61991J0310

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1. Social security for migrant workers ° Community legislation ° Persons covered ° Members of the family of a worker ° Benefit awarded on grounds other than the status of member of the family of a worker ° Regulation No 1408/71 not applicable

(Council Regulation No 1408/71, Arts 2 and 3)

2. Freedom of movement for persons ° Workers ° Equal treatment ° Social advantages ° Concept ° Disability allowances ° Grant of benefit by the Member State of residence to a national of another Member State, formerly an official of an international organization in favour of dependent offspring ° Nationality condition ° Not permissible

(Council Regulation No 1612/68, Art. 7(2))

1. Articles 2 and 3 of Regulation No 1408/71 must be interpreted as meaning that they cannot be relied upon by the dependent offspring of a migrant worker in order to claim a disability allowance provided for under national legislation as a right in person and not by reason of the beneficiary' s status as a member of a worker' s family.

Under that regulation the members of the family of a worker can claim only derived rights, that is to say rights acquired as a member of the family of a worker.

2. The concept of a social advantage referred to in Article 7(2) of Regulation No 1612/68 comprises all advantages which, whether or not linked to a contract of employment, are generally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community.

Since that is so in the case of disability allowances, a national of a Member State who was formerly an official of an international organization can rely on the right to equal treatment guaranteed by the abovementioned provision in order to obtain an adult disability allowance provided for under the legislation of the Member State in which he resides, where that is not his country of origin, for the benefit of that person' s dependent offspring. No condition as to the possession by the beneficiary of the nationality of the State of residence may be raised to defeat that claim since such a condition, even if it applies equally to the offspring of national workers, is incompatible with the requirement of equal treatment, inasmuch as it is more easily satisfied by the offspring of national workers than by the offspring of migrant workers.

In Case C-310/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Arbeidshof, Brussels, for a preliminary ruling in the proceedings pending before that court between

Hugo Schmid

and

Belgian State, represented by the Minister van Sociale Voorzorg,

on the interpretation of Articles 2 and 3 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their family moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6),

THE COURT (Fifth Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Chamber, R. Joliet, J.C. Moitinho de Almeida, F. Grévisse and D.A.O. Edward, Judges,

Advocate General: C.O. Lenz,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

° Mr Schmid, by Mr Hemmerechts of the Brussels Bar,

° the United Kingdom, by S. Cochrane, of the Treasury Solicitor' s Department, acting as Agent,

° the Commission of the European Communities, by B.J. Drijber and M. Patakia, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing oral observations on behalf of Hugo Schmid, the Belgian State, represented by Mr Verhaegen, Deputy Adviser to the Minister van Sociale Voorzorg, acting as Agent and Mr Declayn, of the Louvain Bar, and the Commission, at the hearing on 11 November 1992,

after hearing the Opinion of the Advocate General at the sitting on 12 January 1993,

gives the following

Judgment

1 By judgment of 25 November 1991, received at the Court on 2 December 1991, the Arbeidshof (Higher Labour Court), Brussels, (Fifth Chamber) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty several questions on the interpretation of Articles 2 and 3 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).

2 Those questions were raised in the course of proceedings between Mr Hugo Schmid and the Belgian State, represented by the Minister van Sociale Voorzorg (Minister for Social Security), concerning the entitlement of Mr Schmid' s daughter, Suzanne, to disability benefits for adults.

3 The Belgian legislation applicable ratione temporis to the dispute provides that certain categories of disabled persons may receive an ordinary allowance and other categories a special allowance. All categories are entitled to an allowance for the assistance of a third person. The conditions to be met to qualify for these allowances include Belgian nationality and residence in Belgium.

4 It appears from the documents before the Court that Mr Schmid' s daughter, Suzanne, a German national like her father, was born on 28 February 1961. She has been disabled from birth and, as a result, has never worked. She is dependent on her parents.

5 In 1962 Mr Schmid was recruited by the European Organization for the Safety of Air Navigation (Eurocontrol) and settled in Belgium where he lives now. Mr Schmid was affiliated to that organization' s own social security scheme. He is now retired.

6 Mr Schmid, acting as guardian for his daughter, Suzanne, claimed adult disability benefit under Belgian law (special allowance and allowance for the assistance of a third person). That claim was rejected by the Belgian State, the respondent, on the ground that Suzanne Schmid had never been subject as an employed person to a social security scheme either in Belgium or in another Member State and that she was a German national. Mr Schmid appealed against that decision to the Arbeidsrechtbank (Labour Court), Louvain.

7 That court upheld the decision, adding that Article 2(3) of Regulation No 1408/71 applied to civil servants and persons treated as such but not to members of their families.

8 Mr Schmid appealed against that judgment to the Arbeidshof, Brussels. Taking the view that the case before it raised questions relating to the interpretation of Community law, the Arbeidshof decided to stay the proceedings pending a preliminary ruling by the Court on the following three questions:

"Must Articles 2 and 3 of Regulation (EEC) No 1408/71 be interpreted as meaning that the application of a Member State' s legislation which confers an individual legally protected right to disability allowances extends to a handicapped person who is a national of a Member State but has never been employed, self-employed or a civil servant within the meaning of Article 2 of that regulation and who, in the Member State under whose law on disability allowances a claim is made, was previously in receipt of certain allowances, albeit exclusively on the basis of her status as a handicapped person and without her or her father being subject to any obligation under the legislation or social security scheme of that Member State, though her father, also a national of a Member State, possessed the status of an employed person or civil servant within the meaning of the aforesaid Article 2(1) and (3) but was not subject to a social security scheme, statutory or otherwise, of the Member State under whose legislation she made her claim, or to that of any other Member State as provided for in the regulation?

If the first question is answered in the affirmative:

(1) How is the term 'civil servant' in Article 2(3) of Regulation No 1408/71 to be interpreted, in particular does it cover a national civil servant of a Member State on unpaid leave who is an official of an international organization with its own staff regulations and its own social security scheme which grants exemption 'from all compulsory contributions to national social security bodies' ?

If so, does protection extend to members of the family and descendants, even though that is not expressly provided for?

(2) Can an individual right be claimed by reference to the status of 'member of the family' within the meaning of Article 2(1)? Is that so even if the claimant resides in a subsidized institution supported by a social fund, where the legislation on disability allowances under which the claim is made makes the grant of those allowances conditional on an investigation into the means of subsistence and no longer takes account (after the age of majority has been reached) of the parents' income?"

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant provisions, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

10 At the outset it should be stated that disability benefit comes within the substantive scope of Regulation No 1408/71. Article 4(1)(b) thereof refers expressly to "invalidity benefits". Secondly, according to the documents before the Court and the judgment in Case C-243/91 Belgian State v Taghavi [1992] ECR I-4401, paragraph 8, the benefits provided for by the national legislation in question are rights in person which are not granted on the ground of status as a member of a worker' s family.

11 The first question submitted by the national court seeks, essentially, to determine whether Articles 2 and 3 of Regulation No 1408/71 must be interpreted as meaning that they can be relied on by the dependent offspring of a migrant worker in order to claim a disability allowance which is provided for by national legislation as a right in person and not by reason of the beneficiary' s status as a member of a worker' s family.

12 According to Article 2(1) of Regulation No 1408/71, the provisions of the regulation apply "to employed or self-employed persons who are or who have been subject to legislation of one or more Member States and who are nationals of one of the Member States (...), as well as to the members of their families and their survivors". As the Court ruled in Case C-40/76 Kermaschek v Bundesanstalt fuer Arbeit [1976] ECR 1669, members of a worker' s family can only claim derived rights under Regulation No 1408/71, that is rights acquired as the member of a worker' s family.

13 It follows that the dependent offspring of a migrant worker is not entitled, under Regulation No 1408/71, to a disability allowance provided for by national legislation as a right in person.

14 Accordingly the reply to be given to the first question should be that Articles 2 and 3 of Regulation No 1408/71 must be interpreted as meaning that they cannot be relied on by the dependent offspring of a migrant worker in order to claim a disability allowance provided for under national legislation as a right in person and not by reason of the beneficiary' s status as a member of a worker' s family.

15 Since the other questions are asked only if the reply to the first question is in the affirmative, there is no need to answer them.

16 Nevertheless as the Commission and the United Kingdom suggest, and in order usefully to reply to the national court, the benefits referred to should be examined in the light of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on the free movement of workers within the Community (OJ, Special English Edition 1968 (II), p. 475).

17 Since Regulation No 1612/68 applies in general to freedom of movement for workers, it may apply to the social advantages which, at the same time, come under the specific scope of Regulation No 1408/71 (Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 21).

18 According to the judgment in Case C-249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout [1985] ECR 973, paragraph 20, "social advantages" should be interpreted as meaning all advantages which, whether or not linked to a contract of employment, are generally granted to national workers because of their objective status as workers or by virtue of the mere fact of their residence on the national territory, and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community. This is so in the case of disability allowances.

19 Pursuant to Article 7(2) of Regulation No 1612/68, a migrant worker is to enjoy the same social and tax advantages as national workers.

20 There can be no doubt that a Eurocontrol official has the status of a migrant worker. Indeed, as the Court held in Joined Cases 389/87 and 390/87 Echternach and Moritz v Minister for Education and Science [1989] ECR 723, paragraph 11, a Community national working in a Member State other than his State of origin does not lose his status of worker within the meaning of Article 48(1) of the Treaty through occupying a post within an international organization, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement.

21 According to Article 7 of Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition 1970 (II),

p. 402), workers who, like Mr Schmid, were employed in the territory of a Member State retain the right to equality of treatment conferred by Regulation No 1612/68.

22 As a result a person in Mr Schmid' s position may invoke the provisions of Regulation No 1612/68 and, in particular, Article 7(2).

23 It follows from Case C-316/85 Centre Public d' Aide Sociale de Courcelles v Lebon [1987] ECR 2811, paragraph 13, that the adult offspring of a worker who is still dependent on that worker may rely on the right to equal treatment guaranteed by Article 7(2) in order to claim a social benefit provided for by the legislation of the Member State of residence, since that constitutes a social advantage for the worker.

24 Any provision such as that in Belgian law making entitlement to that social advantage conditional upon nationality is incompatible with Article 7, even if it also applies to the offspring of national workers.

25 It is sufficient to point out that the condition of possessing the nationality of the country of residence would be more easily fulfilled by the offspring of national workers than by the offspring of migrant workers.

26 Accordingly, the reply to the national court' s question should be that Article 7(2) of Regulation No 1612/68 must be interpreted as meaning that it can be relied on by a national of a Member State who was formerly an official of an international organization in order to obtain an adult disability allowance provided for under the legislation of the Member State in which he resides, where that is not his country of origin, for the benefit of that person' s dependent offspring, and any condition regarding the nationality of the beneficiary is incompatible with that provision.

Costs

27 The costs incurred by the United Kingdom and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber)

in answer to the questions referred to it by the Arbeidshof, Brussels, by judgment of 25 November 1991, hereby rules:

1. Articles 2 and 3 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, must be interpreted as meaning that they cannot be relied on by the dependent offspring of a migrant worker in order to claim a disability allowance provided for under national legislation as a right in person and not by reason of the beneficiary' s status as a member of a worker' s family.

2. Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as meaning that it can be relied on by a national of a Member State who was formerly an official of an international organization in order to obtain an adult disability allowance provided for under the legislation of the Member State in which he resides, where that is not his country of origin, for the benefit of that person' s dependent offspring, and any condition regarding the nationality of the beneficiary is incompatible with that provision.