CELEX: 61982CC0139
Language: en
Date: 1983-03-10 00:00:00
Title: Opinion of Mr Advocate General Mancini delivered on 10 March 1983. # Paola Piscitello v Istituto nazionale della previdenza sociale (INPS). # Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. # Social security - Social aid pension - Transfer. # Case 139/82.

OPINION OF MR ADVOCATE GENERAL MANCINI
      DELIVERED ON10 MARCH 1983 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      
               1. 
            
            
               In this reference for a preliminary ruling the Court of Justice is requested to interpret certain provisions of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416) in relation to the Italian Law which provides for the award of a social aid pension to Italian nationals aged over 65 living in conditions of financial hardship.
            
         
               2. 
            
            
               I shall summarize the facts of the case.
               Mrs Paola Piscitello, the plaintiff in the main proceedings, is an Italian national. On 30 December 1972 she applied to the Enna branch of the Istituto Nazionale della Previdenza Sociale [National Social Welfare Institution, hereinafter referred to as “the Institution”], and obtained as from 1 January 1973 the social aid pension for elderly persons living in conditions of financial hardship provided for in Article 26 of Law No 153 of 30 April 1969. By decision of 26 June 1976, however, the Enna branch of the Institution discontinued her pension as from 1 August 1975 on the ground that she had ceased to fulfil one of the requirements laid down by that Law, namely residence within national territory. On 25 August 1975, Mrs Piscitello had moved to Liège in Belgium to live with her daughter. Following the unsuccessful outcome of non-contentious proceedings before the provincial committee of the Institution, and later before its regional committee, Mrs Piscitello brought an action before the Pretura [Magistrate's Court], Enna, for annulment of the decision in question and for payment of her pension to be resumed as from 1 August 1975. In the proceedings, which were initiated on 2 February 1978, she maintained that a transfer of residence by the recipient of a pension from one Member State to another has no bearing on entitlement to the pension.
               The Pretura, Enna, rejected her claim on the ground that the Institution's decision was in conformity with Italian and Community legislation. Mrs Piscitello appealed against the Pretura's decision which was given on 10 June 1978. However, the Tribunale di Enna [District Court, Enna] ruled that she was not entitled to rely on Regulation No 1408/71 since it was not applicable to benefits granted by way of assistance. The plaintiff therefore lodged an appeal with the Corte di Cassazione, in which she submitted, first, that in view of its compulsory nature the social aid pension came within the provisions of Regulation No 1408/71 and, secondly, that the requirement of residence within national territory was incompatible with Article 10 of that regulation.
               By order of 14 January 1982, the Corte di Cassazione stayed the proceedings and asked this Court the following question: “In view of the ‘waiving of residence clauses’ provided for in Article 10 of Regulation No 1408/71 of the Council of 14 June 1971, must the provisions of Article 26 of Law No 153 of 30 April 1969 to the effect that the grant and enjoyment of the social aid pension provided for in that article are conditional upon an Italian national's residence within the national territory be considered as abrogated and therefore may that pension be suspended or withdrawn by reason of the fact that the recipient transfers his residence to the territory of another Member State, regard being had to the fact that, on the one hand, the pension is granted by way of assistance (cf. Judgment No 157 of the Corte Costituzionale [Constitutional Court] of 15 December 1980) and, on the other hand, that it is classifiable as an old-age benefit, account also being taken of the provisions of Article 4 (1) of Regulation No 1408/71 of the Council according to which that regulation ‘shall apply to all legislation concerning the following branches of social security: ... old-age benefits’?”
               In order to answer that question, three problems must be dealt with. The first two are, as it were, of a preliminary nature and concern the applicability of Regulation No 1408/71 ratione materiae to a benefit of the kind which is designated in Italy as a social aid pension and ratione personae to an individual in Mrs Piscitello's position. The third problem is whether the pension is payable abroad, again in the light of that regulation, if the recipient moves to a Member State other than that in which the institution awarding the pension is situated.
            
         
               3. 
            
            
               I shall begin by considering briefly the benefit in question. It was introduced by Article 26 of Law No 153 of 30 April 1969. That provision was amended oh several occasions by Article 3 of Decree Law No 30 of 2 March 1974, which was itself subsequently amended, and converted into Law No 114 of 16 April 1974, and further supplemented.
               The social aid pension is payable to every Italian national residing within the national territory where the income of the person concerned including, if he is married and not legally separated, that of his spouse, which is subject to personal income tax does not exceed a specified limit in a given year. That limit rises in step with increases resulting from the automatic equalization of the minimum pension (Article 7 of Law No 160 of 3 June 1975). For that purpose, the claimant's income excludes family allowances and any income arising from the claimant's dwelling house. However, recipients of financial, social security or social assistance payments or benefits allocated on a regular basis by the State, by other public bodies or by foreign States, including war pensions (but not the life annuity paid to veterans of the 1915 to 1918 war and of previous wars), which are in excess of the annual limit referred to are not entitled to the pension. If, however, the income in excess of that limit is less that the annual amount of the social aid pension, the latter is reduced accordingly.
               The inquiry into the claimant's lack of means, which is conducted by the Institution when it considers the application for the pension, is based soley on objective considerations. The claimant's needs are established independently of voluntary or involuntary, foreseeable or unforeseeable factors which may be the cause of his lack of means, and no account is taken of any corrective factors which are not specified by the Law such as, for example, the financial means of the closest relatives amongst those who are under an obligation to provide support by virtue of Article 433 of the Civil Code.
               The social aid pension is granted in accordance with the same procedures as those which apply to other benefits in the nature of pensions by the Fondo Sociale [Social Fund], an autonomous body operating under the aegis of the Institution which was established by Law No 903 of 21 July 1965. Since 1 January 1976, the Fondo Sociale has been financed entirely by the State.
               Furthermore, the pension may not be assigned, and is not liable to attachment or distraint. It is granted to the recipient personally and does not revert to any other person. The pension is of a fixed amount and is less than the minimum pension granted under the general scheme. Article 2 (a) of Law No 485 of 2 August 1972 provides that recipients of the social aid pension are entitled to medical assistance. Finally, it must be emphasized that, in the case of both administrative and legal proceedings concerning the pension, the same provisions apply as those which govern disputes involving the general pension scheme.
            
         
               4. 
            
            
               As I have stated, the first problem lies in determining whether the benefit in question falls ratione materine within the scope of Regulation No 1408/71.
               The matters convered by that regulation are defined in Article 4 thereof. That article provides that the regulation is to apply to all social security legislation, which obviously includes legislation relating to old-age benefits. All general and special social security schemes, whether contributory or noncontributory, are covered, but social and medical assistance are not.
               However, the regulation does not define the concepts of social security and social assistance. Moreover, with the gradual extension of social security to groups of self-employed workers, the gradual financing of benefits by taxation and the gradual process whereby full subjective rights are conferred on the recipients of those benefits, the older conceptual categories have tended to grow blurred. When it was called upon to define certain noncontributory benefits, the Court drew attention to that phenomenon and observed that “Although it may seem desirable, from the point of view of applying the regulation, to establish a clear distinction between legislative schemes which come within social security and those which come within assistance, it is possible that certain laws, because of the classes of persons to which they apply, their objectives and the detailed rules for their application, may simultaneously contain elements belonging to both the categories mentioned and thus defy any general classification” (see, for example, the judgment of 22 June 1972 in Case 1/72 Frilli [1972] ECR 457, paragraph 13 of the decision, and, in similar terms, the judgments of 28 May 1974 in case 187/73 Callemeyn [1974] ECR 553 at p. 561, of 9 October 1974 in Case 24/74 Biason [1974] ECR 999 at p. 1007, and of 13 November 1974 in Case 39/74 Costa [1974] ECR 1251 at p. 1260).
               Those observations have not, however, prevented the Court from adopting a single distinguishing criterion. The Court has stated on numerous occasions that schemes which do not call for consideration of each individual case, which is characteristic of assistance, and confer on recipients a legally defined status giving them a legally protected right to a benefit fall within social security. (See the judgment in Case 1/72, cited above, paragraph 14 of the decision, and, in similar terms, the judgments in Cases 187/73 and 39/74, also cited above; see also the judgment of 17 June 1975 in Case 7/75 Mrs and Mrs F. v Belgian State [1975] ECR 679.)
               In reliance on that criterion, the Court has rejected arguments which distinguish between social security and social assistance by reference both to the objectives of the provision in question and to its classification under national law. The Court has thus evolved a very broad concept of social security which encompasses both the satisfaction of an individual's primary needs and the guarantee of a given standard of living.
            
         
               5. 
            
            
               The Italian Government and the Institution maintain that the social aid pension does not fall within Regulation No 1408/71. In their view, it falls outside the scope of the regulation, by virtue of Article 4 (4) thereof, because it has been classified as a social assistance benefit both by the Corte Costituzionale (see judgment No 157 of 15 December 1980, referred to in the question submitted) and by several ordinary courts.
               In that connection, I would recall the views expressed by Mr Advocate General Reischl in his Opinion in Case 24/74. He observed that in proceedings before the Court of Justice definitions given in case-law or in textbooks and arguments based on the legal system of a Member State cannot be relevant. Rather, as the Court has stated, recourse must be had to criteria based on Community law such as the factors relating to each social security benefit and, in particular, its purpose and the conditions for its grant (judgment of 6 July 1978 in Case 9/78 Gillard [1978] ECR 1661). It is only in the light of those criteria that the scope of Community regulations can be uniformly defined.
               It has been seen that the Italian legal system confers on recipients of a social aid pension a legally protected right. In addition to that — in my opinion decisive — factor, there is another consideration, perhaps less relevant but still in keeping with the approach adopted in the Gillard judgment, which is that the legal remedies must not display any particular features by comparison with the remedies available with respect to other pensions and that medical assistance must be extended to recipients.
            
         
               6. 
            
            
               Furthermore, in addition to the interpretative criterion which may be derived from the case-law of the Court — according to which, I repeat, a benefit qualifies as a social security payment if the recipient's legal status is well defined — there is a legal provision which must not be overlooked.
               Article 4(2) of Regulation No 1408/71 expressly provides that the regulation is to apply to “social security schemes [which are] noncontributory”. Since that rules out payment of contributions as the decisive factor for distinguishing between social security and social assistance, the argument put forward by the Institution and by the Italian Government to the effect that only benefits based on the payment of insurance contributions are covered by the regulation must be rejected once and for all. As the Commission pointed out at the hearing, the distinguishing features of noncontributory schemes are that such schemes are based on lack of means and do not prescribe any requirements as to specific periods of employment, affiliation or insurance. That is not, of course, the reason for which the exception referred to in Article 4 (4) is inapplicable. It is sufficient to recognize that the exception relates to schemes under which the grant of the benefit remains within the discretion of the public authorities.
               The social aid pension therefore falls within the scope of Regulation No 1408/71. Moreover, the fact that the pension is not referred to in the declaration made by the Italian Government under Article 5 of the regulation is of no consequence. As the Court has stated on numerous occasions, the failure by a Member State to notify a benefit which it grants does not mean that the benefit is not subject to the Community system (see the judgment of 27 January 1981 in Case 70/80 Vigter [1981] ECR 229).
               As regards the first issue in these proceedings, therefore, my opinion is that a pecuniaiy benefit granted under a national noncontributory scheme to elderly persons in order to provide them with a minimum income to live on is in the nature of a social security benefit and, as the court making the reference states, it is analogous to the old-age benefit referred to in Article 4(1) (c) of Regulation No 1408/71.
            
         
               7. 
            
            
               The second issue, which was not raised by the court making the reference but was broached by the parties at the hearing, concerns the applicability of the Community provisions radone personae to an individual in Mrs Piscitello's position.
               It should be remembered that Regulation No 1408/71 applied to “workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States ... [and] also to the members of their families and their survivors” (Article 2 (1)). It is indisputable that in the present case the concept of “workers” does not apply, if only because Mrs Piscitello is claiming from the Institution the grant of a benefit (the social aid pension) which is not conditional on the claimant's being or having been employed. Rather, it is the concept of “member of the family” which must be taken into account. It should not be forgotten that for several years the plaintiff in the main proceedings lived with her daughter who was an employed worker residing in Belgium.
               Article 1 (f) of Regulation No 1408/71 provides as follows: “Member of the family means any person defined or recognized as a member of the family or designated as a member of the household by the legislation under which benefits are provided; ... where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the worker, this condition shall be considered satisfied if the person in question is mainly dependent on that worker”.
               For the interpretation of that provision, it is necessary in the first place to determine whether the scope of the expression “member of the family” is to be defined by reference to the national law governing a particular benefit or by reference to the entire body of social security legislation of a given country. In my opinion, it is to be defined by reference to the social security legislation as a whole because, in the present case, the provisions governing the social aid pension do not contain a definition of that expression and, what is more important, because it would be absurd to accommodate as many definitions of “member of the family”, all of which would affect the scope of the Community provisions, as there are benefits provided for under a given national system. Therefore, the appropriate definition in this case must be sought within the Italian social security system, viewed in its entirety.
               Against that background, I believe preference must be given to the definition of “member of the family” adopted in relation to the grant of a benefit which is linked to the concept in question more closely than any other. I refer to family allowances which in Italy are governed by Law No 114 of 16 April 1974. According to that Law, the expression “members of the family” includes the parents where they are financially dependent on the person entitled to the allowances. However, they must not be in receipt of income in excess of the limit represented by the amount of the minimum pension. Moreover, the beneficiary's mother must be aged over 55 or have been declared permanently unfit for work.
               
                  Prima facie, the documents before the Court appear to indicate that Mrs Piscitello satisfies those requirements. If that is the case (which it is not for this Court to determine), Article 2(1) may be regarded as applicable to a person in her position.
            
         
               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.
            
         
               9. 
            
            
               In the light of all the foregoing considerations, I propose that the question submitted by the Italian Corte di Cassazione by order of 14 January 1982 in the proceedings between Mrs Paola Piscitello and the Institution should be answered by the Court in the following manner:
               
                        (a)
                     
                     
                        Article 4 (l) (c) of Regulation No 1408/71 of the Council of 14 June 1971 must, with respect to persons covered by the Community legislation on social security, be interpreted as including among “old-age benefits” the “social aid pension” which is awarded under the legislation of a Member State to elderly persons living in conditions of financial hardship and to which they have a legally protected right.
                     
                  
                        (b)
                     
                     
                        The first subparagraph of Article 10 (1) of the same regulation must be interpreted as meaning that the recipient of a pension of the kind referred to in paragraph (a) continues to be entitled to it if he moves to another Member State even if the national law of the State to which the institution awarding the pension belongs provides that it is payable only to persons residing within national territory.
                     
                  
         (
            1
         )	Translated from the Italian.