61986J0256

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1 . FREE MOVEMENT OF PERSONS - WORKERS - EQUAL TREATMENT - SOCIAL ADVANTAGES - THOSE ENTITLED TO RELY ON THE PRINCIPLE OF EQUALITY - DEPENDENT RELATIVES IN THE ASCENDING LINE OF A WORKER

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

2 . FREE MOVEMENT OF PERSONS - WORKERS - EQUAL TREATMENT - SOCIAL ADVANTAGES - DEFINITION - SPECIAL OLD-AGE ALLOWANCE GUARANTEEING A MINIMUM INCOME

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

1 . DEPENDENT RELATIVES IN THE ASCENDING LINE OF A MIGRANT WORKER MAY RELY ON THE PROHIBITION OF DISCRIMINATION IN ARTICLE 7 ( 2 ) OF REGULATION NO*1612/68 OF THE COUNCIL IN RESPECT OF THE GRANT OF SOCIAL ADVANTAGES .

2 . THE GRANT OF A SPECIAL OLD-AGE ALLOWANCE WHICH GUARANTEES A MINIMUM INCOME TO OLD PERSONS CONSTITUTES A SOCIAL ADVANTAGE WITHIN THE MEANING OF REGULATION NO*1612/68 .

IN CASE 256/86

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DES AFFAIRES DE SECURITE SOCIALE ( SOCIAL SECURITY COURT ), NANTERRE ( FRANCE ), FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

MARIA FRASCOGNA, RESIDING IN AIX-EN-PROVENCE,

AND

CAISSE DES DEPOTS ET CONSIGNATIONS, BORDEAUX,

ON THE INTERPRETATION 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 ),

THE COURT ( FIRST CHAMBER )

COMPOSED OF : F.*SCHOCKWEILER, PRESIDENT OF CHAMBER, G.*BOSCO AND R.*JOLIET, JUDGES,

ADVOCATE GENERAL : C.*O.*LENZ

REGISTRAR : J.*A.*POMPE, DEPUTY REGISTRAR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY ITS LEGAL ADVISER, J.*GRIESMAR, ACTING AS AGENT,

HAVING REGARD TO THE REPORT FOR THE HEARING, AS AMENDED FURTHER TO THE HEARING ON 30 JUNE 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 30 JUNE 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN ORDER OF 11 MARCH 1986, WHICH WAS RECEIVED AT THE COURT ON 9 OCTOBER 1986, THE TRIBUNAL DES AFFAIRES DE SECURITE SOCIALE, NANTERRE, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION 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 ).

2 THAT QUESTION WAS RAISED IN PROCEEDINGS IN WHICH MRS FRASCOGNA, BORN ON 10 JANUARY 1913 AND OF ITALIAN NATIONALITY, CLAIMS THE ANNULMENT OF A DECISION BY WHICH THE CAISSE DES DEPOTS ET CONSIGNATIONS REFUSED HER THE SPECIAL OLD-AGE ALLOWANCE ESTABLISHED BY LAW NO*52-799 OF 10 JULY 1952 ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE OF 11 JULY 1952, P.*6939 ) ON THE GROUND THAT SHE DID NOT SATISFY THE CONDITION OF 15 YEARS' RESIDENCE IN FRANCE WHICH WAS REQUIRED OF FOREIGN NATIONALS .

3 IN THOSE PROCEEDINGS THE NATIONAL COURT, WHICH UNTIL THE ENTRY INTO FORCE OF A LAW OF 3 JANUARY 1985 WAS KNOWN AS THE "COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ( SOCIAL SECURITY FIRST INSTANCE APPEALS BOARD ) DES HAUTS-DE SEINE", REFERRED A QUESTION FOR A PRELIMINARY RULING TO THE COURT ON 8 DECEMBER 1983 . IN ITS JUDGMENT OF 6 JUNE 1985 ( CASE 157/84 FRASCOGNA V CAISSE DES DEPOTS ET CONSIGNATIONS (( 1985 )) ECR 1739 ) THE COURT HELD THAT THE GRANT OF THE SPECIAL OLD-AGE ALLOWANCE CONSTITUTED A SOCIAL ADVANTAGE WITHIN THE MEANING OF REGULATION NO*1612/68 OF THE COUNCIL AND THAT ARTICLE 7 ( 2 ) THEREOF WAS TO BE INTERPRETED AS MEANING THAT THE GRANT OF SUCH A SOCIAL ADVANTAGE COULD NOT BE SUBJECT TO THE CONDITION OF ACTUAL RESIDENCE IN THE TERRITORY OF A MEMBER STATE FOR A SPECIFIED NUMBER OF YEARS IF SUCH A CONDITION WAS NOT LAID DOWN IN RESPECT OF NATIONALS OF THAT MEMBER STATE .

4 WHEN THE NATIONAL COURT CONSIDERED THE CASE IN THE LIGHT OF THE JUDGMENT OF THE COURT THE CAISSE DES DEPOTS ET CONSIGNATIONS ASKED IT TO PUT A FRESH QUESTION FOR A PRELIMINARY RULING . WITHOUT ITSELF EXPLAINING THE REASONS FOR ITS DECISION TO PUT A FRESH QUESTION TO THE COURT, THE TRIBUNAL ASKED THE COURT WHETHER THE SPECIAL OLD-AGE ALLOWANCE CAME WITHIN THE SUBSTANTIVE AND PERSONAL SCOPE OF REGULATION NO*1612/68 .

5 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS AND A SUMMARY OF THE OBSERVATIONS SUBMITTED BY MRS FRASCOGNA, THE CAISSE DES DEPOTS ET CONSIGNATIONS, THE ITALIAN GOVERNMENT AND THE COMMISSION .

6 WITH REGARD TO THE QUESTION WHETHER DEPENDENT RELATIVES IN THE ASCENDING LINE OF A MIGRANT WORKER MAY CLAIM THE BENEFIT OF THE PROHIBITION OF DISCRIMINATION CONTAINED IN ARTICLE 7 ( 2 ) OF REGULATION NO*1612/68, IT MAY BE OBSERVED THAT THE COURT HAS ALREADY REPLIED IN THE AFFIRMATIVE WHEN IT HELD IN THE AFOREMENTIONED JUDGMENT OF 6 JUNE 1985 THAT "THE FUNDAMENTAL PRINCIPLE OF NON-DISCRIMINATION IN THE SPHERE OF THE FREE MOVEMENT OF PERSONS, LAID DOWN IN ARTICLE 7 ( 2 ) OF REGULATION NO*1612/68, PROHIBITS ANY DISCRIMINATION AGAINST THE RELATIVES IN THE ASCENDING LINE OF A WORKER FROM ANOTHER MEMBER STATE WHERE THOSE RELATIVES HAVE EXERCISED THE RIGHT CONFERRED UPON THEM UNDER ARTICLE 10 OF REGULATION NO*1612/68 TO INSTALL THEMSELVES WITH THE WORKER ".

7 IT IS NOT POSSIBLE TO REGARD A RELATIVE IN THE ASCENDING LINE WHO CLAIMS THE BENEFIT OF THE PROHIBITION OF DISCRIMINATION IN ARTICLE 7 ( 2 ) OF REGULATION NO*1612/68 AS NOT BEING A DEPENDANT OF THE MIGRANT WORKER ON THE GROUND THAT HE COULD CLAIM PAYMENT OF AN ALLOWANCE OF THE SAME AMOUNT, NAMELY THE BASIC DOMESTIC SOCIAL ASSISTANCE, WHERE THE LATTER DOES NOT HAVE THE SAME ADVANTAGES AS THE SPECIAL OLD-AGE ALLOWANCE . IT WOULD BE DISCRIMINATORY IF, BECAUSE THE RELATIVE IN THE ASCENDING LINE DID NOT SATISFY A RESIDENTIAL QUALIFICATION REQUIRED ONLY OF ALIENS, HE WERE TO BE ENTITLED ONLY TO THE LESS ADVANTAGEOUS ALLOWANCE .

8 THE JUDGMENT OF 6 JUNE 1985 HAS ALREADY ANSWERED THE QUESTION WHETHER THE SPECIAL OLD-AGE ALLOWANCE FALLS WITHIN THE SUBSTANTIVE SCOPE OF REGULATION NO*1612/68 WHEN IT STATED THAT THE GRANT OF SUCH AN ALLOWANCE CONSTITUTES A SOCIAL ADVANTAGE WITHIN THE MEANING OF REGULATION NO*1612/68 .

9 THE ANSWER TO THE QUESTION REFERRED TO THE COURT FOR A PRELIMINARY RULING MUST THEREFORE BE THAT DEPENDENT RELATIVES IN THE ASCENDING LINE OF A MIGRANT WORKER MAY RELY ON THE PROHIBITION OF DISCRIMINATION IN ARTICLE 7 ( 2 ) OF REGULATION NO*1612/68 OF THE COUNCIL AND THAT THE GRANT OF A SPECIAL OLD-AGE ALLOWANCE CONSTITUTES A SOCIAL ADVANTAGE WITHIN THE MEANING OF REGULATION NO*1612/68 OF THE COUNCIL .

COSTS

10 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT 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 QUESTION REFERRED TO IT BY THE TRIBUNAL DES AFFAIRES DE SECURITE SOCIALE, NANTERRE, BY ORDER OF 11 MARCH 1986, HEREBY RULES :

( 1 ) DEPENDENT RELATIVES IN THE ASCENDING LINE OF A MIGRANT WORKER MAY RELY ON THE PROHIBITION OF DISCRIMINATION IN ARTICLE 7 ( 2 ) OF REGULATION NO*1612/68 OF THE COUNCIL;

( 2 ) THE GRANT OF A SPECIAL OLD-AGE ALLOWANCE CONSTITUTES A SOCIAL ADVANTAGE WITHIN THE MEANING OF REGULATION NO*1612/68 OF THE COUNCIL .