61974J0039

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - NATIONAL LEGISLATION - SOCIAL ASSISTANCE AND SOCIAL SECURITY - DISTINCTION

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - NATIONAL LEGISLATION - HANDICAPPED PERSONS - ENTITLEMENT TO BENEFIT - SOCIAL ASSISTANCE AND SOCIAL SECURITY - COMMUNITY REGULATIONS - CONDITIONS UNDER WHICH THEY APPLY

( EEC TREATY, ARTICLE 51, REGULATION OF THE COUNCIL NO 3, ARTICLE 1 ( S ), ARTICLE 2 ( 1 ) ( B ))

1 . A NATIONAL LEGISLATION WHICH IS AKIN TO SOCIAL ASSISTANCE - ESPECIALLY WHEN NEED IS THE ESSENTIAL CRITERION IN ITS IMPLEMENTATION AND THERE ARE NO CONDITIONS AS TO PERIOD OF EMPLOYMENT, OF MEMBERSHIP OR OF CONTRIBUTIONS - IS NEVERTHELESS CLOSE TO SOCIAL SECURITY TO THE EXTENT THAT, DEPARTING FROM THE CONSIDERATION OF EACH CASE ON ITS MERITS - A CHARACTERISTIC FEATURE OF ASSISTANCE - IT CONFERS ON BENEFICIARIES A LEGALLY DEFINED POSITION .

2 . 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 .

IN CASE 39/74

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

LUCIANA MAZZIER ( NEE COSTA ) HAVING HER PERMANENT RESIDENCE IN FLEMALLE-HAUTE ( BELGIUM )

AND

BELGIAN STATE, REPRESENTED BY THE MINISTER FOR SOCIAL SECURITY, DEPARTMENT OF ALLOWANCES FOR THE HANDICAPPED, BRUSSELS

ON THE EFFECT OF REGULATION NO 3 OF THE COUNCIL RELATING TO SOCIAL SECURITY FOR MIGRANT WORKERS AND OF REGULATION NO ( EEC ) 1612/68 OF THE COUNCIL ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY .

1 BY JUDGMENT DATED 29 MARCH 1974, RECEIVED AT THE REGISTRY OF THE COURT ON 5 JUNE 1974, THE TRIBUNAL DU TRAVAIL OF LIEGE REFERRED TO THE COURT OF JUSTICE, UNDER ARTICLE 177 OF THE TREATY, PRELIMINARY QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 OF THE COUNCIL ON SOCIAL SECURITY FOR MIGRANT WORKERS AND OF REGULATION NO 1612/68 OF THE COUNCIL ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY .

2 THESE QUESTIONS WERE SUBMITTED IN THE COURSE OF PROCEEDINGS CONCERNING THE REFUSAL OF THE KINGDOM OF BELGIUM TO GRANT THE PLAINTIFF IN THE NATIONAL PROCEEDINGS - AN ITALIAN NATIONAL MARRIED TO A BELGIAN AND RESIDING IN BELGIUM SINCE JULY 1956 - THE BENEFIT OF THE BELGIAN LAW OF 27 JUNE 1969 RELATING TO THE GRANT OF BENEFITS TO HANDICAPPED PERSONS, ON THE GROUNDS THAT THE PARTY INTERESTED CANNOT BY REASON OF HER NATIONALITY BENEFIT FROM THE PROVISIONS FOR EQUAL TREATMENT WITH THE STATE' S OWN NATIONALS, OTHERWISE THAN UNDER THE PROVISIONS OF THE EUROPEAN INTERIM AGREEMENT OF 11 DECEMBER 1953 ON SOCIAL SECURITY SCHEMES IN RESPECT OF OLD-AGE, INVALIDITY AND SURVIVORS, AND THAT SHE DOES NOT SATISFY THE CONDITIONS OF ARTICLE 2 OF THE SAID AGREEMENT .

3 THE FIRST QUESTION ASKS WHETHER " THE LEGISLATION ON ALLOWANCES FOR THE HANDICAPPED ( LAW OF 27 JUNE 1969 ) ( IS ) SOCIAL ASSISTANCE LEGISLATION FALLING, RATIONE MATERIAE, WITHIN THE AMBIT OF ARTICLE 2 ( 3 ) OF REGULATION NO 3 ".

4 UNDER THE TERMS OF ARTICLE 1 ( B ) THEREOF, REGULATION NO 3 APPLIES TO ALL LEGISLATION OF MEMBER STATES RELATING TO " THE SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY " SET OUT IN ARTICLE 2 ( 1 ) AND ( 2 ) THEREOF .

5 UNDER THE PROVISIONS OF ARTICLE 2 ( 3 ), THE REGULATION SHALL NOT ON THE OTHER HAND APPLY TO " SOCIAL AND MEDICAL ASSISTANCE ".

6 ALTHOUGH IT MAY SEEM DESIRABLE, FROM THE POINT OF VIEW OF THE APPLICATION OF THE REGULATION, TO DISTINGUISH BETWEEN LEGISLATION CONCERNING SOCIAL SECURITY AND ASSISTANCE RESPECTIVELY, THE POSSIBILITY CANNOT BE EXCLUDED THAT BY REASON OF THE PERSONS COVERED THEREBY, ITS OBJECTIVES AND ITS MANNER OF APPLICATION, A LEGISLATION MAY AT THE SAME TIME FALL WITHIN BOTH CATEGORIES, AND THUS NOT BE AMENABLE TO ANY OVERALL CLASSIFICATION .

7 WHILST IN SOME OF ITS FEATURES, LEGISLATION CONCERNING THE GRANT OF BENEFITS TO HANDICAPPED PERSONS IS AKIN TO SOCIAL ASSISTANCE, ESPECIALLY WHEN NEED IS THE ESSENTIAL CRITERION IN ITS IMPLEMENTATION AND THERE ARE NO CONDITIONS AS TO PERIODS OF EMPLOYMENT, OF MEMBERSHIP OR OF CONTRIBUTIONS, YET IT IS NEVERTHELESS CLOSE TO SOCIAL SECURITY TO THE EXTENT THAT, DEPARTING FROM THE CONSIDERATION OF EACH CASE ON ITS MERITS - A CHARACTERISTIC FEATURE OF ASSISTANCE - IT CONFERS UPON BENEFICIARIES A LEGALLY DEFINED POSITION .

8 IN VIEW OF THE WIDELY-DRAWN DEFINITION OF PEOPLE ENTITLED TO BENEFIT, SUCH A LEGISLATION FULFILS IN FACT A DOUBLE FUNCTION, WHICH IS ON THE ONE HAND TO GUARANTEE A MINIMUM INCOME TO HANDICAPPED PERSONS WHO ARE ENTIRELY OUTSIDE THE SOCIAL SECURITY SYSTEM AND, ON THE OTHER HAND, TO PROVIDE SUPPLEMENTARY MEANS TO PERSONS WHO ARE ENTIRELY OUTSIDE THE SOCIAL SECURITY SYSTEM AND, ON THE OTHER HAND, TO PROVIDE SUPPLEMENTARY MEANS TO PERSONS ENTITLED TO SOCIAL SECURITY BENEFITS WHO ARE PERMANENTLY INCAPACITATED FROM WORK .

9 UNDER THE PROVISIONS OF ARTICLE 2 ( 1 ) ( B ) THEREOF, REGULATION NO 3 APPLIES TO " INVALIDITY BENEFITS, INCLUDING BENEFITS GRANTED FOR THE PURPOSE OF MAINTAINING OR IMPROVING EARNING CAPACITY ".

10 UNDER ARTICLE 1 ( S ) OF THE SAME REGULATION, THE TERM BENEFITS SHALL BE INTERPRETED IN THE WIDEST POSSIBLE SENSE AS MEANING ALL BENEFITS " INCLUDING ALL FRACTIONS THEREOF CHARGEABLE TO PUBLIC FUNDS, INCREMENTS, REVALUATION ALLOWANCES OR SUPPLEMENTARY ALLOWANCES ".

11 ACCORDINGLY, 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 .

12 THE SECOND QUESTION ASKS WHETHER IN THE EVENT OF THE ANSWER TO QUESTION 1 BEING IN THE NEGATIVE THE LEGISLATION ON THE HANDICAPPED CONSTITUTES A SOCIAL ADVANTAGE COVERED BY ARTICLE 7 ( 2 ) OF REGULATION NO 1612/68 .

13 IT IS SHOWN BY THE JUDGMENT REFERRING THE MATTER THAT THIS QUESTION IS ONLY SUBMITTED IN THE EVENT OF ITS BEING FOUND THAT THE LEGISLATION IN QUESTION, BY VIRTUE OF ARTICLE 2 ( 3 ) OF REGULATION NO 3, IS EXCLUDED FROM THAT REGULATION .

14 SINCE THIS IS NOT THE CASE HERE, AN EXAMINATION OF THE SECOND QUESTION BECOMES POINTLESS .

15/16 THE COSTS INCURRED BY THE BELGIAN STATE, THE GOVERNMENT OF THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED THEIR 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 NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL OF LIEGE BY JUDGMENT OF 29 MARCH 1974, HEREBY RULES :

A NATIONAL LEGISLATION GRANTING A LEGALLY PROTECTED RIGHT TO A BENEFIT FOR THE HANDICAPPED FALLS, AS REGARDS THE PERSONS REFERRED TO BY REGULATION NO 3, WITHIN THE AMBIT OF SOCIAL SECURITY, WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AND OF THE COMMUNITY REGULATIONS THEREUNDER .