CELEX: 62005CJ0265
Language: en
Date: 2007-01-16 00:00:00
Title: Judgment of the Court (Grand Chamber) of 16 January 2007. # José Perez Naranjo v Caisse régionale d'assurance maladie (CRAM) Nord-Picardie. # Reference for a preliminary ruling: Cour de cassation - France. # Regulation (EEC) No 1408/71 - Articles 4(2a), 10a and 95b - Supplementary old-age allowance - National law making the grant of that allowance conditional on residence - Special non-contributory benefit - Listed in Annex IIa to Regulation No 1408/71. # Case C-265/05.

Case C-265/05
      José Perez Naranjo
      v
      Caisse régionale d’assurance maladie (CRAM) Nord-Picardie
      (Reference for a preliminary ruling from the Cour de cassation (France))
      (Regulation (EEC) No 1408/71 – Articles 4(2a), 10a and 95b – Supplementary old-age allowance – National law making the grant of that allowance conditional on residence – Special non-contributory benefit – Listed in Annex IIa to Regulation No 1408/71)
      Opinion of Advocate General Geelhoed delivered on 13 July 2006 
      Judgment of the Court (Grand Chamber), 16 January 2007 
      Summary of the Judgment
      Social security for migrant workers – Special non-contributory benefits 
      (Council Regulation No 1408/71, Arts 4(2a) and (10a), and Annex IIa)
      A supplementary allowance under French legislation from the Fonds de solidarité viellesse (Old-age Solidarity Fund), which
         augments an old-age pension and is intended to ensure a minimum means of subsistence for its recipient where the retirement
         pension is insufficient, and which is mentioned, under the heading ‘France’ in Annex IIa to Regulation No 1408/71 as amended
         and updated by Regulation No 118/97, constitutes a special benefit.
      
      Examination of the method of financing the supplementary allowance, on the basis of the information in the file submitted
         to the Court, shows that there is no sufficiently identifiable link between general social contributions, from which the resources
         of the Fonds de solidarité viellesse esssentially come, and the benefit concerned, which leads to the conclusion that the
         supplementary allowance is non-contributory.
      
      First, it is apparent that that Fund, which makes available the resources necessary for the supplementary allowance, has the
         task, according to the relevant national legislation, of assuming responsibility for non-contributory old-age benefits covered
         by national solidarity, of which the supplementary allowance is only a limited part. Second, whilst it is true that general
         social contributions in respect of earned income and substitute income constitute a substantial part of the Fund’s revenue,
         the fact remains that that revenue also comes from other contributions and levies of a fiscal nature. Third, general social
         contributions in respect of earned income and substitute income serves to finance not only the Fund but also other social
         schemes. Fourth, the conditions for grant and the methods of calculating the supplementary allowance are not fixed by reference
         to any contribution as regards its recipients.
      
      However, it is for the national court to confirm the accuracy of the factors set out above in order to determine conclusively
         whether that benefit is contributory or non-contributory.
      
      (see paras 33-34, 48-53, 61, operative part)
JUDGMENT OF THE COURT (Grand Chamber)
      16 January 2007 (*)
      
      (Regulation (EEC) No 1408/71 – Articles 4(2a), 10a and 95b – Supplementary old-age allowance – National law making the grant of that allowance conditional on residence – Special non-contributory benefit – Listed in Annex IIa to Regulation No 1408/71)
      In Case C-265/05,
      REFERENCE for a preliminary ruling under Article 234 EC from the Cour de cassation (France), made by decision of 21 June 2005,
         received at the Court on 27 June 2005, in the proceedings
      
      José Perez Naranjo
      v
      Caisse régionale d’assurance maladie (CRAM) Nord-Picardie,
      THE COURT (Grand Chamber),
      composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, R. Schintgen, P. Kūris, E. Juhász (Rapporteur) and
         J. Klučka, Presidents of the Chambers, J.N. Cunha Rodrigues, U. Lõhmus, E. Levits, A. Ó Caoimh and L. Bay Larsen, Judges,
      
      Advocate General: L.A. Geelhoed,
      Registrar: K. Sztranc-Sławiczek, Administrator,
      having regard to the written procedure and further to the hearing on 20 June 2006,
      after considering the observations submitted on behalf of:
      –       José Perez Naranjo, by the SCP Thomas-Raquin and Benabent, avocat, 
      –       the Caisse régionale d’assurance maladie (CRAM) Nord-Picardie, by J.‑A.. Blanc, avocat,
      –       the French Government, by G. de Bergues and O. Christmann, acting as Agents, 
      –       the Spanish Government, by I. del Cuvillo Contreras and A. Sampol Pucurull, acting as Agents,
      –       the Italian Government, by I.M. Braguglia, acting as Agent, and G. Aiello, avvocato dello Stato,
      –       the Finnish Government, by T. Pynnä, acting as Agent,
      –       the United Kingdom Government, by C. White, acting as Agent, and T. de la Mare, Barrister,
      –       the Commission of the European Communities, by D. Martin and M.‑J. Jonczy, acting as Agents,
      after hearing the Opinion of the Advocate General at the sitting on 13 July 2006
      gives the following
      Judgment
      1       This reference for a preliminary ruling concerns the interpretation of Articles 4(2a), 10a, 19(1), 95b and Annex IIa to 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December
         1996 (OJ 1997 L 28, p.1) (‘Regulation No 1408/71’).
      
      2       The reference was made in the course of proceedings between Mr Perez Naranjo and the Caisse régionale d’assurance maladie
         (CRAM) Nord-Picardie concerning Mr Perez Naranjo's application for the payment of a supplementary allowance by the Fonds national
         de solidarité (National Solidarity Fund) which, on 1 January 1994, became the Fonds de solidarité de viellesse (Old-age Solidarity
         Fund) (‘the FSV’).
      
       Legal background 
       Community legislation
      3       Article 4(1) of Regulation No 1408/71 provides:
      ‘This Regulation shall apply to all legislation concerning the following branches of social security:
      …
      (c)      old-age benefits;
      …’.
      4       Article 4(2a) of Regulation No 1408/71 provides:
      ‘This Regulation shall also apply to special non-contributory benefits which are provided under a legislation or schemes other
         than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended:
      
      (a)      either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security
         referred to in paragraph 1 (a) to (h) or
      
      (b)      solely as specific protection for the disabled.’
      5       The first subparagraph of Article 10(1) of Regulation No 1408/71 on waiving of residence clauses provides:
      ‘Save as otherwise provided in this Regulation invalidity, old-age or survivors’ cash benefits, pension for accidents at work
         or occupational diseases and death grants 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.’
      
      6       The first subparagraph of Article 10a of Regulation No 1408/71 provides:
      ‘Notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the
         special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which
         they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits
         shall be granted by and at the expense of the institution of the place of residence.’
      
      7       Under Article 19(1) of Regulation No 1408/71:
      ‘An employed or self-employed person residing in the territory of a Member State other than the competent State, who satisfies
         the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of
         the provisions of Article 18, shall receive in the State in which he is resident:
      
      (a)      benefits in kind provided on behalf of the competent institution by the institution of the place of residence in accordance
         with the legislation administered by that institution as though he were insured with it;
      
      (b)      cash benefits provided by the competent institution in accordance with the legislation which it administers …’.
      8       The third and fourth recitals in the preamble to Council Regulation (EEC) No 1247/92 of 30 April 1992 amending Regulation
         (EEC) No 1408/71 (OJ 1992 L 136, p. 1) whose Article 1 inserted Articles 4(2a) and 10(a) in Regulation No 1408/71 are worded
         as follows:
      
      ‘Whereas it is also necessary to take account of the case law of the Court of Justice stating that certain benefits provided
         under national laws may fall simultaneously within the categories of both social security and social assistance because of
         the class of persons to whom such laws apply, their objectives and their manner of application;
      
      Whereas the Court of Justice has stated that, in some of its features, legislation under which such benefits are granted is
         akin to social assistance in that need is an essential criterion in its implementation and the conditions of entitlement are
         not based upon the aggregation of periods of employment or contributions, whilst in other features it is close to social security
         to the extent that there is an absence of discretion in the manner in which such benefits as are provided thereunder are awarded
         and in that it confers a legally defined position upon beneficiaries’.
      
      9       Article 95b of Regulation No 1408/71, entitled, ‘Transitional provisions for application of Regulation (EEC) No 1247/92’,
         contains paragraph 9 which is worded as follows:
      
      ‘The application of Article 1 of Regulation (EEC) No 1247/92 may not result in the rejection of an application for a special
         non-contributory benefit awarded as a supplement to a pension, which was submitted by the person concerned who had satisfied
         the conditions for the award of this benefit before 1 June 1992, even where the person concerned resides on the territory
         of a Member State other than the competent Member State, provided that the application for the benefit is submitted within
         a period of five years starting from 1 June 1992.’
      
      10     Annex IIa to Regulation No 1408/71, under the heading ‘France’ provides as follows:
      ‘(a)      Supplementary allowance from the National Solidarity Funds (Law of 30 June 1956).’
       National law
      11     The first subparagraph of Article L. 815-2 of the French Social Security Code, in the version applicable to the facts at issue
         in the main proceedings, provided that ‘any French national who resides in metropolitan France or in one of the departments
         mentioned in Article L. 715-1 … who has reached a minimum age, which shall be reduced where the claimant is unfit for work,
         and who is a recipient of one or more old-age benefits under legislative provisions or regulations ... shall be entitled to
         a supplementary allowance’ under the conditions laid down by the code.
      
      12     The first subparagraph of Article R. 815-2 of the Social Security Code sets the minimum age at 65 as a general rule and at
         60 where the claimant is unfit for work.
      
      13     According to Articles L. 815‑2-1, L. 815-7 and L. 815-8 of the Social Security Code, the supplementary allowance is paid by
         the FSV to bodies or departments responsible for payment, is provided on express request of the persons concerned and is payable
         only where the total of the allowance and the personal resources of the claimant do not exceed certain ceilings laid down
         by decree.
      
      14     It is clear from the additional information, received at the Court Registry on 8 May 2006, in response to a request to the
         national court for clarification pursuant to Article 104(5) of the Rules of Procedure, that the supplementary allowance, which
         is the responsibility of the FSV established by Law No 93-936 of 22 July 1993, supplements a principal benefit within the
         limits of a guaranteed minimum old age, and that eligibility for that allowance is means tested in accordance with Articles
         R. 815-21 to R. 815-32 of the Social Security Code.
      
      15     Under the first subparagraph of Article L. 135-1 of the Social Security Code, the FSV is to assume responsibility for non-contributory
         old-age benefits covered by national solidarity. It is apparent from Article L. 135-3 of the Code and the written observations
         of the French Government that the revenue of the FSV allocated to finance the expenditure for which it is responsible pursuant
         to Article L. 135-1, include or included between 1994 and 2003 all or part of the general social contribution and the social
         solidarity contribution levied on companies and, to a lesser extent, the social security levy of 2%, tax on beverages and
         the retirement tax.
      
      16     The general social contribution is charged on earned income and substitute income of natural persons as well as income from
         property, investment products and gaming. The social solidarity contribution levied on companies and the social levy of 2%
         are based respectively on the turnover of companies subject to corporation tax and income from assets and investments of natural
         persons residing in France.
      
       The facts of the case in the main proceedings and the question referred for a preliminary ruling
      17     Mr Perez Naranjo, the applicant in the main proceedings, who was born on 27 September 1931, is a Spanish national. He worked
         in France from 1957 until 1964 and then returned to Spain. Since 1 November 1991 he has received a French old-age pension.
      
      18     On 28 May 1997, Mr Perez Naranjo claimed the supplementary allowance from the Caisse régional d'assurance maladie (CRAM) Nord-Picardie.
         As his claim was refused, he brought an action before the Tribunal des affaires de sécurité sociale de Lille (Social Security
         Court, Lille), which was dismissed by judgment of 13 December 2001.
      
      19     Mr Perez Naranjo appealed against that judgment to the Cour d'appel de Douai (Court of Appeal, Douai) which also dismissed
         the appeal by judgment of 28 February 2003 on the ground that the supplementary allowance, expressly mentioned in Annex IIa
         to Regulation No 1408/71, constitutes a special category of benefits called ‘special non-contributory benefits’ covered by
         Article 10a of that regulation, and which have not been exportable since 1 June 1992, at which date Mr Perez Naranjo did not
         satisfy the age condition laid down by the French law.
      
      20     Mr Perez Naranjo appealed to the Cour de cassation (Court of Cassation) and submitted, in support of his appeal, that the
         supplementary allowance does not constitute either a special or a non-contributory benefit and that by taking the opposite
         view merely because that allowance is expressly referred to in Annex IIa to Regulation No 1408/71, without undertaking any
         examination of the nature of that allowance, the Cour d'appel Douai has infringed Articles 4(2a) and 10a of that regulation.
      
      21     In those circumstances the Cour de cassation decided to stay proceedings and to refer the following question to the Court
         for a preliminary ruling:
      
      ‘Is Community law to be interpreted as meaning that the supplementary allowance at issue, listed in Annex IIa to Regulation
         No 1408/71, is of a special and non-contributory character, thereby excluding, pursuant to Articles 10a and 95b of Regulation
         No 1408/71, its award to a non-resident who did not satisfy the age condition on 1 June 1992, or as meaning that it constitutes
         a social security benefit and must therefore, pursuant to Article 19(1) of that regulation, be provided to the person concerned
         who satisfies the conditions for its award, irrespective of the Member State in which that person is resident?’
      
       Admissibility
      22     The Finnish Government doubts the admissibility of the question referred on the ground that the order for reference does not
         adequately describe the legal background of the dispute, and that the information provided is so incomplete that it does not
         consider that it is in a position to submit observations on that question.
      
      23     However, at the Court's request, the national court has provided clarifications as regards the national legislative framework.
         Furthermore, the Member States and the Community institutions have had the opportunity to enlarge upon their observations
         during the hearing. In those circumstances, the Court considers that it has sufficient information in order to provide a useful
         reply to the question referred.
      
      24     It follows that the question referred is admissible.
       The question referred for a preliminary ruling 
      25     By its question the national court asks, essentially, whether a benefit such as the supplementary allowance mentioned in Annex
         IIa, under the heading ‘France’, to Regulation No 1408/71, is a special non-contributory benefit within the meaning of Article
         4(2a) of that regulation in the version applicable at the material time in the main proceedings. If that allowance is so categorised,
         it follows that, in accordance with Articles 10a and 95(b) of Regulation No 1408/71, a non-resident applicant who did not
         satisfy the age condition on 1 June 1992 is not entitled to that allowance; however, if that allowance cannot be classified
         as a special non-contributory benefit, it must be provided to persons who satisfied the age condition on that date, in accordance
         with Article 19(1) of that regulation, regardless of the Member State in which they reside.
      
      26     The Court has already examined the exportability of the supplementary allowance and has ruled that to make its payment conditional
         on residence within French territory is incompatible with Article 10(1) of Regulation No 1408/71 (see Joined Cases 379/85
         to 381/85 and 93/86 Giletti and Others [1987] ECR I-955, paragraph 17, and Case C-236/88 Commission v France [1990] ECR I-3163, paragraphs 14 and 20).
      
      27     However, following those judgments, Regulation No 1247/92 amended Regulation No 1408/71 by inserting, inter alia, Articles
         4(2a) and 10a. Under the first paragraph of Article 10a only persons who reside on the territory of the Member State competent
         to provide them are entitled to special non-contributory benefits. 
      
      28     The issue of exportability of the supplementary allowance must, therefore, be considered in the light of Article 10a.
      29     It is clear from the case-law of the Court that the provisions in Article 10a of Regulation No 1408/71 derogating from the
         principle of the exportability of social security benefits must be interpreted strictly. That provision can apply only to
         benefits which satisfy the conditions defined in Article 4(2a) of Regulation No 1408/71, that is, benefits which are both
         special and non-contributory, and are listed in Annex IIa to that regulation (see, to that effect, Case C-160/02 Skalka [2004] ECR I-5613, paragraph 19, and Case C-154/05 Kersbergen-Lap and Dams-Schipper [2005] ECR I-0000, paragraph 25).
      
      30     As stated in paragraph 10 of this judgment, the supplementary allowance is mentioned in Annex IIa to Regulation No 1408/71.
      31     Therefore, it is appropriate to examine, first, whether that allowance has a special character and, second, whether it is
         non-contributory.
      
       The special character of the supplementary allowance
      32     The Court has already held that a special benefit, within the meaning of Article 4(2a) of Regulation No 1408/71, is defined
         by its purpose. It must either replace or supplement a social security benefit and be in the nature of social assistance justified
         on economic and social grounds and fixed by legislation setting objective criteria (see Skalka, paragraph 25, and Kersbergen-Lap and Dams-Schipper, paragraph 30).
      
      33     As regards the link between the supplementary allowance and social security, it is common ground that that allowance, which
         is granted in order to increase social security retirement pensions, is similar to it. Therefore, the supplementary allowance,
         which augments an old-age pension covered by Article 4(1)(c) of Regulation No 1408/71, has the same scope ratione personae as the latter and requires the same minimum age for the purpose of acquiring rights.
      
      34     As regards the relationship between the supplementary allowance and social assistance, as the Advocate General stated in point
         36 of his Opinion, the supplementary allowance is intended to ensure a minimum means of subsistence for its recipient where
         the retirement pension is insufficient. It is paid to persons who have reached pensionable age and whose total income falls
         below a statutory threshold. The amount of that allowance, which supplements the income of recipients up to the statutory
         threshold, therefore varies according to that income. Personal needs, that is to say the individual financial circumstances
         of each recipient, are of fundamental importance. Furthermore, it is clear from the information provided by the national court
         that the grant of the supplementary allowance is not linked to any condition relating to periods of employment or to the payment
         of contributions.
      
      35     It follows that the supplementary allowance, which is similar to both social security and social assistance, has a mixed character
         and must be regarded as a special benefit.
      
       The non-contributory character of the supplementary allowance
      36     As regards whether the supplementary allowance is contributory, it is clear from the case-law that the determining criterion
         in that respect is how the benefit concerned is actually financed. The Court must consider whether that financing comes directly
         or indirectly from social contributions or from public resources (see, to that effect, Skalka, paragraph 28, and Kersbergen-Lap and Dams-Schipper, paragraph 36). However, such an examination may require an analysis of the national regulations and practices in such detail
         and depth that it would exceed the Court's role in the framework of the preliminary ruling procedure and, therefore, in order
         to produce a conclusive result, the subsequent cooperation of the national court may be necessary.
      
      37     In that connection, it should be observed, first of all, as the Commission rightly submits, that, although the supplementary
         allowance is paid by the health insurance funds, they are then reimbursed by the FSV, so that the burden of that allowance
         falls on it.
      
      38     Next it should be observed that, as it is clear from paragraph 15 of this judgment, the FSV's income derives essentially from
         the general social contribution and the social solidarity contribution levied on companies.
      
      39     Finally, as regards the nature of the FSV's resources, only the classification of the general social contribution as taxation
         is challenged before the Court by the applicant in the main proceedings and the Spanish Government. Referring to the judgment
         in Case C-169/98 Commission v France [2000] ECR I-1049, the applicant in the main proceedings submits that the general social contribution constitutes a social
         security contribution and, therefore, that the supplementary allowance is a contributory benefit.
      
      40     Therefore, it is appropriate to determine whether a contribution such as the general social contribution must be regarded
         as a social security contribution, or as public resources which do not have the characteristics of such a contribution.
      
      41     First of all, it must be observed that, in the case giving rise to the judgment in Commission v France, the specific issue of the classification of the general social contribution for the purposes of Article 4(2a) of Regulation
         No 1408/71 was not raised, the only issue being the Member State in which the person concerned could be taxed on the payment
         of that contribution for the purposes of Article 13 of Regulation No 1408/71.
      
      42     The question regarding the nature of the general social contribution arises specifically in relation to that contribution
         in respect of earned income and substitute income to which employed and self-employed workers are liable, which, as is apparent
         from the file submitted to the Court, is an important resource for the FSV which finances the supplementary allowance.
      
      43     First of all, the general social contribution on earned income and substitute income share certain similarities with general
         social security contributions, particularly as regards its basis of assessment and the procedure for its collection.
      
      44     Furthermore, in paragraph 35 of the judgment in Commission v France, the Court held that that contribution, unlike levies designed to meet general public charges, is allocated specifically
         and directly to financing social security in France.
      
      45     In determining whether the supplementary allowance is contributory or non-contributory, the allocation of the general social
         contribution to the financing of social security is not sufficient to show that the supplementary allowance, as such, constitutes
         a contributory benefit.
      
      46     In that regard, it is appropriate to consider whether there is an identifiable link between the supplementary allowance, on
         the one hand, and the general social contribution on earned income and substitute income, on the other.
      
      47     As it is clear from the information submitted to the Court, the relationship between the supplementary allowance and the general
         social contribution on earned income and substitute income does not appear to fulfil that condition.
      
      48     First, it is apparent that the FSV, which makes available the resources necessary for the supplementary allowance, has the
         task, according to the relevant national legislation, of assuming responsibility for non-contributory old-age benefits covered
         by national solidarity, of which the supplementary allowance is only a limited part.
      
      49     Second, while it is true that the general social contribution in respect of earned income and substitute income constitutes
         a substantial part of the FSV's revenue, the fact remains that that revenue also comes from other contributions and levies,
         whose classification as fiscal in nature is not challenged before the Court.
      
      50     Third, the general social contribution in respect of earned income and substitute income serves to finance not only the FSV
         but also other social schemes.
      
      51     Fourth, the conditions for grant and the methods of calculating the supplementary allowance are not fixed by reference to
         any contribution as regards its recipients.
      
      52     Having regard to all those considerations it is apparent that, even if the part of the general social contribution based on
         earned income and substitute income must be regarded as a contribution rather than financing from public resources, the link
         between that contribution and the supplementary allowance is not sufficiently identifiable for that allowance to be classified
         as a contributory benefit.
      
      53     It is for the national court to confirm the accuracy of the considerations set out in paragraphs 48 to 52 of this judgment,
         in order to establish conclusively whether the allowance at issue is contributory or non-contributory.
      
       The possible application of transitional measures
      54     As a general rule, social security benefits within the meaning of Regulation No 1408/71 are exportable, that is to say that
         entitlement to them cannot be limited to persons who reside in the competent Member State. However, as stated in paragraph
         27 of this judgment, Article 10a of that regulation provides for an exception as regards the special non-contributory benefits
         referred to in Article 4(2a) of that regulation, by limiting entitlement to that benefit to persons who reside on the territory
         of that State, in so far as those benefits are mentioned in Annex IIa.
      
      55     However, the Community legislature, when it inserted Article 10a into Regulation No 1408/71 by Regulation No 1247/92, provided
         for transitional measures in Article 2 of the latter regulation. Article 2(2), whose wording is reproduced in substance in
         Article 95b(9) of Regulation No 1408/71 by Council Regulation (EC) No 3095/95 of 22 December 1995 (OJ 1995 L 335, p. 1), concerns
         the situation of a person who, residing on the territory of a Member State other than the competent State, had not submitted
         a claim for a special benefit even though he satisfied the conditions for grant of that benefit prior to 1 June 1992, the
         date of entry into force of Regulation No 1247/92, and provides that that person has a period of five years from that date
         to make a claim for the special benefit concerned.
      
      56     It follows that, under that transitional provision, the residence condition must be disregarded where a person who fulfilled
         the conditions for grant of a benefit such as the supplementary allowance before 1 June 1992 made a claim within that period.
      
      57     According to the order for reference, the applicant in the main proceedings, although he had been receiving a French old-age
         pension since 1 November 1991, did not satisfy the legal conditions for grant of the supplementary allowance on 1 June 1992.
         As it is clear from paragraph 12 of this judgment, that benefit may be paid only to recipients of an old‑age pension who have
         reached 65, or 60 in the case of unfitness for work.
      
      58     The Commission submits that Mr Perez Naranjo could have benefited from the transitional provisions in question if it had been
         proved that he was unfit for work before 1 June 1992.
      
      59     It is common ground that, first, as he was born on 27 September 1931, the applicant in the main proceedings had not reached
         65 on 1 June 1992 and that, second, he received a French old-age pension calculated on the normal basis and not the basis
         that he was unfit for work.
      
      60     Since the national court has not referred any questions to the Court in that regard, there is no need to consider the situation
         put forward by the Commission.
      
      61     Having regard to the foregoing considerations, the answer to the question referred must be that a benefit such as the supplementary
         allowance mentioned under the heading, ‘France’ in Annex IIa to Regulation No 1408/71 constitutes a special benefit. Examination
         of the method of financing the supplementary allowance, on the basis of the information in the file submitted to the Court,
         shows that there is no sufficiently identifiable link between the general social contribution and the benefit concerned, which
         leads to the conclusion that the supplementary allowance is non-contributory. However, it is for the national court to confirm
         the accuracy of the factors set out in paragraphs 48 to 52 of this judgment in order to determine conclusively whether that
         benefit is contributory or non-contributory.
      
       Costs
      62     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court hereby rules:
      A benefit such as the supplementary allowance mentioned, under the heading ‘France’ in Annex IIa to Regulation (EEC) No 1408/71
            of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community,
            in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, constitutes a special benefit.
            Examination of the method of financing the supplementary allowance, on the basis of the information in the file submitted
            to the Court, shows that there is no sufficiently identifiable link between the general social contribution and the benefit
            concerned, which leads to the conclusion that the supplementary allowance is non-contributory. However, it is for the national
            court to confirm the accuracy of the factors set out in paragraphs 48 to 52 of this judgment in order to determine conclusively
            whether that benefit is contributory or non-contributory.
      [Signatures]
      * Language of the case: French.