61972J0001

++++

1 . PRELIMINARY QUESTIONS - NATIONAL LAW - INTERPRETATION - CRITERIA BASED ON COMMUNITY LAW - JURISDICTION OF THE COURT

( EEC TREATY, ARTICLE 177 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - NATIONAL LEGISLATION - SOCIAL ASSISTANCE AND SOCIAL SECURITY - COMMUNITY RULES - APPLICABILITY - CONDITIONS

( REGULATION NO 3, ARTICLE 1 ( B ), AND ARTICLE 2 ( 1 ) ( C ))

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - NATIONAL LEGISLATION OF GENERAL APPLICATION - GUARANTEED INCOME FOR OLD PEOPLE - WORKER WHO IS A NATIONAL OF ANOTHER MEMBER STATE - OLD-AGE BENEFIT - ABSENCE OF RECIPROCAL AGREEMENT - MAY NOT BE RAISED

( REGULATION NO 3, ARTICLE 2 ( 1 ) ( C ))

1 . ALTHOUGH ON A REFERENCE FOR A PRELIMINARY RULING THE COURT MAY NOT PASS JUDGMENT ON A NATIONAL LAW, NEVERTHELESS IT HAS POWER TO FURNISH THE NATIONAL COURT WITH CRITERIA FOR INTERPRETATION BASED ON COMMUNITY LAW WHICH MAY HELP THE SAID COURT IN ITS APPRAISAL OF THE EFFECTS OF THE NATIONAL LAW .

2 . NATIONAL LEGISLATION WHICH HAS CERTAIN AFFINITIES WITH SOCIAL ASSISTANCE, IN PARTICULAR IN THAT IT PRESCRIBES NEED AS AN ESSENTIAL CRITERION FOR ITS APPLICATION AND DOES NOT STIPULATE ANY REQUIREMENT AS TO PERIODS OF EMPLOYMENT, MEMBERSHIP OR CONTRIBUTION, MAY NEVERTHELESS APPROXIMATE TO SOCIAL SECURITY WITHIN THE MEANING OF REGULATION NO 3 BECAUSE IT DOES NOT PRESCRIBE CONSIDERATION OF EACH INDIVIDUAL CASE, WHICH IS A CHARACTERISTIC OF ASSISTANCE, AND CONFERS ON RECIPIENTS A LEGALLY-DEFINED POSITION GIVING THEM THE RIGHT TO A BENEFIT WHICH IS ANALOGOUS TO THE OLD-AGE PENSIONS WITHIN THE MEANING OF ARTICLE 2 OF THE SAID REGULATION .

3 . THE LEGALLY PROTECTED RIGHT TO A MINIMUM PENSION CONFERRED BY NATIONAL LEGISLATIVE PROVISIONS ON ALL ELDERLY RESIDENTS MUST BE CONSIDERED AS AN " OLD-AGE BENEFIT " WITHIN THE MEANING OF ARTICLE 2 ( 1 ) ( C ) OF REGULATION NO 3 AS REGARDS WAGE-EARNERS OR ASSIMILATED WORKERS WHO HAVE WORKED FOR PERIODS OF TIME IN THAT STATE AND ARE ENTITLED TO A PENSION THERE .

THE GRANT OF SUCH A BENEFIT TO A FOREIGN WORKER WHO FULFILS THESE CONDITIONS CANNOT DEPEND ON THE EXISTENCE OF A RECIPROCAL AGREEMENT WITH THE MEMBER STATE OF WHICH THAT WORKER IS A NATIONAL SINCE SUCH A CONDITION IS INCOMPATIBLE WITH THE RULE OF EQUALITY OF TREATMENT WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW .

IN CASE 1/72

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

RITA FRILLI, RESIDING AT BRUSSELS,

AND

BELGIAN STATE

ON THE INTERPRETATION OF 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 AND ARTICLE 2 ( 1 ) AND ( 3 ) OF REGULATION NO 3 OF THE COUNCIL OF 25 SEPTEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS, IN RELATION TO THE BELGIAN LAW OF 1 APRIL 1969 ESTABLISHING A GUARANTEED INCOME FOR OLD PEOPLE,

1 BY JUDGMENT OF 16 DECEMBER 1971, WHICH WAS RECEIVED AT THE COURT ON 6 JANUARY 1972, THE TRIBUNAL DU TRAVAIL, BRUSSELS, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, REFERRED QUESTIONS ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OJ, ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ) AND OF REGULATION NO 3 OF THE COUNCIL OF 3 DECEMBER 1958 CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS ( JO 1958, P . 561 ) IN CONNEXION WITH THE APPLICATION OF THE BELGIAN LAW OF 1 APRIL 1969 ESTABLISHING A GUARANTEED INCOME FOR OLD PEOPLE .

2 THE FIRST QUESTION ASKS WHETHER THE INCOME GUARANTEED BY THIS LAW IS A " SOCIAL ADVANTAGE " WITHIN THE MEANING OF ARTICLE 7 ( 2 ) OF REGULATION NO 1612/68 .

3 THE NEXT QUESTION ASKS WHETHER THE GUARANTEED INCOME, AS A NON-CONTRIBUTORY SOCIAL BENEFIT GRANTED BY THE STATE TO OLD PEOPLE, IS AN " OLD-AGE BENEFIT " WITHIN THE MEANING OF ARTICLE 2 ( 1 ) ( C ) OF REGULATION NO 3 OR WHETHER IT IS " SOCIAL ASSISTANCE " WITHIN THE MEANING OF ARTICLE 2 ( 3 ) OF THE SAME REGULATION .

4 IN VIEW OF THE SPECIFIC NATURE OF THE BENEFIT IN QUESTION, THE SECOND QUESTION SHOULD BE CONSIDERED FIRST BECAUSE AN EXAMINATION OF HOW THE GUARANTEED INCOME MAY BE CLASSIFIED HAVING REGARD TO THE CONCEPT OF " SOCIAL ADVANTAGES " WITHIN THE MEANING OF ARTICLE 7 ( 2 ) OF REGULATION NO 1612/68 CAN ONLY BE CONTEMPLATED IF IT IS ESTABLISHED THAT THE GUARANTEED INCOME IS NOT A SOCIAL SECURITY BENEFIT WITHIN THE MEANING OF REGULATION NO 3 .

5 THE QUESTION FOR INTERPRETATION FORMULATED BY THE TRIBUNAL DU TRAVAIL HAS BEEN RAISED IN CONNEXION WITH A LAW INTENDED TO GUARANTEE A MINIMUM INCOME TO MEN AND WOMEN WHO ARE RESPECTIVELY AT LEAST 65 AND 60 YEARS OLD AND WHO ARE IN NEED .

6 THIS ADVANTAGE IS MADE AVAILABLE TO BELGIAN NATIONALS, THE ONLY CONDITION BEING THAT THEY MUST RESIDE IN BELGIUM .

7 A FOREIGNER, HOWEVER, CANNOT ENJOY THE BENEFIT OF THIS LAW UNLESS HE FULFILS THE TWOFOLD CONDITION OF BEING A NATIONAL OF A COUNTRY WITH WHICH BELGIUM HAS CONCLUDED A RECIPROCAL AGREEMENT ON THE SUBJECT AND OF HAVING ACTUALLY RESIDED IN BELGIUM FOR A PERIOD OF AT LEAST FIVE YEARS PRECEDING THE DATE WHEN THE RIGHT TO THE GUARANTEED INCOME ARISES .

8 IT APPEARS FROM THE FILE THAT THE PLAINTIFF IN THE MAIN ACTION, AN ITALIAN NATIONAL WHO IS IN RECEIPT OF A BELGIAN RETIREMENT PENSION AS AN EMPLOYED PERSON ON ACCOUNT OF A SHORT PERIOD OF EMPLOYMENT, FULFILS THE CONDITIONS REQUIRED BY THE LAW - SUBJECT TO THE VERIFICATION WHICH THE TRIBUNAL DU TRAVAIL INTENDS TO CARRY OUT - EXCEPT, IN THE ABSENCE OF AN AGREEMENT BETWEEN ITALY AND BELGIUM, THE CONDITION OF RECIPROCITY .

9 IN ORDER TO DECIDE THE ISSUE BROUGHT BEFORE THE TRIBUNAL DU TRAVAIL IT IS THEREFORE NECESSARY TO CLASSIFY THE BENEFIT FOR WHICH THE BELGIAN LAW MAKES PROVISION HAVING REGARD TO THE CRITERIA DEFINING THE SCOPE OF REGULATION NO 3 SO AS TO DETERMINE WHETHER THE CONDITION OF RECIPROCITY STIPULATED BY THAT LAW CAN APPLY .

10 ALTHOUGH UNDER THE PRESENT PROCEDURE THE COURT MAY NOT PASS JUDGMENT ON THE BELGIAN LAW, NEVERTHELESS IT HAS POWER TO PROVIDE THE NATIONAL COURT WITH AIDS TO INTERPRETATION BASED ON COMMUNITY LAW WHICH MAY GUIDE THE SAID COURT IN ITS ASSESSMENT OF THE EFFECTS OF THIS LAW .

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

12 HOWEVER, UNDER PARAGRAPH ( 3 ) OF THE SAID ARTICLE THE REGULATION DOES NOT APPLY TO " SOCIAL ASSISTANCE AND MEDICAL AID ".

13 ALTHOUGH IT MAY SEEM DESIRABLE, FROM THE POINT OF VIEW OF APPLYING THE REGULATION, TO ESTABLISH A CLEAR DISTINCTION BETWEEN LEGISLATIVE SCHEMES WHICH COME WITHIN SOCIAL SECURITY AND THOSE WHICH COME WITHIN ASSISTANCE, IT IS POSSIBLE THAT CERTAIN LAWS, BECAUSE OF THE CLASSES OF PERSONS TO WHICH THEY APPLY, THEIR OBJECTIVES, AND THE DETAILED RULES FOR THEIR APPLICATION, MAY SIMULTANEOUSLY CONTAIN ELEMENTS BELONGING TO BOTH THE CATEGORIES MENTIONED AND THUS DEFY ANY GENERAL CLASSIFICATION .

14 ALTHOUGH, BY VIRTUE OF CERTAIN OF ITS FEATURES, NATIONAL LEGISLATION ON GUARANTEED INCOME HAS CERTAIN AFFINITIES WITH SOCIAL ASSISTANCE - IN PARTICULAR WHERE IT PRESCRIBES NEED AS AN ESSENTIAL CRITERION FOR ITS APPLICATION AND DOES NOT STIPULATE ANY REQUIREMENT AS TO PERIODS OF EMPLOYMENT, MEMBERSHIP, OR CONTRIBUTION - NEVERTHELESS IT APPROXIMATES TO SOCIAL SECURITY BECAUSE IT DOES NOT PRESCRIBE CONSIDERATION OF EACH INDIVIDUAL CASE, WHICH IS A CHARACTERISTIC OF ASSISTANCE, AND CONFERS ON RECIPIENTS A LEGALLY DEFINED POSITION GIVING THEM THE RIGHT TO A BENEFIT WHICH IS ANALOGOUS TO THE OLD-AGE PENSIONS MENTIONED IN ARTICLE 2 OF REGULATION NO 3 .

15 TAKING INTO ACCOUNT THE WIDE DEFINITION OF THE RANGE OF RECIPIENTS, SUCH LEGISLATION IN FACT FULFILS A DOUBLE FUNCTION; IT CONSISTS ON THE ONE HAND IN GUARANTEEING A SUBSISTENCE LEVEL TO PERSONS WHOLLY OUTSIDE THE SOCIAL SECURITY SYSTEM, AND ON THE OTHER HAND IN PROVIDING AN INCOME SUPPLEMENT FOR PERSONS IN RECEIPT OF INADEQUATE SOCIAL SECURITY BENEFITS .

16 UNDER ARTICLE 2 ( 1 ) ( C ) OF REGULATION NO 3, THAT REGULATION APPLIES TO ALL " OLD-AGE BENEFITS ".

17 ACCORDING TO ARTICLE 1 ( S ) OF THE SAME REGULATION THE TERM " BENEFITS " IS TO BE UNDERSTOOD AS MEANING, IN THE WIDEST SENSE, ALL PENSIONS, INCLUDING ALL FRACTIONS THEREOF CHARGEABLE TO PUBLIC FUNDS, INCREMENTS, REVALUATION ALLOWANCES OR SUPPLEMENTARY ALLOWANCES .

18 THUS AS REGARDS A WAGE-EARNER OR ASSIMILATED WORKER WHO HAS COMPLETED PERIODS OF EMPLOYMENT IN A MEMBER STATE, RESIDES IN THAT STATE AND IS ENTITLED TO A PENSION THERE, THE LEGISLATIVE PROVISIONS GIVING ALL ELDERLY RESIDENTS A LEGALLY PROTECTED RIGHT TO A MINIMUM PENSION ARE PROVISIONS WHICH, AS REGARDS THESE WORKERS, COME WITHIN THE FIELD OF SOCIAL SECURITY COVERED BY ARTICLE 51 OF THE TREATY AND WITHIN THE REGULATIONS ADOPTED IN APPLICATION OF THAT ARTICLE, EVEN WHERE SUCH LEGISLATION MIGHT FALL OUTSIDE THIS CLASSIFICATION AS REGARDS OTHER CATEGORIES OF RECIPIENTS .

19 THEREFORE THE ABSENCE OF A RECIPROCAL AGREEMENT MAY NOT BE SET UP AGAINST SUCH A WORKER BECAUSE SUCH A REQUIREMENT IS INCOMPATIBLE WITH THE RULE OF EQUALITY OF TREATMENT WHICH IS ONE OF THE FUNDAMENTAL PRINCIPLES OF COMMUNITY LAW, AND IS ENSHRINED, IN THIS RESPECT, IN ARTICLE 8 OF REGULATION NO 3 .

20 THE DIFFICULTIES WHICH MAY OCCUR AS REGARDS THE COMMUNITY RULES AS THE RESULT OF THE APPLICATION OF GENERAL SYSTEMS OF SOCIAL PROTECTION, WHICH HAVE BEEN DESIGNED FOR A POPULATION AS A WHOLE AND ARE BASED ON REQUIREMENTS OF NATIONALITY AND RESIDENCE, ARE INHERENT IN THE VERY NATURE OF SUCH SYSTEMS, WHICH ARE INTENDED TO PROTECT SIMULTANEOUSLY EMPLOYED PERSONS COVERED AS SUCH BY SOCIAL SECURITY AND PERSONS WHO ARE NOT THUS COVERED .

21 ALTHOUGH THESE DIFFICULTIES, TAKEN AS A WHOLE, CAN ONLY BE RESOLVED WITHIN THE CONTEXT OF A LEGISLATIVE ACTION TAKEN BY THE COMMUNITY, NEVERTHELESS THIS FACT CANNOT ADVERSELY AFFECT THE RIGHT AND DUTY OF COURTS AND TRIBUNALS TO ENSURE THAT MIGRANT WORKERS RECEIVE PROTECTION WHEREVER THIS PROVES TO BE POSSIBLE UNDER THE PRINCIPLES OF THE SOCIAL LEGISLATION OF THE COMMUNITY, AND WITHOUT THEREBY BREAKING UP THE SYSTEM SET UP BY THE NATIONAL LEGISLATION IN QUESTION .

22 SUCH IS THE CASE AT LEAST WHENEVER A PERSON HAVING THE STATUS OF AN EMPLOYED OR ASSIMILATED WORKER WITHIN THE MEANING OF REGULATION NO 3 ALREADY COMES, BY VIRTUE OF A PRIOR OCCUPATIONAL ACTIVITY, UNDER THE SOCIAL SECURITY SYSTEM OF THE MEMBER STATE WHOSE LEGISLATION GUARANTEEING A MINIMUM INCOME TO OLD PEOPLE IS PLEADED .

23 IN VIEW OF THE FOREGOING IT DOES NOT APPEAR NECESSARY TO EXAMINE THE FIRST QUESTION REFERRED BY THE TRIBUNAL DU TRAVAIL .

24 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .

25 AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE TRIBUNAL DU TRAVAIL, BRUSSELS, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT FOR A PRELIMINARY RULING BY THE TRIBUNAL DU TRAVAIL, BRUSSELS, HEREBY RULES :

1 . THE " GUARANTEED INCOME " GRANTED BY LEGISLATION OF GENERAL APPLICATION OF A MEMBER STATE GIVING OLD PEOPLE WHO ARE RESIDENT IN THAT STATE A RIGHT TO A MINIMUM PENSION MUST BE CONSIDERED, AS REGARDS EMPLOYED AND ASSIMILATED WORKERS WITHIN THE MEANING OF REGULATION NO 3 WHO HAVE A RIGHT TO A PENSION IN THE SAME STATE, AS AN " OLD-AGE BENEFIT " WITHIN THE MEANING OF ARTICLE 2 ( 1 ) ( C ) OF THE SAME REGULATION;

2 . THE GRANT OF SUCH A BENEFIT TO A FOREIGN WORKER WHO FULFILS THESE CONDITIONS CANNOT DEPEND ON THE EXISTENCE OF A RECIPROCAL AGREEMENT WITH THE MEMBER STATE OF WHICH THAT WORKER IS A NATIONAL .