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Employed Persons and Their Families Under the Law of 27 June 1969 On

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Employed Persons and Their Families Under the Law of 27 June 1969 On CALLEMEYN v BELGIUM OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 30 APRIL 1974 1 Mr President, Agreement, as regards the duration of Members of the Court, residence in the host country and the date of first medical diagnosis of the illness giving rise to the invalidity. The questions submitted by the Labour Court of Tournai with which I shall On 2 March 1973 Mrs Callemeyn today have to deal are in the main appealed against the rejection of her claim. She maintained that she satisfied concerned with the area of application, so far as subject matter is concerned, of the conditions of the Interim Agreement. Regulation No 1408/71, on the The Labour Court at Tournai adjourned application of social security schemes to the proceedings since it is of the opinion employed persons and their families that the application to the applicant of moving within the Community (OJ the Law on benefits for handicapped 1971, No L 149). The national court persons is not regulated by the Interim desires to know whether the Belgian Agreement of 11 December 1953, but by system on payment of benefits to Regulation No 1408/71 of the Council handicapped persons is caught by this of the European Communities of 14 Regulation. June 1971. Mrs Callemeyn, the plaintiff in the The Court referred the following two Belgian proceedings, is French. She is questions for a preliminary ruling: married to a Belgian national and had resided in Belgium since 1957. She is 40 1. Insofar as it concerns employed years of age and permanently persons, does the scheme of benefits incapacitated to the extent of 70 %. As for handicapped persons set up under the Law of 27 June 1969 come within a person who was employed she receives the ambit of Regulation (EEC) No invalidity benefits under the Belgian Law 1408/71 of the Council of 27 June of 9 August 1963, which regulates 1971 on the application of social compulsory insurance for sickness and security schemes to employed persons invalidity. On 9 March 1972 Mrs and their families moving within the Callemeyn applied for the so-called Community? In other words, does the ordinary benefit (allocation ordinaire under the Law of 27 June 1969 on list of benefits in Article 4 (EEC) No 1408/71 embrace the provisions made payment of benefit to handicapped by national legislation for payment of persons. By a decision that reached the grants to handicapped persons insofar applicant on 26 February 1973, the Minister for Social Security rejected the as these provisions relate to employed persons? application. In support of his decision he stated that under the Law and its 2. Insofar as is more favourable for implementing provisions, the benefits those entitled, does Regulation No were payable only to Belgian nationals. 1408/71 of the Council replace the Admittedly it could apply to foreigners European Interim Agreement on under the European Interim Agreement social security schemes in respect of on social security schemes in respect of old age, invalidity and survivors, old age, invalidity and survivors of 11 signed in Paris on 11 December 1953 December 1953, but Mrs Callemeyn did and referred to in Article 7 of the not satisfy the conditions of this Interim Regulation? 1 — Translated from the German. 565 OPINION OF MR REISCHL — CASE 187/73 1 — As regards the first question: provision since otherwise the applica­ bility of Community law would be To answer this question it is necessary to dependent upon a unilateral act of the know the contents of the Belgian Law of State concerned (Judgment of 15 July 27 June 1969 on the payment of benefits 1964 —Van der Veen v Bestuur van de to handicapped persons: it provides for Sociale Verzekeringsbank, Case 100/63 the grant of benefits to handicapped Rec. 1964 p. 1215 and Judgment of 2 persons who are Belgian nationals and December 1964 Dingemans v Sociale reside in Belgium and Verzekeringsbank, Case 12/64 Rec. 1964 1. are at least fourteen years of age (in p. 1375). the case of ordinary benefits), That must also apply to the current state of the law under Regulation No 2. are incapacitated to the extent or at 1408/71. And whilst under Article 3 of least 30 %, Regulation No 3 there could still be 3. whose income does not exceed a room for doubt, since this stated: certain amount. 'Annex B specifies . the legislation . .. The claim to benefit, which is legally to which this Regulation applies', the wording of the Regulation is now quite enforceable, is independent of contribu­ clear, since the list of national legislation tions and requirements of membership. and schemes notified is no longer Furthermore, the handicapped person need never have worked. published in an annex, i.e. in a legal provision in the nature of a Regulation, The law provides three kinds of benefit: but in Part C of the Official Journal. The ordinary benefit, supplementary benefit list cannot therefore have the force of (which in the case of handicapped legislation. persons having reached pensionable age The crucial question, therefore, is supplements the old-age pension) and whether a law such as the Belgian Law the special benefit for certain categories of 27 January 1969 is caught by of handicapped persons, especially those Regulation 1408/71. The condition for totally unable to work. The amount of this is that the law on the one hand the benefit is calculated on the basis of provides such benefits as are enumerated the percentage of inability to work and in the list in Article 4 (1) and on the of the income exceeding a basic amount. other hand contains no social assistance The necessary finance is provided by the schemes such as are mentioned in Article Belgian State. 4 (4). In the present case it is item (b) of Now before I turn to the question Article 4 (1) that is relevant: 'invalidity whether such a law complies with the benefits, including those intended for the conditions of Article 4 of Regulation No maintenance or improvement of earning 1408/71, I should just like to go briefly capacity'. The possibility of describing into the question whether it is important the supplementary aid for handicapped that the Kingdom of Belgium did not persons of pensionable age as 'old-age specify the Law of 27 June 1969 in the benefits', under paragraph 1 (c) need not Declaration under Article 5 of the detain us, since in this case it is the claim Regulation concerning legislation and to ordinary benefit that is in dispute. schemes referred to in Article 4 (1) and One can probably — following in this (2) (OJ 1973, No C 12). respect the written observations of the As regards the legal situation under Belgian Government — describe Regulation No 3, the predecessor of invalidity benefits as benefits having the Regulation No 1408/71, the Court purpose of compensating for a reduced decided that the Declaration of a or extinct capacity to ensure one's Member State cannot be a condition livelihood by means of occupational precedent for the applicability of the activity. The entitlement to benefit is EEC Regulation to the relevant national therefore linked with the ability to work 566 CALLEMEYN v BELGIUM that has ceased. On the other hand, the attuned to financial need. However, the essential condition for the payment of Court in its case law has always striven benefits to handicapped persons not to allow the protection of migrant provided for in the Belgian Law is workers to be defeated by the invalidity as a medical fact. If however organizational peculiarities of national the incapacity has resulted in inability to systems, but to take account of the work, then the conditions for aid to the emergence of new forms of social handicapped and those upon which protection that cannot be classified in invalidity benefits are normally time-hallowed categories. I am thinking dependent, overlap. If one now further of the Torrekens judgment (Judgment takes into account that the amount of of 7 May 1969, Case 28/68 Rec. 1969, benefit to the handicapped is dependent p. 125) in relation to French system of upon the percentage of inability to work benefits for old workers and above all (Article 5 of the Law), then it seems the judgment in the Frilli case (Judgment quite clear to me that the subject matter of 22 June 1972, Case 1/72 Rec. 1972, of the Belgian Law is invalidity benefits p. 457) in connexion with the Belgian for at any rate those handicapped law on the guaranteed income in old age. persons whose incapacity amounts to a The last mentioned judgment found that reduction of a previously existing ability there exist legal provisions that to work. guarantee a minimum subsistence level The Belgian Government argues in its to persons who are outside the system of written observations that under the Law social security, and that also improve of 9 August 1963 on compulsory social security benefits that are insurance against sickness and invalidity insufficient. the percentage of invalidity is calculated I shoud like to examine on the basis of with reference to the exercise of a the criteria in the afore-mentioned particular occupation but as regards the judgment whether the Belgian Law on Law on benefits for the handicapped aid to the handicapped must be included without any such reference. One cannot amongst the provisions having a double however deduce from this that the aid to function as described in the judgment. In handicapped persons is not an invalidity the first place one must bear in mind benefit, since the concept of invalidity that the Law — like that on the does not imply a particular method of guaranteed minimum earnings — does assessing the reduced capacity to work.
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