Opinion of the Advocate General — ECLI:EU:C:2007:260
Date: 2007-05-03
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Action for annulment - successful

Summary of the Judgment 1. Actions for annulment – Time-limits – Claim barred by lapse of time (Art. 230, fifth para., EC) 2. Social security for migrant workers – Special non-contributory benefits – Definition (Council Regulation No 1408/71, as amended by Regulation No 647/2005, Art. 4(1)(a) and (2a)(a)) 1. It is clear from the actual wording of Article 230 EC, as from its aim which is to guarantee legal certainty, that a measure which has not been challenged within a period of two months of its publication or notification or, in the absence thereof, of the date on which it came to the applicant’s knowledge, becomes definitive. That definitive nature concerns not only the measure itself, but also any later measure which is merely confirmatory. That approach, which is justified by the requirement of legal stability, applies to individual measures as well as those which have a legislative character, such as a regulation. By contrast, where a provision in a regulation is amended, a fresh right of action arises, not only against that provision alone, but also against all the provisions which, even if not amended, form a whole with it. (see paras 28-30) 2. With regard to special benefits of a non-contributory nature, under Article 4(2a)(a)(ii) of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 647/2005, a benefit can be deemed to be special only if its purpose is solely that of specific protection for the disabled, closely linked to the social environment of those persons in the Member State concerned. Therefore, benefits which do not have that sole function, but are also intended to ensure the necessary care and the supervision of those persons, where it is essential, in their family or a specialised institution, cannot be classified as special benefits in the light of the said provision. Secondly, pursuant to Article 4(2a)(a)(i) of Regulation No 1408/71 as amended, a special benefit for the purposes of that provision is also defined by its purpose. It must either replace or supplement a social security benefit, while being distinguishable from it, and be by its nature social assistance justified on economic and social grounds and fixed by legislation setting objective criteria. By contrast, a benefit is regarded as a social security benefit where it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a statutorily defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. Thus, benefits granted objectively on the basis of a statutorily defined position and which are intended to improve the state of health and quality of life of persons reliant on care have as their essential purpose supplementing sickness insurance benefits and must be regarded as ‘sickness benefits’ for the purposes of Article 4(1)(a) of Regulation No 1408/71. (see paras 53-56, 61)