Avis juridique important

Judgment of the Court (Fifth Chamber) of 2 August 1993. - Genaro Acciardi v Commissie Beroepszaken Administratieve Geschillen in de Provincie Noord-Holland. - Reference for a preliminary ruling: Raad van State - Netherlands. - Social security - Scope of Regulation Nº 1408/71 - Social advantage. - Case C-66/92. European Court reports 1993 Page I-04567

Summary Parties Grounds Decision on costs Operative part

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1. Social security for migrant workers ° Community regulations ° Scope ratione materiae ° Benefits covered and benefits excluded ° Distinguishing criteria ° Benefit awarded, on the basis of objective and legally defined criteria, to unemployed persons who are elderly or suffering from partial incapacity for work ° Inclusion ° Non-contributory benefit ° Not relevant

(Council Regulation No 1408/71, Art. 4(2))

2. 2. Social security for migrant workers ° Unemployment ° Calculation of benefits ° National legislation varying the amount of benefit according to family situation ° Account to be taken of family members living in another Member State

(Council Regulation No 1408/71, Art. 68(2))

1. The distinction between benefits excluded from the scope of Regulation No 1408/71 and benefits which come within it is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for granting it, and not on whether it is classified as a social security benefit by national legislation.

A benefit may be regarded as an unemployment benefit within the meaning of Regulation No 1408/71 where it is granted ° without any individual and discretionary assessment of personal needs ° on the basis of a legally defined position, solely to unemployed persons who are elderly or suffering from partial incapacity for work and, where applicable, to their spouses, and where it takes the place of public unemployment benefit, is paid only until the person concerned reaches the statutory retirement age and only if he is available for employment.

The fact that such a scheme is financed by the public authorities is irrelevant because Article 4(2) of the regulation provides that the regulation applies to non-contributory schemes.

2. 2. Pursuant to the first sentence of Article 68(2) of Regulation No 1408/71, the competent institution of a Member State whose legislation provides that the amount of unemployment benefits varies with the number of members of the family must also take into account, for the calculation of benefits, members of the family of the person concerned who are residing in the territory of another Member State as though they were residing in the territory of the competent State. If the amount of an unemployment benefit provided for by national legislation may vary according to the family situation of the person concerned, the national legislation in question comes within the scope of that provision, irrespective of the methods of calculation used. Subject to the case described in the second sentence of Article 68(2), that provision precludes benefits granted to a national of another Member State from being calculated without taking account of his spouse who lives in another Member State.

In Case C-66/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Raad van State of the Netherlands for a preliminary ruling in the proceedings pending before that court between

Genaro Acciardi

and

Commissie Beroepszaken Administratieve Geschillen in de Provincie Noord-Holland,

on the interpretation of Articles 4 and 68 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and on the general principle of Community law of non-discrimination on grounds of nationality,

THE COURT (Fifth Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Chamber, R. Joliet, J.C. Moitinho de Almeida, F. Grévisse and D.A.O. Edward, Judges,

Advocate General: C.O. Lenz,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° G. Acciardi, by C.A.J. de Roy van Zuydewijn, of the Amsterdam Bar,

° the Netherlands Government, by T.P. Hofstee, Deputy Secretary General at the Ministry of Foreign Affairs, acting as Agent,

° the Commission of the European Communities, by D. Gouloussis, Legal Adviser, and B. Smulders, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Acciardi, the Netherlands Government, represented by T. Heukels, Assistant Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, and the Commission of the European Communities at the hearing on 1 April 1993,

after hearing the Opinion of the Advocate General at the sitting on 6 May 1993,

gives the following

Judgment

1 By order of 28 February 1992, received by the Court on 4 March 1992, the Raad van State (Council of State) of the Netherlands referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty questions concerning the interpretation of Articles 4 and 68 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and concerning the general principle of Community law of non-discrimination on grounds of nationality.

2 The questions arose in the course of proceedings between Mr Acciardi and the Commissie Beroepszaken Administratieve Geschillen in de provincie Noord-Holland ("the defendant") in relation to the calculation of a benefit provided for by the Wet inkomensvoorziening oudere en gedeeltelijk arbeidsongeschikte werkloze werknemers (Netherlands Law on the Provision of Income for Unemployed Workers who are Elderly or suffering from Partial Incapacity to Work, "the IOAW").

3 The documents before the Court show that Mr Acciardi is an Italian national who lived in the Netherlands at the time of the events in question. He was in employment there, whereas his wife and son lived in Italy, but in July 1985 he became unemployed in the Netherlands. For two years from July 1985 to July 1987 he received benefits under the Wet werkloosheidsvoorziening (Netherlands Law on Public Unemployment Benefits, "the WW").

4 By a decision of 5 February 1988, Mr Acciardi was granted a benefit under the IOAW from the date on which benefits under the WW ceased.

5 Article 9 of the IOAW lays down that the benefit payable under that law is equal to the difference between the applicable basic amount and the income of the person concerned and, where applicable, that of his spouse. Article 4(2) provides that the unemployed worker and his spouse have equal rights to the benefit, half of which is paid to each of them. Pursuant to paragraph 3 of the same article, half of the applicable basic amount is equal to half of the net minimum wage for an unemployed worker and his wife, whereas for a single unemployed worker the basic amount is equal to 90% or 70% of the net minimum wage, depending on whether he has children. Pursuant to Article 5 of the IOAW, if the spouse of an unemployed worker lives outside the Netherlands, the unemployed worker is deemed to be a single person.

6 On the basis of Article 5 the defendant classified Mr Acciardi as a single person without children on the grounds that his wife and son lived outside the Netherlands.

7 Mr Acciardi took the view that he should receive benefits at the rate for a married couple. His objection to the abovementioned decision was ruled unfounded by the Mayor and Council of Amsterdam by decision of 16 September 1988. As the action which he brought against this decision was dismissed by a decision of the provincial councillors of 26 June 1989, he appealed to the Raad van State (Council of State).

8 In these circumstances the latter court decided, by judgment of 28 February 1992, to stay the proceedings pending a ruling by the Court of Justice on the following questions:

"1. Must Article 4(1) of Regulation (EEC) No 1408/71, which provides that that regulation applies to certain branches of social security, be interpreted as meaning that a scheme such as that contained in the IOAW, which has characteristics both of social security and of social assistance, falls within the scope of that regulation?

2. If so, must Article 68(2) of Regulation (EEC) No 1408/71 be interpreted as preventing a Member State from maintaining a legislative provision under which the benefit of a Community national residing in the Netherlands who is to be regarded as being an unemployed worker for the purposes of the IOAW and whose spouse lives in another Member State or resides there other than on a temporary basis, is determined without taking the spouse into account?

3. If the reply to the first question is in the negative, does the prohibition of discrimination on grounds of nationality laid down in Community law preclude the application of a legislative provision under which the benefit of a Community national residing in the Netherlands who is to be regarded as being an unemployed worker for the purposes of the IOAW and whose spouse lives in another Member State or resides there other than on a temporary basis, is determined without taking the spouse into account?"

9 Reference is made to the Report for the Hearing for a fuller account of the facts, the Community provisions at issue, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

First question

10 In its first question, the national court essentially seeks to ascertain whether a regulation such as the IOAW falls within the scope of Regulation No 1408/71.

11 Article 4(1) of Regulation No 1408/71 provides that the regulation applies to all legislation concerning the branches of social security which are listed, including in particular invalidity benefits and unemployment benefits. Pursuant to paragraph 4 of the same article, however, the regulation does not apply to social and medical assistance. Article 5 of the regulation lays down that Member States are to specify the legislation referred to in Article 4(1) in declarations notified and published in accordance with Article 97 of the regulation.

12 It is common ground that the IOAW is not specified in the declaration notified by the Netherlands in accordance with Articles 5 and 97 of Regulation No 1408/71.

13 However, according to the case-law of the Court, the fact that a national law or regulation has not been specified in the declarations referred to in Article 5 of the regulation is not of itself proof that that law or regulation does not fall within the field of application of the said regulation (see in particular Case 35/77 Beerens Rijksdienst voor Arbeidsvoorziening [1977] ECR 2249, paragraph 9). The Court has often stated that the distinction between benefits excluded from the scope of Regulation No 1408/71 and benefits which come within it is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation (see in particular Case 111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 28, and Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn, Kalmthout [1985] ECR 973, paragraph 11).

16 As to the second condition, it must be observed firstly that, under Article 4 of the IOAW, the entitlement to the benefit provided for by this law is limited to unemployed workers and, where applicable, their spouses. Secondly, the entitlement ceases once the person concerned reaches the statutory retirement age of 65. Thirdly, for a person in the situation of the plaintiff in the main proceedings, entitlement to a benefit under the IOAW arises immediately after the benefit under the WW. Fourthly, pursuant to Article 26 of the IOAW, an unemployed worker is without exception entitled to benefit only if he satisfies certain conditions aimed at his re-integration into working life, namely that he registers as a job-seeker with the employment agency, seeks paid employment so far as he is able and accepts a suitable job.

19 The reply to the first question from the national court must therefore be that a benefit like that provided for by legislation such as the IOAW constitutes an unemployment benefit and is therefore covered by Regulation No 1408/71.

Second question

20 In its second question the national court seeks to establish whether a provision such as that of the IOAW under which benefits for a Community national are calculated without taking account of his spouse who lives in another Member State is contrary to Article 68(2) of Regulation No 1408/71.

21 The first sentence of Article 68(2) of the regulation lays down that "the competent institution of a Member State whose legislation provides that the amount of benefits varies with the number of members of the family, shall take into account also members of the family of the person concerned who are residing in the territory of another Member State, as though they were residing in the territory of the competent State".

27 The reply to the second question from the national court must therefore be that, subject to the second sentence of Article 68(2) of Regulation No 1408/71, a provision such as that of the IOAW under which the benefits granted to a national of another Member State are calculated without taking account of his spouse who lives in another Member State is contrary to the first sentence of Article 68(2) of that regulation.

Third question

28 In view of the replies to the national court' s first and second questions, the third question does not call for an answer.

Costs

29 The costs incurred by the Netherlands Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Fifth Chamber),

in answer to the questions referred to it by the Raad van State, by judgment of 28 February 1992, hereby rules:

1. A benefit like that provided for by legislation such as the Wet inkomensvoorziening oudere en gedeeltelijk arbeidsongeschikte werkloze werknemers (Netherlands Law on the Provision of Income for Unemployed Workers who are Elderly or suffering from Partial Incapacity to Work) constitutes an unemployment benefit and is therefore covered by Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and by the general principle of Community law of non-discrimination on grounds of nationality.

2. Subject to the second sentence of Article 68(2) of Regulation No 1408/71, a provision such as that of the Wet inkomensvoorziening oudere en gedeeltelijk arbeidsongeschikte werkloze werknemers under which the benefits granted to a national of another Member State are calculated without taking account of his spouse who lives in another Member State is contrary to the first sentence of Article 68(2) of that regulation.