— the recipient or any benefit paid would be Bernardo Inzirillo himself and not his father. For this reason, the only matter at issue is the individual rights to social security of the adult Bernardo Inzirillo himself. His father's rights to social security cannot, therefore, be taken into account in the present case;— However, as has been explained above, Bernardo Inzirillo does not in himself satisfy the conditions required for the acquisition of a right to the allowance in question.The Caisse therefore considers that a negative answer must be given to the question referred for a preliminary ruling.
B —Observations submitted by the Commission of the European Communities
The Commission of the European Communities points out that the essential problem in the present case is to discover whether under Regulation No 1408/71 a person of full age who is not and never has been a migrant worker within the meaning of that regulation but whose father is a migrant worker is entitled through his father to receive an allowance for handicapped persons which is provided for by the legislation of a Member State for the benefit of its nationals alone.The Commission maintains that there are in fact two separate aspects to this problem:— In the first place, does such a person come within the area of application of Regualtion No 1408/71 and, more precisely, if he is not a worker, may he nevertheless be regarded as a ‘member of the family’ within the meaning of that regulation?— Secondly, do the provisions of Regulation No 1408/71 enable the condition of nationality to be waived so as to ensure for the members of the family of a worker who is employed in a Member State equality of treatment with the nationals of that State in relation to a law which makes the right to an allowance dependant on the residence of the persons protected rather than on the insurance of the worker? However, that question would only arise if an affirmative answer were given to a preliminary question, namely whether the legislation in question falls within the area of application of Regulation No 1408/71.In addition, the Commission regrets that the question referred contains no reference to Regulation No 1612/68. Although before the Cour d'Appel, Lyon, Mr Inzirillo relied on both that regulation and Regulation No 1408/71, before the Cour de Cassation he relied only on Regulation No 1408/71. According to the judgment of the Cour d'Appel, Lyon, of 22 January 1975, against which an appeal was made on a point of law, it was impossible to rely on Article 7 of Regulation No 1612/68 in this instance, since that provision only refers to the social advantages which are linked to employment and condition relating, inter alia, to the interpretation of that very article, the Court of Justice ruled in its judgment of 30 September 1975 (Case 32/75, Anita Cristini v Société Nationale des Chemins de Fer Français, [1975] ECR 1085) that the substantive area of application of Article 7 (2) of Regulation No 1612/68 must be delineated so as to include “all social and tax advantages whether or not attached to the contract of employment…”Having made that point, the Commission also states that according to the case-law of the Court it is unnecessary to comply with formal requirements which would be contrary to the very nature of the procedure under Article 177 of the EEC Treaty; on the contrary, the national court must be provided with factors of interpretation depending on Community law which might be useful to it for the purposes of its judgment. In the light of this principle and having regard to the foregoing considerations, the question referred by the Cour de Cassation must be answered by deducing from its wording the following three questions:1. Does a scheme of allowances for handicapped persons introduced by a national law fall within the area of application of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community?2. Must a migrant worker's handicapped child of full age who is prevented by his handicap from acquiring for himself the status of worker within the meaning of Regulation No 1408/71 be regarded, notwithstanding his age, as a member of the family of a worker within the meaning of that regulation?3. Do the provisions or Regulation No 1408/71 ensure for the members of a family of a worker who is employed in a Member State equality of treatment with the nationals of that State in relation to a law which makes the right to an allowance dependent upon the residence of the persons protected rather than on the insurance of the worker?”Going on to examine the substance of those questions the Commission makes inter alia the following observations:
1.The first question
An analysis of the French Law of 13 July 1971 shows that, having regard to the wide definition of the circle of beneficiaries, the aims of that Law are two or even three in number.It is designed in the first place to create a benefit to compensate for the family expenses inevitably incurred by the existence in the family of a seriously handicapped person of whatever age. In addition, by introducing an allowance in favour of handicapped adults (Article 7), it enables such persons to benefit from a continuous system of social welfare.Secondly, again with the object of ensuring that handicapped adults have a legally protected right to sickness insurance and to avoid any break in the health insurance cover, the Law provides for automatic affiliation to a voluntary insurance scheme. It would of course have been possible to establish a system under which a handicapped adult could continue to benefit from the sickness insurance of his parents even after he reached the age of 20. However, such a solution would have involved the risk of leaving a handicapped person entirely dependant upon social assistance in the case of an illness occurring after the death of his parents, since he would have no personal right to social security. Thus, when it established a scheme of social protection for handicapped persons, the Law in question intended to substitute a legally protected right for the social assistance to which they were entitled in the past.Finally, when it introduced the allowance in question the French Law also intended to provide an income for permanently disabled persons who receive social security benefits but are insufficiently protected, since it is payable to persons who are not entitled to receive an old-age or invalidity benefit of an amount at least equal to the allowance.It follows from all these factors that the name given to the allowance for handicapped adults is of no importance. When it introduced the allowance, the French Law of 13 July 1971 established a social security scheme for handicapped persons and conferred upon them a legally protected right to the allowance. In accordance with the case-law of the Court, therefore, it must be concluded that the Law in question falls within the substantive area of application of Regulation No 1407/71.
2.The second question
Under Article 1 (f) of Regulation No 1408/71, the term “member of the family” means“any person defined or recognized as a member of the family … by the legislation under which benefits are provided …; where, however, the said legislations regard as a member of the family … only a person living under the same roof as the worker, this condition shall be considered satisfied if the person in question is mainly dependant on that worker.”If one adheres to the wording of the French legislation, which is at issue in the present case, it must be concluded that since Bernardo Inzirillo has reached the age of 20 he no longer constitutes a member of the family of a worker and that the equality of treatment with the nationals of his State of residence guaranteed by Article 3 of Regulation No 1408/71 therefore came to an end on his attaining the age of 20 years, precisely the age as from which he could be entitled to receive the allowance for handicapped adults.Such a situation is not only unfair from the point of view of social security but also is unsatisfactory from the point of view of Community law.From the facts of the case it may be assumed that Bernardo Inzirillo is dependant upon his father who is a migrant worker employed in France. He is therefore entitled under Article 10 (1) (a) of Regulation No 1612/68 to reside in that country — or, more precisely, to install himself there with his father — regardless of his age.In the light of the close connexion which Article 51 of the Treaty establishes between social security and freedom of movement for workers and having regard to the aim of the provisions for coordination adopted by Regulation No 1408/71 within the framework of freedom of movement, it is inconceivable that when the Community legislature adopted the definition of ‘members of the family’ set out in Article 1 (f) of that regulation it wished to produce the effects brought about by the application of the provision in the present case as a result of the national legislation of reference. On the contrary, the fifth recital of that regulation shows that the intention of its authors was to guarantee equality of treatment under the various national legislations for all nationals of Member States who either directly, because they are workers themselves, or indirectly, because they are entitled to install themselves in a Member State with a worker, exercise the right of free movement within the Community conferred on them by the Treaty.That conclusion is confirmed by the case-law of the Court of Justice which, in its judgment of 17 June 1975 in Case 7/75, (Mr and Mrs F v Belgian State, [1975] ECR 691), held that a handicapped child who is prevented from himself acquiring the status of an employed person remains a member of an employed person's family even after the end of his minority for the purposes of the application of Regulation No 1408/71. The reasons underlying that judgment are precisely those which are to be found in the fifth recital of the said regulation and are in keeping with the principle of the freedom of movement for migrant workers.
3.The third question
The French legislation on allowances for handicapped adults was not expressly designed for workers as such. It is applicable to all nationals and makes the acquisition of the right dependant upon the residence of the recipient rather than on the insurance of the worker. It thus gives handicapped persons an individual right which allows them direct access to social security. The question may therefore arise whether the condition of nationality fixed by the French legislation may not be used against a ‘member of the familiy’ of a migrant worker who has no individual right to freedom of movement but only a derived right from his father's status as a migrant worker.It follows, however, from the foregoing considerations that on the one hand the French legislation in question comes within the field of social security within the meaning of Regulation No 1408/71 and that on the other hand the said regulation applies to Bernardo Inzirillo as a member of the family of a migrant worker. Since the principle of equality of treatment laid down in Article 3 (1) of Regulation No 1408/71 prevents a situation from arising in which the members of the family of a worker are not allowed to benefit from the application of the legislation of any Member State under the same conditions as the nationals of that State, it follows that the condition of nationality cannot be used against Bernardo Inzirillo in order to refuse him the allowance for handicapped adults, any more than the absence of any reciprocal agreement between France and Italy may be used against him for the same purpose.On the basis of the foregoing observations the Commission considers that the following reply must be given to the question referred:‘The provisions of Regulation No 1408/71 must be interpreted as meaning that:(a) they include a scheme established by national legislation which provides for a legally protected right to allowances for handicapped persons;(b) since the said provisions fall within the framework of the principle of freedom of movement for workers who are nationals of Member States, they must guarantee to workers and members of their families who, by virtue of their right of free movement, reside in the territory of a Member State, equality of treatment with the nationals of that State in the application of those national laws which are covered by the material ambit of that regulation;(c) therefore, the handicapped son of a migrant worker may not, as compared with the nationals of the State of his residence, be placed in a less favourable position for the sole reason that he does not possess the nationality of that State.’
III —Oral procedure
The Caisse d'Allocations Familiales de l'Arrondissement de Lyon and the Commission of the European Communities presented oral argument at the hearing on 17 November 1976.The Advocate-General delivered his opinion at the hearing on 7 December 1976.
Law
Costs
Operative part
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.