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 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. . 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 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 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 , 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 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 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 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 , 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 , 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. not on the one hand lay down periods of Thus the German pension law system occupational activity, periods of knows both the concept of membership or periods during which Berufsunfähigkeit (incapacity to carry on contributions were paid, but does on the one's occupation) (Article 1246 RVO) other hand require — in addition to and that of Erwerbsunfahigkeit invalidity — a certain degree of need. In (incapacity to earn) (Article 1247 RVO) this respect it shows characteristics of and the benefits in both cases will have welfare. On the other hand the law to be treated as invalidity benefits. shows characteristics of social security Let us now turn to the question whether by providing the handicapped person the Belgian Law comprises a system of with a legally defined position and by social assistance and whether therefore granting him a right that can be asserted under Article 4 (4) it falls outside the before the Labour Courts. The area of application of Regulation No assessment on its merits of each 1408/71. An argument in favour of this individual case — and that presumably view might be the fact that under the means the exercise by the authorities of Law the entitlement to benefit is discretionary powers — which, dependent upon the income of the according to your judgment in the Frilli handicapped person not exceeding a case, is the distinguishing characteristic specific amount; the Law is therefore of welfare, is not provided for here. It is

567 OPINION OF MR REISCHL — CASE 187/73 therefore reasonable to proceed on the referred to by the representative of the basis that the benefit for the Belgian State in his plea, nor maintenance handicapped must — at any rate to the payments which relatives are legally extent that they are employed persons or required to make. persons treated as such — be attributed Added to this is the fact that benefits to the field of social security within the under the Law of 9 August 1963 on meaning of Article 51 of the Treaty and compulsory insurance in cases of illness the implementing provisions relating and invalidity are not deducted from the thereto, such as Regulation No 1408/71, benefits. There is here a difference from since for those who receive an insufficent the Gesetz über das garantierte Einkom­ invalidity pension it fulfils the task of men (Law on guaranteed minimum improving such pension. Whether the income) pursuant to which the guaran­ law must be classified differently in teed income is reduced by benefits respect of other groups of handicapped received from 'Alterspflichtversicherung' might perhaps be left open. (compulsory old-age insurance). I should still like to emphasize that the Admittedly, the cumulative treatment of task of supplementing the system of payments of benefit and of compulsory social security must be looked at insurance is not possible to an unlimited objectively. This however means that the extent. Thus Article 231 of the Royal intention of the Belgian legislator, to Decree of 4 November 1963 (amended which the representative of the Belgian by the Royal Decrees of 16 December Government so emphatically drew our 1969 and 30 ) provides attention — that is to create a system of in relation to payments on account of social assistance — cannot be of decisive invalidity, that the basic amount of these significance. payments, increased by 25 % or 50 %, All this being said, it seems clear that the shall be reduced by the amount of the laws of a Member State of the kind ordinary or the supplementary benefit. involved in this case, must in the case of Thus, if one accumulates the insurance those employed persons from other and benefit payments, the handicapped Member States who in that State also person receives more than he would receive an invalidity pension, be receive from the compulsory insurance regarded as invalidity benefits. only. Here too, we have confirmation

Permit me however to undertake a that the benefits under the Belgian Law further examination in order to establish do not have the subsidiary characteristics of social assistance. still more securely that the Belgian Law does not comprise a purely social Allow me to make a further comment on assistance scheme. I share the opinion of the oral arguments on the part of the my colleague Mayras which he argued in representative of the Belgian Govern­ his opinion in the Frilli case, which is ment: he fears that applying the EEC of fundamental importance, to the effect Regulation to the Belgian Law on aid to that its subsidiary nature is one of the the handicapped would constitute an crucial features of social assistance overthrow, a 'bouleversement' as he (welfare). The Belgian Law does not called it, of the purpose of the Belgian however grant its benefits on a purely legislation. In saying this he probably subsidiary basis: pursuant to Article (5) hinted at that part of your Court's thereof, in conjunction with Article 25 judgment in the Frilli case, which states of the Arrêté Royal (Royal Decree) of that the protection for migrant workers 17. 11. 1969 there are not taken into that is possible under the Community account in assessing a person's own regulations must not lead to a position means, benefits received from the public where the system of relevant national welfare authority, that is to say from legislation is thereby overthrown the 'Commissions d'Assistance Publique' (bouleversé).

568 CALLEMEYN v BELGIUM

Members of the Court, going along with Allow me to give you my conclusions the representative of the Commission, I right away, for they are quite free from cannot see how this can happen because any doubt and all the pleadings a group of foreign workers — just like submitted to you as well as the referring their Belgian colleagues — receive, as the court agree in this respect: practical result, an increase in their The Interim Agreement, to which Article benefits from compulsory invalidity 7 (1) of Regulation No 1408/71 refers, insurance. As regards the possibility at must not be applied in such a manner as which the representative of the Belgian to have prejudicial effects for a worker Government hinted, that the Belgian who is a national of a Member State. State might find itself impeded in extending its social legislation to further This much already emerges from a groups of socially under-privileged comparison of the objects of the people, I can only say on this point that Regulation and of the Interim you here have to apply the law Agreement: whilst the former is within notwithstanding such financial consider­ its area of application, directed to the ations. coordination of national systems of social security, the latter in essence limits Besides, I have full confidence in the itself, in respect of certain kinds of Belgian legislative organs; they will not benefits, to guaranteeing, in the territory allow themselves to be pushed off their of each Contracting State, to nationals of course in furthering the construction of the other Contracting States, the same Belgian social legislation in the spirit of treatment as its own nationals (Art. 2) the Treaty of and the and, by a kind of most-favoured-nation development of a Community social clause, granting them treatment under policy. the most favourable social security agree­ On the question raised by the Italian ment concluded between any contracting Government whether the benefits under Status (Art. 3). Article 5 also shows that the Belgian law constitute social the Interim Agreement is only concerned advantages within the meaning of Article with prevention of discrimination: the 7 (2) of Regulation No 1612/68 (OJ Agreement does not therefore oppose 1968 No L 257), I consider that in national regulations or agreements that relation to social security benefits, are more advantageous to the Regulation No 1408/71 is the more beneficiaries. specific law, so that, just as in the Frilli By way of justification of the application case, there is no need to go into of Regulation No 1408/71 one might — Regulation No 1612/68. Still, I should be as was pointed out by the Italian inclined to accept that, if one did not Government and by the national court want the benefits under the Belgian law — adduce the reference in Article 5 of to come under Regulation No 1408/71, the Interim Agreement to more one would have to treat them in any favourable provisions and agreements. In event as social advantages within the my view this course does not however meaning of the Regulation on freedom seem tenable since Community of movement for workers. Regulations are neither national legal provisions nor international agreements. II — As regards the second question Besides, one would have to attribute to This raises the question of the the authors of the Regulation a most relationship between Regulation No peculiar legislative technique, were one 1408/71 and the European Interim to assume that in the fields Agreement signed on 11 December 1953 corresponding to those of the Interim in Paris on social security schemes in Agreement the Regulation only becomes respect of old age, invalidity and effective via such a reference back. survivors. The Commission's assumption that

569 OPINION OF MR REISCHL — CASE 187/73

Article 7 (1) is intended to make it clear notwithstanding, the following shall that Regulation No 1408/71 might apply continue to apply', to nationals of third countries via the it is not at any rate the intention that the equal-treatment clause of the Interim agreements mentioned in paragraph 1 Agreement, also does not seem quite shall take the place of the Regulation. convincing. Why should a Community Whether by the expression 'obligations' Regulation make a statement on the in paragraph 1 there are meant rights of individuals who are not subject obligations vis-à-vis third states that are to the regulatory power of the parties to the agreements, or vis-à-vis Community?. Admittedly the explanation their nationals, or possibly even vis-à-vis might lie in the history of the preceding nationals of Member States of the Regulation No 3 which in this respect Community, need not be decided. For agrees with Regulation No 1408/71, the even if the legal position of nationals of former having after all been conceived the Member States is referred to, it is before the coming into force of the already clear from the words 'this Treaty of Rome, as an agreement under Regulation shall not affect obligations international law between the members ...' that the reference to international of the Coal and Steel Community. agreements is not intended to have an I do not think that in the present case effect to the extent that the Regulation there is any need for a final classification gives rise to obligations on the part of of the relationship between Regulation the Member States, and therefore to No 1408/71 and the Interim Agreement. rights of employed persons and persons treated as such, which go beyond these As will be seen from a comparison of the agreements. terms used in Article 7 (1): This interpretation also corresponds to 'This Regulation shall not affect the basic purpose of Article 51 of the obligations arising from (the following EEC Treaty — repeatedly underlined by agreements) . . .' the Court — to create the most favourable conditions in order to and in Article 7 (2): provide freedom of movement for 'The provisions of Article 6 workers of the Community.

III — Finally, I would suggest the following replies to the questions submitted:

1. General legal provisions of a Member State that provide for financial benefits for handicapped persons, having their normal residence within the State concerned are to be treated as invalidity benefits under Article 4 (1) (b) of Regulation No 1408/71, insofar as they relate to workers within the meaning of Regulation No 1408/71 who are within that Member State in connexion with their invalidity entitled to benefits under a compulsory insurance against invalidity.

2. The European Interim Agreement on social security schemes in respect of old age, invalidity and survivors signed in Paris on 11 December 1953 is not to be applied where the provisions of Regulation No 1408/71 are more favourable for beneficiaries who are nationals of a Member State.

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