3.

However, as the Commission has rightly emphasized, this reply would not amount to either an exhaustive or a satisfactory answer to the request for a preliminary ruling, since it is clear that the plaintiff in the national proceedings is not a worker within the meaning of the social security regulations of the Community and that she has never been gainfully employed. Accordingly, she will have to go into the further question whether, in the case of members of workers' families claiming benefits under the Belgian Law on allowances for the handicapped, nationality may be relevant, or whether Regulation No 3 and Regulation No 1612/68 exclude this factor even for members of the family. If in this connexion one first looks at the relevant case law of the Court then it cannot be denied that to the extent that it applies the Community Regulations to provisions of the kind involved in the Belgian Law on allowances for the handicapped, it looks at whether the beneficiaries are workers or former workers. As regards the concept ‘worker’, Article 1 (a) of Regulation No 1408/71 contains a definition. Of this definition, the only part relevant to the present case concerning the Belgian Law on allowances for the handicapped is the part of sub-paragraph (ii) whereby the test is whether the beneficiary ‘is insured for some contingency specified in Annex V under a scheme for employed persons, either compulsorily or on an optional continued basis’. This obviously does not apply to members of the worker's family since they only possess rights derived from the worker's insurance. If, therefore, one might regard the Belgian allowances for the handicapped as belonging to the field of social security and affected by the Community Regulations only to the extent that they grant benefits to workers or former workers, then the plaintiff in her capacity as a member of the family cannot derive any conditions as to equal treatment from the Regulations on social security. However, one still has to examine — since this has also been a point of discussion — whether in respect of members of the family as such, rights might not be derived from the Community Regulations on social security that are relevant to the present case. In this respect it is in the first place Article 4 of Regulation No 3 which is of importance, since it provides that ‘this Regulation shall apply to employed persons and persons treated as such who are or have been subject to the legislation of one or more of the Member States and are nationals of a Member State … as well as to members of their families and their survivors’. The concept ‘members of their families’ is defined in Article 1 (n) as follows: ‘Persons defined or recognized as such or designated as members of the household under the legislation of their country of permanent residence …’. Pursuant to Article 1 (b) the term ‘legislation’ shall mean ‘all laws, regulations and other enforceable provisions, present and future, of each member State relating to the social security schemes and branches of social security set out in Article 2 (1) and (2) of this Regulation’. As for the detailed meaning of these provisions, this is a point of dispute between the Commission of the European Communities and the plaintiff in the national proceedings. The plaintiff considers that it is sufficient for someone to be recognised as a member of the family by the social security provisions of a Member State as a whole, and that it does not matter whether such members of the family are entitled to rights that can be derived from the rights of a worker. The Commission on the other hand takes the view that what is crucial is that the rights should be derived from workers, i.e. that they should not be personal claims on the part of a member of the family, and that in the law in question in the individual case this derivation shall clearly be capable of being seen as having a social security character. I tend towards the Commission's view. Thus firstly, it certainly does not make sense to have regard to whether a person appears as a member of the family in some social security provision of the legislation of the Member State in question. For the rights of members of the family in the different branches of social security are possibly quite different and it is therefore doubtless necessary to examine whether there is a recognition as a member of the family in the particular field that is being examined. Furthermore it also seems appropriate to ask oneself the question whether it is a case of rights derived from workers, or of purely personal claims. As I see it, the very wording of Article 1 (n) of Regulation 3 points to this, since this provides that members of the family shall mean persons recognized as such, i.e. their entitlement to rights only arises on account of their being a member of the family, and thus their relationship to another person. In this context it is also interesting to note what has been said by the Commission in relation to events that resulted from the accession of the new Member States to the Community. The principle just outlined evidently at that time underwent a change with a view to taking into account the special systems of the new Member States. As has been demonstrated before the Court, the change was however limited to benefits which in the original Member States are the subject of derived rights. This is probably of importance not only for interpreting Regulation No 1408/71 but likewise for interpreting Regulation No 3, where such a change is lacking. Finally, one also ought not to overlook the fact that in relation to cases such as the present one, the court's case law has emphasized that such laws have a double function, that they also have social assistance characteristics. If, in an interpretation on this point that may to many have appeared somewhat daring, the Court nevertheless decided to class them with social security, insofar as they affect workers, then one can deduce from this that the last-mentioned concept provides the decisive factor. This too forces one in the present context to regard membership of the family as relevant only to the extent that rights derived from workers are involved. Since the Belgian Law on allowances for the handicapped obviously is the basis for purely personal claims on the part of the individual in relation to which residence is relevant, where derivation from the worker therefore plays no part, this leads one to conclude that for members of the family as such, no rights can be derived from the social security provisions of the Community, and thus no claim to be treated in the same manners as citizens of the relevant Member State. If under Regulations No 3 and No 1408/71 this is an appropriate view on the plaintiff's claim, it still remains for me, bearing in mind Regulation No 1612/68 on freedom of movement for workers within the Community, to add the following remarks. According to its recitals and its general Regulation No 1612/68 is designed for workers of one Member State who are employed in another Member State or who seek employment in that State. As regards members of their families — to the extent that they are relevant here — Article 10 of the Regulation refers to the spouse of a worker who possesses the nationality of a Member State and who is employed within the territory of another Member State. This in itself leads one to conclude that the plaintiff, who is not herself a worker and whose husband likewise does not fulfil the aforementioned conditions, cannot benefit from this Regulation. As regards the concept in article 7 of social advantages, there is the added fact that it was previously emphasized in the case law (Case 76/72, Michel S. v Fonds national de réclassement social des handicapés, Judgment of 11 April 1973, [1973] E.C.R. 473 that only those advantages are to be treated as social advantages which are connected with employment and which are granted to the workers themselves and not to members of their families. In support of this view one can point to the wording and the tenor of Regulation No 1612/68 as well as the position of Article 7 in Part I, Title II, which is headed ‘Employment and equality of treatment’. Besides, a further argument in favour is the first recital to the Regulation. Finally, one must admittedly concede that Regulation No 1612/68 also contains provisions as to members of the family. However, all that can be derived from these is a right to instal oneself (Article 10) and a right to work (Article 11), not however any more far-reaching claims on the part of the spouse. All this shows clearly that Regulation No 1612/68, too, cannot form the basis of a claim by spouses of workers to equal treatment in connexion with the grant of the Belgian allowances for the handicapped.