1 By order of 28 February 1992, received by the Court on 4 March 1992, the Raad van State (Council of State) of the Netherlands referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty questions concerning the interpretation of Articles 4 and 68 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and concerning the general principle of Community law of non-discrimination on grounds of nationality.
2 The questions arose in the course of proceedings between Mr Acciardi and the Commissie Beroepszaken Administratieve Geschillen in de provincie Noord-Holland ("the defendant") in relation to the calculation of a benefit provided for by the Wet inkomensvoorziening oudere en gedeeltelijk arbeidsongeschikte werkloze werknemers (Netherlands Law on the Provision of Income for Unemployed Workers who are Elderly or suffering from Partial Incapacity to Work, "the IOAW").
3 The documents before the Court show that Mr Acciardi is an Italian national who lived in the Netherlands at the time of the events in question. He was in employment there, whereas his wife and son lived in Italy, but in July 1985 he became unemployed in the Netherlands. For two years from July 1985 to July 1987 he received benefits under the Wet werkloosheidsvoorziening (Netherlands Law on Public Unemployment Benefits, "the WW").
4 By a decision of 5 February 1988, Mr Acciardi was granted a benefit under the IOAW from the date on which benefits under the WW ceased.
5 Article 9 of the IOAW lays down that the benefit payable under that law is equal to the difference between the applicable basic amount and the income of the person concerned and, where applicable, that of his spouse. Article 4(2) provides that the unemployed worker and his spouse have equal rights to the benefit, half of which is paid to each of them. Pursuant to paragraph 3 of the same article, half of the applicable basic amount is equal to half of the net minimum wage for an unemployed worker and his wife, whereas for a single unemployed worker the basic amount is equal to 90% or 70% of the net minimum wage, depending on whether he has children. Pursuant to Article 5 of the IOAW, if the spouse of an unemployed worker lives outside the Netherlands, the unemployed worker is deemed to be a single person.
6 On the basis of Article 5 the defendant classified Mr Acciardi as a single person without children on the grounds that his wife and son lived outside the Netherlands.
7 Mr Acciardi took the view that he should receive benefits at the rate for a married couple. His objection to the abovementioned decision was ruled unfounded by the Mayor and Council of Amsterdam by decision of 16 September 1988. As the action which he brought against this decision was dismissed by a decision of the provincial councillors of 26 June 1989, he appealed to the Raad van State (Council of State).
8 In these circumstances the latter court decided, by judgment of 28 February 1992, to stay the proceedings pending a ruling by the Court of Justice on the following questions: "1. Must Article 4(1) of Regulation (EEC) No 1408/71, which provides that that regulation applies to certain branches of social security, be interpreted as meaning that a scheme such as that contained in the IOAW, which has characteristics both of social security and of social assistance, falls within the scope of that regulation? 2. If so, must Article 68(2) of Regulation (EEC) No 1408/71 be interpreted as preventing a Member State from maintaining a legislative provision under which the benefit of a Community national residing in the Netherlands who is to be regarded as being an unemployed worker for the purposes of the IOAW and whose spouse lives in another Member State or resides there other than on a temporary basis, is determined without taking the spouse into account? 3. If the reply to the first question is in the negative, does the prohibition of discrimination on grounds of nationality laid down in Community law preclude the application of a legislative provision under which the benefit of a Community national residing in the Netherlands who is to be regarded as being an unemployed worker for the purposes of the IOAW and whose spouse lives in another Member State or resides there other than on a temporary basis, is determined without taking the spouse into account?"
9 Reference is made to the Report for the Hearing for a fuller account of the facts, the Community provisions at issue, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. First question
10 In its first question, the national court essentially seeks to ascertain whether a regulation such as the IOAW falls within the scope of Regulation No 1408/71.
11 Article 4(1) of Regulation No 1408/71 provides that the regulation applies to all legislation concerning the branches of social security which are listed, including in particular invalidity benefits and unemployment benefits. Pursuant to paragraph 4 of the same article, however, the regulation does not apply to social and medical assistance. Article 5 of the regulation lays down that Member States are to specify the legislation referred to in Article 4(1) in declarations notified and published in accordance with Article 97 of the regulation.
12 It is common ground that the IOAW is not specified in the declaration notified by the Netherlands in accordance with Articles 5 and 97 of Regulation No 1408/71.
13 However, according to the case-law of the Court, the fact that a national law or regulation has not been specified in the declarations referred to in Article 5 of the regulation is not of itself proof that that law or regulation does not fall within the field of application of the said regulation (see in particular Case 35/77 Beerens Rijksdienst voor Arbeidsvoorziening [1977] ECR 2249, paragraph 9). The Court has often stated that the distinction between benefits excluded from the scope of Regulation No 1408/71 and benefits which come within it is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation (see in particular Case 111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 28, and Case 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn, Kalmthout [1985] ECR 973, paragraph 11).
14 The Court has also often stated that a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see in particular Commission v Luxembourg, paragraph 29).
15 As to the first of these conditions, it is true that the amount payable to the plaintiff varies according to his income and that of his spouse because Article 9 of the IOAW provides that the benefit payable is equal to the difference between the applicable basic amount and the income of the person concerned and his spouse. However, this is an objective, legally defined criterion which gives entitlement to the benefit without the competent authority being able to take other personal circumstances into consideration. The grant of the benefit therefore does not depend on an individual assessment of the claimant' s personal needs, which is a characteristic feature of social assistance (see Case C-78/91 Hughes v Chief Adjudication Officer [1992] ECR I-4839).
16 As to the second condition, it must be observed firstly that, under Article 4 of the IOAW, the entitlement to the benefit provided for by this law is limited to unemployed workers and, where applicable, their spouses. Secondly, the entitlement ceases once the person concerned reaches the statutory retirement age of 65. Thirdly, for a person in the situation of the plaintiff in the main proceedings, entitlement to a benefit under the IOAW arises immediately after the benefit under the WW. Fourthly, pursuant to Article 26 of the IOAW, an unemployed worker is without exception entitled to benefit only if he satisfies certain conditions aimed at his re-integration into working life, namely that he registers as a job-seeker with the employment agency, seeks paid employment so far as he is able and accepts a suitable job.
17 It is clear from this that a law such as the IOAW relates directly to the risk of unemployment. It should also be noted that the Netherlands Government admitted in its written observations that the condition for the establishment of the right in question lay in the continuance of unemployment.
18 The fact that the IOAW scheme is financed by the public authorities cannot be adduced, as the Netherlands Government does, as an argument against this interpretation. Article 4(2) of Regulation No 1408/71 expressly states that the regulation applies to non-contributory schemes.
19 The reply to the first question from the national court must therefore be that a benefit like that provided for by legislation such as the IOAW constitutes an unemployment benefit and is therefore covered by Regulation No 1408/71. Second question
20 In its second question the national court seeks to establish whether a provision such as that of the IOAW under which benefits for a Community national are calculated without taking account of his spouse who lives in another Member State is contrary to Article 68(2) of Regulation No 1408/71.
21 The first sentence of Article 68(2) of the regulation lays down that "the competent institution of a Member State whose legislation provides that the amount of benefits varies with the number of members of the family, shall take into account also members of the family of the person concerned who are residing in the territory of another Member State, as though they were residing in the territory of the competent State".
22 At the hearing the Netherlands Government submitted that Article 68 of the regulation related to benefits the amount of which depended on the number of members of the family. However, that was not true of the IOAW benefit as the number of family members is not relevant to the application of that law.
23 That argument cannot be accepted.
24 Firstly, if the applicant is a single person, the amount of IOAW benefit is unquestionably linked to the number of members of the family because, in the case of a worker without children, the applicable basic amount is equal to 70% of the net pay, whereas it is 90% in the case of a worker with children.
25 Secondly, if the claimant is married, it is true that the IOAW grants an unemployed worker on the one hand and his spouse on the other an individual entitlement equivalent to one half of the benefit, which is equal to the difference between their total income and 100% of the net minimum wage. Nevertheless, as the Commission rightly points out, the existence of the spouse' s entitlement depends on that of the unemployed person himself. It is clear from Article 5 of the IOAW that if the unemployed worker is not entitled to the benefit in question, his spouse is not entitled to it either.
26 It follows that the amount of benefits of the kind granted under the IOAW is linked to the number of members of the family within the meaning of Article 68(2) of the regulation.
27 The reply to the second question from the national court must therefore be that, subject to the second sentence of Article 68(2) of Regulation No 1408/71, a provision such as that of the IOAW under which the benefits granted to a national of another Member State are calculated without taking account of his spouse who lives in another Member State is contrary to the first sentence of Article 68(2) of that regulation. Third question
28 In view of the replies to the national court' s first and second questions, the third question does not call for an answer.