61988J0236

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1 . Social security for migrant workers - Community legislation - Matters covered - Supplementary allowance paid to pensioners by a national solidarity fund - Inclusion

( Regulation No 1408/71 of the Council, Art . 4(1 ) )

2 . Social security for migrant workers - Benefits - Residence clauses - Removal - Acquisition or maintenance of the right to benefits refused on account of residence in another Member State - Not permissible

( Regulation No 1408/71 of the Council, Art . 10(1 ) )

3 . Social security for migrant workers - Community legislation - Implementation compulsory notwithstanding practical difficulties - Possibility of referral to the Administrative Commission on Social Security for Migrant Workers

( Regulation No 1408/71 of the Council, Art . 81(d ) )

4 . Member States - Obligations - Not fulfilled - Proposal designed to terminate an infringement submitted to the Council - No effect

1 . The social security rules within the meaning of Regulation No 1408/71 cover a supplementary allowance paid by a national solidarity fund, financed out of tax revenue and granted to recipients of old-age, survivors' or invalidity pensions in order to provide them with the minimum means of subsistence, provided that the persons concerned have a legally protected right to the grant of such an allowance .

The fact that payment of such an allowance is linked to a specified economic and social environment cannot, under Community law as it now stands, constitute a ground for distinguishing it from the pension to which it is an automatic supplement .

2 . Article 10 of Regulation No 1408/71 must be interpreted as meaning that a person may not be precluded from acquiring or retaining entitlement to the benefits, pensions and allowances referred to in that provision on the sole ground that he does not reside within the territory of the Member State in which the institution responsible for payment is situated .

3 . The fact that the application of certain provisions of the Community legislation on social security may give rise to practical difficulties where the arrangements for the payment of certain categories of benefits have not been laid down cannot prejudice the rights which individuals derive from the principles of the social legislation of the Community . Furthermore the Administrative Commission on Social Security for Migrant Workers was specifically set up by Article 81(d ) of Regulation No 1408/71 to deal with any difficulties of that kind .

4 . The fact that a proposal is submitted to the Council whose adoption could terminate an infringement with which a Member State is charged cannot relieve that State of its obligation to comply with the provisions of Community law in force .

In Case C-236/88,

Commission of the European Communities, represented by Karen Banks and Sean van Raepenbusch, members of the Commission' s Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

applicant,

v

French Republic, represented by Edwige Belliard, Deputy Director of the Department of Economic Law at the Ministry of Foreign Affairs, acting as Agent, and by Claude Chavance, Principal Administrator at the Ministry of Foreign Affairs, acting as Deputy Agent, with an address for service in Luxembourg at the French Embassy, 9 boulevard du Prince-Henri,

defendant,

APPLICATION for a declaration that, by refusing to grant or to continue granting the supplementary allowance of the Fonds national de solidarité ( National Solidarity Fund ) to recipients of a French invalidity, old-age or survivor' s pension who reside in or transfer their residence to another Member State of the Community, the French Republic has failed to fulfil its obligations under Articles 48 to 51 of the EEC Treaty and Article 10 of Regulation ( EEC ) No 1408/71 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 ( consolidated by Council Regulation ( EEC ) No 2001/83 of 2 June 1983, Official Journal 1983 L 230, p . 6 ),

THE COURT

composed of : F . A . Schockweiler, President of Chamber, acting as President, M . Zuleeg ( President of Chamber ), G . F . Mancini, T . F . O' Higgins, J . C . Moitinho de Almeida, F . Grévisse, and P . J . G . Kapteyn, Judges,

Advocate General : W . Van Gerven

Registrar : H . A . Ruehl, Principal Administrator,

having regard to the Report for the Hearing, and after hearing oral argument by the parties' representatives at the hearing on 8 May 1990,

after hearing the Opinion of the Advocate General, delivered at the sitting on 12 June 1990,

gives the following

Judgment

1 By application lodged at the Court Registry on 17 August 1988, the Commission brought an action under Article 169 of the EEC Treaty for a declaration that, by refusing to grant or to continue granting the supplementary allowance of the Fonds national de solidarité to recipients of a French invalidity, old-age or survivor' s pension who reside in or transfer their residence to another Member State of the Community, the French Republic has failed to fulfil its obligations under Articles 48 to 51 of the EEC Treaty and Article 10 of Regulation 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 ( consolidated by Council Regulation ( EEC ) No 2001/83 of 2 June 1983, Official Journal L 230, p . 6 ).

2 It appears from the documents before the Court that the supplementary allowance is granted by the Fonds national de solidarité, which was set up in 1956 with a view to promoting as a general policy the welfare of old people including, in particular, those who are in receipt of old-age or invalidity benefits acquired under legislative provisions or regulations and lack sufficient means .

3 The conditions for the grant of that allowance, formerly set out in Articles L 684 to 711 of the Code de la securité sociale ( Social Security Code ), are now laid down in Articles L 815-1 to 815-11 of that code . The supplementary allowance is financed out of tax revenue and there is no requirement that the person to whom it is granted should be a retired employed or self-employed worker . The benefit is paid as a supplement to resources of any kind, including contributory benefits, so as to achieve what is regarded as the essential minimum level, having regard to the cost of living in France . Article L 815-11 of the Social Security Code provides that payment of the supplementary allowance is to cease where the recipient transfers his residence outside the territory of the French Republic .

4 Article 4(1 ) of Regulation No 1408/71 provides that the regulation is to apply to all legislation concerning the branches of social security which relate inter alia to invalidity benefits and old-age benefits . Article 10(1 ) of Regulation No 1408/71 provides that pensions, benefits and allowances "acquired" under the legislation of one or more Member States may not be reduced by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated .

5 By letter of 12 February 1979 the Commission requested the French Government to bring the French legislation into line with Community law so as to ensure that, in accordance with the Court' s judgment in Case 24/74 Caisse régionale d' assurance maladie v Biason [1974] ECR 999, recipients of a French invalidity pension who qualify for the supplementary allowance paid by the Fonds national de solidarité continue to receive it when they transfer their residence to the territory of another Member State . By letters of 15 June and 9 August 1979 the French authorities informed the Commission that a detailed examination of the problem raised had not enabled them to remove the obstacles to payment of the contested benefit outside France .

6 On 24 July 1980 the Commission issued a reasoned opinion under Article 169 of the Treaty and requested the French Government to comply with it within one month . On 29 April 1981 the Commission decided to suspend the Article 169 procedure which it had initiated . On 8 August 1985 it submitted to the Council a proposal for a regulation amending Regulation No 1408/71 ( COM(85 ) 396 final, Official Journal 1985 C 240, p . 6 ). That proposal, whose adoption would have brought to an end the infringement complained of, was designed, in the first place, expressly to include non-contributory social benefits paid in cash amongst the benefits covered by Regulation No 1408/71, and, secondly, to restrict the grant of those benefits acquired under the legislation of one Member State exclusively to persons residing within the territory of that State . However, in view of the lack of progress in the negotiations within the Council, the Commission decided to reverse its decision to suspend the procedure under Article 169 of the Treaty and brought this action .

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8 It appears from the documents before that Court that, although the Commission seeks a declaration that France has failed to fulfil its obligations under Articles 48 to 51 of the Treaty and Article 10 of Regulation No 1408/71, it has based its arguments only on the infringement by that State of the provisions of Article 10 . It is therefore by reference to those provisions alone that the Court must determine whether the Commission' s application is well founded .

9 The Commission claims that, according to the case-law of the Court, as set out in particular in its judgment in Joined Cases 379 to 381/85 and 93/86 CRAM Rhône-Alpes v Giletti [1987] ECR 955, a refusal to grant or to continue granting an allowance such as that at issue in this case to recipients who reside in or transfer their residence to another Member State constitutes an infringement of Article 10(1 ) of Regulation No 1408/71 .

10 In its aforesaid judgment of 24 February 1987 in Giletti, given in response to a series of questions submitted for a preliminary ruling by the French Court of Cassation concerning the same allowance, the Court held that legislation such as that at issue, in so far as it confers a right to supplementary benefits designed to increase the amount of pensions paid by way of social security, without any assessment of individual needs or circumstances, which is a characteristic of assistance, comes within the social security scheme within the meaning of Regulation No 1408/71 .

11 In the same judgment the Court held that Article 10 of Regulation No 1408/71 had to be interpreted as meaning that a person may not be precluded from acquiring or retaining entitlement to the benefits, pensions and allowances referred to in that provision on the sole ground that he does not reside within the territory of the Member State in which the institution responsible for payment is situated .

12 The French Government contends that the supplementary allowance in question is granted having regard to a specific economic and social environment since it is designed to guarantee the minimum means of subsistence in France . Hence payment of that allowance in another Member State would no longer fulfil the same function and therefore cease to serve its purpose .

13 That argument cannot be accepted . Where a supplementary benefit, such as that at issue in this case, falls within the social security scheme, within the meaning of Regulation No 1408/71, the fact that payment of the benefit is linked to a specified economic and social environment cannot, under Community law as it now stands, constitute a ground for distinguishing it from the pension to which it is an automatic supplement .

14 It follows that to make payment of the supplementary allowance in question conditional on residence within French territory is incompatible with Article 10(1 ) of Regulation No 1408/71 .

15 The French Government contends further that the export of the supplementary allowance paid by the Fonds national de solidarité, and also of the non-contributory benefits granted in other Member States, raises serious problems of management, coordination and substance, which can be resolved only by means of Community legislation . It was for that reason that the Commission submitted the aforesaid proposal for a regulation of 8 August 1985 .

16 However, in the absence of specific rules applicable to the non-contributory benefits in question, the solution to the problems raised by the French Government must be found in the existing provisions of the regulations concerned, as interpreted by the Court .

17 Although it is true that the application of those provisions may give rise to practical difficulties, that fact, as already pointed out by the Court in paragraph 12 of its judgment in Case 187/73 Callemeyn v Belgium [1974] ECR 553, paragraph 12, must not prejudice the rights which individuals derive from the principles of the social legislation of the Community . It should be pointed out, moreover, that practical problems may always be referred to the Administrative Commission on Social Security for Migrant Workers, specifically set up for that purpose by Article 81(d ) of Regulation No 1408/71 .

18 It follows that the difficulties relied upon by the French Government are not such as to justify the failure to fulfil its obligations under Community law .

19 As regards the French Government' s reference to the Commission' s proposal of 8 August 1985, it must be emphasized that the fact that a proposal which could terminate an infringement is submitted to the Council cannot relieve the Member State responsible for that infringement of its obligation to comply with the provisions of Community law in force .

20 It must therefore be held that, by refusing to grant or to continue granting the supplementary allowance of the Fonds national de solidarité to recipients of a French invalidity, old-age or survivor' s pension who reside in or transfer their residence to another Member State of the Community, the French Republic has failed to fulfil its obligations under Article 10 of Regulation No 1408/71 .

Costs

21 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the French Republic has failed in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT

hereby :

( 1 ) Declares that, by refusing to grant or to continue granting the supplementary allowance of the Fonds national de solidarité to recipients of a French invalidity, old-age or survivor' s pension who reside in or transfer their residence to another Member State of the Community, the French Republic has failed to fulfil its obligations under Article 10 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;

( 2 ) Orders the French Republic to pay the costs .