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JUDGMENT OF 31. 5. 1979 — CASE 207/78

benefits which come within it restsentirely on the factors relating to eachbenefit, in particular its purposes andthe conditions for its grant.

2. Article 4 (4) of Regulation No1408/71 must be interpreted as alsoexcluding from the field ofapplication of that regulation specialnational schemes (such as thatreferred to in Article 1 (4) of theBelgian Royal Decree of 27 June1969), the essential objective of whichis to offer to workers who fought inthe allied forces between 1940 and

1945 and who suffer incapacity forwork attributable to an act of war a

testimony of national recognition forthe hardships suffered during thatperiod and to grant them, by increasing the rate of the early retirementpension, a benefit by reason of theservices thus rendered to theircountry.

3. It follows from all the provisions ofRegulation (EEC) No 1612/68 of theCouncil and from the objectivepursued that the social and taxadvantages which this regulationextends to workers who are nationalsof other Member States are all those

which, whether or not linked to acontract of employment, are generallygranted to national workers primarilybecause of their objective status asworkers or by virtue of the mere factof their residence on the national

territory and the extension of whichto workers who are nationals of otherMember States therefore seems

suitable to facilitate their mobilitywithin the Community.

4. A benefit based on a scheme ofnational recognition, (such as thebenefit granted by the Belgian RoyalDecree of 27 June 1969), cannot beconsidered as an advantage granted toa national worker by reason primarilyof his status of worker or resident on

the national territory and for thatreason does not fulfil the essentialcharacteristics of the "social

advantages" referred to in Article 7(2) of Regulation (EEC) No 1612/68.

It does not therefore come within the

substantive field of application of thatregulation and is not therefore, asregards the conditions for the grant ofthat benefit, subject to the provisionsof the latter.

In Case 207/78

REFERENCE to the Court under Article 177 of the EEC Treaty by theCour du Travail, Liège, for a preliminary ruling in the action pending beforethat court between

MINISTÈRE Public

2020

MINISTÈRE PUBLIC v EVEN

and

(1) Gilbert Even, residing at Herstal;

(2) Office National des Pensions pour Travailleurs Salariés (O.N.P.T.S.),Brussels,

on the interpretation of certain provisions of Regulation No 1408/71, inparticular those of Articles 3 (1) and 4 (4),

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars, President of Chamber, A. O'Keeffeand G. Bosco, Judges,

Advocate General: H. MayrasRegistrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

1. Mr Gilbert Even, who was born on4 July 1915 and is a French nationalresiding in Belgium, has been in receiptof a permanent war 'service 10%invalidity pension in France since 26June 1944 as the result of a woundsustained as a soldier on 13 May 1940.

After reaching 60 years of age, Mr Evenapplied on 17 January 1975 to the OfficeNational des Pensions pour TravailleursSalariés (hereinafter referred to as "theO.N.P.T.S.") in Belgium for an earlyretirement pension which is normallypaid at the full rate at 65 years of age. AsMr Even had worked as an employedperson in Belgium and in France, thepension is calculated by aggregation andapportionment pursuant to Regulation

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JUDGMENT OF 31. 5. 1979 — CASE 207/78

No 1408/71 of the Council of 14 June1971.

The pension thus paid is 25% less thanthe full pension which Mr Even wouldhave been able to receive at 65 years ofage: the legal source of this reduction onthe ground of early retirement (fiveyears) is Article 5 of the Royal DecreeNo 50 of 24 October 1967.

Under the system of that royal decreethe normal retirement age for maleworkers is in fact 65 years. However,Article 5 (1) of the decree provides asfollows:

"The retirement pension … may at thechoice and request of the personconcerned start to run during the periodof five years preceding the normalpension age; in this case it shall bereduced by 5% per year of earlypayment."

The decision granting Mr Even theretirement pension thus reduced was thesubject-matter of an anion brought byMr Even before the Tribunal du Travail

[Labour Tribunal], Liège. In support ofthis action, Mr Even called in aid Article3 (1) of Regulation No 1408/71, whichprovides as follows:

"… persons resident in the territory ofone of the Member States to whom this

regulation applies shall be subject to thesame obligations and enjoy the samebenefits under the legislation of anyMember State as the nationals of thatState."

Basing himself on that provision herelied, by the same right as Belgiannationals, upon the provisions of theRoyal Decree of 27 June 1969 layingdown the conditions under which a

scheme of national recognition entitlesan employed person to an earlyretirement pension without reduction. Mr

Even relied in particular upon Article 1of that decree, according to which:

"The reduction provided for … inArticle 5 (1) of the Royal Decree No 50of 24 October 1967 … shall not apply topersons who satisfy the followingconditions:

(1) …

(2) …

(3) …

(4) are of Belgian nationality, haveserved in the allied forces between

10 May 1940 and 8 May 1945 andare in receipt of a war serviceinvalidity pension granted by anallied country for incapacity forwork due to an act of war …"

After the Tribunal du Travail, Liège, hadgranted this request by judgment of7 February 1977, the Ministère Public[Public prosecutor's department] and theO.N.P.T.S. lodged appeals — a mainappeal and an appeal on a point of lawrespectively — before the Cour duTravail [Labour Court], Liège.

The Ministère Public and the O.N.P.T.S.

have both maintained that that judgmentconflicts with the provisions of the RoyalDecree of 27 June 1969 on the groundthat that decree concerned only personsto whom a scheme of national

recognition "obtained under Belgianlegislation" applies whereas in thepresent case the rights relied upon by MrEven were conferred upon him byFrance. The O.N.P.T.S. added moreover

that the benefit of an early retirementpension without reduction is reserved toBelgian nationals and that Mr Even doesnot, in addition, come within any of theschemes enumerated by law and doesnot, besides, fulfil the conditions for it.

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The Cour du Travail, Liège, after takinginto consideration the above-mentioned

provisions of Article 3 (1) of RegulationNo 1408/71, pointed out moreover thatArticle 4 (4) of the same regulationspecifies that it does not apply

"… to benefit schemes for victims of

war or its consequences …"

The problem therefore arises, in itsopinion, whether, in so far as it grants tovarious classes of beneficiaries under a

scheme of national recognition listed byit an early employed person's retirementpension without reduction, the financialburden of which is directly borne by theBelgian State instead of being borne atleast in the main by social security contributions paid by employers and workers,the Royal Decree of 27 June 1968should not be regarded as a benefitscheme for victims of war or its

consequences or at least as a schemewhich may be treated as such within themeaning of the above-mentioned Article4 (4), so that it does not come within thescope of Regulation No 1408/71 and isconsequently not covered by the rule ofequality of treatment laid down inArticle 3 (1) of the regulation.

Taking the view that such a problemrelates to the interpretation ofCommunity law, the Cour du Travail,Liège, decided by a judgment of 8September 1978 to stay the proceedingsand to refer to the Court of Justiceunder Article 177 of the EEC Treaty thefollowing questions:

"(a) Must Article 4 (4) of Regulation(EEC) No 1408/71 of the Councilof 14 June 1971 on the applicationof social security schemes toemployed persons and their familiesmoving within the Community,which stipulates that the said regulation does not apply to benefitschemes for victims of war or its

consequences, be interpretedrestrictively as meaning that itapplies only to a legislation orlegislations 'taken as a whole'establishing or regulating a specificbenefit scheme or schemes for

victims of war or its consequenceswhich are obviously outside thescope of the existing social securityschemes or on the contrary morebroadly as covering certain speciallegal provisions such as those whichare the subject-matter of the RoyalDecree of 27 June 1969 layingdown the conditions under which a

scheme of national recognitionentitles an employed person to anearly retirement pension withoutreduction (and in particular thosereferred to in Article 1 (4) of thesaid royal decree) which conditionssupplement the Belgian legislationon pensions for employed personsestablished and regulated by theRoyal Decree No 50 of 24 October1967 by providing for the grant,payable directly and solely by theBelgian State, of 'special' pensionbenefits in favour of the variousclasses of beneficiaries under a

scheme of national recognitionwhich those provisions list?

(b) In the event of the Court of Justicegiving a strict (restrictive) interpretation of Article 4 (4) of Regulation(EEC) No 1408/71 does the Courtconsider that in accordance withthe restriction contained in Article

3(1) of the said regulation which

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JUDGMENT OF 31. 5. 1979 — CASE 207/78

enshrines the principle of equalityof treatment 'subject to the specialprovisions of this regulation' therecould be, either in the aforementioned regulation or in theRegulation (EEC) No 574/72fixing the procedure for implementation, one or more specialprovisions in the matter of thepensions in question preventing theapplication of the principle that'persons resident in the territory ofone of the Member States to whom

this regulation applies shall …enjoy the same benefits under thelegislation of any Member State asthe nationals of that State'?

(c) In the event of the principle of nondiscrimination contained in the

aforementioned Article 3 being heldto be applicable does this mean thata nationality clause such as thatwhich provides 'be of Belgiannationality' in Article 1 (4) of theRoyal Decree of 27 June 1969 mustbe treated as not applicable andconsequently considered void asregards the non-Belgian nationalsof the various Member States of the

European Communities?"

2. A copy of the judgment making thereference reached the Court Registry on21 September 1978.

The Office National des Pensions pourTravailleurs Salariés, represented by itsGeneral Administrator, Mr. R. Masyn,and the Commission of the EuropeanCommunities, represented by MrsMarie-José Jonczy, a member of theCommission's Legal Service, acting asAgent, assisted by Messrs HenriScheyvaerts and Francis Herbert,Advocates at the Brussels Bar, submittedwritten observations pursuant to Article

20 of the Protocol on the Statute of the

Court of Justice of the EEC.

After hearing the report of the Judge-Rapporteur and the views of theAdvocate General, the Court decided toopen the oral procedure without anypreparatory inquiry and to refer the caseto the First Chamber for examination

pursuant to Article 95 of the Rules ofProcedure.

II — Written observations sub

mitted pursuant to Article20 of the Protocol on theStatute of the Court of

Justice of the EEC

A — The Office National des Pensionsdes Travailleurs Salariés, having set outthe facts forming the basis of the dispute,emphasizes that even if the Royal Decreeof 27 June 1969 laying down theconditions under which a scheme of

national recognition entitles an employedperson to an early retirement pensionwithout reduction is applied only topersons of Belgian nationality this doesnot involve an infringement of theprinciple of equality of treatmentenshrined in Article 3 (1) of RegulationNo 1408/71.

The benefit provided for by that decreecomes in fact within the social securitybenefits introduced for victims of war

which Regulation No 1408/71 excludesfrom its field of application.

Referring to the judgment delivered bythe Court of Justice on 6 July 1978 inCase 9/78, the Gillard case, [1978] ECR1661, the O.N.P.T.S. points out that inview of the similarity between that caseand the present case, the Court of Justice

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can in this instance only confirm theprinciples stated in that judgment. TheO.N.P.T.S. adds moreover that the

origins of the Royal Decree of 27 June1969 show very clearly that the Belgianlegislature considers the early pensionwithout reduction as a benefit granted tovictims of war.

As clearly shown by the statements madeby the Minister for Social Welfareduring the sitting of the Belgian Senateon 23 February 1955, the benefitsgranted to beneficiaries under a schemeof national recognition should in fact beconsidered as a benefit scheme for

victims of war or its consequences andnot as a benefit scheme coming withinsocial security. They are moreoverdirectly financed by the State whereasthe pension scheme is financed by contributions from workers and employers, theState merely in this case granting anannual subsidy.

On the basis of these considerations, theO.N.P.T.S. considers that the first

question might be answered as follows:

"The provision contained in Article 4 (4)of Regulation (EEC) No 1408/71 of theCouncil of the European Communitiesof 14 June 1971 must be interpretedbroadly as including the benefitsprovided for by the Royal Decree of27 June 1969."

If the Court of Justice rules to that effectthe reply to the other questions becomespurposeless.

B — The Commission of the EuropeanCommunities points out first of all thatthe problem discussed in the present caseis similar to that settled by the Court inits judgment of 6 July 1978 in Case9/78, the Gillard case.

As regards the first question, in itsopinion it is in particular clear from anexamination of the Belgian legislationreferred to that:

— Although it is not in dispute that theprinciple of early retirement comeswithin the substantive field of

application of Regulation (EEC) No1408/71, the title of the RoyalDecree of 27 June 1969 refershowever to a "scheme of national

recognition";

— The Royal Decree of 27 June 1969was adopted pursuant to the lastparagraph of Article 6 of RoyalDecree No 50 of 24 October 1967

according to which: "The King mayalso … determine in respect of eachcategory of beneficiaries under ascheme of national recognition thecircumstances in which those

beneficiaries are permitted to obtainan early retirement pension, themethod of calculation of the pensionand the manner in which the

financial burden resulting from theapplication of the rules which he laysdown shall be borne";

— All the cases set out in Article 1 of

the Royal Decree of 27 June 1968make the benefit of the earlyretirement pension without reductionsubject to a service rendered during aperiod of war or to a hardshipsuffered during or as a result of sucha period of war.

In view of these factors it thereforeseems that the objectives of andconditions for the grant of the earlypension without reduction granted by theRoyal Decree of 1969 are the same asthose of the French legislation taken intoconsideration by the Court in thejudgment in the Gillard case.

Having regard to the similarity in factand in law between the two cases it

therefore follows that the same replyshould be given to the first questionasked by the court making the referenceas that given in the judgment of theCourt of 6 July 1978.

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JUDGMENT OF 31. 5. 1979 — CASE 207/78

Whilst considering that such a replymakes the other questions purposelessthe Commission however takes the view

that it is also necessary to adopt aviewpoint on the second and thirdquestions so as to deal with anyeventualities.

It points out with regard to the secondquestion that assuming that the grant ofan early retirement pension withoutreduction by virtue of a scheme ofnational recognition is considered asbeing included among the schemes ofsocial security coming within the substantive field of application of Regulation No 1408/71 it is necessary toacknowledge that that regulation doesnot contain special provisions limitingthe application of the principle ofequality of treatment as regards old-agepensions.

With regard to the third question, thereply which it calls for follows frommany judgments in which the Court ofJustice has stated that national provisionscontrary to the prohibition on all discrimination based on nationality may notbe applied to the migrant worker inquestion who, in so far as he fulfils theother conditions to which the grant of abenefit is subject, must therefore receivethat benefit in the same conditions as anational worker.

Having made these observations, theCommission considers it appropriate tospecify in addition, beyond the wordingof the questions asked by the courtmaking the reference and so as toprovide it with all factors of interpretation which might be "useful to it, thescope of the principle of equality oftreatment, regardless of the applicabilityof Regulation (EEC) No 1408/71.

The rule of equality of treatment laiddown in Article 3 of that regulation is,according to the Commission, merely a

specific application within the fieldcovered by Article 51 of the Treaty ofthe fundamental prohibition againstdiscrimination laid down in Article 7 of

the Treaty. This principle was restated asregards freedom of movement forworkers in Article 48 (2) of the Treatyand implemented by Regulation (EEC)No 1612/68 of the Council on freedomof movement for workers within the

Community. Article 7 of that regulationprohibits all discrimination by reason ofnationality in respect of conditions ofemployment and work and Article 7 (2)provides that a migrant worker mustenjoy in the host Member State the samesocial and tax advantages as nationalworkers.

The problem thus arises in the presentcase whether the concept of socialadvantages must be interpreted asincluding advantages such as thosegranted by the Royal Decree of 27 June1969.

Having recalled the case-law of theCourt of Justice in this field according towhich the scope of the concept of socialadvantages laid down in Article 7 (2) ofRegulation No 1612/68 is as broad aspossible, the Commission expresses theview that such a concept should be ableto cover all advantages granted tonationals of the Member States which

are intended to compensate wholly or inpart for a loss of or inadequate incomeor increased or excessive charges, orwhose aim is to redress in a more generalway the underprivileged financial ormaterial situation of certain categories ofperson.

This concept does not include socialsecurity benefits since the EEC Treatyhas provided for a different legal basisfor the progressive attainment offreedom of movement for workers on

the one hand (Article 49) and for thefield of social security on the other

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(Article 51). This does not howevermean that the benefits excluded from the

field of social security under Article 4 ofRegulation No 1408/71 are covered bythe concept of social advantagescontained in Article 7 of Regulation No1612/68.

In accordance with the principlesdeduced by the Court of Justice and inthe circumstances laid down by thatCourt, social and medical assistance asreferred to by the Advocate General inCase 1/72, the Frilli case, no doubtcomes within the concept of socialadvantages. In the same way thatconcept covers benefits for victims ofwar: they also come within theapplication of the principle of equality oftreatment.

As regards the attainment of "realequality of treatment with the nationals… in regard to economic matters andsocial benefits" mentioned by theAdvocate General in Case 7/75 the

benefit of an early retirement pensionwithout reduction granted to nationalworkers within the context of a scheme

of national recognition certainly comeswithin the concept of social advantages.

Article 7 (2) of Regulation No 1612/68therefore makes it impossible for thebenefit thereof to be refused to a migrantworker solely on the basis of hisnationality.

It is of course possible to ask whetherthe fact that Article 4 of Regulation No1408/71 makes a clear distinctionbetween benefit schemes for victims of

war and social security and socialassistance schemes does not indicate that,more generally, schemes for victims ofwar are, in particular on account of the

very close link of recognition with theMember State granting them, excludedfrom the application of the Communityrule, especially that of the principle ofequality of treatment as laid down interalia in Article 7 of Regulation No1612/68. However, the reply to such aquestion can only be in the negative.

The distinction laid down in Article 4 ofRegulation No 1408/71 aims to delimitthe substantive field of application ofthat regulation, in other words the fieldof Article 51 of the Treaty which laysdown rules relating to a specific aspectof freedom of movement for workers,whereas the principle of freedom ofmovement for workers is laid down in

Article 48 (2) of the Treaty, the onlypossible restrictions, which must beinterpreted restrictively, being enumerated in Article 48 (3).

If therefore that distinction expressed theconcern of the Community legislaturegenerally to exempt from Communitylaw schemes for victims of war, such aprinciple would be illegal in the light ofArticle 48 (2) and (3) of the Treaty.

This principle cannot in fact be coveredby the power left to the Member Statesto adopt discriminatory measuresjustified on grounds of public policy,public security or public health. Thecases listed in Article 48 (3) ail relate tothe search for employment and the rightof employment but they do not refer tothe conditions of that employment. Theycannot therefore concern the detailedrules for the grant of an early pension.

It is moreover impossible in the presentcase to obstruct the application of theprinciple of equality of treatment eitherby the consideration of the special linkbetween a national and a Member State

as regards the performance of the duty

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JUDGMENT OF 31. 5. 1979 — CASE 207/78

of military service and its consequencesor by the consideration of the specialprotection and aid owed by a MemberState to its nationals as regards the aftereffects of war.

As to the first point, it follows from thecase-law of the Court of Justice that thefact that a migrant worker hasperformed a duty of military service asregards his own Member State is likelyto have consequences in relation to theconditions of employment of that workerin another Member State so that the

principle of equality of treatment appliesto the worker concerned, in particularwith regard to the "social advantages"referred to in Article 7 of Regulation No1612/68.

As to the second point, it also followsfrom the case-law of the Court of Justicethat the prohibition on discriminationlaid down in Article 7 of Regulation(EEC) No 1612/68 must be interpretedas relating also to the special protectiongranted, for social reasons, by thelegislation of a Member State to specificcategories of workers.

It is of course conceivable that a

Member State might make the grant ofan advantage subject, as regards theentitlement to pension rights, to one ormore objective conditions relating to theservices rendered or the hardshipsendured by a worker: in this case, theclass of beneficiaries is restricted even

amongst the nationals of the MemberState concerned and there is no dis

crimination against foreigners who donot fulfil these conditions.

However, the principle of equality oftreatment prohibits a refusal to grant abenefit solely on the ground of nationality where a national of another Member

State fulfils the objective conditions andis therefore in exactly the same situationas certain nationals in receipt of theadvantage.

It is moreover necessary to observe thatcertain legislative provisions adopted inBelgium confirm, if necessary, that arefusal based only on nationality to grantworkers who are nationals of the

Member States the advantages grantedunder a scheme of national recognition isnot, even in national law, justified byconsiderations relating to public policyor to public health.

The principle of equality of treatmentmust therefore be fully applied.

In view of all these observations, theCommission therefore considers that the

following replies might be given to thequestions asked:

"(1) Article 4 (4) of Regulation No1408/71 must be interpreted asmeaning that that regulation doesnot apply to social security benefitsintroduced in favour of persons inreceipt of a war service invaliditypension such as the benefitprovided for in Article 1 (4) of theBelgian Royal Decree of 27 June1969.

However, the grant of such benefitsis, pursuant to Article 48 (2) of theEEC Treaty and Article 7 (2) ofRegulation (EEC) No 1612/68 ofthe Council, subject to theprohibition on discrimination basedon nationality.

(2) The second and third questions arepurposeless."

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III — Oral procedure

The Office National des Pensions pourTravailleurs Salariés, represented by MrJ. Peltot, acting as Agent, and theCommission of the EuropeanCommunities, represented by Mrs

M. J. Jonczy, acting as Agent, assisted byMr F. Herbert, presented oral argumentat the hearing on 8 March 1979.

The Advocate General delivered his

opinion at the hearing on 29 March1979.

Decision

1 By judgment of 8 September 1978, received at the Court on 21 September1978, the Cour du Travail, Liège, submitted to the Court several questionsfor a preliminary ruling on the interpretation of the provisions of Articles 3and 4 of Regulation (EEC) No 1408/71 of the Council on the application ofsocial security schemes to employed persons and their families moving withinthe Community.

2 These questions have been raised within the context of a dispute between theOffice National des Pensions pour Travailleurs Salariés (hereinafter referredto as "the O.N.P.T.S."), Brussels, and a French national who has been inreceipt of an early retirement pension paid by the O.N.P.T.S. since reaching60 years of age.

3 Pursuant to Article 5 of the Belgian Royal Decree No 50 of 24 October1967, the retirement pension, paid at the normal rate at 65 years of age, maystart to run at the choice and upon the request of the person concernedduring the period of 5 years preceding the normal pension age but in thatcase it is reduced by 5% per year of early payment.

4 However, Article 1 (4) of the Royal Decree of 27 June 1969 laying down theconditions under which a scheme of national recognition entitles anemployed person to an early retirement pension without reduction providesthat the above-mentioned reduction does not apply to Belgian nationals whohave served in the allied forces between 10 May 1940 and 8 May 1945 and

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JUDGMENT OF 31. 5. 1979 — CASE 207/78

are in receipt of a war service invalidity pension granted by an allied nationfor incapacity for work attributable to an act of war.

5 In the present case Mr Even, who was in receipt under the French legislationof a permanent war service 10% invalidity pension as a result of a warwound sustained on 13 May 1940, claims the benefit granted by thatprovision of an early retirement pension without reduction, relying upon theprinciple of equality of treatment between national workers and workers ofanother Member State enshrined in the Community rules.

6 He claims that he fulfils all the conditions required by Article 1 (4) of theRoyal Decree of 27 June 1969 for the grant of the social advantage soughtexcept that of nationality and that the refusal of that benefit amounts todiscrimination based on nationality which is contrary to the Treaty.

7 In order to settle this problem, the Cour du Travail, Liège, deliveringjudgment on appeal from the judgment of the Tribunal du Travail, Liège,which had granted the plaintiff's request, referred to the Court of Justice thefollowing questions:

"(a) Must Article 4 (4) of Regulation (EEC) No 1408/71 of the Council ofthe European Communities of 14 June 1971 on the application of socialsecurity schemes to employed persons and their families moving withinthe Community, which stipulates that the said regulation does not applyto benefit schemes for victims of war or its consequences, be interpretedrestrictively as meaning that it applies only to a legislation orlegislations 'taken as a whole' establishing or regulating a specificbenefit scheme or schemes for victims of war or its consequences whichare obviously outside the scope of the existing social security schemesor on the contrary more broadly as covering certain special legalprovisions such as those which are the subject-matter of the RoyalDecree of 27 June 1969 laying down the conditions under which ascheme of national recognition entitles an employed person to an earlyretirement pension without reduction (and in particular those referredto in Article 1 (4) of the said royal decree) which conditions supplement

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the Belgian legislation on pensions for employed persons establishedand regulated by the Royal Decree No 50 of 24 October 1967 byproviding for the grant, payable directly and solely by the Belgian State,of 'special' pension benefits in favour of the various classes ofbeneficiaries under a scheme of national recognition which theseprovisions list?

(b) In the event of the Court of Justice giving a strict (restrictive) interpretation of Article 4 (4) of Regulation (EEC) No 1408/71 does the Courtconsider that in accordance with the restriction contained in Article 3

(1) of the said regulation which enshrines the principle of equality oftreatment 'subject to the special provisions of this regulation' therecould be, either in the aforementioned regulation or in Regulation(EEC) No 574/72 fixing the procedure for implementation, one ormore special provisions in the matter of the pensions in questionpreventing the application of the principle that 'persons resident in theterritory of one of the Member States to whom this regulation appliesshall … enjoy the same benefits under the legislation of any MemberState as the nationals of that State'?

(c) In the event of the principle of non-discrimination contained in theaforementioned Article 3 being held to be applicable does this meanthat a nationality clause such as that which provides 'be of Belgiannationality' in Article 1 (4) of the Royal Decree of 27 June 1969 mustbe treated as not applicable and consequently considered void asregards the non-Belgian nationals of the various Member States of theEuropean Communities?"

8 In order to reply to the first question it is important essentially to examinewhether a benefit such as referred to in Article 1 (4) of the Belgian RoyalDecree of 27 June 1969 may be regarded as a social security benefit withinthe meaning of Article 4 (1) (c) of Regulation No 1408/71 and on thataccount comes within the substantive field of application of that regulationdefined by the above-mentioned Article 4.

9 As the national court specifies in its judgment making the reference, theprovisions of Article 4 (4) of the Belgian Royal Decree of 27 June 1969"supplement the Belgian legislation on pensions for employed personsestablished and regulated by the Royal Decree No 50 of 24 October 1967".

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JUDGMENT OF 31. 5. 1979 — CASE 207/78

10 However, the fact that a provision of that kind does or does not come withinnational social security legislation is not by itself determining for the purposeof concluding that the benefit laid down in that provision is in the nature ofa social security benefit within the meaning of Regulation No 1408/71.

11 In fact, as the Court stated in its judgment of 6 July 1978 in the Gillard case,Case 9/78, the distinction between benefits which are excluded from thefield of application of Regulation No 1408/71 and benefits which comewithin it rests entirely on the factors relating to each benefit, in particular itspurposes and the conditions for its grant.

12 It is clear from the file that the essential objective of the benefit grantedunder the national provisions in question is to offer to Belgian workers whofought in the allied forces between 10 May 1940 and 8 May 1945 and sufferincapacity for work attributable to an act of war a testimony of nationalrecognition for the hardships suffered during that period and to grant them,by increasing the rate of the early retirement pension, a benefit by reason ofthe services thus rendered to their country.

13 In view of this objective and of these conditions for its grant, such a benefitdoes not exhibit the factors relating to a social security benefit within themeaning of Article 4 (1) of the regulation.

14 Article 4 (4) of Regulation No 1408/71, defining the substantive field ofapplication of that provision, provides that the regulation does not applyinter alia "to benefit schemes for victims of war or its consequences".

15 For those reasons it is necessary to reply to the first question that Article 4(4) of Regulation No 1408/71 must be interpreted as referring also to specialschemes such as that referred to in Article 1 (4) of the Belgian Royal Decreeof 27 June 1969 laying down the conditions under which a scheme ofnational recognition entitles an employed person to an early retirementpension without reduction.

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16 In view of this reply the other questions which have been asked by thenational court become purposeless.

17 However, the Commission has claimed in its observations that a benefit suchas that in the present case must, although it does not constitute a socialsecurity benefit within the meaning of Regulation (EEC) No 1408/71,nevertheless be considered as a social advantage within the meaning ofArticle 7 (2) of Regulation (EEC) No 1612/68 of the Council of 15 October1968 on freedom of movement for workers within the Community (OfficialJournal, English Special Edition 1968 (II), p. 475) and thus comes within thefield of application of the provisions of the latter regulation.

18 It concludes from this that the grant of such a benefit, although not coveredby the provisions of Regulation (EEC) No 1408/71, including those ofArticle 3 (1), remains subject to the provisions of Regulation (EEC) No1612/68, in particular those of Article 7 (2) according to which a workerwho is a national of a Member State enjoys in the territory of the otherMember States "the same social and tax advantages as national workers".

19 It is necessary to examine the validity of such an argument.

20 Regulation (EEC) No 1612/68, which was adopted in implementation ofArticles 48 and 49 of the Treaty and within the context of the measuresadopted by Regulation No 38/64 of the Council of 25 March 1964 (JournalOfficiel 1964, No 62, p. 965), aims to achieve freedom of movement forworkers within the Community.

21 For this purpose it provides for the abolition of all differences in treatmentbetween national workers and workers who are nationals of the other

Member States as regards conditions of employment, work and remunerationand gives workers who are nationals of the other Member States andmembers of their family access to the social and tax advantages from whichnational workers benefit in the State of employment.

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JUDGMENT OF 31. 5. 1979 — CASE 207/78

22 It follows from all its provisions and from the objective pursued that theadvantages which this regulation extends to workers who are nationals ofother Member States are all those which, whether or not linked to a contractof employment, are generally granted to national workers primarily becauseof their objective status as workers or by virtue of the mere fact of theirresidence on the national territory and the extension of which to workerswho are nationals of other Member States therefore seems suitable to faci

litate their mobility within the Community.

23 As it has previously been stated, the main reason for a benefit such as thatgranted by the Belgian national legislation in question to certain categoriesof national workers is the services which those in receipt of the benefit haverendered in wartime to their own country and its essential objective is to givethose nationals an advantage by reason of the hardships suffered for thatcountry.

24 Such a benefit, which is based on a scheme of national recognition, cannottherefore be considered as an advantage granted to a national worker byreason primarily of his status of worker or resident on the national territoryand for that reason does not fulfil the essential characteristics of the "social

advantages" referred to in Article 7 (2) of Regulation (EEC) No 1612/68.

25 It therefore follows that the benefit in question does not come within thesubstantive field of application of Regulation (EEC) No 1612/68 and is nottherefore, as regards the conditions for the grant of that benefit, subject tothe provisions of that regulation.

Costs

26 The costs incurred by the Commission of the European Communities, whichsubmitted observations to the Court, are not recoverable; as theseproceedings are, in so far as the parties to the main action are concerned, inthe nature of a step in the action pending before the national court, thedecision as to costs is a matter for that court.

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On those grounds,

THE COURT (First Chamber),

in answer to the questions referred to it by the Cour du Travail, Liège, byjudgment of that court of 8 September 1978, hereby rules:

Article 4 (4) of Regulation (EEC) No 1408/71 must be interpreted asreferring also to special schemes such as that referred to in Article 1 (4)of the Belgian Royal Decree of 27 June 1969 laying down the conditionsunder which a scheme of national recognition entitles an employedperson to an early retirement pension without reduction.

Mertens de Wilmars O'Keeffe Bosco

Delivered in open court in Luxembourg on 31 May 1979.

A. Van Houtte

Registrar

J. Mertens de Wilmars

President of the First Chamber

OPINION OF MR ADVOCATE GENERAL MAYRASDELIVERED ON 29 MAY 1979 <appnote>1</appnote>

Mr President,Members ofthe Court,

The case which is at present before thisCourt forms a parallel to the Gillard caseon which this Court delivered judgmentin plenary session on 6 July 1978 [1978]

ECR 166 et seq., following my opinion of15 June of the same year, [1978] ECR1669 et seq.

Mr Gillard, a Belgian citizen who hadworked in France, claimed from thecompetent French sickness insurance

1 — Translated from the French.

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