61972J0076

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1 . PRELIMINARY QUESTIONS - JURISDICTION OF THE COURT - LIMITS

( ART . 177 EEC TREATY )

2 . HANDICAPPED WORKERS - ATTITUDE FOR EMPLOYMENT - RECUPERATION - BENEFITS APPLYING UNDER COMMUNITY RULES - MEANING - MEASURES PROVIDED BY NATIONAL LEGISLATION - APPLICATION OF ARTICLES 7 AND 12 OF REGULATION 1612/68

1 . THE COURT, ACTING WITHIN THE FRAMEWORK OF ARTICLE 177, HAS NO JURISDICTION TO APPLY THE COMMUNITY RULE TO A SPECIFIC CASE, NOR, CONSEQUENTLY, TO PRONOUNCE ON A PROVISION OF NATIONAL LAW WITH REGARD TO SUCH RULE . IT CAN HOWEVER PROVIDE A NATIONAL COURT WITH THE FACTORS OF INTERPRETATION DEPENDING ON COMMUNITY LAW WHICH COULD BE USEFUL TO IT IN EVALUATING THE EFFECTS OF SUCH PROVISION ( ART . 177 EEC TREATY ).

2 . THE PROVISIONS OF ARTICLE 7 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL, OF 15 OCTOBER 1968 ( OJ L 257 OF 19 OCTOBER 1968, P . 2 ) EXTEND TO MEASURES PROVIDED BY NATIONAL LEGISLATION WITH A VIEW TO ALLOWING HANDICAPPED WORKERS TO REGAIN THEIR ABILITY TO WORK . HOWEVER, THE BENEFITS REFERRED TO BY THE SAID ARTICLE ARE THOSE WHICH, BEING CONNECTED WITH EMPLOYMENT, ARE TO BENEFIT THE WORKERS THEMSELVES . BENEFITS RESERVED FOR THE MEMBERS OF THEIR FAMILIES ON THE OTHER HAND ARE EXCLUDED FROM THE APPLICATION OF ARTICLE 7 .

ARTICLE 12 OF REGULATION ( EEC ) NO 1612/68 EMBRACES THE MEASURES PROVIDED BY NATIONAL LEGISLATION WHICH ALLOW THE HANDICAPPED TO REALIZE OR IMPROVE THEIR APTITUDE FOR WORK AND THUS IT HAS AMONG ITS OBJECTS THE GUIDANCE, TRAINING AND VOCATIONAL REHABILITATION AND RETRAINING OF THE SAID HANDICAPPED .

THE APPLICATION OF THE ABOVE-MENTIONED ARTICLES 7 AND 12 TO SUCH NATIONAL LEGISLATION IS NOT EXCLUDED BY THE FACT THAT SUCH LEGISLATION REFERS TO THE HANDICAPPED AS A WHOLE AND NOT ONLY THOSE WHO HAVE THE POSITION OF WORKERS OR THE CHILDREN OF WORKERS .

IN CASE 76/72

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

MICHEL S . OF BRUSSELS

AND

LE FONDS NATIONAL DE RECLASSEMENT SOCIAL DES HANDICAPES, OF BRUSSELS

ON THE INTERPRETATION OF ARTICLE 7 OF REGULATION NO 1612/68/EEC OF THE COUNCIL OF 15 OCTOBER 1968, RELATING TO THE FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OJ L 257 OF 19 OCTOBER 1968, P . 2 ),

1 BY JUDGMENT OF 10 NOVEMBER 1972, RECEIVED AT THE COURT ON 24 NOVEMBER 1972, THE TRIBUNAL DU TRAVAIL OF BRUSSELS REFERRED, UNDER ARTICLE 177 OF THE EEC TREATY, THE QUESTION WHETHER THE BENEFITS PROVIDED FOR BY THE BELGIAN LAW OF 16 APRIL 1963 WHICH RELATE TO THE REHABILITATION OF THE HANDICAPPED CONSTITUTE SOCIAL BENEFITS WITHIN THE MEANING OF ARTICLE 7 OF REGULATION ( EEC ) NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ( OJ L 257 OF 19 OCTOBER 1968, P . 2 ) RELATING TO FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY .

2 IT APPEARS FROM THE DOSSIER THAT THIS APPLICATION CONCERNS THE CASE OF A PERSON OF ITALIAN NATIONALITY WHO HAS NEVER HELD THE POSITION OF A WORKER AND WHOSE POSSIBILITIES OF EMPLOYMENT ARE REDUCED BECAUSE OF AN INADEQUACY OR DIMINUTION IN HIS MENTAL CAPACITY . HE IS THE SON OF AN ITALIAN WORKER WHO WAS EMPLOYED IN BELGIUM UNTIL HIS DEATH .

3 BY THE QUESTION WHICH HAS BEEN RAISED IT IS ASKED WHETHER ARTICLE 7 OF REGULATION NO 1612/68 CONFERS ON THIS CHILD THE RIGHT TO TAKE ADVANTAGE, UNDER THE SAME CONDITIONS AS BELGIAN NATIONALS, OF BENEFITS PROVIDED FOR BY THE ABOVE-MENTIONED BELGIAN LAW, WHICH IN PARTICULAR HAS AS ITS OBJECT TO REALIZE OR IMPROVE THE APTITUDE FOR WORK OF THE HANDICAPPED OF BELGIAN NATIONALITY, WHETHER OR NOT THESE PERSONS ARE WORKERS OR THE CHILDREN OF WORKERS .

4 BY ROYAL DECREE OF 29 MAY 1968, THE SCOPE OF THE SAID LAW HAS BEEN EXTENDED, UNDER CERTAIN CONDITIONS, TO PERSONS OF FOREIGN NATIONALITY .

5 WHILST THE COURT, ACTING WITHIN THE FRAMEWORK OF ARTICLE 177, HAS NO JURISDICTION TO APPLY THE COMMUNITY RULE TO A SPECIFIC CASE, NOR, CONSEQUENTLY, TO PRONOUNCE ON A PROVISION OF NATIONAL LAW WITH REGARD TO SUCH RULE, IT CAN HOWEVER PROVIDE A NATIONAL COURT WITH THE FACTORS OF INTERPRETATION DEPENDING ON COMMUNITY LAW WHICH COULD BE USEFUL TO IT IN EVALUATING THE EFFECTS OF SUCH PROVISION .

6 BY ARTICLE 7 ( 1 ) OF REGULATION NO 1612/68, " THE WORKER WHO IS A NATIONAL OF A MEMBER STATE, SHALL NOT, WITHIN THE TERRITORY OF OTHER MEMBER STATES, BE TREATED DIFFERENTLY BY REASON OF HIS NATIONALITY FROM THE WORKERS OF THAT STATE, IN RELATION TO ANY CONDITIONS OF WORK AND EMPLOYMENT, IN PARTICULAR IN MATTERS OF REMUNERATION, DISMISSAL, AND REINSTATEMENT IN OCCUPATION OR RE-EMPLOYMENT IF HE BECOMES UNEMPLOYED ".

7 BY VIRTUE OF ARTICLE 7 ( 2 ) AND ( 3 ), THE SAID WORKER WHEN IN THE TERRITORY OF OTHER MEMBER STATES, SHALL ENJOY " THE SAME SOCIAL BENEFITS ... AS THE WORKERS OF THAT STATE " AND " ON THE SAME BASIS AND UNDER THE SAME CONDITIONS AS WORKERS OF THAT STATE, TEACHING AT VOCATIONAL SCHOOLS AND CENTRES OF REHABILITATION AND RETRAINING ".

8 AS IS APPARENT IN PARTICULAR FROM THE USE OF THE EXPRESSIONS " REINSTATEMENT IN OCCUPATION ", " REHABILITATION " AND " RETRAINING ", THE PROVISIONS OF ARTICLE 7 EXTEND TO MEASURES PROVIDED BY NATIONAL LEGISLATION WITH A VIEW TO ALLOWING HANDICAPPED WORKERS TO RECOVER THEIR ABILITY TO WORK .

9 HOWEVER, THE BENEFITS REFERRED TO BY THE SAID ARTICLE ARE THOSE WHICH, BEING CONNECTED WITH EMPLOYMENT, ARE TO BENEFIT THE WORKERS THEMSELVES . BENEFITS RESERVED FOR THE MEMBERS OF THEIR FAMILIES ON THE OTHER HAND, ARE EXCLUDED FROM THE APPLICATION OF ARTICLE 7 .

10 THIS INTERPRETATION RESULTS AS MUCH FROM THE WORDING OF THIS ARTICLE AS FROM THE SCHEME OF REGULATION NO 1612/68, IN WHICH ARTICLE 7 APPEARS IN PART 1, TITLE 2, HEADED " EXERCISE OF EMPLOYMENT AND EQUALITY OF TREATMENT ", THIS TITLE BEING FOLLOWED BY A THIRD TITLE RESERVED FOR " FAMILIES OF WORKERS " ( CF RECTIFICATION TO THE SAME REGULATION, OJ L 295 OF 7 DECEMBER 1968, P . 12 ).

11 WITH A VIEW TO PLACING THE NATIONAL COURT IN A POSITION TO ACT WITH A COMPLETE KNOWLEDGE OF THE COMMUNITY RULE, IT IS APPROPRIATE TO INVESTIGATE WHETHER THE PROVISIONS OF THIS THIRD TITLE OF THE REGULATION CONFER ON PERSONS IN THE SAME POSITION AS THE PLAINTIFF IN THE MAIN ACTION THE RIGHT TO TAKE ADVANTAGE OF THE BENEFITS IN QUESTION UNDER THE SAME CONDITIONS AS NATIONALS WHO ARE IN A SIMILAR POSITION .

12 BY ARTICLE 12 OF THE SAID REGULATION " THE CHILDREN OF A NATIONAL OF A MEMBER STATE, WHO IS OR HAS BEEN EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE, SHALL BE ADMITTED TO COURSES OF GENERAL EDUCATION, APPRENTICESHIP AND VOCATIONAL TRAINING UNDER THE SAME CONDITIONS AS THE NATIONALS OF THAT STATE, IF THOSE CHILDREN RESIDE IN ITS TERRITORY ". THE MEMBER STATES ARE DIRECTED TO ENCOURAGE " STEPS ALLOWING SUCH CHILDREN TO FOLLOW THE ABOVEMENTIONED COURSES UNDER THE BEST CONDITIONS ".

13 BY THE FIFTH RECITAL OF THIS REGULATION, THE LATTER HAS BEEN ADOPTED INTER ALIA ON THE GROUND " THAT THE RIGHT OF FREEDOM OF MOVEMENT DEMANDS FOR ITS EXERCISE, CONDITIONS WHICH ARE OBJECTIVELY THOSE OF LIBERTY AND DIGNITY, THE ELIMINATION OF OBSTACLES WHICH IMPEDE THE MOBILITY OF WORKERS, ESPECIALLY AS REGARDS THE RIGHT OF THE WORKER TO BE REUNITED WITH HIS FAMILY, AND THE CONDITIONS OF INTEGRATION OF SUCH FAMILY IN THE ENVIRONMENT OF THE HOST COUNTRY ".

14 SUCH INTEGRATION PRESUPPOSES THAT, IN THE CASE OF THE HANDICAPPED CHILD OF A FOREIGN WORKER, THIS CHILD CAN TAKE ADVANTAGE OF BENEFITS PROVIDED BY THE LAWS OF THE HOST COUNTRY WITH A VIEW TO THE REHABILITATION OF THE HANDICAPPED, UNDER THE SAME CONDITIONS AS NATIONALS WHO ARE IN A SIMILAR POSITION .

15 THE FACT THAT THE ABOVEMENTIONED ARTICLE 12 DOES NOT EXPRESSLY REFER TO EDUCATIONAL ARRANGEMENT PROVIDED IN FAVOUR OF SUCH CHILDREN, IS NOT TO BE UNDERSTOOD AS DENOTING THE INTENTION TO EXCLUDE THESE ARRANGEMENTS FROM THE SCOPE OF THE REGULATION, BUT IS EXPLAINED BY THE DIFFICULTY OF MENTIONING ALL HYPOTHESES EXHAUSTIVELY, ESPECIALLY THOSE OF AN EXCEPTIONAL CHARACTER, IN VIEW OF WHICH IT IS NECESSARY TO GUARANTEE THE EQUALITY OF NATIONALS OF ALL THE MEMBER STATES, IN ORDER TO ENSURE THAT THE RIGHT OF FREEDOM OF MOVEMENT CAN BE EXERCISED TO ITS FULL EXTENT .

16 UNDER THESE CONDITIONS, ARTICLE 12 IS TO BE UNDERSTOOD IN THE SENSE THAT IT EMBRACES THE MEASURES PROVIDED BY NATIONAL LAWS WHICH ALLOW THE HANDICAPPED TO REALIZE OR IMPROVE THEIR APTITUDE FOR WORK AND THUS IT HAS AMONG ITS OBJECTS THE GUIDANCE, TRAINING, AND VOCATIONAL REHABILITATION AND RETRAINING OF THE SAID HANDICAPPED .

17 FINALLY, THE APPLICATION OF ARTICLES 7 AND 12 OF REGULATION NO 1612/68 TO SUCH LEGISLATION IS NOT EXCLUDED BY THE FACT THAT SUCH LEGISLATION REFERS TO THE HANDICAPPED AS A WHOLE AND NOT ONLY THOSE WHO HAVE THE POSITION OF WORKERS OR THE CHILDREN OF WORKERS .

18 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND BY THE ITALIAN GOVERNMENT, WHO HAVE SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE AND AS THESE PROCEEDINGS ARE, INSOFAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE TRIBUNAL DU TRAVAIL OF BRUSSELS, 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 BRUSSELS, BY JUDGMENT OF THAT COURT DATED 10 NOVEMBER 1972 HEREBY RULES :

1 . THE BENEFITS REFERRED TO BY ARTICLE 7 OF REGULATION NO 1612/68/EEC OF THE COUNCIL OF 15 OCTOBER 1968 ( OJ L 257 OF 19 OCTOBER 1968, P . 2 ) RELATING TO THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY INCLUDE MEASURES PROVIDED BY NATIONAL LEGISLATION WITH A VIEW TO ALLOWING THE REHABILITATION OF THE HANDICAPPED, INSOFAR AS SUCH MEASURES CONCERN WORKERS THEMSELVES;

2 . ARTICLE 12 OF THE SAID REGULATION EMBRACES MEASURES PROVIDED BY NATIONAL LEGISLATION WHICH ALLOW THE HANDICAPPED TO REALIZE OR IMPROVE THEIR APTITUDE FOR WORK, INSOFAR AS SUCH MEASURES CONCERN THE CHILDREN OF WORKERS .