law://eu/cjeu/1978/c-207-78/hd_1_1_2@2026-11-14A — The Office National des Pensions des Travailleurs Salariés, having set out the facts forming the basis of the dispute, emphasizes that even if the Royal Decree of 27 June 1969 laying down the conditions under which a scheme of national recognition entitles an employed person to an early retirement pension without reduction is applied only to persons of Belgian nationality this does not involve an infringement of the principle of equality of treatment enshrined in Article 3 (1) of Regulation No 1408/71.The benefit provided for by that decree comes in fact within the social security benefits introduced for victims of war which Regulation No 1408/71 excludes from its field of application.Referring to the judgment delivered by the Court of Justice on 6 July 1978 in Case 9/78, the Gillard case, [1978] ECR 1661, the O.N.P.T.S. points out that in view of the similarity between that case and the present case, the Court of Justice can in this instance only confirm the principles stated in that judgment. The O.N.P.T.S. adds moreover that the origins of the Royal Decree of 27 June 1969 show very clearly that the Belgian legislature considers the early pension without reduction as a benefit granted to victims of war.As clearly shown by the statements made by the Minister for Social Welfare during the sitting of the Belgian Senate on 23 February 1955, the benefits granted to beneficiaries under a scheme of national recognition should in fact be considered as a benefit scheme for victims of war or its consequences and not as a benefit scheme coming within social security. They are moreover directly financed by the State whereas the pension scheme is financed by contributions from workers and employers, the State merely in this case granting an annual subsidy.On the basis of these considerations, the O.N.P.T.S. considers that the first question might be answered as follows:‘The provision contained in Article 4 (4) of Regulation (EEC) No 1408/71 of the Council of the European Communities of 14 June 1971 must be interpreted broadly as including the benefits provided for by the Royal Decree of 27 June 1969.’If the Court of Justice rules to that effect the reply to the other questions becomes purposeless.B — The Commission of the European Communities points out first of all that the problem discussed in the present case is similar to that settled by the Court in its judgment of 6 July 1978 in Case 9/78, the Gillard case.As regards the first question, in its opinion it is in particular clear from an examination of the Belgian legislation referred to that:— Although it is not in dispute that the principle of early retirement comes within the substantive field of application of Regulation (EEC) No 1408/71, the title of the Royal Decree of 27 June 1969 refers however to a ‘scheme of national recognition’;— The Royal Decree of 27 June 1969 was adopted pursuant to the last paragraph of Article 6 of Royal Decree No 50 of 24 October 1967 according to which: ‘The King may also … determine in respect of each category of beneficiaries under a scheme of national recognition the circumstances in which those beneficiaries are permitted to obtain an early retirement pension, the method of calculation of the pension and the manner in which the financial burden resulting from the application of the rules which he lays down shall be borne’;— All the cases set out in Article 1 of the Royal Decree of 27 June 1968 make the benefit of the early retirement pension without reduction subject to a service rendered during a period of war or to a hardship suffered during or as a result of such a period of war.In view of these factors it therefore seems that the objectives of and conditions for the grant of the early pension without reduction granted by the Royal Decree of 1969 are the same as those of the French legislation taken into consideration by the Court in the judgment in the Gillard case.Having regard to the similarity in fact and in law between the two cases it therefore follows that the same reply should be given to the first question asked by the court making the reference as that given in the judgment of the Court of 6 July 1978.Whilst considering that such a reply makes the other questions purposeless the Commission however takes the view that it is also necessary to adopt a viewpoint on the second and third questions so as to deal with any eventualities.It points out with regard to the second question that assuming that the grant of an early retirement pension without reduction by virtue of a scheme of national recognition is considered as being included among the schemes of social security coming within the substantive field of application of Regulation No 1408/71 it is necessary to acknowledge that that regulation does not contain special provisions limiting the application of the principle of equality of treatment as regards old-age pensions.With regard to the third question, the reply which it calls for follows from many judgments in which the Court of Justice has stated that national provisions contrary to the prohibition on all discrimination based on nationality may not be applied to the migrant worker in question who, in so far as he fulfils the other conditions to which the grant of a benefit is subject, must therefore receive that benefit in the same conditions as a national worker.Having made these observations, the Commission considers it appropriate to specify in addition, beyond the wording of the questions asked by the court making the reference and so as to provide it with all factors of interpretation which might be useful to it, the scope of the principle of equality of treatment, regardless of the applicability of Regulation (EEC) No 1408/71.The rule of equality of treatment laid down in Article 3 of that regulation is, according to the Commission, merely a specific application within the field covered by Article 51 of the Treaty of the fundamental prohibition against discrimination laid down in Article 7 of the Treaty. This principle was restated as regards freedom of movement for workers in Article 48 (2) of the Treaty and implemented by Regulation (EEC) No 1612/68 of the Council on freedom of movement for workers within the Community. Article 7 of that regulation prohibits all discrimination by reason of nationality in respect of conditions of employment and work and Article 7 (2) provides that a migrant worker must enjoy in the host Member State the same social and tax advantages as national workers.The problem thus arises in the present case whether the concept of social advantages must be interpreted as including advantages such as those granted by the Royal Decree of 27 June 1969.Having recalled the case-law of the Court of Justice in this field according to which the scope of the concept of social advantages laid down in Article 7 (2) of Regulation No 1612/68 is as broad as possible, the Commission expresses the view that such a concept should be able to cover all advantages granted to nationals of the Member States which are intended to compensate wholly or in part for a loss of or inadequate income or increased or excessive charges, or whose aim is to redress in a more general way the underprivileged financial or material situation of certain categories of person.This concept does not include social security benefits since the EEC Treaty has provided for a different legal basis for the progressive attainment of freedom of movement for workers on the one hand (Article 49) and for the field of social security on the other (Article 51). This does not however mean that the benefits excluded from the field of social security under Article 4 of Regulation No 1408/71 are covered by the concept of social advantages contained in Article 7 of Regulation No 1612/68.In accordance with the principles deduced by the Court of Justice and in the circumstances laid down by that Court, social and medical assistance as referred to by the Advocate General in Case 1/72, the Frilli case, no doubt comes within the concept of social advantages. In the same way that concept covers benefits for victims of war: they also come within the application of the principle of equality of treatment.As regards the attainment of ‘real equality of treatment with the nationals … in regard to economic matters and social benefits’ mentioned by the Advocate General in Case 7/75 the benefit of an early retirement pension without reduction granted to national workers within the context of a scheme of national recognition certainly comes within the concept of social advantages.Article 7 (2) of Regulation No 1612/68 therefore makes it impossible for the benefit thereof to be refused to a migrant worker solely on the basis of his nationality.It is of course possible to ask whether the fact that Article 4 of Regulation No 1408/71 makes a clear distinction between benefit schemes for victims of war and social security and social assistance schemes does not indicate that, more generally, schemes for victims of war are, in particular on account of the very close link of recognition with the Member State granting them, excluded from the application of the Community rule, especially that of the principle of equality of treatment as laid down inter alia in Article 7 of Regulation No 1612/68. However, the reply to such a question can only be in the negative.The distinction laid down in Article 4 of Regulation No 1408/71 aims to delimit the substantive field of application of that regulation, in other words the field of Article 51 of the Treaty which lays down rules relating to a specific aspect of freedom of movement for workers, whereas the principle of freedom of movement for workers is laid down in Article 48 (2) of the Treaty, the only possible restrictions, which must be interpreted restrictively, being enumerated in Article 48 (3).If therefore that distinction expressed the concern of the Community legislature generally to exempt from Community law schemes for victims of war, such a principle would be illegal in the light of Article 48 (2) and (3) of the Treaty.This principle cannot in fact be covered by the power left to the Member States to adopt discriminatory measures justified on grounds of public policy, public security or public health. The cases listed in Article 48 (3) ail relate to the search for employment and the right of employment but they do not refer to the conditions of that employment. They cannot therefore concern the detailed rules for the grant of an early pension.It is moreover impossible in the present case to obstruct the application of the principle of equality of treatment either by the consideration of the special link between a national and a Member State as regards the performance of the duty of military service and its consequences or by the consideration of the special protection and aid owed by a Member State to its nationals as regards the after effects of war.As to the first point, it follows from the case-law of the Court of Justice that the fact that a migrant worker has performed a duty of military service as regards his own Member State is likely to have consequences in relation to the conditions of employment of that worker in another Member State so that the principle of equality of treatment applies to the worker concerned, in particular with regard to the ‘social advantages’ referred to in Article 7 of Regulation No 1612/68.As to the second point, it also follows from the case-law of the Court of Justice that the prohibition on discrimination laid down in Article 7 of Regulation (EEC) No 1612/68 must be interpreted as relating also to the special protection granted, for social reasons, by the legislation of a Member State to specific categories of workers.It is of course conceivable that a Member State might make the grant of an advantage subject, as regards the entitlement to pension rights, to one or more objective conditions relating to the services rendered or the hardships endured by a worker: in this case, the class of beneficiaries is restricted even amongst the nationals of the Member State concerned and there is no discrimination against foreigners who do not fulfil these conditions.However, the principle of equality of treatment prohibits a refusal to grant a benefit solely on the ground of nationality where a national of another Member State fulfils the objective conditions and is therefore in exactly the same situation as certain nationals in receipt of the advantage.It is moreover necessary to observe that certain legislative provisions adopted in Belgium confirm, if necessary, that a refusal based only on nationality to grant workers who are nationals of the Member States the advantages granted under a scheme of national recognition is not, even in national law, justified by considerations relating to public policy or to public health.The principle of equality of treatment must therefore be fully applied.In view of all these observations, the Commission therefore considers that the following replies might be given to the questions asked:(1) Article 4 (4) of Regulation No 1408/71 must be interpreted as meaning that that regulation does not apply to social security benefits introduced in favour of persons in receipt of a war service invalidity pension such as the benefit provided for in Article 1 (4) of the Belgian Royal Decree of 27 June 1969.However, the grant of such benefits is, pursuant to Article 48 (2) of the EEC Treaty and Article 7 (2) of Regulation (EEC) No 1612/68 of the Council, subject to the prohibition on discrimination based on nationality.(2) The second and third questions are purposeless.’
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