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	Databáze č. 17 : Databáze judikatury

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	Číslo (Kód CELEX): Number (CELEX Code):		61984J0041

	Název: Title:		JUDGMENT OF THE COURT OF 15 JANUARY 1986. PIETRO PINNA V CAISSE D' ALLOCATIONS FAMILIALES DE LA SAVOIE. REFERENCE FOR A PRELIMINARY RULING FROM THE COUR DE CASSATION. SOCIAL SECURITY - FAMILY ALLOWANCES - ARTICLE 73, PARAGRAPH 2 OF REGULATION 1408/71. CASE 41/84.

	Publikace: Publication:		REPORTS OF CASES 1986 PAGES 0001 - 0028

	Předmět (klíčová slova): Keywords		SOCIAL SECURITY FOR MIGRANT WORKERS;

	Související předpisy: Corresponding acts:		371R1408

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Defrenne II Case 43/75 Defrenne v Sabena [1976] ECR 455 · Barber Case C-262/88 Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 · Société de maďs Case 112/83 Société de maďs SA v Administration des douanes et droits indirects [1985] ECR 719


	Plný text: Fulltext:		Ne

Fakta:
Mr Pinna, an Italian national, resides in France with his wife and their two children, Sandro and Rosetta. In1977, the children went to Italy with their mother for an extended visit. The Caisse d’allocations familiales de la Savoie (Family Allowances Fund, Savoie, hereinafter: “the Fund”) refused to pay Mr Pinna family benefits in respect of the periods of absence of his children on the ground that the absence lasted for more than three months. Under the applicable French law, any French or foreign national residing in France who, as head of household or otherwise, has one or more dependent children residing in France is entitled in respect of those children to certain family benefits. However, child who lives in another country for a period longer than three months is deemed not to be resident in France.
Said provisions of the French law are based on Article 73(1) of Regulation (EEC) 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.
. Article 73(1) provides that a worker subject to the legislation of a Member State other than France is to be entitled to the family benefits provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State as though they were residing in the territory of the first State. Article 73(2) - in the version applicable at the material time - provided that a worker subject to French legislation shall be entitled, in respect of members of his family residing in the territory of a Member State other than France, to the family allowances provided for by the legislation of the Member State in whose territory the members of the family reside.
Mr Pinna brought an action against the Funds, claiming that the refusal to grant him family benefits for his children was unlawful. The Cour des cassation under Article 177 of the Treaty stayed the proceedings and asked to the Court of Justice to rule on: (1) The validity and continued applicability of Article 73(2) of Regulation 1408/71 and (2) the interpretation of the word ‘residence’ in the context of that provision.

Názor soudu a komentář:
Answering the first question, the Court finds that Article 73(2) of Regulation 1408/71 is invalid because it violates the principle of equal treatment. The Court therefore finds no need to answer the second question.
The Court first notes that “Article 51 of the Treaty provides for the coordination, not the harmonization, of the legislation of the Member States. As a result, Article 51 leaves in being differences between the Member States’ social security systems and consequently, in rights of persons working in the Member States. It follows that substantive and procedural differences between the social security systems of the individual Member States, and hence in the rights of persons working in the Member States are unaffected by Article 51 of the Treaty.” However, the Community legislation intended to transpose the coordination provided for in Article 51, is bound to observe the principle of equality set out in Article 48.
Article 73 of Regulation 1408/71 does not conform with this requirement. It does not assimilate the conditions of employment of the Member States but rather adds to the existing disparities by introducing two different systems for migrant workers. The distinction thus drawn is incompatible with the principle of equality which not only prohibits overt discrimination but also covert (indirect) forms which, by applying facially neutral criteria, have a discriminatory effect. The French legislation based on Article 73(2) of Regulation 1408/71 is indirectly discriminatory: While it employs the same criterion for both French workers and migrant workers employed in France, “that criterion is by no means equally important [for both categories] since the problem of members of the family residing outside France arises essentially for migrant workers. Consequently, the criterion is not of such a nature as to secure the equal treatment laid down by Article 48 of the Treaty and therefore may not be employed within the context of coordination of national legislation which is laid down in Article 51 of the Treaty with a view to promoting free movement of workers within the Community in accordance with Article 48.”
The Court, however, restricts the temporal effect of its judgement. “As regards the consequences of the invalidity of Article 73(2), it must be noted that (…) the Court ruled that where it is justified by overriding considerations the second paragraph of Article 174 of the Treaty gives the Court discretion to decide, in each particular case, which specific effects of a regulation which has been declared void must be maintained” (
Société de maďs
). Whereas in general, the judgements of the Court, in which it interprets Community law, also apply retroactively, the Court has consistently held that a the temporal effect may be limited on grounds of legal certainty where (i) the persons concerned could reasonably rely on the validity of the relevant regulation and where (ii) the judgement has serious financial consequences (cf.
Defrenne II; Barber
). In the present case the Court assumes that the judgement has far reaching consequences on the French social security system. Furthermore, “account should be taken, exceptionally, of the fact that France has been induced to maintain for a long period practices which were consistent with Regulation No 1408/71 but which had not legal basis under Articles 48 and 51 of the Treaty.” Therefore, “except as regards employed persons who have already brought legal proceedings or made an equivalent claim prior to the date of this judgement, the aforesaid invalidity of Article 73(2) of Regulation No 1408/71 cannot be relied on in order to support claims regarding benefits for periods prior to that date”.
The Community legislature has subsequently amended Regulation 1408/71 in conformity with the present judgement by Regulation (EEC) 3427/89
OJ 1989 L 331, p. 1.
with retroactive effect to 15 January 1986.

Shrnutí (Summary of the Judgment):
1. ARTICLE 51 OF THE TREATY PROVIDES FOR THE COORDINATION, NOT THE HARMONIZATION, OF THE LEGISLATION OF THE MEMBER STATES AND HENCE LEAVES IN BEING DIFFERENCES BETWEEN THE MEMBER STATES' SOCIAL SECURITY SYSTEMS AND, CONSEQUENTLY, IN THE RIGHTS OF WORKERS EMPLOYED IN THE MEMBER STATES. IT FOLLOWS THAT SUBSTANTIVE AND PROCEDURAL DIFFERENCES BETWEEN THE SOCIAL SECURITY SYSTEMS OF INDIVIDUAL MEMBER STATES, AND HENCE IN THE RIGHTS OF WORKERS EMPLOYED IN THE MEMBER STATES, ARE UNAFFECTED BY ARTICLE 51 OF THE TREATY. HOWEVER, THE OBJECTIVE OF SECURING FREE MOVEMENT FOR WORKERS WITHIN THE COMMUNITY, AS PROVIDED FOR BY ARTICLES 48 TO 51 OF THE TREATY, WILL BE IMPERILLED AND MADE MORE DIFFICULT TO REALIZE, IF UNNECESSARY DIFFERENCES IN THE SOCIAL SECURITY RULES ARE INTRODUCED BY COMMUNITY LAW. IT FOLLOWS THAT THE COMMUNITY RULES ON SOCIAL SECURITY INTRODUCED PURSUANT TO ARTICLE 51 OF THE TREATY MUST REFRAIN FROM ADDING TO THE DISPARITIES WHICH ALREADY STEM FROM THE ABSENCE OF HARMONIZATION OF NATIONAL LEGISLATION.

2. THE PRINCIPLE OF EQUAL TREATMENT PROHIBITS NOT ONLY OVERT DISCRIMINATION BASED ON NATIONALITY BUT ALL COVERT FORMS OF DISCRIMINATION WHICH, BY APPLYING OTHER DISTINGUISHING CRITERIA, IN FACT ACHIEVE THE SAME RESULT. THAT IS THE CASE WHEN THE CRITERION OF THE MEMBER STATE IN WHICH THE MEMBERS OF THE FAMILY RESIDE IS USED BY THE COMMUNITY RULES IN ORDER TO DETERMINE THE LEGISLATION APPLICABLE TO THE FAMILY BENEFITS OF A MIGRANT WORKER. EVEN THOUGH THE LEGISLATION OF A MEMBER STATE EMPLOYS THE SAME CRITERION TO DETERMINE THE ENTITLEMENT TO FAMILY BENEFITS OF A NATIONAL OF THAT STATE EMPLOYED IN ITS TERRITORY, THAT CRITERION IS BY NO MEANS EQUALLY IMPORTANT FOR THAT CATEGORY OF WORKER, SINCE THE PROBLEM OF MEMBERS OF THE FAMILY RESIDING OUTSIDE THE MEMBER STATE OF EMPLOYMENT ARISES ESSENTIALLY FOR MIGRANT WORKERS. CONSEQUENTLY, THE CRITERION IS NOT OF SUCH A NATURE AS TO SECURE THE EQUAL TREATMENT LAID DOWN BY ARTICLE 48 OF THE TREATY AND THEREFORE MAY NOT BE EMPLOYED WITHIN THE CONTEXT OF THE COORDINATION OF
NATIONAL LEGISLATION WHICH IS LAID DOWN IN ARTICLE 51 OF THE TREATY WITH A VIEW TO PROMOTING THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY IN ACCORDANCE WITH ARTICLE 48. IT FOLLOWS THAT ARTICLE 73 (2) OF REGULATION NO 1408/71 IS INVALID IN SO FAR AS IT PRECLUDES THE AWARD TO EMPLOYED PERSONS SUBJECT TO FRENCH LEGISLATION OF FRENCH FAMILY BENEFITS FOR MEMBERS OF THEIR FAMILY RESIDING IN THE TERRITORY OF ANOTHER MEMBER STATE.

3. WHERE IT IS JUSTIFIED BY OVERRIDING CONSIDERATIONS THE SECOND PARAGRAPH OF ARTICLE 174 OF THE TREATY GIVES THE COURT DISCRETION TO DECIDE, IN EACH PARTICULAR CASE, WHICH SPECIFIC EFFECTS OF A REGULATION WHICH HAS BEEN DECLARED VOID MUST BE MAINTAINED. WHEN THE COURT MAKES USE OF THE POSSIBILITY OF LIMITING THE EFFECT ON PAST EVENTS OF A DECLARATION IN PROCEEDINGS UNDER ARTICLE 177 OF THE TREATY THAT A MEASURE IS INVALID, IT IS FOR THE COURT TO DECIDE WHETHER AN EXCEPTION TO THAT TEMPORAL LIMITATION OF THE EFFECT OF ITS JUDGMENT MAY BE MADE IN FAVOUR OF THE PARTY WHICH BROUGHT THE ACTION BEFORE THE NATIONAL COURT OR IN FAVOUR OF ANY OTHER PERSON WHO TOOK SIMILAR STEPS BEFORE THE DECLARATION OF INVALIDITY OR WHETHER, CONVERSELY, A DECLARATION OF INVALIDITY APPLICABLE ONLY TO THE FUTURE CONSTITUTES AN ADEQUATE REMEDY EVEN FOR PERSONS WHO TOOK ACTION AT THE APPROPRIATE TIME WITH A VIEW TO PROTECTING THEIR RIGHTS.

Plný text judikátu (Entire text of the Judgment):