8.

I shall now tackle the specific problem referred to directly in the question submitted by the Corte di Cassazione for a preliminary ruling. The question, as we know, seeks to ascertain the scope of Article 10(1) of Regulation No 1408/71 concerning the waiver of residence clauses and the associated right to receive payment abroad of national benefits which display the characteristics of the Italian social aid pension. It should be remembered that, pursuant to that provision, “... invalidity, old-age or survivor's cash benefits ... 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”. On the assumption that the views which I have expressed in paragraphs 4, 5 and 6 concerning the range of matters covered by Regulation No 1408/71 are correct — in other words, if the Italian social aid pension constitutes a noncontributory benefit analogous to an old-age pension — the residence clauses relating thereto must be regarded as inoperative. However, there is a difficulty. In its judgment of 9 October 1974 in Case 24/74 Biason, the Court gave a ruling on a similar provision (I refer to Article 10 of Regulation No 3/58 which is virtually identical to the corresponding provision in Regulation No 1408/71) to the effect that an allowance supplementary to an invalidity pension is payable abroad. The social aid pension, however, is not supplementary to any other social security benefit. On the contrary, as I have stated, recipients of benefits which exceed the amount of the pension do not qualify for it. Does that mean that my assumption is wrong and that only supplementary benefits are payable abroad? That view cannot really be deduced from the Court's judgment. None the less, it is held by both the Italian and United Kingdom Governments. Whilst the Italian Government has not advanced any arguments in support of that view, the United Kingdom draws attention to the disruption which would be created in national systems if it were possible for benefits such as the Italian social aid pension to be paid abroad. At present, no Community machinery exists for assessing income which may be received in other Member States or for sharing the costs involved amongst the departments concerned. However, I am not swayed by that argument and not only because adducere inconvénient non est solvere argumentum. There is, admittedly, a drawback which is by no means negligible. The failure to harmonize procedures for assessing income and the lack of cooperation between the administrative authorities of the Member States in that sector lead to regrettable and often serious consequences. It must be stated, however, that those consequences can be mitigated by appropriate national measures. A specific illustration is provided by the Italian social aid pension. The claimant must notify the Institution of any variations in income which might affect his right to, or the amount of, the benefit and the obligation to do so is enforced by penalties of a financial nature. Thus, Article 26 (8) of Law No 153 of 30 April 1969 provides that “Any person who seeks by fraudulent means to secure payment either to himself or to another person of a pension to which he or such other person is not entitled shall pay a sum equal to twice the amount improperly received, which shall be paid to the Fondo Sociale”. Apart from that consideration, however, a decisive argument is that the general principles of Community law on freedom of movement for persons militate against the restrictive interpretation adopted by the United Kingdom and Italian Governments. Article 51 of the EEC Treaty provides that “The Council shall ... adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants [amongst other things] ... (b) payment of benefits to persons resident in the territories of Member States”. It is perfectly clear that, if the view is taken that only supplementary benefits are payable abroad, there will be an adverse impact on the payment of social security benefits throughout the territory of the Community, regardless of the country in which the recipient resides. Worse still, the movement of persons will be indirectly hindered because, for example, a migrant worker might be induced to leave the Member State in which he is established and has found employment precisely because he wishes or needs to ensure that a member of his family will continue to receive a social security benefit (for a similar case, see the views expressed by the Court in its judgment of 16 December 1976 in Case 63/76 Inzirillo [1976] ECR 2057, paragraphs 15 to 17 of the decision). Finally, whilst acknowledging the importance of the grounds put forward by the United Kingdom, I believe that the conclusion to which I have come regarding the validity of the residence clauses must stand. In spite of the fact that it is not supplementary to other benefits, a national benefit such as the Italian social aid pension may be paid to the recipient anywhere within the common market.