1 BY JUDGMENT DATED 13 JANUARY 1975, RECEIVED AT THE COURT ON 27 JANUARY 1975, THE TRIBUNAL DU TRAVAIL OF NIVELLES REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY FOR A PRELIMINARY RULING THREE QUESTIONS ON THE INTERPRETATION OF THE COMMUNITY REGULATIONS ON THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY AND ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY, IN RELATION TO THE BELGIAN LAW OF 27 JUNE 1969 RELATING TO THE GRANT OF BENEFITS TO THE HANDICAPPED .
2 IT APPEARS FROM THE ORDER REFERRING THE MATTER THAT THE NATIONAL PROCEEDINGS ARE CONCERNED WITH AN APPLICATION MADE IN 1973 BY THE PARENTS OF A HANDICAPPED MINOR WITH A VIEW TO BENEFITING FROM THE SAID LAW .
3 THE PARENTS, WHO ARE OF ITALIAN NATIONALITY, HAVE SINCE 1947 RESIDED IN BELGIUM WHERE THE FATHER HAS BEEN REGULARLY EMPLOYED AND WHERE THE CHILD WAS BORN IN 1959 AND HAS RESIDED EVER SINCE .
4 THE BELGIAN MINISTRY OF SOCIAL SECURITY REJECTED THE APPLICATION ON THE GROUNDS THAT THE CHILD WAS NOT OF BELGIAN NATIONALITY AND DID NOT SATISFY THE CONDITIONS OF RESIDENCE LAID DOWN BY THE EUROPEAN INTERIM AGREEMENT OF 11 DECEMBER 1953, THAT IS TO SAY A MINIMUM RESIDENCE OF 15 YEARS IN BELGIUM SINCE ATTAINING THE AGE OF 20 .
5 THE TRIBUNAL DU TRAVAIL, BEFORE WHICH THE PARENTS ATTACKED THE MINISTRY'S DECISION, CONSIDERED THAT THE ACTION HAD BEEN BROUGHT BY THE PARENTS FOR THE PURPOSE OF OBTAINING SOCIAL ADVANTAGES WHICH THEY ARE THEMSELVES ENTITLED TO CLAIM AS PARENTS HAVING DEPENDENT UPON THEM A HANDICAPPED CHILD, I.E . ADVANTAGES TO WHICH THEY ARE DIRECTLY ENTITLED .
6 THE TRIBUNAL FURTHER STATED IN ITS JUDGMENT THAT ONE MUST INTERPRET THE PROVISIONS OF THE EUROPEAN INTERIM AGREEMENT AS MEANING THAT THE CONDITIONS OF RESIDENCE LAID DOWN FOR ENTITLEMENT TO BENEFITS MUST BE SATISFIED BY THE PARENTS AND NOT BY THE CHILD .
7 THE FIRST TWO QUESTIONS ASK IN SUBSTANCE WHETHER THE SYSTEM OF BENEFITS UNDER THE BELGIAN LAW OF 27 JUNE 1969, TO THE EXTENT THAT THEY CONCERN HANDICAPPED CHILDREN OF EMPLOYED PERSONS, FALL WITHIN THE AMBIT OF ARTICLE 12 OF REGULATION NO 1612/68 OF 15 OCTOBER 1968 ON THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY OR OF REGULATION NO 1408/71 OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY .
8 THE THIRD QUESTION ASKS WHETHER, IN THE EVENT OF A REPLY IN THE AFFIRMATIVE TO ONE OF THE FIRST TWO QUESTIONS, MINORS ENTITLED TO BENEFIT BY REASON OF THE FACT THAT THEIR PARENTS FULFIL THE CONDITIONS AT THE TIME WHEN THE SCHEME INSTITUTED BY THE BELGIAN LAW BECOMES APPLICABLE REMAIN ENTITLED TO BENEFIT AT THE VARIOUS STAGES OF ATTAINING THEIR MAJORITY, WITHOUT AT THAT TIME HAVING PERSONALLY TO FULFIL THE CONDITIONS AS TO RESIDENCE REQUIRED UP TO THAT TIME OF THEIR PARENTS .
9 THE CORRECT APPROACH TO THE QUESTIONS ASKED IS TO EXAMINE THE PROBLEMS OF INTERPRETATION RELATING TO REGULATION NO 1408/71 WITHIN THE FRAMEWORK OF ARTICLES 2, 7 AND 51 OF THE TREATY WHICH FORM ITS BASIS .
10 WHILST THE COURT, ACTING WITHIN THE FRAMEWORK OF ARTICLE 177, HAS NO JURISDICTION TO APPLY THE COMMUNITY RULE TO A SPECIFIC CASE, NOR, CONSEQUENTLY, TO PRONOUNCE ON A PROVISION OF NATIONAL LAW WITH REGARD TO SUCH RULE, IT CAN HOWEVER PROVIDE THE NATIONAL COURT WITH THE FACTORS OF INTERPRETATION DEPENDING ON COMMUNITY LAW WHICH COULD BE USEFUL TO IT IN EVALUATING THE EFFECTS OF SUCH PROVISION .
11 IN ITS JUDGMENT OF 13 NOVEMBER 1974 IN CASE 39/74 (( 1974 ) ECR 1251 ) THE COURT FOUND THAT 'A NATIONAL LEGISLATION GIVING A LEGALLY PROTECTED RIGHT TO A BENEFIT FOR THE HANDICAPPED FALLS, AS REGARDS THE PERSONS COVERED BY REGULATION NO 3, WITHIN THE AREA OF SOCIAL SECURITY WITHIN THE MEANING OF ARTICLE 51 OF THE TREATY AND OF THE COMMUNITY REGULATIONS THEREUNDER '.
12 SINCE REGULATION NO 3 WAS REPLACED BY REGULATION NO 1408/71 OF THE COUNCIL, THE SAME INTERPRETATION APPLIES TO THE PROVISIONS OF THE LATTER REGULATION TO THE EXTENT THAT THEY DETERMINE THE MATTERS COVERED BY THAT REGULATION .
13 ACCORDING TO THE FIFTH RECITAL IN THE PREAMBLE, THE PROVISIONS OF REGULATION NO 1408/71 'FALL WITHIN THE FRAMEWORK OF FREEDOM OF MOVEMENT FOR WORKERS WHO ARE NATIONALS OF MEMBER STATES AND SHOULD, TO THIS END, CONTRIBUTE TOWARDS THE IMPROVEMENT OF THEIR STANDARD OF LIVING AND CONDITIONS OF EMPLOYMENT, BY GUARANTEEING WITHIN THE COMMUNITY FIRSTLY EQUALITY OF TREATMENT FOR ALL NATIONALS OF MEMBER STATES UNDER THE VARIOUS NATIONAL LEGISLATIONS AND SECONDLY SOCIAL SECURITY BENEFITS FOR WORKERS AND THEIR DEPENDANTS REGARDLESS OF THEIR PLACE OF EMPLOYMENT OR OF RESIDENCE '.
14 AS REGARDS THE PERSONS COVERED BY REGULATION NO 1408/71, ARTICLE 2 ( 1 ) THEREOF PROVIDES THAT THE REGULATION 'SHALL APPLY 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 ... AS ALSO TO THE MEMBERS OF THEIR FAMILIES AND THEIR SURVIVORS '.
15 ARTICLE 3 ( 1 ), SUPPORTING THE FUNDAMENTAL PRINCIPLE OF EQUALITY OF TREATMENT, PROVIDES THAT 'SUBJECT TO THE SPECIAL PROVISIONS OF THIS REGULATION, PERSONS RESIDENT IN THE TERRITORY OF ONE OF THE MEMBER STATES TO WHOM THIS REGULATION APPLIES SHALL BE SUBJECT TO THE SAME OBLIGATIONS AND ENJOY THE SAME BENEFITS UNDER THE LEGISLATION OF ANY MEMBER STATE AS THE NATIONALS OF THAT STATE '.
16 IT APPEARS FROM THIS PROVISION READ IN CONJUNCTION WITH ARTICLE 2 ( 1 ) THAT IN THE FRAMEWORK OF THE MATTERS COVERED BY THE REGULATION AND IN THE ABSENCE OF A SPECIFIC PROVISION TO THE CONTRARY, THE MEMBERS OF AN EMPLOYED PERSON'S FAMILY MUST BE ALLOWED THE BENEFIT OF THE LEGISLATION OF THE STATE OF THEIR RESIDENCE UNDER THE SAME CONDITIONS AS THE NATIONALS OF THAT STATE .
17 CONSEQUENTLY, AS REGARDS THE ENJOYMENT OF RIGHTS UNDER A NATIONAL LEGISLATION PROVIDING BENEFITS FOR THE HANDICAPPED, NEITHER THE EMPLOYED PERSON HIMSELF NOR THE MEMBERS OF HIS FAMILY MAY, AS COMPARED WITH THE NATIONALS OF THE STATE OF THEIR RESIDENCE, BE PLACED IN A LESS FAVOURABLE POSITION FOR THE SOLE REASON THAT THEY DO NOT POSSESS THE NATIONALITY OF THAT STATE .
18 THE TERM MEMBER OF THE FAMILY OF AN EMPLOYED PERSON UNDOUBTEDLY INCLUDES A MINOR CHILD DEPENDENT ON HIS PARENTS, AS IS RECOGNIZED BY THE TRIBUNAL DU TRAVAIL IN ITS ORDER REFERRING THE MATTER .
19 AS REGARDS MORE PARTICULARLY THE CASE OF A HANDICAPPED CHILD WHO FROM HIS MINORITY FULFILS THE CONDITIONS REQUIRED TO BENEFIT AS A MEMBER OF THE EMPLOYED PERSON'S FAMILY FROM BENEFITS TO THE HANDICAPPED, THE EQUALITY OF TREATMENT UNDER ARTICLE 3 OF REGULATION NO 1408/71 CANNOT TERMINATE WHEN HE CEASES TO BE A MINOR, IF THE CHILD BY REASON OF HIS HANDICAP IS PREVENTED FROM HIMSELF ACQUIRING THE STATUS OF EMPLOYED PERSON WITHIN THE MEANING OF THE REGULATION .
20 INDEED, IF THIS WERE NOT THE CASE, A WORKER ANXIOUS TO ENSURE TO HIS CHILD THE LASTING ENJOYMENT OF THE BENEFITS NECESSITATED BY HIS CONDITION AS A HANDICAPPED PERSON, WOULD BE INDUCED NOT TO REMAIN IN THE MEMBER STATE WHERE HE HAS ESTABLISHED HIMSELF AND HAS FOUND HIS EMPLOYMENT, WHICH WOULD RUN COUNTER TO THE OBJECT SOUGHT TO BE ATTAINED BY THE PRINCIPLE OF FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY, BEARING IN MIND INTER ALIA THE RIGHT RECOGNIZED UNDER THIS PRINCIPLE TO EMPLOYED PERSONS AND TO MEMBERS OF THEIR FAMILIES TO REMAIN WITHIN THE TERRITORY OF A MEMBER STATE IN WHICH THE EMPLOYED PERSON WAS EMPLOYED UNDER THE CONDITIONS DETERMINED BY REGULATION NO 1251/70 OF THE COMMISSION OF 29 JUNE 1970 ( OJ L 142 OF 30 . 6 . 1970, P . 24 ).
21 IN VIEW OF THE FINDING THAT THE PROVISIONS OF REGULATION NO 1408/71 MUST BE INTERPRETED IN THE SENSE INDICATED, IT DOES NOT SEEM NECESSARY TO EXAMINE WHETHER AN ANALOGOUS RESULT MAY BE DERIVED FROM THE PROVISIONS OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON THE FREE MOVEMENT WITHIN THE COMMUNITY .
22/23 THE COSTS INCURRED BY THE BELGIAN STATE, THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND AS THOSE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE A NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .
ON THOSE GROUNDS
THE COURT
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL OF NIVELLES BY ORDER OF THAT COURT DATED 13 JANUARY 1975, HEREBY RULES :
THE PROVISIONS OF REGULATION NO 1408/71 MUST BE INTERPRETED AS MEANING
( A ) THAT THEY INCLUDE A NATIONAL LEGISLATIVE SYSTEM WHICH PROVIDES A LEGALLY PROTECTED RIGHT TO BENEFITS FOR THE HANDICAPPED;
( B ) THAT IN APPLYING SUCH A SYSTEM THE HANDICAPPED CHILD OF A WORKER MUST NOT, AS COMPARED WITH THE NATIONALS OF THE STATE OF RESIDENCE, BE LESS FAVOURABLY TREATED BY REASON ONLY OF THE FACT THAT HE DOES NOT POSSESS THE NATIONALITY OF THAT STATE;
( C ) THAT IN THE CASE OF A HANDICAPPED CHILD WHO FROM HIS MINORITY FULFILS THE CONDITIONS REQUIRED TO QUALIFY FOR BENEFITS FOR THE HANDICAPPED AS A MEMBER OF AN EMPLOYED PERSON'S FAMILY, THE EQUALITY OF TREATMENT CANNOT CEASE AT THE END OF HIS MINORITY IF THE CHILD BY REASON OF HIS HANDICAP IS PREVENTED FROM HIMSELF ACQUIRING THE STATUS OF AN EMPLOYED PERSON WITHIN THE MEANING OF THE REGULATION .
