61973J0187

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - HANDICAPPED PERSONS - GRANT OF BENEFITS PROVIDED BY NATIONAL LEGISLATIONS - CHARACTER - BENEFITS WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( B ) OF REGULATION ( EEC ) NO 1408/71 - CRITERIA

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - REGULATION NO 1408/71 - MORE FAVOURABLE TO THOSE ENTITLED, AS COMPARED WITH THE EUROPEAN INTERIM AGREEMENT ON SOCIAL SECURITY SCHEMES OF 11 . 12 . 1953 - PRECEDENCE

1 . THE BENEFITS MENTIONED IN ARTICLE 4 ( 1 ) ( B ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 EMBRACE THOSE PROVIDED BY THE NATIONAL PROVISIONS GRANTING BENEFITS TO HANDICAPPED PERSONS, INSOFAR AS THESE PROVISIONS RELATE TO WORKERS WITHIN THE MEANING OF ARTICLE 1 ( A ) OF THIS REGULATION AND CONFER UPON THEM A LEGALLY PROTECTED ENTITLEMENT TO THE GRANT OF THESE BENEFITS .

2 . IN THE FRAMEWORK OF ITS FIELD OF APPLICATION TO PERSONS AND TO MATTERS COVERED, REGULATION NO 1408/71 TAKES PRECEDENCE OVER THE EUROPEAN INTERIM AGREEMENT ON SOCIAL SECURITY SCHEMES IN RESPECT OF OLD AGE, INVALIDITY AND SURVIVORS SIGNED IN PARIS ON 11 DECEMBER 1953 AND REFERRED TO IN ARTICLE 7 ( 1 ) ( B ) OF THE REGULATION, INSOFAR AS IT IS MORE FAVOURABLE FOR THOSE ENTITLED, THAN THE AGREEMENT .

IN CASE 187/73

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DU TRAVAIL OF TOURNAI ( BELGIUM ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MRS ODETTE CALLEMEYN, SPOUSE OF R . VERBEKE, RESIDING AT MOUSCRON ( BELGIUM ),

AND

THE BELGIAN STATE, REPRESENTED BY THE MINISTER FOR SOCIAL SECURITY, BRUSSELS,

ON THE INTERPRETATION OF THE PROVISIONS 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' ( OJ 1971 L 149 ), PARTICULARLY AS REGARDS BENEFITS FOR HANDICAPPED PERSONS,

1 BY JUDGMENT DATED 27 NOVEMBER 1973, RECEIVED AT THE REGISTRY OF THE COURT ON 7 DECEMBER 1973, THE TRIBUNAL DU TRAVAIL OF TOURNAI REFERRED TO THE COURT OF JUSTICE, UNDER ARTICLE 177 OF THE TREATY, PRELIMINARY QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS 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 ( OJ 1971 L 149 ).

2 THESE QUESTIONS ARE REFERRED IN THE COURSE OF PROCEEDINGS CONCERNING THE REFUSAL BY THE BELGIAN STATE TO GRANT THE PLAINTIFF IN THE NATIONAL PROCEEDINGS - A PERSON OF FRENCH NATIONALITY MARRIED TO A BELGIAN AND RESIDING IN BELGIUM - THE BENEFIT OF THE BELGIAN LAW OF 27 JUNE 1969 RELATING TO THE GRANT OF BENEFITS TO HANDICAPPED PERSONS, ON THE GROUNDS THAT THE PARTY INTERESTED DOES NOT FULFIL ALL THE CONDITIONS FOR ENTITLEMENT IMPOSED BY THAT LAW AS WELL AS BY THE EUROPEAN INTERIM AGREEMENT OF 11 DECEMBER 1953 ON SOCIAL SECURITY SCHEMES IN RESPECT OF OLD AGE, INVALIDITY AND SURVIVORS .

3 THE FIRST QUESTION ASKS WHETHER THE ADVANTAGES REFERRED TO BY ARTICLE 4 OF REGULATION NO 1408/71 OF THE COUNCIL INCLUDE MEASURES PROVIDED BY A NATIONAL LAW GRANTING BENEFITS TO HANDICAPPED PERSONS INSOFAR AS THESE MEASURES CONCERN WORKERS .

4 UNDER THE PROVISIONS OF ARTICLE 4 ( 1 ) THEREOF, REGULATION NO 1408/71 APPLIES TO ALL LEGISLATION CONCERNING BRANCHES OF SOCIAL SECURITY AS DEFINED BY THAT PROVISION .

5 ON THE OTHER HAND PARAGRAPH 4 OF THE SAME ARTICLE PROVIDES THAT THE REGULATION DOES NOT APPLY TO 'SOCIAL AND MEDICAL ASSISTANCE '.

6 ALTHOUGH IT MAY APPEAR DESIRABLE, FROM THE POINT OF VIEW OF THE APPLICATION OF THE REGULATION, TO DRAW A CLEAR DISTINCTION BETWEEN LEGISLATION CONCERNING SOCIAL SECURITY ON THE ONE HAND AND ASSISTANCE ON THE OTHER, THE POSSIBILITY CANNOT BE EXCLUDED THAT SOME LAWS MAY FALL WITHIN BOTH THESE CATEGORIES, BECAUSE OF THE CLASS OF PERSONS TO WHOM THEY APPLY, OF THEIR OBJECTIVES AND OF THEIR MANNER OF APPLICATION, AND THUS NOT BE AMENABLE TO ANY OVERALL CLASSIFICATION .

7 WHILST IN SOME OF ITS FEATURES, LEGISLATION CONCERNING THE GRANT OF BENEFITS TO HANDICAPPED PERSONS IS AKIN TO SOCIAL ASSISTANCE, ESPECIALLY WHEN NEED IS THE ESSENTIAL CRITERION IN ITS IMPLEMENTATION AND THERE ARE NO CONDITIONS AS TO PERIODS OF EMPLOYMENT, OF MEMBERSHIP OR OF CONTRIBUTIONS, YET IT IS NEVERTHELESS CLOSE TO SOCIAL SECURITY TO THE EXTENT THAT, DEPARTING FROM THE CONSIDERATION OF EACH CASE ON ITS MERITS - A CHARACTERISTIC FEATURE OF ASSISTANCE - IT CONFERS UPON BENEFICIARIES A LEGALLY DEFINED POSITION .

8 IN VIEW OF THE WIDELY-DRAWN DEFINITION OF PEOPLE ENTITLED TO BENEFIT, SUCH A LEGISLATION FULFILS IN FACT A DOUBLE FUNCTION, WHICH IS ON THE ONE HAND TO GUARANTEE A MINIMUM INCOME TO HANDICAPPED PERSONS WHO ARE ENTIRELY OUTSIDE THE SOCIAL SECURITY SYSTEM AND, ON THE OTHER HAND, TO PROVIDE SUPPLEMENTARY MEANS TO PERSONS ENTITLED TO SOCIAL SECURITY BENEFITS WHO ARE PERMANENTLY INCAPACITATED FROM WORK .

9 UNDER THE PROVISIONS OF ARTICLE 4 ( 1 ) ( B ) THEREOF, REGULATION NO 1408/71 APPLIES TO 'INVALIDITY BENEFITS, INCLUDING THOSE INTENDED FOR THE MAINTENANCE OR IMPROVEMENT OF EARNING CAPACITY '.

10 UNDER ARTICLE 1 ( T ) OF THE SAME REGULATION, THE EXPRESSION 'BENEFITS' MUST BE UNDERSTOOD IN THE WIDEST POSSIBLE SENSE AS REFERRING TO ALL BENEFITS 'INCLUDING ALL ELEMENTS THEREOF PAYABLE OUT OF PUBLIC FUNDS, REVALORIZATION INCREASES AND SUPPLEMENTARY ALLOWANCES, SUBJECT TO THE PROVISIONS OF TITLE III '.

11 THUS, AS REGARDS AN EMPLOYED PERSON OR A PERSON TREATED AS SUCH, WHO IS IN A MEMBER STATE ENTITLED TO AN INVALIDITY PENSION, LEGISLATION THAT ASSURES TO HANDICAPPED PERSONS A RIGHT TO 'BENEFIT', THAT IS LEGALLY PROTECTED, FALLS, SO FAR AS THESE WORKERS ARE CONCERNED, WITHIN THE FIELD OF SOCIAL SECURITY, WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AND OF THE REGULATIONS MADE THEREUNDER, EVEN IF SUCH LEGISLATION MIGHT FALL OUTSIDE THIS FIELD SO FAR AS OTHER CATEGORIES OF BENEFICIARIES ARE CONCERNED .

12 THE DIFFICULTIES THAT MIGHT ARISE FROM THE APPLICATION OF THE COMMUNITY REGULATIONS TO THESE PROVISIONS MUST NOT PREJUDICE THE RIGHTS WHICH THE WORKERS REFERRED TO BY ARTICLE 1 ( A ) OF REGULATION NO 1408/71 DERIVE FROM THE PRINCIPLES OF THE SOCIAL LEGISLATION OF THE COMMUNITY .

13 THIS IS THE CASE AT ANY RATE WHENEVER A PERSON WHO IS A WORKER WITHIN THE MEANING OF THE ABOVEMENTIONED ARTICLE 1 ( A ) ALREADY FALLS, BY REASON OF EARLIER EMPLOYMENT, UNDER THE SOCIAL SECURITY SYSTEM OF THE MEMBER STATE WHOSE LEGISLATION, GUARANTEEING BENEFITS TO THE HANDICAPPED, IS INVOKED .

14 MOREOVER, ARTICLE 7 ( 1 ) AND ( 2 ) OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968, ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OJ 1968, NO L 257 ), PROVIDES THAT A WORKER WHO IS A NATIONAL OF A MEMBER STATE SHALL, ON THE TERRITORY OF THE OTHER MEMBER STATES, 'ENJOY THE SAME SOCIAL AND TAX ADVANTAGES AS NATIONAL WORKERS '.

15 ACCORDINGLY, THE REPLY TO THE FIRST QUESTION MUST BE THAT THE BENEFITS MENTIONED IN ARTICLE 4 ( 1 ) ( B ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 EMBRACE THOSE PROVIDED BY THE NATIONAL PROVISIONS GRANTING BENEFITS TO HANDICAPPED PERSONS, INSOFAR AS THESE PROVISIONS RELATE TO WORKERS WITHIN THE MEANING OF ARTICLE 1 ( A ) OF THIS REGULATION AND CONFER UPON THEM A LEGALLY PROTECTED ENTITLEMENT FOR THE GRANT OF THESE BENEFITS .

16 THE SECOND QUESTION ASKS WHETHER REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971, IN SO FAR AS IT IS MORE FAVOURABLE FOR THOSE ENTITLED, REPLACES THE EUROPEAN INTERIM AGREEMENT ON SOCIAL SECURITY SCHEMES IN RESPECT OF OLD AGE, INVALIDITY AND SURVIVORS SIGNED IN PARIS ON 11 DECEMBER 1963 AND REFERRED TO IN ARTICLE 7 OF THE REGULATION .

17 UNDER THE PROVISIONS OF ARTICLE 6 ( A ) THEREOF, REGULATION NO 1408/71 REPLACES, SUBJECT TO THE PROVISIONS OF ARTICLES 7, 8 AND 46 ( 4 ), AS REGARDS PERSONS AND MATTERS WHICH IT COVERS, THE PROVISIONS OF ANY SOCIAL SECURITY CONVENTION BINDING ...' ( A ) TWO OR MORE MEMBER STATES EXCLUSIVELY '.

18 UNDER ARTICLE 7 ( 1 ) ( B ) OF REGULATION NO 1408/71 THE PROVISIONS OF THE REGULATION SHALL NOT AFFECT OBLIGATIONS ARISING FROM THE EUROPEAN INTERIM AGREEMENTS ON SOCIAL SECURITY OF 11 DECEMBER 1953 CONCLUDED BETWEEN THE MEMBER STATES OF THE COUNCIL OF EUROPE .

19 FURTHERMORE, ARTICLE 5 OF THE EUROPEAN INTERIM AGREEMENTS PROVIDES THAT THESE DO NOT DEROGATE FROM THE PROVISIONS OF NATIONAL LAWS AND REGULATIONS, INTERNATIONAL AGREEMENTS OR BILATERAL OR MULTILATERAL AGREEMENTS THAT ARE MORE FAVOURABLE TO THOSE ENTITLED .

20 THUS, TO APPLY REGULATION NO 1408/71 IN PREFERENCE TO THE EUROPEAN INTERIM AGREEMENTS, TO THE EXTENT THAT IT IS MORE FAVOURABLE THAN THOSE AGREEMENTS FOR THOSE ENTITLED, DOES NOT INFRINGE THE OBLIGATIONS ARISING FROM THESE AGREEMENTS AND IS NOT THEREFORE CAPABLE OF INFRINGING ARTICLE 7 ( 1 ) ( B ) OF THE REGULATION .

21 FOR THESE REASONS IT MUST BE CONCLUDED THAT IN THE FRAMEWORK OF ITS FIELD OF APPLICATION TO PERSONS AND TO MATTERS COVERED, REGULATION NO 1408/71 TAKES PRECEDENCE OVER THE EUROPEAN INTERIM AGREEMENT ON SOCIAL SECURITY SCHEMES IN RESPECT OF OLD AGE, INVALIDITY AND SURVIVORS SIGNED IN PARIS ON 11 DECEMBER 1953 INSOFAR AS IT IS MORE FAVOURABLE FOR THOSE ENTITLED .

22 THE COSTS INCURRED BY THE BELGIAN STATE, THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE, AND AS THESE PROVEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL OF TOURNAI BY JUDGMENT OF 27 NOVEMBER 1973, HEREBY RULES :

1 . THE BENEFITS MENTIONED IN ARTICLE 4 ( 1 ) ( B ) OF REGULATION NO 1408 OF THE COUNCIL OF 14 JUNE 1971 INCLUDE THOSE PROVIDED BY NATIONAL PROVISIONS GRANTING BENEFITS TO THE HANDICAPPED TO THE EXTENT THAT THESE PROVISIONS CONCERN WORKERS WITHIN THE MEANING OF ARTICLE 1 ( A ) OF THIS REGULATION AND CONFER ON THE LATTER A LEGALLY PROTECTED RIGHT TO THE GRANT OF THESE BENEFITS .

2 . WITHIN ITS FIELD OF APPLICATION TO PERSONS AND TO MATTERS COVERED, REGULATION NO 1408/71 TAKES PRECEDENCE OVER THE EUROPEAN INTERIM AGREEMENT ON SOCIAL SECURITY SCHEMES IN RESPECT OF OLD AGE, INVALIDITY AND SURVIVORS, SIGNED IN PARIS ON 11 DECEMBER 1953, AND REFERRED TO IN ARTICLE 7 ( 1 ) ( B ) OF THE REGULATION, TO THE EXTENT THAT THIS REGULATION IS MORE FAVOURABLE THAN THE SAID AGREEMENT FOR THOSE ENTITLED .