61983J0261

1 . FREE MOVEMENT OF PERSONS - WORKERS - EQUAL TREATMENT - BENEFICIARIES - DEPENDENT RELATIVES IN THE ASCENDING LINE OF THE WORKER

( REGULATION NO 1612/68 OF THE COUNCIL , ART . 7 )

2 . FREE MOVEMENT OF PERSONS - WORKERS - EQUAL TREATMENT - SOCIAL ADVANTAGES - CONCEPT - GUARANTEED INCOME FOR OLD PERSONS

( REGULATION NO 1612/68 OF THE COUNCIL , ART . 7 ( 2 ))

3.FREE MOVEMENT OF PERSONS - WORKERS - EQUAL TREATMENT - SOCIAL ADVANTAGES - GUARANTEED INCOME FOR OLD PERSONS - GRANT THEREOF TO DEPENDENT RELATIVES IN THE ASCENDING LINE OF THE WORKER - EXISTENCE OF A RECIPROCAL AGREEMENT - NOT NECESSARY

( REGULATION NO 1612/68 OF THE COUNCIL , ART . 7 ( 2 ))

1 . THE EQUALITY OF TREATMENT PROVIDED FOR IN ARTICLE 7 OF REGULATION NO 1612/68 IS ALSO INTENDED TO PREVENT DISCRIMINATION AGAINST A WORKER ' S DEPENDENT RELATIVES IN THE ASCENDING LINE .

2.THE CONCEPT OF SOCIAL ADVANTAGE REFERRED TO IN ARTICLE 7 ( 2 ) OF REGULATION NO 1612/68 INCLUDES ALL ADVANTAGES WHICH , WHETHER OR NOT LINKED TO A CONTRACT OF EMPLOYMENT , ARE GENERALLY GRANTED TO NATIONAL WORKERS PRIMARILY BECAUSE OF THEIR OBJECTIVE STATUS AS WORKERS OR BY VIRTUE OF THE MERE FACT OF THEIR RESIDENCE ON THE NATIONAL TERRITORY AND THE EXTENSION OF WHICH TO WORKERS WHO ARE NATIONALS OF OTHER MEMBER STATES THEREFORE SEEMS SUITABLE TO FACILITATE THEIR MOBILITY WITHIN THE COMMUNITY . THAT DEFINITION OF THE CONCEPT OF SOCIAL ADVANTAGE COVERS THE INCOME GUARANTEED TO OLD PEOPLE BY THE LEGISLATION OF A MEMBER STATE .

3.ARTILE 7 ( 2 ) OF REGULATION NO 1612/68 MUST BE INTERPRETED AS MEANING THAT THE GRANT OF A SOCIAL ADVANTAGE , SUCH AS THE INCOME GUARANTEED TO OLD PEOPLE BY THE LEGISLATION OF A MEMBER STATE , TO DEPENDENT RELATIVES IN THE ASCENDING LINE OF A WORKER CANNOT BE CONDITIONAL ON THE EXISTENCE OF A RECIPROCAL AGREEMENT BETWEEN THAT MEMBER STATE AND THE MEMBER STATE OF WHICH SUCH A RELATIVE IS A NATIONAL .

IN CASE 261/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DU TRAVAIL ( LABOUR COURT ), LIEGE , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

CARMELA CASTELLI

AND

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( ONPTS ) ( NATIONAL PENSIONS OFFICE FOR EMPLOYED PERSONS ),

ON THE INTERPRETATION OF ARTICLES 1 , 2 , 3 AND 4 OF REGULATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF ARTICLES 7 AND 10 OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1968 ( II ), P . 475 ),

1 BY JUDGMENT OF 4 NOVEMBER 1983 WHICH WAS RECEIVED AT THE COURT ON 21 NOVEMBER 1983 , THE COUR DU TRAVAIL ( LABOUR COURT ), LIEGE , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY , THREE QUESTIONS ON THE INTERPRETATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) IN RELATION TO THE APPLICATION OF THE BELGIAN LAW OF 1 APRIL 1969 , WHICH PROVIDES FOR A GUARANTEED INCOME FOR OLD PERSONS .

2 THE QUESTIONS WERE RAISED IN THE COURSE OF PROCEEDINGS BETWEEN MRS CASTELLI AND THE OFFICE NATIONAL DES PENSIONS DES TRAVAILLEURS SALARIES ( ONPTS ) ( NATIONAL PENSIONS OFFICE FOR EMPLOYED PERSONS , HEREINAFTER REFERRED TO AS ' ' THE NATIONAL OFFICE ' ' ).

3 MRS CASTELLI IS AN ITALIAN NATIONAL AND IS ENTITLED IN ITALY TO A PARTIAL SURVIVOR ' S PENSION . SINCE MAY 1957 SHE HAS LIVED IN BELGIUM WITH HER SON WHO RECEIVES A BELGIAN RETIREMENT PENSION . MRS CASTELLI HAS NEVER WORKED IN BELGIUM .

4 BY A DECISION OF 22 DECEMBER 1978 , THE NATIONAL OFFICE REFUSED TO ALLOW MRS CASTELLI THE INCOME GUARANTEED TO OLD PEOPLE UNDER THE LAW OF 1 APRIL 1969 , ON THE GROUND THAT SHE DID NOT FULFIL THE CONDITIONS SET OUT IN ARTICLE 1 OF THAT LAW , SINCE SHE WAS NOT A BELGIAN NATIONAL , OR A NATIONAL OF A COUNTRY WITH WHICH BELGIUM HAD CONCLUDED A RECIPROCAL AGREEMENT , AND SHE WAS NOT ENTITLED TO A RETIREMENT PENSION OR A SURVIVOR ' S PENSION IN BELGIUM .

5 MRS CASTELLI CONTESTED THE DECISION OF THE NATIONAL OFFICE BEFORE THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), LIEGE . BY JUDGMENT OF 23 MAY 1980 , THAT TRIBUNAL DISMISSED HER APPLICATION . MRS CASTELLI THEN APPEALED TO THE COUR DU TRAVAIL , LIEGE , ON THE GROUND THAT THE REQUIREMENT OF RECIPROCITY IMPOSED BY THE BELGIAN LAW WAS CONTRARY TO COMMUNITY LAW .

6 THE COUR DU TRAVAIL , LIEGE , CONSIDERED THAT , IN ORDER TO GIVE JUDGMENT , IT REQUIRED A RULING FROM THE COURT AND SUBMITTED THE FOLLOWING QUESTIONS TO THE COURT :

' ' ( A ) IN THE LIGHT OF THE PRINCIPLE OF EQUALITY OF TREATMENT LAID DOWN BY THE COMMUNITY REGULATIONS ON SOCIAL SECURITY , IS THE FACT THAT THERE IS NO RECIPROCAL AGREEMENT BETWEEN TWO MEMBER STATES OF THE COMMUNITY CAPABLE OF PRECLUDING THE GRANT OF THE GUARANTEED INCOME FOR OLD PEOPLE , WHEN THE CLAIMANT , ALTHOUGH NEVER HAVING BEEN AN EMPLOYED PERSON IN THE TERRITORY OF THE STATE IN WHICH SHE RESIDES AT THE TIME OF MAKING HER APPLICATION , DULY SATISFIES THE MINIMUM RESIDENCE REQUIREMENT UNDER THE LEGISLATION OF THAT STATE FOR THE PROVISION OF THE BENEFIT CLAIMED , IS DEPENDENT ON HER SON , WHO HAS WORKED IN BELGIUM AND DRAWS AN EARLY RETIREMENT PENSION OR ORDINARY RETIREMENT PENSION IN BELGIUM , AND RECEIVES A PROPORTION OF A PENSION AT THE EXPENSE OF HER COUNTRY OF ORIGIN , NAMELY ITALY , AN EEC MEMBER STATE , UNDER THE ITALIAN EMPLOYED PERSONS ' SCHEME?

( B)IN VIEW OF THE FACT THAT THE APPELLANT RECEIVES A PROPORTION OF A PENSION UNDER THE ITALIAN SCHEME , MAY HER CASE BE TREATED IN THE SAME WAY AS THAT OF A PERSON WHO , IN BELGIUM , RECEIVES A PROPORTION OF A BELGIAN RETIREMENT OR SURVIVOR ' S PENSION THEREBY JUSTIFYING PAYMENT OF A SUPPLEMENT IN THE FORM OF THE GUARANTEED INCOME FOR OLD PEOPLE?

( C)MAY THE APPELLANT BE REGARDED AS A MEMBER OF THE FAMILY OF HER SON , WHO WAS , SUCCESSIVELY , AN EMPLOYED PERSON , THE RECIPIENT OF AN EARLY RETIREMENT PENSION AND THE RECIPIENT OF AN ORDINARY RETIREMENT PENSION IN BELGIUM , FOR THE PURPOSES OF THE COMMUNITY REGULATIONS , PARTICULARLY REGULATION NO 1408/71 AND REGULATION NO 1612/68?

' '

7 THE QUESTIONS CONCERN THE POSITION OF A NATIONAL OF A MEMBER STATE WHO RECEIVES A SOCIAL SECURITY BENEFIT IN THAT STATE AND WHO MOVES TO ANOTHER MEMBER STATE WHERE SHE HAS NEVER WORKED AND WHERE SHE IS DEPENDENT ON HER SON , WHO IS HIMSELF IN RECEIPT OF A SOCIAL SECURITY BENEFIT IN THE LATTER STATE . THEY ARE INTENDED TO ESTABLISH WHETHER THAT PERSON IS ENTITLED TO RECEIVE THE GUARANTEED INCOME FOR OLD PEOPLE PROVIDED FOR BY THE LEGISLATION OF THE SECOND STATE , OR AT LEAST THE DIFFERENCE BETWEEN THAT INCOME AND THE LOWEST AMOUNT OF THE SOCIAL SECURITY BENEFIT PAID BY THE FIRST MEMBER STATE , EITHER BY WAY OF OLD AGE BENEFIT UNDER REGULATION NO 1408/71 , OR BY WAY OF SOCIAL ADVANTAGE UNDER REGULATION NO 1612/68 .

8 IT IS APPROPRIATE TO CONSIDER THAT PROBLEM IN THE FIRST PLACE IN RELATION TO REGULATION NO 1612/68 , TO WHICH THE THIRD QUESTION SUBMITTED BY THE NATIONAL COURT REFERS SPECIFICALLY .

9 UNDER ARTICLE 10 OF REGULATION NO 1612/68 DEPENDENT RELATIVES IN THE ASCENDING LINE HAVE THE RIGHT , IRRESPECTIVE OF THEIR NATIONALITY , TO INSTAL THEMSELVES WITH A WORKER WHO IS A NATIONAL OF ONE MEMBER STATE AND IS EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE . IN ADDITION , REGULATION ( EEC ) NO 1251/70 OF THE COMMISSION ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( II ), P . 402 ) ESTENDED THE RIGHT TO REMAIN IN THE TERRITORY OF A MEMBER STATE TO THE DEPENDENT RELATIVES IN THE ASCENDING LINE OF A NATIONAL OF ANOTHER MEMBER STATE WHO HAS BEEN EMPLOYED IN THE FIRST STATE . IT IS THEREFORE CLEAR THAT THE APPELLANT IN THE MAIN PROCEEDINGS COMES WITHIN THE CLASS OF BENEFICIARIES OF REGULATION NO 1612/68 .

10 BY VIRTUE OF ARTICLE 7 ( 2 ) OF REGULATION NO 1612/68 , A WORKER WHO IS A NATIONAL OF A MEMBER STATE IS TO ENJOY THE SAME SOCIAL AND TAX ADVANTAGES AS NATIONAL WORKERS . IT FOLLOWS FROM THE JUDGMENTS OF 30 SEPTEMBER 1975 ( CASE 32/75 , CRISTINI , ( 1975 ) ECR 1085 ) AND OF 16 DECEMBER 1976 ( CASE 63/76 , INZIRILLO , ( 1976 ) ECR 2057 ) THAT THE EQUALITY OF TREATMENT PROVIDED FOR IN ARTICLE 7 OF REGULATION NO 1612/68 IS ALSO INTENDED TO PREVENT DISCRIMINATION AGAINST A WORKER ' S DEPENDENT RELATIVES IN THE ASCENDING LINE , SUCH AS THE APPELLANT IN THE MAIN PROCEEDINGS .

11 AS THE COURT HAS HELD ON MANY OCCASIONS ( JUDGMENTS OF 31 . 5 . 1979 IN CASE 207/78 , EVEN , ( 1979 ) ECR 2019 , AND OF 14 . 1 . 1982 IN CASE 65/81 , REINA , ( 1982 ) ECR 33 ), THE CONCEPT OF SOCIAL ADVANTAGE INCLUDES ALL ADVANTAGES ' ' WHICH , WHETHER OR NOT LINKED TO A CONTRACT OF EMPLOYMENT , ARE GENERALLY GRANTED TO NATIONAL WORKERS PRIMARILY BECAUSE OF THEIR OBJECTIVE STATUS AS WORKERS OR BY VIRTUE OF THE MERE FACT OF THEIR RESIDENCE ON THE NATIONAL TERRITORY AND THE EXTENSION OF WHICH TO WORKERS WHO ARE NATIONALS OF OTHER MEMBER STATES THEREFORE SEEMS SUITABLE TO FACILITATE THEIR MOBILITY WITHIN THE COMMUNITY ' ' . THE EFFECT OF THAT DEFINITION , WHICH HAS BEEN CONSISTENTLY USED BY THE COURT , IS THAT THE CONCEPT OF SOCIAL ADVANTAGE INCLUDES THE INCOME GUARANTEED TO OLD PEOPLE BY THE LEGISLATION OF A MEMBER STATE .

12 THE ANSWER MUST THEREFORE BE THAT ARTICLE 7 ( 2 ) OF REGULATION NO 1612/68 MUST BE INTERPRETED AS MEANING THAT THE GRANT OF A SOCIAL ADVANTAGE , SUCH AS THE INCOME GUARANTEED TO OLD PEOPLE BY THE LEGISLATION OF A MEMBER STATE , TO DEPENDENT RELATIVES IN THE ASCENDING LINE OF A WORKER CANNOT BE CONDITIONAL ON THE EXISTENCE OF A RECIPROCAL AGREEMENT BETWEEN THAT MEMBER STATE AND THE MEMBER STATE OF WHICH SUCH A RELATIVE IS A NATIONAL .

13 SINCE THAT REPLY ENABLES THE NATIONAL COURT TO DECIDE THE DISPUTE IN THE MAIN PROCEEDINGS , IT IS NOT NECESSARY TO CONSIDER WHETHER , IN THE SITUATION IN QUESTION , A NATIONAL OF A MEMBER STATE IS ENTITLED TO OBTAIN THE INCOME GUARANTEED TO OLD PEOPLE BY THE LEGISLATION OF ANOTHER MEMBER STATE UNDER REGULATION NO 1408/71 , EITHER AS THE MEMBER OF THE FAMILY OF A MIGRANT WORKER ESTABLISHED IN THAT STATE OR AS A BENEFICIARY IN HER OWN RIGHT OF A SOCIAL SECURITY BENEFIT IN HER STATE OF ORIGIN .

COSTS

14 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT , THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR DU TRAVAIL , LIEGE , BY JUDGMENT OF 4 NOVEMBER 1983 , HEREBY RULES :

ARTICLE 7 ( 2 ) OF REGULATION ( EEC ) 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) MUST BE INTERPRETED AS MEANING THAT THE GRANT OF A SOCIAL ADVANTAGE , SUCH AS THE INCOME GUARANTEED TO OLD PEOPLE BY THE LEGISLATION OF A MEMBER STATE , TO A DEPENDENT RELATIVE IN THE ASCENDING LINE OF A WORKER CANNOT BE CONDITIONAL ON THE EXISTENCE OF A RECIPROCAL AGREEMENT BETWEEN THAT MEMBER STATE AND THE MEMBER STATE OF WHICH SUCH A RELATIVE IS A NATIONAL .