CELEX: 61982CJ0139
Social security
Social aid pension
Transfer

1 BY ORDER OF 14 JANUARY 1982 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 30 APRIL 1982 , THE CORTE DI CASSAZIONE ( COURT OF CASSATION ) REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF REGULATION ( EEC ) 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).
2 THE QUESTION IS SUBMITTED IN THE CONTEXT OF A DISPUTE BETWEEN MRS PISCITELLO AND THE ISTITUTO NAZIONALE DELLA PREVIDENZA SOCIALE ( NATIONAL SOCIAL WELFARE INSTITUTION , HEREINAFTER REFERRED TO AS ' ' THE INSTITUTION ' ' ).
3 MRS PISCITELLO , AN ITALIAN NATIONAL , RECEIVED AS FROM 1 JANUARY 1973 THE SOCIAL AID PENSION PROVIDED FOR IN ARTICLE 26 OF LAW NO 153 OF 30 APRIL 1969 . BY VIRTUE OF THAT PROVISION , THE SOCIAL AID PENSION IS PAID TO NATIONALS WHO ARE 65 YEARS OF AGE AND RESIDE WITHIN ITALIAN TERRITORY AND WHOSE ANNUAL INCOME ,     INCLUDING , IF THEY ARE MARRIED , THAT OF THEIR SPOUSE , IS BELOW THE AMOUNT PROVIDED FOR BY THE LAW .
4 ITALIAN LAW NO 153 OF 30 APRIL 1969 CONFERS ON THOSE PERSONS WHO SATISFY THE CONDITIONS LAID DOWN THEREIN RIGHTS WHICH ARE NOT CONDITIONAL UPON ANY DISCRETIONARY ASSESSMENT OF THEIR PERSONAL CIRCUMSTANCES OR LACK OF MEANS . THE SOCIAL AID PENSION IS AUTOMATICALLY GRANTED TO ALL ITALIAN NATIONALS AGED 65 WHO ARE NOT IN RECEIPT OF ANY OTHER SOCIAL SECURITY OR SOCIAL ASSISTANCE BENEFIT AND WHO , ON THE BASIS OF THEIR TAXABLE INCOME , DO NOT HAVE SUFFICIENT MEANS TO MEET THEIR VITAL NEEDS . FURTHERMORE , IF THE BENEFICIARY IS IN RECEIPT OF OTHER INCOME , THE AMOUNT OF THE SOCIAL AID PENSION IS REDUCED ACCORDINGLY .
5 BY DECISION OF THE INSTITUTION OF 26 JUNE 1976 , WHICH TOOK EFFECT AS FROM 1 APRIL 1975 , PAYMENT OF THE SOCIAL AID PENSION TO MRS PISCITELLO WAS DISCONTINUED ON THE GROUND THAT SINCE ON THE LATTER DATE SHE HAD TRANSFERRED HER RESIDENCE TO BELGIUM IN ORDER TO LIVE WITH A MEMBER OF HER FAMILY SHE NO LONGER FULFILLED ALL THE CONDITIONS LAID DOWN BY ARTICLE 26 OF THE ABOVE-MENTIONED LAW .
6 MRS PISCITELLO CHALLENGED THAT DECISION BEFORE THE PRETURA ( MAGISTRATE ' S COURT ), ENNA , AND SUBSEQUENTLY APPEALED TO THE TRIBUNALE DI ENNA ( DISTRICT COURT , ENNA ) AND TO THE CORTE DI CASSAZIONE , WHICH REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
' ' IN VIEW OF THE ' WAIVING OF RESIDENCE CLAUSES '  PROVIDED FOR IN ARTICLE 10 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 , MUST THE PROVISIONS OF ARTICLE 26 OF LAW NO 153 OF 30 APRIL 1969 TO THE EFFECT THAT THE GRANT AND ENJOYMENT OF THE SOCIAL AID PENSION PROVIDED FOR IN THAT ARTICLE ARE CONDITIONAL UPON AN ITALIAN NATIONAL ' S RESIDENCE WITHIN THE NATIONAL TERRITORY BE CONSIDERED AS ABROGATED AND THEREFORE MAY THAT PENSION BE SUSPENDED OR WITHDRAWN BY REASON OF THE FACT THAT THE RECIPIENT TRANSFERS HIS RESIDENCE TO THE TERRITORY OF ANOTHER MEMBER STATE , REGARD BEING HAD TO THE FACT THAT , ON THE ONE HAND , THE PENSION IS GRANTED BY WAY OF ASSISTANCE ( SEE JUDGMENT NO 157 OF THE CORTE COSTITUZIONALE ( CONSTITUTIONAL COURT ) OF 15 DECEMBER 1980 ) AND , ON THE OTHER HAND , THAT IT IS CLASSIFIABLE AS AN OLD-AGE BENEFIT , ACCOUNT ALSO BEING TAKEN OF THE PROVISIONS OF ARTICLE 4 ( 1 ) OF REGULATION NO 1408/71 OF THE COUNCIL ACCORDING TO WHICH THAT REGULATION ' SHALL APPLY TO ALL LEGISLATION CONCERNING THE FOLLOWING BRANCHES OF SOCIAL SECURITY : . . . OLD-AGE BENEFITS ' ?
' '
7 AS IS CLEAR FROM ITS WORDING , THE QUESTION SUBMITTED BY THE CORTE DI CASSAZIONE SEEKS TO ASCERTAIN , IN THE FIRST PLACE , WHETHER A BENEFIT SUCH AS THE ITALIAN SOCIAL AID PENSION FALLS WITHIN THE SUBSTANTIVE FIELD OF APPLICATION OF REGULATION NO 1408/71 AND , SECONDLY , WHETHER THE WAIVER OF RESIDENCE CLAUSES PROVIDED FOR IN ARTICLE 10 ( 1 ) OF THAT REGULATION APPLIES TO THAT BENEFIT .
FIRST POINT
8 BY VIRTUE OF ARTICLE 4 ( 1 ) ( C ) AND ARTICLE 4 ( 2 ) OF REGULATION NO 1408/71 , THE REGULATION IS TO APPLY TO ALL LEGISLATION CONCERNING THE BRANCHES OF SOCIAL SECURITY WHICH RELATE TO OLD-AGE BENEFITS , WHETHER THE SCHEMES ESTABLISHED UNDER SUCH LEGISLATION ARE CONTRIBUTORY OR NON-CONTRIBUTORY . ARTICLE 1 ( T ) OF THE REGULATION PROVIDES THAT THE TERM ' ' BENEFITS ' '  MEANS ALL BENEFITS GRANTED UNDER NATIONAL LEGISLATION ' ' INCLUDING ALL ELEMENTS THEREOF PAYABLE OUT OF PUBLIC FUNDS ' ' . ARTICLE 4 ( 4 ) PROVIDES THAT THE REGULATION DOES NOT APPLY TO ' ' SOCIAL AND MEDICAL ASSISTANCE ' ' .
9 IN ITS ORDER MAKING THE REFERENCE , THE CORTE DI CASSAZIONE OBSERVES THAT ACCORDING TO JUDGMENT NO 157 OF 15 DECEMBER 1980 OF THE CORTE COSTITUZIONALE , THE SOCIAL AID PENSION PROVIDED FOR BY LAW NO 153 OF 30 APRIL 1969 IS GRANTED , UNDER ITALIAN LAW , BY WAY OF ASSISTANCE . THAT FACT , HOWEVER , AS THE CORTE DI CASSAZIONE ITSELF POINTS OUT , IS NOT IN ITSELF SUFFICIENT TO EXCLUDE THAT BENEFIT , UNDER COMMUNITY LAW , FROM THE FIELD OF APPLICATION RATIONE MATERIAE OF REGULATION NO 1408/71 .
10 AS THE COURT HELD IN ITS JUDGMENT OF 6 JULY 1978 IN CASE 9/78 GILLARD ( 1978 ) ECR 1661 , THE DISTINCTION BETWEEN BENEFITS WHICH ARE EXCLUDED FROM THE SCOPE OF REGULATION NO 1408/71 AND BENEFITS WHICH COME WITHIN IT RESTS ENTIRELY ON THE FACTORS RELATING TO EACH BENEFIT , IN PARTICULAR ITS PURPOSE AND THE CONDITIONS FOR ITS GRANT .
11 IT MUST BE OBSERVED , IN THE FIRST PLACE , THAT ALTHOUGH BY VIRTUE OF CERTAIN OF ITS FEATURES LEGISLATION SUCH AS ITALIAN LAW NO 153 OF 30 APRIL 1969 HAS SOMETHING IN COMMON WITH SOCIAL ASSISTANCE LEGISLATION - PARTICULARLY IN VIEW OF THE FACT THAT THAT LAW ADOPTS LACK OF MEANS AS THE FUNDAMENTAL CRITERION FOR ITS APPLICATION AND DOES NOT PRESCRIBE ANY REQUIREMENTS AS TO     PERIODS OF EMPLOYMENT , AFFILIATION OR INSURANCE - IT IS NONE THE LESS RELATED TO SOCIAL SECURITY IN VIEW OF THE FACT THAT , WHILST NO PROVISION IS MADE FOR INDIVIDUAL ASSESSMENT , WHICH IS A FEATURE OF SOCIAL ASSISTANCE , IT CONFERS A LEGALLY DEFINED STATUS ON RECIPIENTS ENTITLING THEM TO A BENEFIT ANALOGOUS TO THE OLD-AGE BENEFITS REFERRED TO IN ARTICLE 4 OF REGULATION NO 1408/71 .
12 IT MUST BE OBSERVED , IN THE SECOND PLACE , THAT IN VIEW OF THE BROAD TERMS IN WHICH THE BENEFICIARIES ARE DEFINED , SUCH LEGISLATION IN FACT FULFILS A DUAL PURPOSE WHICH CONSISTS NOT ONLY IN GUARANTEEING A MINIMUM MEANS OF SUBSISTENCE TO PERSONS WHO ARE ENTIRELY OUTSIDE THE SOCIAL SECURITY SYSTEM BUT ALSO IN SUPPLEMENTING THE INCOME OF RECIPIENTS OF INADEQUATE SOCIAL SECURITY BENEFITS .
13 IN THOSE CIRCUMSTANCES , IT MUST BE RECOGNIZED THAT A BENEFIT SUCH AS THE SOCIAL AID PENSION PROVIDED FOR IN ARTICLE 26 OF ITALIAN LAW NO 153 OF 30 APRIL 1969 WHICH , IN THE FIRST PLACE , CONFERS ON THE RECIPIENTS THEREOF A LEGALLY DEFINED STATUS , WHICH IS NOT CONDITIONAL UPON ANY DISCRETIONARY INDIVIDUAL ASSESSMENT OF THEIR PERSONAL NEEDS OR CIRCUMSTANCES , AND , SECONDLY , MAY BE PAID AS A SUPPLEMENT TO THE INCOME OF RECIPIENTS OF SOCIAL SECURITY BENEFITS , IN PRINCIPLE FALLS WITHIN THE FIELD OF SOCIAL SECURITY REFERRED TO IN ARTICLE 51 OF THE EEC TREATY AND IS NOT EXCLUDED FROM THE SCOPE OF REGULATION NO 1408/71 BY THE PROVISIONS OF ARTICLE 4 ( 4 ) THEREOF .
SECOND POINT
14 THE FIRST PARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 PROVIDES AS FOLLOWS :
' ' 1 . SAVE AS OTHERWISE PROVIDED IN THIS REGULATION , INVALIDITY , OLD-AGE OR SURVIVORS '  CASH BENEFITS , PENSIONS FOR ACCIDENTS AT WORK OR OCCUPATIONAL DISEASES AND DEATH GRANTS ACQUIRED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES SHALL NOT BE SUBJECT TO ANY REDUCTION , MODIFICATION , SUSPENSION , WITHDRAWAL OR CONFISCATION 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 . ' '
15 THE AIM OF THAT PROVISION IS TO PROMOTE FREEDOM OF MOVEMENT FOR WORKERS AND MEMBERS OF THEIR FAMILIES BY PROTECTING THEM AGAINST ANY ADVERSE CONSEQUENCES WHICH MIGHT ARISE AS A RESULT OF THE TRANSFER OF THEIR RESIDENCE     FROM ONE MEMBER STATE TO ANOTHER . THAT PROVISION THEREFORE SEEKS TO ENSURE THAT SUCH PERSONS RETAIN THEIR RIGHT TO BENEFITS , PENSIONS AND ALLOWANCES TO WHICH THEY ARE ENTITLED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES IF THEY RESIDE IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED .
16 IT IS CLEAR FROM THE PRECEDING OBSERVATIONS THAT A PENSION OF THE KIND PROVIDED FOR IN ARTICLE 26 OF THE ABOVE-MENTIONED ITALIAN LAW IS PAID IN ACCORDANCE WITH THE CONDITIONS AND ON THE BASIS OF OBJECTIVE CRITERIA LAID DOWN BY THAT LAW TO ELDERLY NATIONALS IN ORDER TO PROVIDE THEM WITH MINIMUM MEANS OF SUBSISTENCE . SUCH A PENSION MUST THEREFORE BE ASSIMILATED TO AN OLD-AGE BENEFIT WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( C ) OF REGULATION NO 1408/71 . CONSEQUENTLY , IT IS INCLUDED AMONGST THE BENEFITS REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 . SINCE REGULATION NO 1408/71 DOES NOT CONTAIN ANY SPECIFIC PROVISIONS RELATING TO THAT PENSION , IT MUST BE RECOGNIZED THAT THE WAIVER OF RESIDENCE CLAUSES PROVIDED FOR IN ARTICLE 10 ( 1 ) OF THAT REGULATION APPLIES TO THE BENEFIT IN QUESTION .
17 IN THE LIGHT OF THE FOREGOING CONSIDERATIONS , THE QUESTION RAISED BY THE CORTE DI CASSAZIONE MUST BE ANSWERED AS FOLLOWS :
1 . A BENEFIT SUCH AS THE SOCIAL AID PENSION PROVIDED FOR IN ARTICLE 26 OF ITALIAN LAW NO 153 OF 30 APRIL 1969 WHICH , IN THE FIRST PLACE , CONFERS ON RECIPIENTS A LEGALLY DEFINED STATUS WHICH IS NOT CONDITIONAL UPON ANY DISCRETIONARY INDIVIDUAL ASSESSMENT OF THEIR PERSONAL NEEDS OR CIRCUMSTANCES , AND , SECONDLY , MAY BE PAID AS A SUPPLEMENT TO THE INCOME OF RECIPIENTS OF SOCIAL SECURITY BENEFITS , IN PRINCIPLE FALLS WITHIN THE FIELD OF SOCIAL SECURITY REFERRED TO IN ARTICLE 51 OF THE EEC TREATY AND IS NOT EXCLUDED FROM THE SCOPE OF REGULATION NO 1408/71 BY THE PROVISIONS OF ARTICLE 4 ( 4 ) THEREOF .
2.A PENSION OF THE KIND PROVIDED FOR IN ARTICLE 26 OF THE ABOVE-MENTIONED ITALIAN LAW IS PAID IN ACCORDANCE WITH THE CONDITIONS AND ON THE BASIS OF OBJECTIVE CRITERIA LAID DOWN BY THAT LAW TO ELDERLY NATIONALS IN ORDER TO PROVIDE THEM WITH MINIMUM MEANS OF SUBSISTENCE . SUCH A PENSION MUST THEREFORE BE ASSIMILATED TO AN OLD-AGE BENEFIT WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( C ) OF REGULATION NO 1408/71 . CONSEQUENTLY , IT IS INCLUDED AMONGST THE BENEFITS REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 . SINCE REGULATION NO 1408/71 DOES NOT     CONTAIN ANY SPECIFIC PROVISIONS RELATING TO THAT PENSION , IT MUST BE RECOGNIZED THAT THE WAIVER OF RESIDENCE CLAUSES PROVIDED FOR IN ARTICLE 10 ( 1 ) OF THAT REGULATION APPLIES TO THE BENEFIT IN QUESTION .
Decision on costs
COSTS
18 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT , THE UNITED KINGDOM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF 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 ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE CORTE DI CASSAZIONE BY ORDER OF 14 JANUARY 1982 , HEREBY RULES :
1 . A BENEFIT SUCH AS THE SOCIAL AID PENSIONS PROVIDED FOR IN ARTICLE 26 OF ITALIAN LAW NO 153 OF 30 APRIL 1969 WHICH , IN THE FIRST PLACE , CONFERS ON RECIPIENTS A LEGALLY DEFINED STATUS WHICH IS NOT CONDITIONAL UPON ANY DISCRETIONARY INDIVIDUAL ASSESSMENT OF THEIR PERSONAL NEEDS OR CIRCUMSTANCES , AND , SECONDLY , MAY BE PAID AS A SUPPLEMENT TO THE INCOME OF RECIPIENTS OF SOCIAL SECURITY BENEFITS , IN PRINCIPLE FALLS WITHIN THE FIELD OF SOCIAL SECURITY REFERRED TO IN ARTICLE 51 OF THE EEC TREATY AND IS NOT EXCLUDED FROM THE SCOPE OF REGULATION NO 1408/71 BY THE PROVISIONS OF ARTICLE 4 ( 4 ) THEREOF .
2.A BENEFIT OF THE KIND PROVIDED FOR IN ARTICLE 26 OF THE ABOVE-MENTIONED ITALIAN LAW IS PAID IN ACCORDANCE WITH THE CONDITIONS AND ON THE BASIS OF OBJECTIVE CRITERIA LAID DOWN BY THAT LAW TO ELDERLY NATIONALS IN ORDER TO PROVIDE THEM WITH MINIMUM MEANS OF SUBSISTENCE . SUCH A PENSION MUST THEREFORE BE ASSIMILATED TO AN OLD-AGE BENEFIT WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( C ) OF REGULATION NO 1408/71 . CONSEQUENTLY , IT IS INCLUDED AMONGST THE BENEFITS REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION     NO 1408/71 . SINCE REGULATION NO 1408/71 DOES NOT CONTAIN ANY SPECIFIC PROVISIONS RELATING TO THAT PENSION , IT MUST BE RECOGNIZED THAT THE WAIVER OF RESIDENCE CLAUSES PROVIDED FOR IN ARTICLE 10 ( 1 ) OF THAT REGULATION APPLIES TO THE BENEFIT IN QUESTION .