Kelvin Albert Snares v Adjudication Officer.
Date: 1997-11-04
30 The fact that the Community legislature refers to legislation, such as that relating to DLA, in Annex IIa to Regulation No 1408/71 must be accepted as establishing that benefits granted pursuant to that legislation are special non-contributory benefits falling within the scope of Article 10a of Regulation No 1408/71 (see, in particular, to that effect, Case 24/64 Dingemans v Bestuur der Sociale Verzekeringsbank [1964] ECR 647, at p. 654).
31 Furthermore, the wording of Article 10a implies that the benefits to which it refers also come within Article 4(2a) of Regulation No 1408/71, as amended by Regulation No 1247/92.
32 In those circumstances, a benefit such as DLA must, by reason of the fact that it is listed in Annex IIa, be regarded as being exclusively governed by the coordination rules of Article 10a and, consequently, as being a special non-contributory benefit within the meaning of Article 4(2a).
33 That interpretation is borne out by the third, fourth, fifth and sixth recitals in the preamble to Regulation No 1247/92, from which it is clear that the intention of the legislature was to provide a specific system of coordination taking account of the special characteristics of certain benefits falling simultaneously within the categories of both social security and social assistance and treated, according to the Court's case-law, as social security benefits in regard to workers already covered by the social security scheme of the State whose legislation is relied on (see, in particular, Case C-356/89 Newton v Chief Adjudication Officer [1991] ECR I-3017).  As the Advocate General has shown in points 59 to 63 of his Opinion, a benefit such as DLA is indeed a benefit of that kind.
34 In addition, contrary to the argument put forward by Mr Snares, the fact that the United Kingdom has not made a declaration under Article 5 of Regulation No 1408/71, as amended by Regulation No 1247/92, in so far as it provides that Member States are to specify the special non-contributory benefits covered by Article 4(2a), does not preclude classification of DLA as a special non-contributory benefit within the meaning of the latter provision.
35 As the Court has consistently held (see, in particular, Case 70/80 Vigier v Bundesversicherungsanstalt für Angestellte [1981] ECR 229, paragraph 15; Case C-251/89 Athanasopoulos and Others v Bundesanstalt für Arbeit [1991] ECR I-2797, paragraph 28; and Joined Cases C-88/95, C-102/95 and C-103/95 Martínez Losada and Others v Instituto Nacional de Empleo and Instituto Nacional de la Seguridad Social [1997] ECR I-869, paragraph 21), the fact that rules have not been mentioned in the declaration made by a Member State is not conclusive in this regard and is therefore not of itself proof that those rules do not come within the scope of the provision in question.
39 The first point to note is that, according to Article 10(1) of Regulation No 1408/71, the principle that residence clauses should be waived applies `save as otherwise provided in this Regulation'.  Accordingly, the Community legislature has inter alia restricted, in Article 69 of Regulation No 1408/71, the right to export unemployment benefits to a period of three months.  In its judgment in Joined Cases 41/79, 121/79 and 796/79 Testa and Others v Bundesanstalt für Arbeit [1980] ECR 1979, paragraph 14, the Court ruled that such a limitation is not contrary to Article 51 of the Treaty.
40 As is clear from paragraphs 28 and 33 of the present judgment, but for the specific system of coordination established by Regulation No 1247/92, a person in Mr Snares' position would have been able to rely on the principle of exportability of invalidity benefits laid down in Article 10(1) of Regulation No 1408/71 in order to retain entitlement to DLA.
41 However, as regards special non-contributory benefits such as those at issue in the main proceedings, the Court has pointed out on numerous occasions that the principle of the exportability of social security benefits applies so long as derogating provisions have not been adopted by the Community legislature (see, in particular, Case 87/76 Bozzone v Office de Sécurité Sociale d'Outre-Mer [1977] ECR 687; Case 139/82 Piscitello v Istituto Nazionale della Previdenza Sociale [1983] ECR 1427, paragraph 16; Joined Cases 379/85, 380/85, 381/85 and 93/86 Caisse Régionale d'Assurance Maladie Rhône-Alpes and Others v Giletti and Others [1987] ECR 955, paragraph 16; and Case C-236/88 Commission v France [1990] ECR I-3163, paragraph 16).
42 Second, the Court has in the past accepted that the grant of benefits closely linked with the social environment may be made subject to a condition of residence in the State of the competent institution (Case 313/86 Lenoir v Caisse d'Allocations Familiales des Alpes-Maritimes [1988] ECR 5391, paragraph 16).
43 As the Advocate General has explained in points 85 to 88 of his Opinion, benefits such as DLA fall within the category of benefits which, as regards the detailed rules for granting them, are closely linked to a particular economic and social context.
45 The Court has held (see, in particular, Martínez Losada and Others, cited above, paragraph 43) that, in the absence of harmonization in social security matters, the Member States remain competent to define the conditions for granting social security benefits, even if they make them more strict, provided that the conditions adopted do not give rise to overt or disguised discrimination between Community workers.