61978J0237

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - MATTERS COVERED - DECLARATIONS OF MEMBER STATES - EFFECTS

( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 5 AND 96 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - EQUALITY OF TREATMENT - DISGUISED DISCRIMINATION - PROHIBITION

( REGULATION NO 1408/71 OF THE COUNCIL , ART . 3 ( 1 ))

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - MATTERS COVERED - SCHEMES PURSUING OBJECTIVES OF DEMOGRAPHIC POLICY - EXCLUSION - NO DISTINCTION

4 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY RULES - MATTERS COVERED - NON-CONTRIBUTORY OLD-AGE BENEFIT - EQUALITY OF TREATMENT - SCOPE

( REGULATION NO 1408/71 OF THE COUNCIL , ARTS . 2 ( 1 ), 3 ( 1 ) AND 4 ( 1 ) ( C ) AND ( 2 ))

1 . THE FACT THAT A MEMBER STATE HAS MENTIONED A GIVEN ALLOWANCE IN ITS DECLARATION NOTIFIED AND PUBLISHED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 5 AND 96 OF REGULATION NO 1408/71 OF THE COUNCIL MUST BE ACCEPTED AS PROOF THAT THE BENEFITS RELATING TO THAT ALLOWANCE ARE SOCIAL SECURITY BENEFITS WITHIN THE MEANING OF THE REGULATION .

2 . THE RULE ON EQUALITY OF TREATMENT , LAID DOWN BY ARTICLE 3 ( 1 ) OF REGULATION NO 1408/71 PROHIBITS NOT ONLY PATENT DISCRIMINATION , BASED ON THE NATIONALITY OF THE BENEFICIARIES OF SOCIAL SECURITY SCHEMES , BUT ALSO ALL DISGUISED FORMS OF DISCRIMINATION WHICH , BY THE APPLICATION OF OTHER DISTINGUISHING CRITERIA , LEAD IN FACT TO THE SAME RESULT . SUCH MAY BE THE CASE WITH A PROVISION WHICH MAKES THE GRANT OF AN ALLOWANCE TO WOMEN WITH CHILDREN DEPENDENT ON THE NATIONALITY OF THE CHILDREN OF THE MOTHER IN QUESTION .

3 . REGULATION NO 1408/71 DOES NOT MAKE ANY DISTINCTION BETWEEN THE SOCIAL SECURITY SCHEMES TO WHICH IT APPLIES ACCORDING TO WHETHER THOSE SCHEMES DO OR DO NOT PURSUE OBJECTIVES OF DEMOGRAPHIC POLICY .

4 . ARTICLES 2 ( 1 ), 3 ( 1 ) AND 4 ( 1 ) ( C ) AND ( 2 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT THE GRANT OF A NON-CONTRIBUTORY OLD-AGE BENEFIT TO WOMEN WITH CHILDREN MAY NOT BE MADE DEPENDENT EITHER ON THE NATIONALITY OF THE PERSON CONCERNED OR ON THAT OF HER CHILDREN , PROVIDED THAT THE NATIONALITY IN QUESTION IS THAT OF ONE OF THE MEMBER STATES .

IN CASE 237/78

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR D ' APPEL ( COURT OF APPEAL ), DOUAI , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

CAISSE REGIONALE D ' ASSURANCE MALADIE ( REGIONAL SICKNESS INSURANCE FUND ), LILLE , ( HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' )

AND

DIAMANTE PALERMO , NEE TOIA

ON THE INTERPRETATION OF ARTICLES 2 ( 1 ), 3 ( 1 ) AND ( 3 ) AND 4 ( 1 ) AND ( 2 ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1 BY A JUDGMENT OF 10 OCTOBER 1978 , RECEIVED AT THE COURT ON 30 OCTOBER 1978 , THE COUR D ' APPEL , DOUAI , SUBMITTED TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THAT QUESTION WAS RAISED IN THE CONTEXT OF A DISPUTE CONCERNING THE REFUSAL OF THE CAISSE REGIONALE D ' ASSURANCE MALADIE , LILLE , ( ' ' THE FUND ' ' ) TO ALLOW A MOTHER , OF ITALIAN NATIONALITY AND RESIDENT IN FRANCE , TO BENEFIT FROM THE ALLOWANCE FOR WOMEN WITH CHILDREN PROVIDED FOR BY ARTICLE L 640 OF THE FRENCH SOCIAL SECURITY CODE .

3 THE SAID PROVISION CONFERS ENTITLEMENT TO THE ALLOWANCE IN QUESTION ON WOMEN OF FRENCH NATIONALITY AGED 65 YEARS AND OF INSUFFICIENT MEANS , WHO ARE MARRIED TO EMPLOYED PERSONS AND WHO HAVE BROUGHT UP AT LEAST FIVE DEPENDENT CHILDREN DURING A PERIOD OF AT LEAST NINE YEARS BEFORE THEIR SIXTEENTH BIRTHDAY . ARTICLE 1 OF DECREE NO 50-76 OF 16 JANUARY 1950 , AS AMENDED IN 1956 , PROVIDES MOREOVER THAT THOSE CHILDREN MUST BE OF FRENCH NATIONALITY AT THE DATE ON WHICH ENTITLEMENT ARISES .

4 IN THIS CASE THE ALLOWANCE FOR WOMEN WITH CHILDREN WAS REFUSED ON THE GROUND THAT FIVE OF THE SEVEN CHILDREN OF THE MOTHER WERE NOT OF FRENCH NATIONALITY , BUT HAD HELD ITALIAN NATIONALITY FROM BIRTH . IN THE COURSE OF THE DISPUTE THE FUND DECLARED THAT IT DID NOT RELY ON THE FACT THAT THE MOTHER WAS NOT HERSELF OF FRENCH NATIONALITY .

5 SUCH ARE THE CIRCUMSTANCES IN WHICH THE COUR D ' APPEL ASKS WHAT INTERPRETATION MUST BE GIVEN TO THE PROVISIONS OF ARTICLES 2 ( 1 ), 3 ( 1 ) AND ( 3 ) AND 4 ( 1 ) ( C ) AND ( 2 ) OF REGULATION ( EEC ) NO 1408/71 OF 14 JUNE 1971 WITH REGARD TO THE GRANT OF AN OLD-AGE BENEFIT WHICH , BEING OF A NON-CONTRIBUTORY NATURE , IS IN PRINCIPLE RESERVED TO FRENCH NATIONALS .

6 AS REGARDS THE MATTERS COVERED BY REGULATION NO 1408/71 , IT FOLLOWS FROM ARTICLE 4 ( 1 ) ( C ) AND ( 2 ) THEREOF THAT THE REGULATION APPLIES TO ALL LEGISLATION DEALING WITH THE BRANCHES OF SOCIAL SECURITY WHICH CONCERN OLD-AGE BENEFITS , REGARDLESS OF WHETHER THEY PROVIDE FOR A CONTRIBUTORY OR A NON-CONTRIBUTORY SCHEME .

7 ARTICLE 5 OF THE REGULATION PROVIDES THAT ' ' THE MEMBER STATES SHALL SPECIFY THE LEGISLATION AND SCHEMES REFERRED TO IN ARTICLE 4 ( 1 ) AND ( 2 ) . . . IN DECLARATIONS TO BE NOTIFIED AND PUBLISHED IN ACCORDANCE WITH ARTICLE 96 ' ' . THE DECLARATION OF THE FRENCH REPUBLIC ( OFFICIAL JOURNAL 1973 C 12 , P . 11 ) INCLUDES THE ALLOWANCE FOR ELDERLY EMPLOYED PERSONS AND THE ALLOWANCE FOR WOMEN WITH CHILDREN ( VOLUME VII ) OF THE SOCIAL SECURITY CODE ).

8 THE FACT THAT A MEMBER STATE HAS MENTIONED SUCH AN ALLOWANCE IN ITS DECLARATION MUST BE ACCEPTED AS PROOF THAT THE BENEFITS CONCERNED ARE SOCIAL SECURITY BENEFITS WITHIN THE MEANING OF REGULATION NO 1408/71 .

9 AS REGARDS THE PERSONS COVERED BY THE REGULATION , ARTICLE 2 ( 1 ) THEREOF STATES THAT IT APPLIES TO THE FAMILY AND THE SURVIVORS OF ANY WORKER HAVING THE NATIONALITY OF ONE MEMBER STATE AND RESIDING WITHIN THE TERRITORY OF ANOTHER MEMBER STATE , WHO IS OR HAS BEEN SUBJECT TO THE LEGISLATION OF ONE OR MORE MEMBER STATES CONCERNING THE BRANCHES AND SCHEMES OF SOCIAL SECURITY COVERED BY THE REGULATION . ARTICLE 3 ( 1 ), CONCERNING EQUALITY OF TREATMENT , PROVIDES THAT THOSE PERSONS SHALL ENJOY THE SAME BENEFITS UNDER SUCH LEGISLATION AS THE NATIONALS OF THAT STATE .

10 IT FOLLOWS THAT IN THE PRESENT CASE THE FUND WAS CORRECT IN ITS DECISION NOT TO RELY ON THE FACT THAT THE MOTHER DOES NOT HAVE FRENCH NATIONALITY .

11 HOWEVER , IT IS APPARENT FROM THE GROUNDS OF THE JUDGMENT MAKING THE REFERENCE THAT THE PROBLEM OF INTERPRETATION RAISED DOES NOT CONCERN ONLY THE NATIONALITY OF THE MOTHER , BUT ALSO THAT OF HER CHILDREN .

12 IN THIS REGARD , IT MUST BE OBSERVED THAT THE RULES ON EQUALITY OF TREATMENT , LAID DOWN BY ARTICLE 3 ( 1 ) OF THE REGULATION , PROHIBIT NOT ONLY PATENT DISCRIMINATION , BASED ON THE NATIONALITY OF THE BENEFICIARIES OF SOCIAL SECURITY SCHEMES , BUT ALSO ALL DISGUISED FORMS OF DISCRIMINATION WHICH , BY THE APPLICATION OF OTHER DISTINGUISHING CRITERIA , LEAD IN FACT TO THE SAME RESULT .

13 A CONDITION CONCERNING THE NATIONALITY OF THE CHILDREN , SUCH AS THAT IMPOSED BY THE APPLICABLE FRENCH LEGISLATION , IS CAPABLE OF LEADING IN FACT TO THE RESULT THAT A MOTHER OF FOREIGN NATIONALITY MAY BENEFIT FROM THE ALLOWANCE ONLY IN EXCEPTIONAL CASES . IN PARTICULAR SHE WILL BE AT A DISADVANTAGE IN RELATION TO MOTHERS WHO ARE NATIONALS OF THE STATE OF RESIDENCE WHEN THE NATIONALITY OF THE CHILDREN DEPENDS IN PRINCIPLE ON THAT OF THE PARENTS UNDER THE LEGISLATION OF THE COUNTRY OF ORIGIN AND OF THE COUNTRY OF RESIDENCE , AS IS THE CASE WITH THE ITALIAN AND FRENCH LEGISLATION IN THIS REGARD .

14 THEREFORE THE CONDITION CONCERNING THE NATIONALITY OF THE CHILDREN MUST BE REGARDED AS INDIRECT DISCRIMINATION , UNLESS IT WAS JUSTIFIED BY OBJECTIVE DIFFERENCES .

15 SUCH A JUSTIFICATION CANNOT BE BASED ON THE FACT , RELIED ON BY THE FUND , THAT THE PURPOSE OF THE ALLOWANCE FOR WOMEN WITH CHILDREN IS TO INCREASE THE BIRTH RATE IN FRANCE . IN THE FIRST PLACE , THE COUR D ' APPEL , WHICH ALONE HAS JURISDICTION TO INTERPRET THE FRENCH LEGISLATION IN THE PRESENT PROCEEDINGS , HAS DESCRIBED THE ALLOWANCE FOR WOMEN WITH CHILDREN AS AN OLD-AGE BENEFIT OF A NON-CONTRIBUTORY NATURE ; SECONDLY , REGULATION NO 1408/71 DOES NOT MAKE ANY DISTINCTION BETWEEN THE SOCIAL SECURITY SCHEMES TO WHICH IT APPLIES ACCORDING TO WHETHER THOSE SCHEMES DO OR DO NOT PURSUE OBJECTIVES OF DEMOGRAPHIC POLICY .

16 AS AN OLD-AGE BENEFIT IS INVOLVED , THE CONDITION CONCERNING THE NATIONALITY OF THE CHILDREN CANNOT BE REGARDED AS A RULE DESIGNED TO PREVENT THE OVERLAPPING OF SIMILAR BENEFITS UNDER THE LEGISLATION OF DIFFERENT MEMBER STATES . IF SUCH A PROBLEM ARISES , A SOLUTION MUST BE FOUND FOR IT WITHIN THE CONTEXT OF COMMUNITY RULES IN ACCORDANCE WITH CRITERIA NORMALLY APPLICABLE TO CASES OF THAT TYPE .

17 NO OTHER ARGUMENTS TO SHOW THAT THE CONDITION CONCERNING THE NATIONALITY OF THE CHILDREN IS BASED ON AN OBJECTIVE DIFFERENCE HAVE BEEN ADVANCED BEFORE THE COURT . IT MUST BE INFERRED FROM THAT THAT THE CONDITION IN QUESTION CONSTITUTES INDIRECT DISCRIMINATION BETWEEN NATIONALS OF MEMBER STATES SUBJECT TO THE SOCIAL SECURITY SCHEMES COVERED BY REGULATION NO 1408/71 .

18 IN THOSE CIRCUMSTANCES IT IS NOT NECESSARY TO CONSIDER THE INTERPRETATION OF ARTICLE 3 ( 3 ) OF THE REGULATION WHICH DEALS WITH THE EXTENSION OF THE BENEFIT OF THE PROVISIONS OF SOCIAL SECURITY CONVENTIONS CONCLUDED BETWEEN MEMBER STATES TO THE PERSONS TO WHOM THE REGULATION APPLIES .

19 CONSEQUENTLY , THE ANSWER TO THE COUR D ' APPEL MUST BE THAT ARTICLES 2 ( 1 ), 3 ( 1 ) AND 4 ( 1 ) ( C ) AND ( 2 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT THE GRANT OF A NON-CONTRIBUTORY OLD-AGE BENEFIT TO WOMEN WITH CHILDREN MAY NOT BE MADE DEPENDENT EITHER ON THE NATIONALITY OF THE PERSON CONCERNED OR ON THAT OF HER CHILDREN , PROVIDED THAT THE NATIONALITY IN QUESTION IS THAT OF ONE OF THE MEMBER STATES .

COSTS

20 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , 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 ,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D ' APPEL , DOUAI , BY A JUDGMENT OF 10 OCTOBER 1978 , HEREBY RULES :

ARTICLES 2 ( 1 ), 3 ( 1 ) AND 4 ( 1 ) ( C ) AND ( 2 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT THE GRANT OF A NON-CONTRIBUTORY OLD-AGE BENEFIT TO WOMEN WITH CHILDREN MAY NOT BE MADE DEPENDENT EITHER ON THE NATIONALITY OF THE PERSON CONCERNED OR ON THAT OF HER CHILDREN , PROVIDED THAT THE NATIONALITY IN QUESTION IS THAT OF ONE OF THE MEMBER STATES .