5.

The scope of the Community provision in question, as regards the persons covered, is based on the concepts of ‘worker’ and ‘member of the family’. The fact that social legislation was not specifically conceived for the benefit of workers as such and that it is valid for all nationals who do not have a sufficient income does not necessarily preclude the workers and members of their families from availing themselves of it on the same conditions as the nationals. Since the reference in Regulation No 1408/71 to the concept of a ‘worker’ did not prevent a migrant worker from acquiring the right to social security benefits which were not expressly conceived for workers, one must also reject the view that the reference in the same regulation to the concept of ‘members of the family’ of the worker prevents them from benefiting under the same social legislation — even if it does not include the concept of ‘members of the family’ — on an equal footing with the nationals of the host State under Article 3 (1) of the above-mentioned regulation. It moreover appears that such a conclusion is implied by the judgment in Case 39/74 (Costa) in which the Court stated that ‘national legislation giving a legally protected right to a benefit for the handicapped falls, as regards the person referred to by Regulation No 3, within the ambit of social security, within the meaning of Article 51 of the Treaty and of the Community regulations thereunder’; it is to be observed that in this matter the Court does not refer only to workers but employs a term which also includes members of their families. The basic prohibition against any discrimination amongst the workers of the Member States on the basis of nationality, which is set out in Article 48 of the EEC Treaty and repeated in Article 3 of Regulation No 1408/71 with regard also to the members of their families, is particularly treated in Regulation No 1612/68 of the Council on freedom of movement for workers within the Community; in its recitals the latter regulation refers expressly to the need to ensure in fact and in law the equality of treatment of the migrant worker in particular as regards the conditions for the integration of his family into the host country. This requirement, which is related to the worker's right to have his family join him, takes on particular significance if it is juxtaposed to the right accord to members of the worker's family to continue to reside in the State in which the spouse was employed, even after the termination of such employment (Regulation No 1251/70 of the Commission, OJ, Special Edition 1970, p. 402). To those considerations based on specific provisions of Community regulations there may also be added a general observation drawn directly from the Treaty, to which the Court has referred several times: in order to attain real freedom of movement for workers within the territory of the Community they must be accorded real equality of treatment with the nationals, at least in regard to economic matters and social benefits in particular. In this context it is not important, so as to preclude the extension to members of the families of workers of the right to benefits of the type referred to by the Belgian court and provided for by the national law for the benefit of handicapped children, that the legislation in question was not expressly conceived for workers as such and members of their families, but applies generally to the entire resident population. The employment of the criterion of nationality to distinguish the situation of migrant workers from those of nationals in a corresponding situation would plainly be contrary to the principles and provisions noted above. The entitlement of migrant workers to the said benefits was recognized by the Court when those benefits were considered as ‘supplementary means to persons entitled to insufficient ( 2 ) social security benefits who are permanently incapacitated from work’ (Judgment in Callemeyn [1974] ECR 553, para. 8; Judgment in Costa [1974] ECR 1251, para. 8; see also Judgment in Frilli, Rec. 1972, p. 457, ground of judgment No 15). The need to extend its cover to foreign workers and their families is evident precisely because the law relates solely to nationals, affording them all, consequently both handicapped persons directly and workers and their families, benefits which owing to their general nature did not require a specific provision that they constituted a supplement to social security forworkers. Consequently, where in a national legislation on social security of general application which does not as such take into consideration a present or past employer-employee relationship there may be discerned an intention to supplement other social security benefits considered insufficient, workers to whom Regulation No 1408/71 applies may benefit from such legislation. I must emphasize that the foundation of this body of case-law is the need to provide for the Community worker full equality of treatment with the nationals of the host country in all that pertains to benefits under social security legislation. This body of case-law has in substance gone beyond the criterion of the need for a specific connexion between the social benefit and the employer-employee relationship. The need for equality of treatment further manifests itself beyond the strict bounds of such a relationship. The migrant worker is not regarded by Community law — nor is he by the internal legal systems — as a mere source of labour but is viewed as a human being. In this context the Community legislature is not concerned solely to guarantee him the right to equal pay and social benefits in connexion with the employer-employee relationship, it also emphasized the need to eliminate obstacles to the mobility of the worker, inter alia with regard to the ‘conditions for the integration of his family into the host country’ (Regulation No 1612/68 of the Council, recital 5). In accordance with this general tendency of Community legislation and case-law, I am of the view that since there is nothing to the contrary in this connexion in the provisions in force, it must be recognized that a dependent handicapped child of a migrant worker is entitled to receive those social security benefits conferred by the legislation or the host country on all resident nationals with the same handicap. I consider it expedient to provide fuller explanations for the foregoing in connexion with the third question of the court making the reference.