Vito Inzirillo v Caisse d'allocations familiales de l'arrondissement de Lyon (63/76)

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.