OPINION OF MR ADVOCATE-GENERAL REISCHL

DELIVERED ON 18 JUNE 1975 ( 1 )

Mr President,

Members of the Court,

Mr Anselmetti, the plaintiff in the proceedings which have given rise to the reference with which I have to deal today is an Italian national. From 1958 onwards he worked in Belgium, apparently as a miner, and resided in that Member State together with his family. In December 1963 Mr Anselmetti became ill; since then he has been recognized as unfit for work. He therefore receives an invalidity allowance under the provisions of Belgian law into which I will go in more detail later.

In addition he draws a family allowance under Belgian law, and this is the main issue in the present case. At first it was only at the basic rate but after a certain time the increased rate was applied. This continued until November 1965 when Mr Anselmetti returned with his family to Italy where he now has his permanent residence. From this time on the Belgian family allowance was once again paid at the basic rate. This was done in accordance with Article 40 of Regulation No 3 concerning social security for migrant workers which provides:

‘A wage-earner who … has children who are permanently resident or are being brought up in the territory of another Member State, shall be entitled, in respect of such children, to family allowances according to the provisions of the legislation of the former State, up to the amount of the allowances granted under the legislation of the latter State’.

The increased rate was not re-applied until 1 October 1972, the date on which Regulation No 1408/71 (OJ L 149 of 5.7.1971; OJ (English Special Edition) 1971 (II), p. 416) entered into force in place of Regulation No 3, apparently in accordance with the spirit of this regulation. As Mr Anselmetti was not satisfied with the temporary reduction in his family allowance he brought an action before the Tribunal du Travail (District Labour Court), Charleroi, and when this was rejected, he appealed to the Cour du Travail (Labour Court of Appeal), Brussels.

The plaintiff is of the opinion that Article 40 of Regulation No 3 was wrongly applied to him. He claims that in fact this provision only applies to actively employed workers and that in addition he can rely on Article 10 of Regulation No 3 which prohibits discrimination by reason of the place of residence of a migrant worker.

The defendant on the other hand believes that Article 40 was correctly applied. Periods of invalidity, it contends, are counted as periods of activity, and the invalidity benefits are only allowances which can be revoked if the incapacity for work no longer reaches a certain level. Article 42 however, which provides that a person entiled to a pension under the legislation of one Member State only who lives in the territory of another Member State is entitled to the family allowances under the legislation of the country liable for payment of the pension, as though he were permanently resident in that country, can only be applied when the pensions are of a permanent nature.

At the request of the plaintiff, the court hearing the case stayed the proceedings by order of 20 December 1974 and referred the following questions for a preliminary ruling under Article 177 of the EEC Treaty:

1. Do Articles 10 and 42 (the latter as substituted by Regulation No 1/64) of Regulation No 3 in referring to ‘beneficiaries of a pension’ include migrant workers who are the beneficiaries of what is termed in Belgium ‘invalidity allowance’ according to the strict wording of Article 53 of the Belgian Law of 9 August 1963 concerning the sickness/invalidity insurance referred to in Annex F to such Regulation No 3?

2. If the answer to Question 1 is in the negative: do the fundamental principles of vested rights and of the free movement of migrant workers, which form the basis of Regulation No 3, render inapplicable the national legislation of a Member State when Articles 40 and 41 of the same regulation apply?

Before I turn to an examination of these questions I would like to take a short look at the Belgian legal position.

Under the Belgian Law on sickness and invalidity assurance of 9 August 1963, after the occurrence of the incapacity for work there was paid first of all the primary incapacity allowance (‘indemnité d'incapacité primaire’) for one year. Thereafter for a period of two years the extended incapacity allowance (‘indemnité d'incapacité prolongée’) was paid and for the purpose of international agreements this was apparently to be regarded as an invalidity allowance (‘indemnité d'invalidité’). Thereafter an insured person received the invalidity allowance, in the case of men up to the age of 65, and in the case of women up to the age of 60, that is until the age when the old-age pension was paid instead of the invalidity allowance. By the Law of 27 June 1969, which entered into force on 1 January 1970, the extended incapacity allowance was abolished. Thereafter in cases of incapacity for work an invalidity allowance was payable after the lapse of only one year. In principle the family allowance was paid at the higher rate from the time of payment of the invalidity allowance which explains why the plaintiff in the main action received the allowance at the higher rate for a certain period before the entry into force of Regulation No 1408/71.

The Cour du Travail, Brussels, seeks in the first place a decision whether the ‘beneficiaries of a pension’ in Articles 10 and 42 of Regulation No 3 also include migrant workers, who, like the plaintiff, draw an invalidity allowance in Belgium that is, benefits of Type A within the meaning of Article 24 of Regulation No 3, which are calculated independently of the length of the completed insurance periods. In other words, the definition of what is meant by ‘pension’ for the purpose of the above-mentioned provisions is sought.

In view of the submissions made by the Commission in the course of the proveedings, the solution to this problem seems to me to present no great difficulty.

In my opinion the Commission has convincingly shown that the fact, stressed by the Caisse de Compensation, that the Belgian invalidity allowance is of a compensatory nature is not relevant, since all social security has this function.

Furthermore pensions do not necessarily have to be of a permanent nature. In this connexion it is relevant that Luxembourg law expressly provides that an invalidity pension is paid even when the invalidity is not permanent.

Further the fact that the benefits may be withdrawn if the actual situation alters, does not necessarily lead to the conclusion that such benefits are not pensions. In this connexion it is pointed out that for example widows' pensions are only paid so long as the claimant does not remarry. Nevertheless in Head 3, Chapter 3 of Regulation No 3, which expressly relates to ‘Pensions’, they are described as survivors' pensions.

Therefore we must accept the Commission's view that the proper criterion for the concept ‘pension’ is only the long duration of the circumstances which give rise to the benefit. The essential characteristic of a pension must be a benefit paid for an indefinite period that is, a benefit which is paid so long as the circumstances giving rise to it do not alter.

Therefore there can be no doubt that the Belgian invalidity allowance falls, as do corresponding benefits from other Member States which are expressly described as pensions, under the heading ‘pension’ and therefore while Regulation No 3 remains in force this involves the application of Article 42 whereby the establishment of a residence in another Member States can have no influence on the grant of family allowances.

In agreement with the Commission one might also add, in view of the wording of the question referred, that the fact that Article 24 and Annex F to Regulation No 3 only refer to invalidity benefits is of no importance. For this may certainly not lead to the conclusion that Regulation No 3 contains no provisions relating to invalidity pensions. To say that Regulation No 3 does not apply to rules relating to invalidity pensions would certainly not be in keeping with the general scheme of this regulation nor with the spirit of Article 51 of the EEC Treaty which incidentally also only refers to benefits. Therefore I am here in agreement with the Commission that the concept ‘benefits’ is evidently a general concept which certainly includes pensions as is clear from Articles 27 and 28 of Regulation No 3. However this concept and its use in Article 24 and in Annex F to Regulation No 3 do not rule out the classification of the Belgian invalidity allowance as a pension.

In my view it is thus clear how the first question referred by the Cour du Travail is to be answered. Further arguments are not necessary. This applies to the point raised by the Italian Government that the invalidity allowance is regarded as a pension under Regulation No 1408/71 without any change in the Belgian legal situation although Article 77 of Regulation No 1408/71 makes no substantial alterations in comparison to Article 42 of Regulation No 3. This also applies to the plaintiff's point that the Institut Nationale d'Assurance Maladie-Invalidité regards the invalidity allowance as a pension and to the conclusion from that that there are no real grounds for the Caisse d'Allocation Familiale to make a different classification. Nevertheless these statements support the view that I have adopted.

In view of this clear outcome, it does not appear to me to be necessary to examine the second question which was a subsidiary one arising if the first question should be answered in the negative. We can therefore leave open the question whether, as the Italian Government maintains, the same solution may be obtained by reference to Regulation No 1612/68 (OJ 1968, L 257 of 19.10.1968; OJ (English Special Edition) 1968 (II), p. 475) and the expression ‘social advantages’ used in it.

I therefore suggest that the questions referred for a preliminary ruling by the Cour du Travail, Brussels, should be answered as follows:

Under Regualtion No 3 concerning social security for migrant workers beneficiaries of a pension for the purposes of Article 10 and Article 42 include migrant workers who have a right to an invalidity allowance, in so far as these are in the nature of a pension having regard to the permanency of the circumstances giving rise to the right.

( 1 ) Translated from the German.