61974J0024

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1 . REQUEST FOR A PRELIMINARY RULING - EFFECTS OF A NATIONAL LAW AS AGAINST COMMUNITY LAW - POWERS OF THE COURT - LIMITS

( EEC TREATY, ARTICLE 177 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - SYSTEMS OF SOCIAL SECURITY AND OF SOCIAL ASSISTANCE - DISTINCTION - INVALIDITY PENSION - SUPPLEMENTARY ALLOWANCE - BENEFIT WITHIN THE MEANING OF ARTICLE 1 ( S ) OF REGULATION NO 3 - PERSON ENTITLED - TRANSFER OF RESIDENCE TO ANOTHER MEMBER STATE - ENTITLEMENT TO CONTINUED PAYMENT OF ALLOWANCE

( REGULATION NO 3, ARTICLE 1 ( B ), ARTICLE 1 ( C ), ARTICLE 3, ARTICLE 10 ( 1 ))

1 . THE COURT CAN PROVIDE THE NATIONAL COURT WITH AIDS TO INTERPRETATION DERIVED FROM COMMUNITY LAW WHICH MIGHT GUIDE IT IN AN ASSESSMENT OF THE EFFECTS OF A NATIONAL LEGISLATION .

2 . WHERE A LEGISLATION WHICH COMES CLOSE TO BOTH A SYSTEM OF SOCIAL SECURITY AND A SYSTEM OF SOCIAL ASSISTANCE HAS CEASED TO CONCERN ITSELF WITH THE ASSESSMENT OF NEED IN THE INDIVIDUAL CASE - A CHARACTERISTIC FEATURE OF A SYSTEM OF ASSISTANCE - AND HAS CONFERRED ON THE PERSONS ENTITLED A LEGALLY DEFINED POSITION, THEN IT COMES UNDER THE SYSTEM OF SOCIAL SECURITY WITHIN THE MEANING OF THE COMMUNITY REGULATIONS .

THIS IS THE REASON WHY A SUPPLEMENTARY ALLOWANCE, PAID BY A NATIONAL SOLIDARITY FUND ON THE BASIS OF AN INVALIDITY PENSION TO PERSONS ENTITLED TO SUCH PENSION, CONSTITUTES, TO THE EXTENT THAT THE PERSONS CONCERNED HAVE A LEGALLY PROTECTED RIGHT TO THE GRANT THEREOF, A 'BENEFIT' WITHIN THE MEANING OF ARTICLE 1 ( S ) OF REGULATION NO 3, AND FOR THAT REASON FALLS WITHIN THE MATTERS COVERED BY THIS REGULATION .

A PERSON WHO TRANSFERS HIS RESIDENCE TO ANOTHER MEMBER STATE IS ENTITLED TO CONTINUE TO RECEIVE THIS BENEFIT EVEN IF SUCH SUPPLEMENTARY ALLOWANCE IS BY NATIONAL LEGISLATION LIMITED TO PERSONS RESIDING WITHIN THE NATIONAL TERRITORY .

IN CASE 24/74

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

CAISSE REGIONAL D'ASSURANCE MALADIE DE PARIS, OF PARIS,

AND

MISS GIUSEPPINA BIASON, OF PORDENONE ( ITALY ),

ON THE INTERPRETATION OF THE PROVISIONS OF REGULATION NO 3 OF THE COUNCIL 'CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS' SO AS TO DEFINE THE RULES APPLICABLE TO THE EXPORTATION OF SOCIAL BENEFITS .

1 BY JUDGMENT DATED 2 MARCH 1974, LODGED AT THE REGISTRY ON 20 MARCH 1974, THE COUR D'APPEL OF PARIS HAS REFERRED TO THE COURT, UNDER ARTICLE 177 OF THE EEC TREATY, THE QUESTION WHETHER A PERSON IN RECEIPT OF AN INVALIDITY PENSION UNDER A SICKNESS INSURANCE SCHEME, ARISING FROM HER EMPLOYMENT IN A MEMBER STATE WHEREIN SHE WAS RESIDENT, AND WHO IS BY VIRTUE OF THAT PENSION ENTITLED TO A SUPPLEMENTARY ALLOWANCE, CAN PRESERVE THIS RIGHT IN ANOTHER MEMBER STATE UNDER THE PROVISIONS OF ARTICLE 2 ( 1 ) ( B ) OF REGULATION NO 3 WHICH WAS IN FORCE AT THAT TIME, IN RESPECT OF THE PERIOD 1 APRIL 1972 TO 1 OCTOBER 1972 DURING WHICH SHE TOOK UP RESIDENCE IN ANOTHER MEMBER STATE, AND CONTINUE TO RECEIVE IN THAT COUNTRY THE SUPPLEMENTARY ALLOWANCE IN ADDITION TO THE INVALIDITY PENSION .

2 THE RECORD SHOWS THAT MISS BIASON, WHO HAS SINCE 15 JUNE 1971 BEEN ENTITLED TO AN INVALIDITY PENSION UNDER THE FRENCH SOCIAL SECURITY SYSTEM, WAS AS FROM THAT SAME DATE IN RECEIPT OF A SUPPLEMENTARY ALLOWANCE FROM THE FONDS NATIONAL DE SOLIDARITE, ESTABLISHED IN FRANCE BY A LAW OF 30 JUNE 1956, AND GRANTED TO HOLDERS OF A BENEFIT PAYABLE FOR TO BE ON THE BASIS OF AN INVALIDITY REDUCING THE WORKING CAPACITY BY TWO-THIRDS OR MORE, AND WHO IS RESIDENT IN FRANCE .

3 WHEN SHE CHANGED HER RESIDENCE TO ITALY, SHE HAD THIS GRANT WITHDRAWN BY VIRTUE OF THE FRENCH PROVISIONS AND THE SUPPLEMENTARY AGREEMENT TO THE FRANCO-ITALIAN PROTOCOL OF 11 JANUARY 1957 .

4 THE QUESTION REFERRED AMOUNTS IN ESSENCE TO WHETHER A PARTY RESIDING IN ANOTHER MEMBER STATE MAY RECEIVE THIS GRANT UNDER THE PROVISIONS OF REGULATION NO 3 OF THE COUNCIL .

5 TO ANSWER THIS QUESTION IT IS FIRST OF ALL NECESSARY TO KNOW WHETHER THE BENEFIT IN QUESTION COMES WITHIN THE RANGE OF APPLICATION OF REGULATION NO 3 .

6 WITHOUT IN THE FRAMEWORK OF THE PRESENT PROCEEDINGS BEING ABLE TO LABEL THIS BENEFIT IN THE LIGHT OF THE FRENCH LEGISLATION, THE COURT CAN NEVERTHELESS PROVIDE THE NATIONAL COURT WITH AIDS TO INTERPRETATION DERIVED FROM COMMUNITY LAW WHICH MIGHT GUIDE IT IN AN ASSESSMENT OF THE EFFECTS OF THIS LEGISLATION .

7 UNDER THE PROVISIONS OF ARTICLE 1 ( B ) THEREOF, REGULATION NO 3 APPLIES TO ALL LEGISLATION OF MEMBER STATES THAT CONCERNS 'SOCIAL SECURITY SCHEMES AND BRANCHES OF SOCIAL SECURITY' SET OUT IN PARAGRAPHS ( 1 ) AND ( 2 ) OF ARTICLE 2 .

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

9 WHILST IT MAY SEEM DESIRABLE FROM THE POINT OF VIEW OF APPLYING THIS REGULATION TO ESTABLISH A CLEAR DISTINCTION BETWEEN LEGISLATIVE SCHEMES THAT FALL RESPECTIVELY WITHIN SOCIAL SECURITY AND ASSISTANCE, ONE CANNOT EXCLUDE THE POSSIBILITY THAT BY REASON OF THE PERSONS COVERED, ITS OBJECTIVES AND ITS METHOD OF APPLICATON, A LEGISLATION CAN COME CLOSE TO BOTH THESE CATEGORIES, THUS PREVENTING ANY COMPREHENSIVE CLASSIFICATION .

10 IN THE EVENT OF SUCH LEGISLATION, HAVING CEASED TO CONCERN ITSELF WITH THE ASSESSMENT OF NEED IN THE INDIVIDUAL CASE - A CHARACTERISTIC FEATURE WITH ASSISTANCE - CONFERRING ON THE PERSONS ENTITLED A LEGALLY DEFINED STATUS, THEN IT FALLS WITHIN THE SYSTEM OF SOCIAL SECURITY, WITHIN THE MEANING OF THE COMMUNITY REGULATIONS .

11 THIS IS THE CASE WHERE LEGISLATION PROVIDES SUPPLEMENTARY BENEFITS LINKED TO A CERTAIN DEGREE OF INVALIDITY AND HAVING THE PURPOSE OF INCREASING THE AMOUNT OF AN INVALIDITY PENSION .

12 THE FACT THAT THE SAME LAW ALSO PROVIDES BENEFICIARIES WITH ADVANTAGES THAT COME CLOSE TO THE CONCEPT OF ASSISTANCE CANNOT ALTER, FOR THE PURPOSES OF THE COMMUNITY REGULATIONS THE INTRINSIC SOCIAL SECURITY CHARACTER OF A BENEFIT LINKED TO AN INVALIDITY PENSION OF WHICH IT IS AN AUTOMATIC APPENDAGE .

13 UNDER THE TERMS OF ARTICLE 2 ( 1 ) ( B ), REGULATION NO 3 APPLIES TO ALL 'INVALIDITY BENEFITS, INCLUDING BENEFITS GRANTED FOR THE PURPOSE OF MAINTAINING OR IMPROVING EARNING CAPACITY '.

14 UNDER ARTICLE 1 ( S ) OF THE SAME REGULATION, THE TERM 'BENEFITS' MUST BE UNDERSTOOD IN THE WIDEST POSSIBLE SENSE AS REFERRING TO ALL BENEFITS 'INCLUDING ALL FRACTIONS THEREOF, CHARGEABLE TO PUBLIC FUNDS, INCREMENTS, REVALUATION ALLOWANCES OR SUPPLEMENTARY ALLOWANCES '.

15 ACCORDINGLY, IN THE CASE OF AN EMPLOYED PERSON OF SOMEONE ASSIMILATED THERETO WHO IS IN A MEMBER STATE BENEFITS FROM AN INVALIDITY PENSION, A LEGISLATION WHICH BY REASON OF THIS PENSION CONFERS ON HIM A RIGHT TO A LEGALLY PROTECTED SUPPLEMENTARY ALLOWANCE FALLS, INSOFAR AS THIS PERSON IS CONCERNED, WITHIN THE FIELD OF SOCIAL SECURITY WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AND OF THE REGULATIONS FOR CARRYING THIS PROVISION INTO EFFECT .

16 ONE CAN THEREFORE CONCLUDE THAT A SUPPLEMENTARY ALLOWANCE, PAID BY A NATIONAL SOLIDARITY FUND AND GRANTED BY NATIONAL LEGISLATION BY REASON OF AN INVALIDITY PENSION TO PERSONS ENTITLED TO THIS PENSION, WHOSE WORKING CAPACITY IS REDUCED BY AT LEAST TWO-THIRDS, CONSTITUTES, TO THE EXTENT THAT THE PERSONS CONCERNED HAVE A LEGALLY PROTECTED RIGHT TO THE GRANT THEREOF, A 'BENEFIT' WITHIN THE MEANING OF ARTICLE ( 1 ) ( S ) OF REGULATION NO 3, AND FOR THAT REASON FALLS WITHIN THE MATTERS COVERED BY THIS REGULATION .

17 IT IS NOW NECESSARY TO ANSWER THE QUESTION WHETHER SUCH A BENEFIT MAY BE WITHDRAWN BECAUSE THE BENEFICIARY HAS TRANSFERRED HIS RESIDENCE TO A MEMBER STATE OTHER THAN THAT WHERE THE BENEFIT WAS ACQUIRED, WHERE NATIONAL LAW PROVIDES THAT THIS BENEFIT IS PAYABLE ONLY TO PERSONS RESIDING WITHIN THE NATIONAL TERRITORY .

18 UNDER THE PROVISIONS OF ARTICLE 10 ( 1 ) OF REGULATION NO 3, PENSIONS OR DEATH BENEFITS PAYABLE UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES SHALL NOT SUFFER REDUCTION, MODIFICATION, SUSPENSION, WITHDRAWAL OR CONFISCATION BY REASON OF THE FACT THAT THE BENEFICIARY RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED .

19 ARTICLE 10 ( 2 ) PROVIDES THAT THE SAID PROVISION SHALL NOT APPLY TO CERTAIN BENEFITS 'INSOFAR AS THEY ARE SET OUT IN ANNEX E TO THIS REGULATION '.

20 THIS ANNEX, SETTING OUT THE 'BENEFITS NOT PAYABLE ABROAD', REFERS, IN THE CASE OF FRANCE, ONLY TO 'BENEFITS PAYABLE TO AGED EMPLOYED PERSONS '.

21 THE GRANT REFERRED TO BY THE NATIONAL COURT DOES NOT FALL WITHIN THIS CATEGORY .

22 CONSEQUENTLY AN INSURED PERSON WHO IS IN RECEIPT OF AN INVALIDITY PENSION ACQUIRED UNDER A SICKNESS INSURANCE SCHEME BY REASON OF EMPLOYMENT IN A SINGLE MEMBER STATE WHEREIN HE WAS RESIDENT, AND WHO RECEIVES A SUPPLEMENTARY ALLOWANCE BY VIRTUE OF THAT PENSION, IS ENTITLED TO CONTINUE TO RECEIVE SUCH AN ALLOWANCE IF HE TRANSFERS HIS RESIDENCE TO ANOTHER MEMBER STATE, PROVIDED THAT SUCH GRANT FALLS WITHIN THE AREA OF APPLICATION OF REGULATION NO 3, AND THIS IS SO EVEN IF SUCH SUPPLEMENTARY ALLOWANCE IS BY NATIONAL LEGISLATION LIMITED TO PERSONS RESIDING WITHIN THE NATIONAL TERRITORY .

23/24 THE COSTS INCURRED BY THE FRENCH REPUBLIC, THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH 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 NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COUR D'APPEL OF PARIS BY JUDGMENT OF THAT COURT DATED 2 MARCH 1974, HEREBY RULES :

AN INSURED PERSON WHO IS IN RECEIPT OF AN INVALIDITY PENSION ACQUIRED UNDER A SICKNESS INSURANCE SCHEME BY REASON OF EMPLOYMENT IN A MEMBER STATE WHEREIN HE WAS RESIDENT, AND WHO RECEIVES A SUPPLEMENTARY ALLOWANCE BY VIRTUE OF THAT PENSION, IS ENTITLED TO CONTINUE TO RECEIVE SUCH GRANT IF HE TRANSFERS HIS RESIDENCE TO ANOTHER MEMBER STATE, PROVIDED THAT SUCH GRANT FALLS WITHIN THE AREA FOR APPLICATION OF REGULATION NO 3, AND THIS IS SO EVEN IF SUCH SUPPLEMENTARY ALLOWANCE IS BY NATIONAL LEGISLATION LIMITED TO PERSONS RESIDING WITHIN THE NATIONAL TERRITORY .