61976J0063

1 . QUESTIONS REFERRED FOR PRELIMINARY RULING - JURISDICTION OF THE COURT - LIMITS

( EEC TREATY , ARTICLE 177 )

2 . FREEDOM OF MOVEMENT FOR WORKERS - EQUALITY OF TREATMENT - MATTERS COVERED

( REGULATION NO 1612/68 , ARTICLE 7 )

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - NATIONAL LEGISLATION - HANDICAPPED ADULTS - RIGHT TO ALLOWANCE - NATIONAL OF ANOTHER MEMBER STATE - COMMUNITY REGULATIONS - IMPLEMENTATION

( REGULATION NO 1408/71 , ARTICLE 1 ( F ), ARTICLE 2 ( 1 ))

1 . WHILST THE COURT , ACTING WITHIN THE FRAMEWORK OF ARTICLE 177 , HAS NO JURISDICTION TO PRONOUNCE ON A PROVISION OF NATIONAL LAW WITH REGARD TO A COMMUNITY RULE , IT CAN HOWEVER PROVIDE THE NATIONAL COURT WITH THE FACTORS OF INTERPRETATION DEPENDING ON COMMUNITY LAW WHICH COULD BE USEFUL TO IT IN EVALUATING THE EFFECTS OF SUCH PROVISION .

2 . IN THE LIGHT OF THE EQUALITY OF TREATMENT WHICH REGULATION NO 1612/68 SEEKS TO BRING ABOUT AND TAKING ACCOUNT OF THE PROVISIONS OF THAT REGULATION AS A WHOLE , THE MATTERS COVERED BY ARTICLE 7 ( 2 ) MUST BE DEFINED IN SUCH A WAY AS TO INCLUDE EVERY SOCIAL AND TAX ADVANTAGE , WHETHER OR NOT LINKED TO A CONTRACT OF EMPLOYMENT .

3 . PURSUANT TO REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 , NATIONAL LEGISLATION WHICH , IN A MEMBER STATE , GIVES A LEGALLY PROTECTED RIGHT TO AN ALLOWANCE FOR HANDICAPPED ADULTS TO THE NATIONALS OF THAT STATE WHO RESIDE THERE ALSO APPLIES TO A HANDICAPPED ADULT NATIONAL OF ANOTHER MEMBER STATE WHO HAS NEVER WORKED IN THE STATE WHICH HAS ADOPTED THE LEGISLATION IN QUESTION , BUT WHO RESIDES THERE AND IS DEPENDENT UPON HIS FATHER WHO IS EMPLOYED THERE AS A WORKER WITHIN THE MEANING OF THE SAID REGULATION .

IN CASE 63/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DE CASSATION , FRANCE , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

VITO INZIRILLO , LYON ,

AND

CAISSE D ' ALLOCATIONS FAMILIALES DE L ' ARRONDISSEMENT DE LYON ,

ON THE INTERPRETATION IN RELATION TO ALLOWANCES FOR HANDICAPPED ADULTS OF REGULATION NO 1408/71 OF THE COUNCIL ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ,

1 BY JUDGMENT OF 26 MAY 1976 , RECEIVED AT THE COURT REGISTRY ON 7 JULY 1976 , THE COUR DE CASSATION OF FRANCE REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS CONCERNING THE INTERPRETATION OF REGULATION NO 1408/71 IN RELATION TO AN ALLOWANCE FOR HANDICAPPED ADULTS .

2 THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF PROCEDURES RELATING TO THE REFUSAL OF THE CAISSE D ' ALLOCATIONS FAMILIALES DE L ' ARRONDISSEMENT DE LYON TO ALLOW A HANDICAPPED ADULT ITALIAN NATIONAL , RESIDING IN FRANCE WITH HIS FATHER WHO IS EMPLOYED THERE AS A WORKER WITHIN THE MEANING OF REGULATION NO 1408/71 , TO BENEFIT FROM THE ALLOWANCE FOR HANDICAPPED ADULTS INSTITUTED BY ARTICLE 7 AND 8 FRENCH LAW NO 71-563 OF 13 JULY 1971 .

3 THE APPLICATION WAS REFUSED IN THE PRESENT CASE ON THE GROUND THAT THE LAW IN QUESTION LIMITS PAYMENT OF THE ALLOWANCE FOR HANDICAPPED ADULTS TO FRENCH NATIONALS ALONE .

4 THE COUR DE CASSATION OF FRANCE ASKS WHETHER , PURSUANT TO REGULATION NO 1408/71 , ' A HANDICAPPED ADULT ITALIAN NATIONAL WHO HAS HIMSELF NEVER WORKED IN FRANCE MUST BENEFIT FROM THE ALLOWANCE FOR HANDICAPPED ADULTS INTRODUCED BY THE LAW OF 13 JULY 1971 SOLELY FOR THE BENEFIT OF FRENCH NATIONALS RESIDING IN FRANCE , IF HE RESIDES THERE AND IF HIS FATHER , AN ITALIAN MIGRANT WORKER , IS EMPLOYED THERE ' .

5 IN ORDER TO REPLY TO THIS QUESTION IT IS FIRST NECESSARY TO DEFINE THE SUBSTANTIVE AREA OF APPLICATION OF REGULATION NO 1408/71 IN RELATION TO THE PROVISIONS OF NATIONAL LAW PROVIDING FOR THE ALLOWANCE IN QUESTION .

6 WHILST THE COURT , ACTING WITHIN THE FRAMEWORK OF ARTICLE 177 , HAS NO JURISDICTION TO PRONOUNCE ON A PROVISION OF NATIONAL LAW WITH REGARD TO A COMMUNITY RULE , IT CAN HOWEVER , PROVIDE THE NATIONAL COURT WITH THE FACTORS OF INTERPRETATION DEPENDING ON COMMUNITY LAW WHICH MIGHT BE USEFUL TO IT IN EVALUATING THE EFFECTS OF SUCH PROVISION .

7 IN ITS JUDGMENT OF 13 NOVEMBER 1974 IN CASE 39/74 ( MAZZIER , NEE COSTA V BELGIAN STATE , ( 1974 ) ECR 1251 ), THE COURT HELD THAT ' A NATIONAL LEGISLATION GIVING A LEGALLY PROTECTED RIGHT TO A BENEFIT FOR THE HANDICAPPED FALLS , AS REGARDS THE PERSONS COVERED BY REGULATION NO 3 , WITHIN THE AREA OF SOCIAL SECURITY WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AND OF THE COMMUNITY REGULATIONS THEREUNDER ' .

8 SINCE REGULATION NO 3 WAS REPLACED BY REGULATION NO 1408/71 OF THE COUNCIL , THE SAME INTERPRETATION APPLIES TO THE PROVISIONS OF THE LATTER REGULATION TO THE EXTENT TO WHICH THEY DETERMINE THE MATTERS COVERED BY THAT REGULATION .

9 IT FOLLOWS THAT A NATIONAL SCHEME TO PROVIDE ALLOWANCE FOR HANDICAPPED PERSONS , SUCH AS THAT AT ISSUE IN THE PRESENT CASE , WHICH GIVES A LEGALLY PROTECTED RIGHT TO SUCH ALLOWANCES CONSTITUTES SOCIAL SECURITY WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AS REGARDS THE PERSONS REFERRED TO BY REGULATION NO 1408/71 .

10 SECONDLY , IT IS NECESSARY TO CONSIDER WHETHER A HANDICAPPED ADULT WHOSE CIRCUMSTANCES ARE THOSE DESCRIBED BY THE NATIONAL COURT IS ONE OF THE PERSONS COVERED BY THE SAID REGULATION .

11 ARTICLE 2 ( 1 ) OF REGULATION NO 1408/71 PROVIDES IT SHALL APPLY ' TO WORKERS WHO ARE OR HAVE BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES AND WHO ARE NATIONALS OF ONE OF THE MEMBER STATES . . ., AS ALSO TO THE MEMBERS OF THEIR FAMILY AND THEIR SURVIVORS ' .

12 ALTHOUGH , IN DEFINING THE TERM ' MEMBER OF THE FAMILY ' OF THE WORKER , ARTICLE 1 ( F ) OF THAT REGULATION REFERS TO THE NATIONAL LEGISLATION UNDER WHICH THE BENEFIT IS PROVIDED , NEVERTHELESS THE INTERPRETATION OF THAT REFERENCE MUST RESPECT THE PRINCIPLES OF COMMUNITY LAW ON WHICH REGULATION NO 1408/71 IS BASED .

13 ACCORDING TO THE FIFTH RECITAL OF THE PREAMBLE , THE PROVISIONS OF THAT REGULATION ' FALL WITHIN THE FRAMEWORK OF FREEDOM OF MOVEMENT FOR WORKERS WHO ARE NATIONALS OF MEMBER STATES AND SHOULD , TO THIS END , CONTRIBUTE TOWARDS THE IMPROVEMENT OF THEIR STANDARD OF LIVING AND CONDITIONS OF EMPLOYMENT , BY GUARANTEEING WITHIN THE COMMUNITY FIRSTLY EQUALITY OF TREATMENT FOR ALL NATIONALS OF MEMBER STATES UNDER THE VARIOUS NATIONAL LEGISLATIONS AND SECONDLY SOCIAL SECURITY BENEFITS FOR WORKERS AND THEIR DEPENDANTS REGARDLESS OF THEIR PLACE OF EMPLOYMENT OR OF RESIDENCE ' .

14 TO THIS END , ARTICLE 3 ( 1 ) ENSHRINES THE FUNDAMENTAL PRINCIPLE OF EQUALITY OF TREATMENT BY PROVIDING THAT ' SUBJECT TO THE SPECIAL PROVISIONS OF THIS REGULATION , PERSONS RESIDENT IN THE TERRITORY OF ONE OF THE MEMBER STATES TO WHOM THIS REGULATION APPLIES SHALL BE SUBJECT TO THE SAME OBLIGATIONS AND ENJOY THE SAME BENEFITS UNDER THE LEGISLATION OF ANY MEMBER STATE AS THE NATIONALS OF THAT STATE ' .

15 AS IS RECOGNIZED BY THE LAW WHICH GOVERNS THE BENEFIT IN QUESTION IN THIS INSTANCE , THE TERM MEMBER OF THE FAMILY OF A WORKER UNDOUBTEDLY INCLUDES A MINOR CHILD DEPENDENT ON HIS PARENTS .

16 AS REGARDS MORE PARTICULARLY THE CASE OF A HANDICAPPED CHILD WHO FROM HIS MINORITY FULFILS THE CONDITIONS ENTITLING HIM TO BENEFIT , AS A MEMBER OF THE EMPLOYED PERSON ' S FAMILY , FROM ALLOWANCES FOR THE HANDICAPPED , THE EQUALITY OF TREATMENT UNDER ARTICLE 3 OF REGULATION NO 1408/71 CANNOT TERMINATE WHEN HE CEASES TO BE A MINOR , IF THE CHILD BY REASON OF HIS HANDICAP IS PREVENTED FROM HIMSELF ACQUIRING THE STATUS OF EMPLOYED PERSON WITHIN THE MEANING OF THE REGULATION .

17 IF THAT WERE NOT THE CASE , A WORKER ANXIOUS TO ENSURE TO HIS CHILD THE LASTING ENJOYMENT OF THE ALLOWANCES NECESSITATED BY HIS CONDITION AS A HANDICAPPED PERSON , WOULD BE INDUCED NOT TO REMAIN IN THE MEMBER STATE WHERE HE HAS ESTABLISHED HIMSELF AND HAS FOUND HIS EMPLOYMENT , WHICH WOULD RUN COUNTER TO THE OBJECT SOUGHT TO BE ATTAINED BY THE PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY , BEARING IN MIND INTER ALIA THE RIGHT RECOGNIZED UNDER THIS PRINCIPLE TO EMPLOYED PERSONS AND TO MEMBERS OF THEIR FAMILIES TO REMAIN WITHIN THE TERRITORY OF A MEMBER STATE IN WHICH THE EMPLOYED PERSON WAS EMPLOYED UNDER THE CONDITIONS DETERMINED BY REGULATION NO 1251/70 OF THE COMMISSION OF 29 JUNE 1970 ( OJ ENGLISH SPECIAL EDITION 1970 ( II ), P . 402 ).

18 FURTHERMORE , THE OBLIGATION TO ENSURE THAT A HANDICAPPED ADULT CHILD RECEIVES TREATMENT EQUAL TO THAT ACCORDED TO THE NATIONALS OF THE STATE IN WHICH HE RESIDES IS LAID DOWN IN OTHER PROVISIONS OF COMMUNITY LAW RELATING TO FREEDOM OF MOVEMENT FOR WORKERS .

19 ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 1612/68 OF THE COUNCIL OF 19 OCTOBER 1968 ( OJ ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) PROVIDES THAT THE RIGHT TO INSTALL ONESELF IN A MEMBER STATE WITH A WORKER WHO IS EMPLOYED THERE ALTHOUGH A NATIONAL OF ANOTHER MEMBER STATE APPLIES NOT ONLY TO THOSE DESCENDANTS OF SUCH A WORKER WHO ARE UNDER THE AGE OF 21 YEARS BUT ALSO TO THOSE WHO ARE ' DEPENDANTS ' .

20 ARTICLE 7 ( 2 ) OF THE SAME REGULATION PROVIDES THAT A WORKER WHO IS A NATIONAL OF A MEMBER STATE SHALL , IN THE TERRITORY OF ANOTHER MEMBER STATE , ENJOY ' THE SAME SOCIAL AND TAX ADVANTAGES AS NATIONAL WORKERS ' .

21 IN THE LIGHT OF THE EQUALITY OF TREATMENT WHICH REGULATION NO 1612/68 SEEKS TO BRING ABOUT AND TAKING ACCOUNT OF THE PROVISIONS OF THAT REGULATION AS A WHOLE , THE MATTERS COVERED BY ARTICLE 7 ( 2 ) MUST BE DEFINED IN SUCH A WAY AS TO INCLUDE EVERY SOCIAL AND TAX ADVANTAGE , WHETHER OR NOT LINKED TO A CONTRACT OF EMPLOYMENT , SUCH AS AN ALLOWANCE FOR HANDICAPPED ADULTS WHICH IS AWARDED BY A MEMBER STATE TO ITS OWN NATIONALS UNDER LEGISLATION WHICH GIVES A LEGALLY PROTECTED RIGHT THERETO .

22 THE ANSWER TO THE QUESTION REFERRED MUST THEREFORE BE THAT PURSUANT TO REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 , NATIONAL LEGISLATION WHICH , IN A MEMBER STATE , GIVES A LEGALLY PROTECTED RIGHT TO AN ALLOWANCE FOR HANDICAPPED ADULTS TO THE NATIONALS OF THAT STATE WHO RESIDE THERE ALSO APPLIES TO A HANDICAPPED ADULT NATIONAL OF ANOTHER MEMBER STATE WHO HAS NEVER WORKED IN THE STATE WHICH ADOPTED THE LEGISLATION IN QUESTION BUT WHO RESIDES THERE AND IS DEPENDANT UPON HIS FATHER WHO IS EMPLOYED THERE AS A WORKER WITHIN THE MEANING OF THE SAID REGULATION .

COSTS

23 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

24 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR DE CASSATION OF FRANCE BY JUDGMENT OF 26 MAY 1976 , HEREBY RULES :

PURSUANT TO REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 , A NATIONAL LAW WHICH , IN A MEMBER STATE , GIVES A LEGALLY PROTECTED RIGHT TO ALLOWANCES FOR HANDICAPPED ADULTS TO THE NATIONALS OF THAT STATE WHO RESIDE THERE ALSO APPLIES TO A HANDICAPPED ADULT NATIONAL OF ANOTHER MEMBER STATE WHO HAS NEVER WORKED IN THE STATE WHICH ADOPTED THE LEGISLATION IN QUESTION , BUT WHO RESIDES THERE AND IS DEPENDANT UPON HIS FATHER WHO IS EMPLOYED THERE AS A WORKER WITHIN THE MEANING OF THE SAID REGULATION .