delivered on 29 November 1984 (*1)

Mr President,

Members of the Court,

1.The facts which gave rise to these two references for a preliminary ruling are simple. The plaintiffs in the main proceedings, who are nationals of Member States of the Community, applied for the grant of a subsistence allowance, the ‘minimum means of subsistence’ (known and hereinafter referred to as the ‘minimex’), provided for by a Belgian Law of 7 August 1974. (*1)

Their applications were refused by the competent authority, the Centre Public d'Aide Sociale/Openbaar Centrum voor Maatschappelijk Welzijn [Public Social Welfare Centre, hereinafter referred to as ‘the Centre’] of their place of residence, on the ground that they did not meet a special condition as to length of residence imposed upon nationals of the other Member States alone by the Royal Decree of 8 January 1976, which provides, inter alia, that the benefit of the provisions of the 1974 Law is to be extended to such nationals. (*2)

By the second paragraph of Article 1 of that decree, such nationals must show that they have

‘actually resided in Belgium for at least the five years immediately preceding the date on which the minimum means of subsistence is awarded’.

‘(1) Does the right to a minimum means of subsistence provided for by the Law of 7 August 1974 fall within the material scope of Regulation No 1408/71 of the Council of 14 June 1971 (Article 4 (1) and (2)) or does it constitute “social assistance” within the meaning of Article 4 (4)?

(2) In so far as it provides that, in order to be entitled to the minimum means of subsistence, nationals of EEC Member States must have actually resided in Belgium for at least the five years immediately preceding the date on which the minimum means of subsistence is awarded, which it does not require of Belgian nationals, is Article 1 of the Royal Decree of 8 January 1976 concerning the minimum means of subsistence contrary to the Treaty and Regulation No 1408/71 (and more specifically to Article 3 (1) thereof concerning equal treatment)?

(3) Is the minimum means of subsistence provided for by the Law of 7 August 1974 a “social advantage” within the meaning of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community?

(4) As a subsidiary question, is it consistent with the aforementioned regulations that, for the purposes of the residence requirement which nationals of EEC Member States must satisfy in order to qualify for the minimum means of subsistence, only periods of residence in Belgium are taken into account or should periods of residence in another Member State be treated in the same way as periods of residence in Belgium?’

In the other case, Mr and Mrs Scrivner appealed to the Labour Tribunal of Nivelles which refers to the above-mentioned questions and goes on to ask whether the ‘minimex’ constitutes a ‘social advantage’ within the meaning of Regulation No 1612/68, and, in the alternative, whether the contested residence requirement conflicts with the EEC Treaty or with the Community regulations.

The Belgian Law lays down that the ‘minimex’ is to be granted to Belgian nationals or other Community nationals of the age of majority who are actually (that is, habitually) resident in Belgium. (*3)

The substantive conditions for the grant of the ‘minimex’ are defined in general terms. A claimant is entitled to the ‘minimex’ if he does not have adequate resources and is unable ‘to obtain them either by his own efforts or from other sources’ (Article 1 (1) of the Law). Nevertheless, he must show that ‘he is prepared to accept work’ unless prevented on health grounds or for imperative social reasons. In addition, he is required to avail himself of his rights to social benefits and even maintenance if the Centre considers it necessary (Article 6 (1) and (2)).

In order to determine the level of the ‘minimex’ to which a claimant is entitled, account is to be taken of all his means, subject to exceptions defined by the Law (Articles 2 to 5 and 8 (1)). For that purpose, the legislation provides for an inquiry into the applicant's means, supplemented in some cases by inquiries to the revenue administration, and also where necessary by a medical examination or a social worker's report (Article 5 (1) (second indent) and Article 8 (1)).

Upon receipt of a claim, the Centre must within 30 days give its reasoned decision which is subject to appeal to the competent labour tribunal (Articles 9 and 10). Payments are made monthly, fortnightly or weekly (Article 11 (1)). Entitlement to the ‘minimex’ is reviewed annually (Article 7 (2)). The Centre has powers to recover excess payments and to be subrogated to the rights of the beneficiary in certain cases, particularly in regard to maintenance payments (Articles 12, 13 and 14).

By contrast, in order to determine whether the equality of treatment claimed by the plaintiffs in the main proceedings may be derived from Article 3 of Regulation No 1408/71 of 14 June 1971 (*4) or Article 7 (2) of Regulation No 1612/68, (*5) it is necessary to proceed in two successive stages:

In the first place, it is necessary to consider whether the minimum benefit falls within the ‘branches of social security’ and the schemes covered by Regulation No 1408/71 (Article 4 (1) and (2)), or whether it is excluded from those provisions as constituting social assistance (Article 4 (4)).

If it is excluded, the second question to be determined is whether the ‘minimex’ constitutes a social advantage within the meaning of Article 7 of Regulation No 1612/68.

As the Commission points out in its observations, the way in which the question is answered is not without significance; the inclusion of the ‘minimex’ within the ambit of Regulation No 1408/71 would raise the problem of the exportability of that benefit.

5. Before examining the first branch of the question, namely how the ‘minimex’ is to be classified in relation to Article 4 of Regulation No 1408/71, it is appropriate to review the main points of the observations submitted by the parties to the main proceedings in Case 122/84 and by the United Kingdom in Case 249/83. It may be pointed out that in Case 249/83 neither the plaintiff nor the defendant in the main proceedings has submitted observations.

Mr and Mrs Scrivner submit that the ‘minimex’, although based on a state of need, which is a characteristic of assistance, should be regarded as a social security benefit in the same way as similar benefits, such as old-age benefits or disability benefits, which the Court has previously held to be of this kind. The defendant in the main proceedings contends, however, that the ‘minimex’ should not be held to be covered by Regulation No 1408/71, since only social security benefits linked to employment fall within its field of application; there is no connection between work and the grant of the ‘minimex’ which therefore falls under the head of assistance.

The United Kingdom, for its part, lays special emphasis on the criteria laid down by the Court for establishing the hybrid nature of a benefit. It takes the view that if a particular law makes entitlement to a guaranteed income depend on an inquiry in each case, it falls within the field of social assistance. In that connection, two essential criteria are whether there is an assessment of a claimant's requirements and resources and whether the amount awarded bears a direct relationship thereto.

6. Adopting here the approach taken by the Commission in its observations, I think it useful to rehearse the main points of the Court's previous decisions in this field before going on to apply them for the purposes of classifying the ‘minimex’.

It is now established law that benefits granted under legislation which falls within the fields of both social assistance and social security are capable of coming within the ambit of the Community social security regulations.

In determining the hybrid nature of a benefit, the Court has been guided by ‘the factors relating to each benefit, in particular its purpose and the conditions for its grant’. (*6) With regard to that point, the Court has stated, first, that even though the legislation at issue

‘has certain affinities with social assistance — in particular where it prescribes need as an essential criterion for its application and does not stipulate any requirement as to periods of employment, membership, or contribution — nevertheless it approximates to social security because it does not prescribe consideration of each individual case, which is a characteristic of assistance, and confers on recipients a legally defined position ...’. (*7)

Secondly, the Court has stated that:

‘Taking into account the wide definition of the range of recipients, such legislation in fact fulfils a double function; it consists on the one hand in guaranteeing a subsistence level to persons wholly outside the social security system, and, on the other hand, in providing an income supplement for persons in receipt of inadequate social security benefits.’ (*8)

As the Commission points out, the Court's approach may be summed up in the following manner:

First it establishes the ‘hybrid’ nature of the benefit at issue in relation to the relevant categories: the benefit has affinities with both social security and social assistance;

Then the benefit is included within the material scope of Regulation No 1408/71 if it covers, whether or not in a supplementary way, one of the risks referred to in Article 4 (1) of that regulation.

7.How do those principles apply here? It is clear from the legislation at issue that the rules relating to the grant of the ‘minimex’ are essentially objective and confer on recipients a legally defined position. In particular, a claimant's state of need is established by the mere fact that he is without work and that his resources are below the minimum income guaranteed by the Law. Furthermore, the right to the ‘minimex’ is given the same judicial protection as social security benefits.

Although those characteristics of the ‘minimex’ suggest an assimilation with social security, there are others which lead me to draw the conclusion that it should remain within the ambit of social assistance, namely the fact that the right to a guaranteed minimum income derives from a state of need and that there are no conditions as to periods of work, affiliation or contribution.

I therefore agree with the Commission that because the Belgian legislation establishes a right to a minimum means of subsistence subject to conditions of entitlement which are objective, particularly as regards the claimant's resources, and thereby confers on the recipient a legally defined position, it falls within the category of ‘hybrid’ legislation as defined by the Court.

But that conclusion alone is not enough to bring the hybrid benefit at issue finally within the material scope defined by Article 4 (1) of Regulation No 1408/71. It must also be established that the benefit falls clearly within one of the risks exhaustively listed in that provision.

8.It must be noted that the Court has not yet had occasion to rule on that condition. In earlier cases, the Court was concerned with hybrid legislation where the benefits to be classified could be related unequivocally to one of the risks falling within the material scope of the Community regulations, namely old age (9) or invalidity. (10) That classification of those benefits was made easier by the broad interpretation of the concept of benefits as defined by the relevant Community regulations. (11)

The Court has, it is true, always arrived at that finding after identifying one of the branches of social security to which the regulation is applicable. (12) In some cases, the Court has even noted the analogy between the benefit to be classified and one of the risks covered by the Community regulations. (13) Furthermore, in the Biason case, which related to a supplementary allowance paid by the French Fonds National de Solidarité, the Court based its reasoning on the link between the allowance and an invalidity pension of which it was ‘an automatic appendage’. (14)

However, as the Commission points out, if a law creates a right to a minimum means of subsistence, that right, although it may serve to make good the absence or inadequacy of social benefits, cannot as such be brought within any one of the risks listed in Article 4 (1) of Regulation No 1408/71, which must be covered by the national legislation to which that regulation applies. Here the factor which gives rise to entitlement to the ‘minimex’ is not a contingency falling within one of the risks covered by that provision but the claimant's state of need, which is determined by his resources. In other words, even if it is accepted that the legislation providing for the ‘minimex’ is hybrid in nature, the right to a minimum means of subsistence does not appear, as the Community rules laid down by the Council in the field of social security now stand, to be a social security benefit within the meaning of Article 4 (1) of Regulation No 1408/71. Consequently, the question of the applicability of the principle of equal treatment as laid down in Article 3 of that regulation no longer arises. The question relating to the infringement of Article 3 of the regulation should therefore be answered in the negative.

9.The remaining question asked by the referring courts is whether the right to a minimum means of subsistence may, as Mr and Mrs Scrivner and the Commission submit, be assimilated to one of the social advantages which, under Article 7 (2) of Regulation No 1612/68, are to be enjoyed equally by migrant workers and national workers.

In Case 122/84, the Chastre Centre rejected such an assimilation, taking the view that the purpose of the introduction of the ‘minimex’ — to combat poverty — bore no relation to the actual aim of Regulation No 1612/68, which was concerned with the economic aspects of mobility and with equality of treatment of workers. I disagree. I do not accept that there is no connection between the aims of the legislation at issue here and those of Regulation No 1612/68. In any event, the Court has given a very broad definition to the notion of social advantage as referred to in Article 7 (2), stating that the advantages in question are all those which,

‘whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the Community’. (15)

The concept of social advantage therefore applies to all social benefits, including those falling wholly into the category of social assistance, because it

‘encompasses not only the benefits accorded by virtue of a right but also those granted on a discretionary basis’. (16)

That interpretation makes it possible to include the right to the ‘minimex’ among the social advantages referred to by Article 7 (2) of Regulation No 1612/68 which may be claimed by ‘a worker who is a national of a Member State’, ‘should he’ — to take the point which arose in both these cases — ‘become unemployed’ (Article 7 (1) of Regulation No 1612/68).

10.As the Commission has shown, if nationals of other Community countries alone are required to have actually lived in Belgium for the five years immediately preceding the grant of the ‘minimex’, that constitutes discrimination contrary to Article 7 (2) of Regulation No 1612/68 and to the prohibition of discrimination on grounds of nationality contained in Article 7 of the EEC Treaty itself.

The effect of that condition is to obstruct the mobility of all Community nationals who are unemployed or looking for work, inasmuch as its fulfilment presupposes a prolonged stay in one place. It also means that a right enjoyed by Belgian workers is denied to migrant workers who live in Belgium but have occasionally happened to work for short periods in other countries of the Community, even though they were only taking advantage of the freedom of movement guaranteed to Community workers by Article 48 et seq. of the EEC Treaty.

It should also be noted that, as the Commission has pointed out, the imposition of the same requirement on Belgian nationals would not be enough to remove the discrimination. The Court has held that the principle of equality of treatment forbids not only direct and overt discrimination, as here, but also indirect and disguised forms of discrimination. Clearly, a residence requirement of the kind at issue here is, by its very nature, more difficult for a migrant worker to fulfil than for a national worker. (17)

The right to a minimum means of subsistence laid down by the legislation of a Member State therefore constitutes a social advantage which nationals of another Member State enjoy under Article 7 (2) of Regulation No 1612/68.

It is therefore unnecessary for me to go into the last question referred by the Antwerp Labour Tribunal. One last point, however, should be mentioned. Is there a risk that such a judgment might encourage movements of Community nationals with ulterior financial motives? That question raises the issue of the claimant's true intentions, which really concerns the risk of fraud. In my view, it is for the institutions responsible for payment to assess the reality of such a risk and to take all relevant criteria into account in granting the minimum income guaranteed by the national provisions, having special regard to the scope ratione personae of Regulation No 1612/68, as defined by the judgments of the Court.

11.In conclusion, I propose that the Court should rule that:

As Community law now stands, the right to a minimum means of subsistence does not fall within the material scope of Regulation No 1408/71 but constitutes a social advantage within the meaning of Article 7 (2) of Regulation No 1612/68.

The requirement of a minimum period of residence imposed on nationals of other Member States as a condition of entitlement to a minimum means of subsistence is contrary to the principle of equality of treatment laid down in Article 7 (2) of Regulation No 1612/68.

*1 Translated from the French.

1 Moniteur belge of 18 September 1974, p. 11363.

2 Moniteur belge of 13 January 1976, p. 311.

3 Article 1 of the Law of 1974, Article 1 of the Royal Decree of 1976 mentioned above and Article 26 of the implementing Royal Decree of 30 October 1974 (Moniteur belge of 19 November 1984, p. 13829).

4 Official Journal, English Special Edition 1971 (II), p. 416.

5 Official Journal, English Special Edition 1968 (II), p. 475.

6 Case 9/78 Gillard v Directeur régional de la sécurité sociale [1978] ECR 1661, paragraph 12 of the decision; Case 139/82 Piscitello v INPS [1983] ECR 1427, paragraph 10 of the decision.

7 Case 1/72 Frilli v Belgium (1972] ECR 457, paragraph 14 of the decision; see also Case 139/82 Piscitello, above, paragraph 11 of the decision.

8 Case 1/72 Frilli, above, paragraph 15 of the decision; see also Case 139/82 Piscitello, above, paragraph 12 of the decision.

(9) Case 1/72 Frilli, above and Case 139/82 Piscitello, above.

(10) Case 187/83 Callemeyn v Belgium [1974] ECR 553; Case 24/74 Biason v Caisse Régionale d'Assurance Maladie [1974] ECR 999; Case 39/74 Costa v Belgium [1974] ECR 1251; Case 7/75 Mr and Mrs F. v Belgium [1975] ECR 679.

(11) Case 1/72 Frilli, above, paragraph 17 of the decision.

(12) Case 1/72 Frilli, above, paragraph 16 of the decision.

(13) Case 1/72 Frilli, above, paragraph 14 of the decision; and Case 139/82 Piscitello, above, paragraph 11 of the decision.

(14) Case 24/74 Biason, above, paragraph 12 of the decision.

(15) Case 65/81 Reina v Landeskreditbank Baden-Württemberg [1982] ECR 33, paragraph 12 of the decision; also the recent judgment in Case 261/83 Castelli v ONPTS [1984] ECR 3199, paragraph 11 of the decision.

(16) Case 65/81 Reina, above, paragraph 17 of the decision.

(17) Case 152/73 Sotigu v Deutsche Bundespost [1974] ECR 153, paragraph 11 of the decision; and Case 237/78 CRAM v Tok [1979] ECR 2645, paragraphs 12 and 13 of the decision.