CELEX: 61991CJ0243
Social security
Benefits for handicapped persons
Personal right
Freedom of movement for workers
Social advantage

Grounds
1 By judgment of 9 September 1991, which was received at the Court on 20 September 1991, the Belgian Cour de Cassation referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 2 and 3 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).
2 The question arose in appeal proceedings brought by the Belgian State against a judgment of the Cour de Travail (Labour Court), Brussels, confirming Noushin Taghavi' s entitlement to handicapped persons' allowances pursuant to the Belgian Law of 27 June 1969.
3 Under that Law, the benefit of the allowances in question was reserved, subject to any derogation, to Belgians resident in Belgium.
4 Noushin Taghavi, an Iranian national, is married to Filippo Iannino, an Italian national. The couple reside in Belgium.
5 Taking the view that the dispute raised a problem relating to the interpretation of Regulation No 1408/71, the Cour de Cassation stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:
"Are Articles 2 and 3 of Regulation (EEC) No 1408/71 to be interpreted as meaning that the benefit of the national legislation of a Member State conferring a personal right, guaranteed by statute, to a handicapped person' s allowance may be enjoyed by a handicapped person who, although neither possessing the nationality of a Member State nor claiming the status of an employed person, is resident in the territory of the Member State providing for that personal right and is the spouse of an employed person who is subject to the legislation of that Member State but is a national of one of the other Member States?"
6 Reference is made to the Report of the Judge-Rapporteur for a fuller account of the relevant legislation, the background to the main proceedings, 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.
7 According to Article 2(1) of Regulation No 1408/71, its provisions apply to "employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States ... as well as to the members of their families and their survivors". As the Court held in its judgment in Case 40/76 Kermaschek v Bundesanstalt fuer Arbeit [1976] ECR 1669, under Regulation No 1408/71, members of a worker' s family can only claim derived rights, that is to say, rights acquired through their status as members of a worker' s family.
8 It appears from the case-file that the employed person' s allowance provided for by the Belgian Law of 27 June 1969 is not granted on account of a person' s status as member of a worker' s family. On the one hand, the national court described it as a personal right in the text of the question referred for a preliminary ruling. On the other hand, the Belgian State stated, in answer to a question from the Court, that a person fulfilling all the conditions laid down by the Law of 1969, except for the fact that he is not a national of a Member State of the Community, cannot claim the allowances merely because his spouse has Belgian nationality.
9 It follows that a national of a non-member country, who is the spouse of a national of a Member State, cannot rely on Regulation No 1408/71, in particular Articles 2 and 3 thereof, in order to claim a handicapped person' s allowance such as that provided for in the aforementioned Belgian Law.
10 However, the Commission argued in its observations submitted to the Court that the allowance in question is a "social advantage" within the meaning of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), and that a person in Noushin Taghavi' s position is therefore entitled to claim it.
11 Suffice it to say in this connection that, as noted above, a Belgian worker' s spouse who is not a national of a Member State of the Community cannot claim the allowance in question. Accordingly, since there is no "social advantage" for national workers, Article 7(2) of Regulation No 1612/68 cannot apply.
12 The answer to the national court' s question must therefore be that Articles 2 and 3 of Regulation No 1408/71 are to be interpreted as meaning that they cannot be relied on by a national of a non-member country, who is the spouse of a national of a Member State, in order to claim a handicapped person' s allowance which is provided for by national legislation as a personal right and not on account of membership of a worker' s family.
Decision on costs
Costs
13 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
Operative part
On those grounds,
THE COURT (First Chamber),
in answer to the question referred to it by the Belgian Cour de Cassation by judgment of 9 September 1991, hereby rules:
Articles 2 and 3 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, must be interpreted as meaning that they cannot be relied on by a national of a non-member country, who is the spouse of a national of a Member State, in order to claim a handicapped person' s allowance which is provided for by national legislation as a personal right and not on account of membership of a worker' s family.