Commission of the European Communities v European Parliament and Council of the European Union.
Date: 2007-10-18
10. Pursuant to that case-law, only those benefits which have the dual characteristic of being special and non-contributory can be included in the list in Annex IIa.
19. The Court may of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see Case C‑309/99 Wouters and Others  [2002] ECR I‑1577, paragraph 42; Case C‑434/02 Arnold André  [2004] ECR I‑11825, paragraph 27; and Case C‑210/03 Swedish Match  [2004] ECR I‑11893, paragraph 25).
51. The scheme and wording of Article 4 of Regulation No 1408/71 as amended show that a benefit cannot be classified simultaneously as a family benefit and a special benefit. Family benefits are dealt with in Article 4(1) while special benefits are dealt with in Article 4(2a), the aim of that distinction being to enable the respective schemes for those two categories of benefits to be identified (see, to that effect, Case C‑286/03 Hosse  [2006] ECR I‑1771, paragraphs 36 and 37 and the case-law cited).
55. Secondly, besides the specific case described in the preceding paragraphs, pursuant to Article 4(2a)(a)(i) of Regulation No 1408/71 as amended, a special benefit for the purpose of that provision is also defined by its purpose. It must either replace or supplement a social security benefit, while being distinguishable from it, and be by its nature social assistance justified on economic and social grounds and fixed by legislation setting objective criteria (see Case C‑154/05 Kersbergen-Lap and Dams-Schipper  [2006] ECR I‑6249, paragraph 30, and the case‑law cited).
56. By contrast, a benefit is regarded as a social security benefit where it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a statutorily defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (Case 249/83 Hoeckx  [1985] ECR 973, paragraphs 12 to 14; Case C‑356/89 Newton  [1991] ECR I‑3017; Case C‑78/91 Hughes  [1992] ECR I‑4839, paragraph 15; Molenaar , paragraph 20; and Jauch , paragraph 25). It was on the basis of that case-law, which takes account of the components of German care insurance benefits, that the Court held, in paragraph 25 of Molenaar , that those benefits were to be regarded as ‘sickness benefits’ for the purpose of Article 4(1)(a) of Regulation No 1408/71 and, in paragraph 36 of that judgment, that they were to be regarded as ‘cash benefits’ of sickness insurance as referred to inter alia in Article 19(1)(b) of that regulation (see also Jauch , paragraph 25).
61. Benefits granted objectively on the basis of a statutorily defined position and which are intended to improve the state of health and quality of life of persons reliant on care have as their essential purpose supplementing sickness insurance benefits and must be regarded as ‘sickness benefits’ for the purpose of Article 4(1)(a) of Regulation No 1408/71 ( Molenaar , paragraphs 24 and 25; Jauch , paragraph 28; and Hosse , paragraph 38).
62. The Swedish disability allowance, which has those characteristics that purpose, must consequently be classified as a sickness benefit, as the Court held in Molenaar , Jauch  and Hosse , even if the scheme under the Swedish legislation differs from that governing the allowances at issue in those cases.
63. Contrary to what the Kingdom of Sweden claims, the fact that the reduction in mobility must be of a significant duration and must have occurred before the age of 65 is not such as to change the purpose of the Swedish disability allowance, which consists in meeting the needs stemming from the disability and covering the risk caused by the sickness which is at the origin of that disability.
67. Contrary to what the United Kingdom asserts, only the DLA can be considered to include a social assistance component. The other two benefits at issue have a single purpose which is akin to that of the Swedish disability allowance, namely to help the disabled person to overcome, as far as possible, his or her disability in everyday activities.
69. As the Commission indeed observes, the ‘mobility’ component of the DLA, which might be regarded as a special non-contributory benefit, is severable, so that that component alone could be included on the list in Annex IIa as amended if the United Kingdom decided to create an allowance which concerned that component alone.
70. The fact that the DLA, AA and CA, unlike the benefit at issue in Jauch  and Hosse , do not have as there the essential purpose supplementing sickness insurance benefits does not affect the categorisation of those allowances.
74. It is necessary, however, for the Court to state that the straightforward annulment of the inclusion of the DLA in the list in Annex IIa as amended would lead to the United Kingdom being forced to grant the ‘mobility’ element of that benefit to an unspecified number of recipients throughout the European Union, although the fact that that part of the DLA is in the nature of a non-contributory benefit cannot be disputed and it could lawfully be included in that list as a non-exportable benefit.
75. That fact warrants the Court exercising the power expressly conferred on it by the second paragraph of Article 231 EC in the event of annulment of a regulation, provisionally to maintain the effects of inclusion of the DLA as regards solely the ‘mobility’ part so that, within a reasonable period, appropriate measures can be taken to include it in Annex IIa as amended.
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