61985J0379

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - COMMUNITY REGULATIONS - MATTERS COVERED - SUPPLEMENTARY ALLOWANCE PAID TO RECIPIENTS OF PENSIONS BY A NATIONAL SOLIDARITY FUND - INCLUDED

( COUNCIL REGULATION NO 1408/71, ART . 4 ( 4 ) )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - RESIDENCE CLAUSES - WAIVER - CLAIM TO OR RETENTION OF ENTITLEMENT TO BENEFITS PRECLUDED BECAUSE THE PERSON CONCERNED RESIDES IN ANOTHER MEMBER STATE - NOT PERMISSIBLE

( COUNCIL REGULATION NO 1408/71, ART . 10(1 )

1 . ARTICLE 4 ( 4 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED AS NOT EXCLUDING FROM THE SCOPE OF THAT REGULATION A SUPPLEMENTARY ALLOWANCE PAID BY A FONDS NATIONAL DE SOLIDARITE (( NATIONAL SOLIDARITY FUND )) FINANCED FROM TAX REVENUE AND GRANTED TO THE RECIPIENTS OF OLD-AGE, SURVIVORS' OR INVALIDITY PENSIONS WITH A VIEW TO PROVIDING THEM WITH A MINIMUM MEANS OF SUBSISTENCE, PROVIDED THAT THE PERSONS CONCERNED HAVE A LEGALLY PROTECTED RIGHT TO THE GRANT OF SUCH AN ALLOWANCE .

2 . ARTICLE 10 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT A PERSON MAY NOT BE PRECLUDED FROM ACQUIRING OR RETAINING ENTITLEMENT TO THE BENEFITS, PENSIONS AND ALLOWANCES REFERRED TO IN THAT PROVISION ON THE SOLE GROUND THAT HE DOES NOT RESIDE WITHIN THE TERRITORY OF THE MEMBER STATE IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED .

IN JOINED CASES 379 TO 381/85 AND 93/86

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DE CASSATION (( COURT OF CASSATION )) OF THE FRENCH REPUBLIC FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

CAISSE REGIONALE D' ASSURANCE MALADIE RHONE-ALPES

AND

ANNA GILETTI ( CASE 379/85 );

DIRECTEUR REGIONAL DES AFFAIRES SANITAIRES ET SOCIALES DE LORRAINE

AND

DOMENICO GIARDINI ( CASE 380/85 );

CAISSE REGIONALE D' ASSURANCE MALADIE DU NORD-EST

AND

FELICIANO TAMPAN ( CASE 381/85 );

AND BETWEEN

SEVERINO SEVERINI

AND

CAISSE PRIMAIRE CENTRALE D' ASSURANCE MALADIE ( CASE 93/86 ),

ON THE INTERPRETATION OF ARTICLES 4 AND 10 OF COUNCIL REGULATION ( EEC ) NO 1408/71 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 ) TO ENABLE THE COUR DE CASSATION TO DECIDE AS TO THE COMPATIBILITY WITH THAT REGULATION OF THE WITHDRAWAL OF AN ALLOWANCE PROVIDED FOR BY FRENCH LEGISLATION,

THE COURT ( FOURTH CHAMBER )

COMPOSED OF : C . KAKOURIS, PRESIDENT OF THE CHAMBER, T . KOOPMANS AND G.*RODRIGUEZ IGLESIAS, JUDGES,

ADVOCATE GENERAL : J.L . DA CRUZ VILACA

REGISTRAR : S . HACKSPIEL, ADMINISTRATOR,

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED :

IN CASE 379/85, ON BEHALF OF

THE APPELLANT IN THE MAIN PROCEEDINGS, THE CAISSE REGIONALE D' ASSURANCE MALADIE RHONE-ALPES, BY J . ROUVIERE, OF THE PARIS BAR,

THE RESPONDENT IN THE MAIN PROCEEDINGS, A . GILETTI, IN THE WRITTEN PROCEDURE BY J.G . NICOLAS, OF THE PARIS BAR, AND IN THE ORAL PROCEDURE BY F . AGOSTINI,

IN CASE 380/85, ON BEHALF OF

THE APPELLANT IN THE MAIN PROCEEDINGS, THE DIRECTEUR REGIONAL DES AFFAIRES SANITAIRES ET SOCIALES DE LORRAINE, IN THE WRITTEN PROCEDURE BY H . MAUSS AND IN THE ORAL PROCEDURE BY B . PEIGNOT, AVOCAT,

THE RESPONDENT IN THE MAIN PROCEEDINGS, D . GIARDINI, IN THE WRITTEN PROCEDURE BY J . LE PRADO, OF THE PARIS BAR,

IN CASE 93/86, ON BEHALF OF

THE APPELLANT IN THE MAIN PROCEEDINGS, SEVERINO SEVERINI, IN THE ORAL PROCEDURE BY F . AGOSTINI, AVOCAT,

THE RESPONDENT IN THE MAIN PROCEEDINGS, THE CAISSE PRIMAIRE CENTRALE D' ASSURANCE MALADIE, IN THE WRITTEN PROCEDURE BY J.-P . DESACHE, OF THE PARIS BAR,

IN CASES 379 TO 381/85, ON BEHALF OF

THE GOVERNMENT OF THE FRENCH REPUBLIC, IN THE WRITTEN PROCEDURE, BY G . GUILLAUME AND S.C . DE MARGERIE, ACTING AS AGENTS, AND, IN THE ORAL PROCEDURE, BY B . BOTTE, ACTING AS AGENT,

IN CASES 379 TO 381/85 AND 93/86, ON BEHALF OF

THE GOVERNMENT OF THE ITALIAN REPUBLIC, BY L . FERRARI BRAVO, HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS, ACTING AS AGENT, ASSISTED BY P.G . FERRI, ACTING AS AGENT,

THE UNITED KINGDOM, IN THE WRITTEN PROCEDURE, BY S.J . HAY, ACTING AS AGENT,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY ITS LEGAL ADVISER, J . GRIESMAR,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 8 OCTOBER 1986,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 21 JANUARY 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY THREE JUDGMENTS OF 21 OCTOBER 1985, WHICH WERE RECEIVED AT THE COURT ON 28 NOVEMBER 1985, AND BY A JUDGMENT OF 19 MARCH 1986, WHICH WAS RECEIVED AT THE COURT ON 3 APRIL 1986, THE FRENCH COUR DE CASSATION REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS IN IDENTICAL TERMS IN ALL FOUR CASES CONCERNING THE INTERPRETATION OF ARTICLES 4 AND 10 OF COUNCIL REGULATION NO 1408/71 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 ).

2 THE QUESTIONS WERE RAISED IN PROCEEDINGS CONCERNING THE REFUSAL BY THE COMPETENT CAISSES REGIONALES ( REGIONAL SICKNESS INSURANCE FUNDS ) TO PAY, OR CONTINUE TO PAY, THE ALLOWANCE KNOWN AS AN "ALLOCATION SUPPLEMENTAIRE" (( SUPPLEMENTARY ALLOWANCE )) TO THE RECIPIENTS OF OLD-AGE, SURVIVORS' AND INVALIDITY PENSIONS WHO HAD TAKEN UP RESIDENCE IN ITALY . UNDER THE FRENCH LEGISLATION, THAT SUPPLEMENTARY ALLOWANCE IS PAID TO THE RECIPIENTS OF OLD-AGE OR INVALIDITY BENEFITS WHO HAVE INSUFFICIENT RESOURCES, BUT CEASES TO BE PAID TO THEM WHEN THEY TRANSFER THEIR RESIDENCE OUTSIDE THE TERRITORY OF THE FRENCH REPUBLIC .

3 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE SUPPLEMENTARY ALLOWANCE IS PAID BY THE FONDS NATIONAL DE SOLIDARITE (( NATIONAL SOLIDARITY FUND )) WHICH WAS SET UP IN 1956 WITH A VIEW TO PROMOTING THE WELFARE OF OLD PEOPLE, PARTICULARLY BY IMPROVING PENSIONS AND OLD-AGE ALLOWANCES . THE SUPPLEMENTARY ALLOWANCE IS FINANCED OUT OF TAXATION . THE CONDITIONS FOR ITS GRANT ARE LAID DOWN IN THE CODE DE LA SECURITE SOCIALE (( SOCIAL SECURITY CODE )) ( ARTICLE L 815-1 ET SEQ .).

4 THE JUDGMENTS SUBMITTING THE QUESTIONS DESCRIBED THE SUPPLEMENTARY ALLOWANCE AS A "SOLIDARITY ALLOWANCE WHICH IS FINANCED OUT OF TAXATION, INTENDED TO GUARANTEE A GENERAL MINIMUM MEANS OF SUBSISTENCE, PAID AS A SUPPLEMENT TO ANOTHER BENEFIT, CONTRIBUTORY OR NOT, AND GRANTED ON THE BASIS OF THE APPLICANT' S RESOURCES BUT WITHOUT REGARD TO HIS OCCUPATION AND WHICH MAY UNDER CERTAIN CIRCUMSTANCES BE RECOVERED FROM THE RECIPIENT' S ESTATE ". THE NATIONAL COURT IS UNCERTAIN WHETHER SUCH AN ALLOWANCE FALLS WITHIN THE MATTERS COVERED BY REGULATION NO 1408/71, AS DEFINED IN ARTICLE 4 THEREOF, AND, IF SO, WHETHER OR NOT IT CONSTITUTES A BENEFIT "ACQUIRED" BY THE RECIPIENT WITHIN THE MEANING OF ARTICLE 10 OF THE REGULATION WHERE THE PERSON CONCERNED LEAVES THE TERRITORY OF THE MEMBER STATE WHERE THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED OR WHERE A PERSON TO WHOM THE ALLOWANCE HAS NOT YET BEEN GRANTED RESIDES IN ANOTHER MEMBER STATE .

5 SEEKING CLARIFICATION AS TO THE INTERPRETATION OF THE ABOVEMENTIONED PROVISIONS, THE COUR DE CASSATION REQUESTED THE COURT TO GIVE A PRELIMINARY RULING :

"( 1 ) ON THE QUESTION WHETHER OR NOT AN ALLOWANCE SUCH AS THE SUPPLEMENTARY ALLOWANCE UNDER THE FONDS NATIONAL DE SOLIDARITE, PROVIDED FOR IN BOOK IX OF THE CODE DE LA SECURITE SOCIALE, FALLS WITHIN THE SCOPE OF REGULATION NO 1408/71 OF 14 JUNE 1971; AND

( 2 ) ON THE MEANING AND SCOPE OF THE WORD 'ACQUIRED' IN ARTICLE 10 ( 1 ) OF THAT REGULATION ."

6 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS AND THE OBSERVATIONS SUBMITTED IN THE COURSE OF THE WRITTEN PROCEDURE, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

THE FIRST QUESTION

7 IT SHOULD BE NOTED IN THE FIRST PLACE THAT REGULATION NO 1408/71 APPLIES TO THE LEGISLATION OF THE MEMBER STATES ON SOCIAL SECURITY . BY VIRTUE OF ARTICLE 4 ( 2 ), NON-CONTRIBUTORY BENEFITS ARE NOT EXCLUDED FROM THE SCOPE OF THE REGULATION . ACCORDINGLY, THE CLASSIFICATION OF AN ALLOWANCE AS A SOCIAL SECURITY BENEFIT COVERED BY THE REGULATION DOES NOT DEPEND UPON THE MANNER IN WHICH THE ALLOWANCE IS FINANCED .

8 IT SHOULD FURTHER BE OBSERVED THAT, BY VIRTUE OF ARTICLE 1 ( T ) OF THE REGULATION, THE CONCEPT OF BENEFIT COMPREHENDS, "REVALORIZATION INCREASES AND SUPPLEMENTARY ALLOWANCES ". SOCIAL ASSISTANCE MEASURES, ON THE OTHER HAND, ARE EXCLUDED FROM THE SCOPE OF THE REGULATION BY VIRTUE OF ARTICLE 4 ( 4 ).

9 IN ITS JUDGMENT OF 9 OCTOBER 1974 ( CASE 24/74 BIASON (( 1974 )) ECR 999 ), THE COURT TOOK THE VIEW THAT, WHILST IT MAY SEEM DESIRABLE FROM THE POINT OF VIEW OF APPLYING THE COMMUNITY REGULATIONS ON SOCIAL SECURITY, TO ESTABLISH A CLEAR DISTINCTION BETWEEN LEGISLATIVE SCHEMES THAT FALL RESPECTIVELY WITHIN SOCIAL SECURITY AND ASSISTANCE, THE POSSIBILITY CANNOT BE EXCLUDED THAT BY REASON OF THE PERSONS COVERED, ITS OBJECTIVES AND ITS METHODS OF APPLICATION, NATIONAL LEGISLATION MAY, AT ONE AND THE SAME TIME, HAVE LINKS TO BOTH THOSE CATEGORIES .

10 THOSE CONSIDERATIONS APPLY TO THE PRESENT CASE . LEGISLATION OF THE TYPE WITH WHICH THE REQUEST FOR A PRELIMINARY RULING IS CONCERNED IN FACT FULFILS A DUAL FUNCTION, IN SO FAR AS, IN THE FIRST PLACE, IT GUARANTEES A MINIMUM MEANS OF SUBSISTENCE TO PERSONS IN NEED AND, IN THE SECOND PLACE, IT PROVIDES ADDITIONAL INCOME FOR THE RECIPIENTS OF SOCIAL SECURITY BENEFITS WHICH ARE INADEQUATE .

11 IN SO FAR AS SUCH LEGISLATION CONFERS A RIGHT TO SUPPLEMENTARY BENEFITS DESIGNED TO INCREASE THE AMOUNT OF PENSIONS PAID BY WAY OF SOCIAL SECURITY, WITHOUT ANY ASSESSMENT OF INDIVIDUAL NEEDS OR CIRCUMSTANCES, WHICH IS A CHARACTERISTIC OF ASSISTANCE, IT COMES WITHIN THE SOCIAL SECURITY SCHEME WITHIN THE MEANING OF REGULATION NO 1408/71 . THE FACT THAT A SINGLE LAW MAY ALSO PROVIDE FOR ADVANTAGES WHICH CAN BE CLASSIFIED AS ASSISTANCE CANNOT ALTER, FOR THE PURPOSES OF COMMUNITY LAW, THE INTRINSIC SOCIAL SECURITY CHARACTER OF A BENEFIT LINKED TO AN INVALIDITY, OLD-AGE OR SURVIVOR' S PENSION TO WHICH IT IS AN AUTOMATIC SUPPLEMENT .

12 ACCORDINGLY, THE ANSWER TO THE FIRST QUESTION MUST BE THAT ARTICLE 4 ( 4 ) OF REGULATION NO 1408/71 MUST BE INTERPRETED AS NOT EXCLUDING FROM THE MATTERS COVERED BY THAT REGULATION A SUPPLEMENTARY ALLOWANCE PAID BY A FONDS NATIONAL DE SOLIDARITE FINANCED FROM TAX REVENUE AND GRANTED TO THE RECIPIENTS OF OLD-AGE, SURVIVORS' OR INVALIDITY PENSIONS WITH A VIEW TO PROVIDING THEM WITH A MINIMUM MEANS OF SUBSISTENCE, PROVIDED THAT THE PERSONS CONCERNED HAVE A LEGALLY PROTECTED RIGHT TO THE GRANT OF SUCH AN ALLOWANCE .

THE SECOND QUESTION

13 ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 PROVIDES THAT CASH BENEFITS, PENSIONS AND GRANTS "ACQUIRED" UNDER THE LEGISLATION OF SEVERAL MEMBER STATES ARE NOT TO BE SUBJECT TO ANY REDUCTION BY REASON OF THE FACT THAT THE RECIPIENT RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED .

14 IN ITS JUDGMENT OF 7 NOVEMBER 1973 ( CASE 51/73 SOCIALE VERZEKERINGSBANK V SMEIJA (( 1973 )) ECR 1213 ), THE COURT NOTED THAT THE PURPOSE OF THAT PROVISION IS TO PROMOTE THE FREE MOVEMENT OF WORKERS BY PROTECTING THOSE CONCERNED FROM THE HARMFUL CONSEQUENCES WHICH MIGHT RESULT WHEN THEY TRANSFER THEIR RESIDENCE FROM ONE MEMBER STATE TO ANOTHER . ACCORDING TO THAT JUDGMENT, BY VIRTUE OF THAT PURPOSE THE PROTECTION THUS PROVIDED MUST NECESSARILY COVER BENEFITS WHICH, WHILE CREATED WITHIN THE CONFINES OF A PARTICULAR SCHEME, TAKE THE FORM OF AN INCREASE IN THE VALUE OF THE PENSION .

15 ACCORDING TO THE JUDGMENT OF 10 JUNE 1982 ( CASE 92/81 CARACCIOLA ( NEE CAMERA ) V INAMI (( 1982 )) ECR 2213 ), THOSE CONSIDERATIONS IMPLY NOT ONLY THAT THE PERSON CONCERNED RETAINS THE RIGHT TO RECEIVE PENSIONS AND BENEFITS ACQUIRED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES EVEN AFTER TAKING UP RESIDENCE IN ANOTHER MEMBER STATE, BUT ALSO THAT HE MAY NOT BE PREVENTED FROM ACQUIRING SUCH A RIGHT MERELY BECAUSE HE DOES NOT RESIDE IN THE TERRITORY OF THE STATE IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED .

16 ARTICLE 10 ( 1 ) PROHIBITS THE COMPETENT INSTITUTIONS OF THE MEMBER STATES, IN GENERAL TERMS, FROM REDUCING, MODIFYING, SUSPENDING, WITHDRAWING OR CONFISCATING BENEFITS COVERED BY THE REGULATION BY REASON OF THE FACT THAT THE RECIPIENT RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE . THE ONLY EXCEPTIONS TO THAT PROHIBITION ARE THOSE EXPRESSLY PROVIDED FOR IN COMMUNITY LEGISLATION .

17 THE ANSWER TO THE SECOND QUESTION MUST THEREFORE BE THAT ARTICLE 10 OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING THAT A PERSON MAY NOT BE PRECLUDED FROM ACQUIRING OR RETAINING ENTITLEMENT TO THE BENEFITS, PENSIONS AND ALLOWANCES REFERRED TO IN THAT PROVISION ON THE SOLE GROUND THAT HE DOES NOT RESIDE WITHIN THE TERRITORY OF THE MEMBER STATE IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED .

COSTS

18 THE COSTS INCURRED BY THE GOVERNMENTS OF THE FRENCH REPUBLIC, THE ITALIAN REPUBLIC AND THE UNITED KINGDOM AND OF THE COMMISSION, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . IN SO FAR AS THESE PROCEEDINGS ARE 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 ( Fourth Chamber ),

in reply to the questions referred to it by the Cour de cassation of the French Republic by judgments of 21 October 1985 and 19 March 1986, hereby rules :

( 1 ) Article 4 ( 4 ) of Regulation 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 must be interpreted as not excluding from the scope of that regulation a supplementary allowance paid by a Fonds national de solidarité (( National Solidarity Fund )) financed from tax revenue and granted to the recipients of old-age, survivors' or invalidity pensions with a view to providing them with a minimum means of subsistence, provided that the persons concerned have a legally protected right to the grant of such an allowance .

( 2 ) Article 10 of Regulation No 1408/71 must be interpreted as meaning that a person may not be precluded from acquiring or retaining entitlement to the benefits, pensions and allowances referred to in that provision on the sole ground that he does not reside within the territory of the Member State in which the institution responsible for payment is situated .