JUDGMENT OF THE COURT

4 November 1997(1)

(Social security — Special non-contributory benefits — Articles 4(2a) and 10a ofRegulation (EEC) No 1408/71 — Disability living allowance — Non-exportability)

In Case C-20/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the SocialSecurity Commissioner (United Kingdom) for a preliminary ruling in theproceedings pending before him between

Kelvin Albert Snares

and

The Adjudication Officer

on the interpretation and validity of Articles 4(2a) and 10a of Council Regulation(EEC) No 1408/71 of 14 June 1971 on the application of social security schemesto employed persons, to self-employed persons and to members of their familiesmoving within the Community, as amended and updated by Council Regulation(EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as subsequently amendedby Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm andM. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida(Rapporteur), P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward, J.-P. Puissochet,G. Hirsch, P. Jann and L. Sevón, Judges,

Advocate General: P. Léger,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

• Mr Snares, by H. Mountfield, Barrister, instructed by D. Thomas, of theChild Poverty Action Group,
  
  
• the United Kingdom Government, by L. Nicoll, of the Treasury Solicitor'sDepartment, acting as Agent, and N. Paines, Barrister,
  
  
• the German Government, by E. Röder, Ministerialrat in the FederalMinistry of Economic Affairs, and B. Kloke, Oberregierungsrat in thatMinistry, acting as Agents,
  
  
• the Spanish Government, by A.J. Navarro González, Director General ofCommunity Legal and Institutional Coordination, and G. Calvo Díaz,Abogado del Estado, of the State Legal Service, acting as Agents,
  
  
• the French Government, by C. de Salins, Assistant Director in the LegalAffairs Directorate of the Ministry of Foreign Affairs, and A. de Bourgoing,Chargé de Mission in that directorate, acting as Agents,
  
  
• the Austrian Government, by W. Okresek, Ministerialrat in theConstitutional Affairs Department of the Bundeskanzleramt, acting asAgent,
  
  
• the Council of the European Union, by M. Bishop and A. Lo Monaco,Legal Advisers, acting as Agents,
  
  
• the Commission of the European Communities, by C. Docksey andM. Patakia, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Snares, represented by H. Mountfield; theUnited Kingdom Government, represented by L. Nicoll and N. Paines; the SpanishGovernment, represented by P. Plaza Garcia, Abogado del Estado, of the StateLegal Service, acting as Agent; the French Government, represented by C. deSalins and A. de Bourgoing; the Council, represented by M. Bishop and A. LoMonaco; and the Commission, represented by C. Docksey, at the hearing on18 March 1997,

after hearing the Opinion of the Advocate General at the sitting on 6 May 1997,

gives the following

Judgment

1. By order of 17 January 1996, received at the Court on 22 January 1996, the SocialSecurity Commissioner referred for a preliminary ruling under Article 177 of theEC Treaty two questions on the interpretation and validity of Articles 4(2a) and10a of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the applicationof social security schemes to employed persons, to self-employed persons and tomembers of their families moving within the Community, as amended and updatedby Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6,hereinafter 'Regulation No 1408/71‘), as subsequently amended by CouncilRegulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1).
   
   
2. Those questions were raised in a dispute between Mr Snares, a United Kingdomnational, and the Adjudication Officer concerning the award of the disability livingallowance (hereinafter 'DLA‘) provided for under United Kingdom legislation.
   
   The national legislation
   
   
3. Prior to 1 April 1992, United Kingdom legislation provided for two invaliditybenefits: attendance allowance (hereinafter 'AA‘) and mobility allowance(hereinafter 'MA‘). Both were non-contributory and non-means tested benefits.
   
   
4. DLA was introduced on 1 April 1992 under the Disability Living Allowance andDisability Working Allowance Act 1991.
   
   
5. This new allowance is also non-contributory, is not linked to incapacity for work,and is non-means tested. It has two components: a care component, intended fordependent persons and corresponding to the former AA, and a mobilitycomponent, intended for those with impaired walking ability and corresponding tothe former MA. The care component is payable at three different rates dependingon the nature of the person's disablement and care needs, while the mobilitycomponent is payable at two different rates depending on the nature and extent ofimpairment of the ability to walk. The two highest rates of the care componentcorrespond to those at which AA was payable and the higher rate of the mobilitycomponent corresponds to that at which MA was payable.
   
   
6. Thus, with effect from 1 April 1992, AA, in the case of recipients under the age of65, and MA already awarded were converted into awards of the care and mobilitycomponents of DLA. As from that date, no new awards of AA or MA were to bemade, with the exception of AA in the case of recipients over the age of 65.
   
   
7. At the material time, DLA was payable under sections 71 to 76 of the SocialSecurity Contributions and Benefits Act 1992 and the Social Security (DisabilityLiving Allowance) Regulations 1991 (hereinafter 'the DLA Regulations‘).
   
   
8. Section 71(6) of the Social Security Contributions and Benefits Act provides that:
   
   'A person shall not be entitled to a disability living allowance unless he satisfiesprescribed conditions as to residence and presence in Great Britain.‘
   
   
9. Regulation 2(1) and (2) of the DLA Regulations provides as follows:
   
   '(1)    Subject to the following provisions of this regulation, the prescribedconditions for the purposes of [section 71(6) of the Social Security Contributionsand Benefits Act 1992] as to residence and presence in Great Britain in relation toany person on any day shall be that —
   
   (a)    on that day —
   
       (i)    he is ordinarily resident in Great Britain; and
   
       (ii)    he is present in Great Britain; and
   
       (iii)    he has been present in Great Britain for a period of, or for periodsamounting in the aggregate to, not less than 26 weeks in the 52 weeksimmediately preceding that day; and
   
       ...
   
   (2)    For the purposes of paragraph (1)(a)(ii) and (iii), notwithstanding that onany day a person is absent from Great Britain, he shall be treated as though hewere present in Great Britain if his absence is by reason only of the fact that onthat day —
   
       ...
   
       (d)    his absence from Great Britain is, and when it began was, for atemporary purpose and has not lasted for a continuous periodexceeding 26 weeks; or
   
       (e)    his absence from Great Britain is temporary and for the specificpurpose of his being treated for incapacity, or a disabling condition,which commenced before he left Great Britain, and the Secretary ofState has certified that it is consistent with the proper administrationof the Act that, subject to the satisfaction of the foregoing conditionin this subparagraph, he should be treated as though he were presentin Great Britain.‘
   
   The Community legislation
   
   
10. Prior to 1 June 1992, the date on which Regulation No 1247/92 entered into force,Article 4 of Regulation No 1408/71 provided as follows:
    
    '1.    This regulation shall apply to all legislation concerning the followingbranches of social security:
    
    ...
    
    (b)    invalidity benefits, including those intended for the maintenance orimprovement of earning capacity;
    
    ...
    
    
11. This regulation shall apply to all general and special social security schemes,whether contributory or non-contributory ... .
    
    ...
    
    
12. This regulation shall not apply to social and medical assistance ...‘.
    
    
13. Article 5 of Regulation No 1408/71 added the following provision:
    
    'The Member States shall specify the legislation and schemes referred to in Article4(1) and (2) ... in declarations to be notified and published in accordance withArticle 97.‘
    
    
14. Finally, Article 10 of Regulation No 1408/71 provided:
    
    '1.    Save as otherwise provided in this regulation, invalidity, old-age or survivors'cash benefits, pensions for accidents at work or occupational diseases and deathgrants acquired under the legislation of one or more Member States shall not besubject to any reduction, modification, suspension, withdrawal or confiscation byreason of the fact that the recipient resides in the territory of a Member Stateother than that in which the institution responsible for payment is situated.‘
    
    
15. Regulation No 1247/92, adopted on the basis of Articles 51 and 235 of the EECTreaty, inserted a paragraph 2a in Article 4 of Regulation No 1408/71. Thatprovision is worded as follows:
    
    '2a.    This regulation shall also apply to special non-contributory benefits whichare provided under legislation or schemes other than those referred to inparagraph 1 or excluded by virtue of paragraph 4, where such benefits areintended:
    
    (a)     either to provide supplementary, substitute or ancillary cover against therisks covered by the branches of social security referred to in paragraph 1(a)to (h),
    
        or
    
    (b)     solely as specific protection for the disabled.‘
    
    
16. At the same time Article 5 of Regulation No 1408/71 was amended in order toensure that the declaration made by Member States under this provision shouldalso cover 'the special non-contributory benefits referred to in Article 4(2a)‘. TheUnited Kingdom has not made any declaration in regard to those benefits.
    
    
17. Regulation No 1247/92 also added Article 10a, which provides as follows:
    
    '1.    Notwithstanding the provisions of Article 10 and Title III, persons to whomthis regulation applies shall be granted the special non-contributory cash benefitsreferred to in Article 4(2a) exclusively in the territory of the Member State inwhich they reside, in accordance with the legislation of that State, provided thatsuch benefits are listed in Annex IIa. Such benefits shall be granted by and at theexpense of the institution of the place of residence.
    
    2.    The institution of a Member State under whose legislation entitlement tobenefits covered by paragraph 1 is subject to the completion of periods ofemployment, self-employment or residence shall regard, to the extent necessary,periods of employment, self-employment or residence completed in the territory ofany other Member State as periods completed in the territory of the first MemberState.
    
    3.    Where entitlement to a benefit covered by paragraph 1 but granted in theform of a supplement is subject, under the legislation of a Member State, to receiptof a benefit covered by Article 4(1)(a) to (h), and no such benefit is due under thatlegislation, any corresponding benefit granted under the legislation of any otherMember State shall be treated as a benefit granted under the legislation of the firstMember State for the purposes of entitlement to the supplement.
    
    4.    Where the granting of a disability or invalidity benefit covered byparagraph 1 is subject, under the legislation of a Member State, to the conditionthat the disability or invalidity should be diagnosed for the first time in the territoryof that Member State, this condition shall be deemed to be fulfilled where suchdiagnosis is made for the first time in the territory of another Member State.‘
    
    
18. DLA is listed in Point (f) of Section L (United Kingdom) of Annex IIa toRegulation No 1408/71.
    
    The main proceedings
    
    
19. Mr Snares worked in the United Kingdom as an employee for 25 years and, assuch, paid contributions to the United Kingdom social security scheme. In April1993, when he was 39, he suffered a serious accident which left him with severelyimpaired mobility. He applied for DLA, and his claim was treated as having beenmade on 1 September 1993.
    
    
20. On the basis of the assessment of his care and mobility needs, the AdjudicationOfficer awarded Mr Snares the middle rate of the care component and the higherrate of the mobility component of DLA with effect from 1 September 1993.
    
    
21. Mr Snares also received invalidity benefit in the United Kingdom (which wassubsequently converted into incapacity benefit). It is common ground that this isa contributory benefit and, as such, falls within the scope of Article 10 ofRegulation No 1408/71.
    
    
22. In November 1993, Mr Snares decided to settle in Tenerife, where his immediatefamily, and in particular his mother, live, so that she could look after him. Heinformed the United Kingdom authorities that his absence would not be temporaryand that he would be selling the home that he owned in the United Kingdom.
    
    
23. On 6 January 1994, the Adjudication Officer decided that his entitlement to DLAceased with effect from his departure on 13 November 1993. That decision wasconfirmed on review on 16 February 1994.
    
    
24. On 21 July 1994, the Salisbury Social Security Appeal Tribunal disallowedMr Snares' appeal against those decisions and decided that he was not entitled toeither component of DLA while resident in Tenerife. In its reasons, the SalisburySocial Security Appeal Tribunal stated that the effect of the amendment toRegulation No 1408/71 by Regulation No 1247/92 from 1 June 1992 was to oust theprovisions of Community law allowing claimants to receive payments of DLA whileliving abroad, with the result that the United Kingdom legislation imposing thatresidence condition was fully effective as from that date. As Mr Snares'entitlement to the benefit in question had arisen on 1 September 1993, and thusafter Regulation No 1247/92 had entered into force, he ceased to be entitled toDLA under either United Kingdom legislation or Community law since hisdeparture from the United Kingdom.
    
    
25. The Chairman of the Salisbury Social Security Appeal Tribunal granted Mr Snaresleave to appeal against that decision to the Social Security Commissioner.
    
    
26. According to the Social Security Commissioner, it is common ground that, on13 November 1993, Mr Snares ceased to satisfy subparagraphs (i) and (ii) ofRegulation 2(1)(a) of the DLA Regulations. As from that date, he was no longeractually present in Great Britain and it was accepted that he was no longerordinarily resident there. Nor did he fall within any of the cases set out inRegulation 2(2) in terms of which a person is to be treated as present in GreatBritain. Finally, once he had left, his absence could not be treated as temporary.
    
    
27. As to whether Mr Snares ought none the less to be entitled to DLA underRegulation No 1408/71, the Social Security Commissioner found that the parties'views differed and decided to stay proceedings in order to refer the followingquestions to the Court for a preliminary ruling:
    
    '1.    Is the effect of the terms of Articles 4(2a) and 10a of Council Regulation(EEC) No 1408/71, as inserted by Council Regulation (EEC) No 1247/92with effect from 1 June 1992, to remove from the scope of Article 4(1) ofRegulation No 1408/71 a benefit which prior to 1 June 1992 would havebeen accepted, in the case of a person who by reason of previousoccupational activity was or had been covered by the social securitylegislation of the relevant Member State, as falling within the scope ofArticle 4(1), with the consequence that a person who after 1 June 1992becomes entitled to such a benefit under the legislation of one MemberState may not rely on the provisions of Article 10(1) of RegulationNo 1408/71 in order to challenge a withdrawal of entitlement on the soleground that the person resides in the territory of another Member State?
    
    2.    If the answer to Question 1 is yes, is Council Regulation (EEC) No 1247/92made within the powers granted by the Treaty of Rome, and in particularby Articles 51 and 235 of that Treaty?‘
    
    
28. By order of 24 May 1996, Mr Snares was granted legal aid.
    
    The first question
    
    
29. The essence of the first question raised by the Social Security Commissioner iswhether, on a proper construction, Article 10a of Regulation No 1408/71, asamended by Regulation No 1247/92, read in conjunction with Annex IIa, appliesto DLA, with the result that the position of a person such as the claimant in themain proceedings, who, after 1 June 1992 when Regulation No 1247/92 enteredinto force, satisfied the conditions for the award of that benefit, is governedexclusively by the system of coordination established by the said Article 10a.
    
    
30. It should be noted at the outset that a person such as Mr Snares comes within thescope ratione personae of Regulation No 1408/71 in so far as he was subject, as anemployed person, to the social security scheme of the United Kingdom.
    
    
31. In terms of Article 10a of Regulation No 1408/71, as amended by RegulationNo 1247/92, persons to whom that regulation applies are entitled to the specialnon-contributory cash benefits referred to in Article 4(2a), in accordance with thecoordination rules which it sets out, provided that such benefits are listed in AnnexIIa. That is the case with regard to DLA, which is mentioned under Point (f) ofSection L (United Kingdom) of that annex.
    
    
32. The fact that the Community legislature refers to legislation, such as that relatingto DLA, in Annex IIa to Regulation No 1408/71 must be accepted as establishingthat benefits granted pursuant to that legislation are special non-contributorybenefits falling within the scope of Article 10a of Regulation No 1408/71 (see, inparticular, to that effect, Case 24/64 Dingemans v Bestuur der SocialeVerzekeringsbank [1964] ECR 647, at p. 654).
    
    
33. Furthermore, the wording of Article 10a implies that the benefits to which it refersalso come within Article 4(2a) of Regulation No 1408/71, as amended byRegulation No 1247/92.
    
    
34. In those circumstances, a benefit such as DLA must, by reason of the fact that itis listed in Annex IIa, be regarded as being exclusively governed by thecoordination rules of Article 10a and, consequently, as being a special non-contributory benefit within the meaning of Article 4(2a).
    
    
35. That interpretation is borne out by the third, fourth, fifth and sixth recitals in thepreamble to Regulation No 1247/92, from which it is clear that the intention of thelegislature was to provide a specific system of coordination taking account of thespecial characteristics of certain benefits falling simultaneously within the categoriesof both social security and social assistance and treated, according to the Court'scase-law, as social security benefits in regard to workers already covered by thesocial security scheme of the State whose legislation is relied on (see, in particular,Case C-356/89 Newton v Chief Adjudication Officer [1991] ECR I-3017). As theAdvocate General has shown in points 59 to 63 of his Opinion, a benefit such asDLA is indeed a benefit of that kind.
    
    
36. In addition, contrary to the argument put forward by Mr Snares, the fact that theUnited Kingdom has not made a declaration under Article 5 of RegulationNo 1408/71, as amended by Regulation No 1247/92, in so far as it provides thatMember States are to specify the special non-contributory benefits covered byArticle 4(2a), does not preclude classification of DLA as a special non-contributorybenefit within the meaning of the latter provision.
    
    
37. As the Court has consistently held (see, in particular, Case 70/80 Vigier vBundesversicherungsanstalt für Angestellte [1981] ECR 229, paragraph 15; CaseC-251/89 Athanasopoulos and Others v Bundesanstalt für Arbeit [1991] ECR I-2797,paragraph 28; and Joined Cases C-88/95, C-102/95 and C-103/95 Martínez Losadaand Others v Instituto Nacional de Empleo and Instituto Nacional de la SeguridadSocial [1997] ECR I-869, paragraph 21), the fact that rules have not beenmentioned in the declaration made by a Member State is not conclusive in thisregard and is therefore not of itself proof that those rules do not come within thescope of the provision in question.
    
    
38. Finally, it is common ground that a person such as Mr Snares, whose disability,which constitutes the basis for payment of DLA, occurred after the entry into forceof Regulation No 1247/92 inserting Articles 4(2a) and 10a in RegulationNo 1408/71, comes exclusively within the scope of the latter provisions and cannotrely on the transitional provisions set out in Article 2 of Regulation No 1247/92,according to which that regulation does not affect the maintenance of rights ofindividuals who, prior to its entry into force, were already in receipt of the benefit(Article 2(1)) or fulfilled the conditions for receiving it (Article 2(2)).
    
    
39. The answer to the question submitted must therefore be that, on a properconstruction of Article 10a of Regulation No 1408/71, as amended by RegulationNo 1247/92, read in conjunction with Annex IIa, DLA falls within the scope of thatprovision and is therefore a special non-contributory benefit within the meaning ofArticle 4(2a) of that regulation, with the result that the position of a person suchas the claimant in the main proceedings, who, after 1 June 1992 when RegulationNo 1247/92 entered into force, satisfied the conditions for the award of that benefit,is governed exclusively by the system of coordination established by the said Article10a.
    
    The second question
    
    
40. The second question raised by the Social Security Commissioner seeks to determinewhether Regulation No 1247/92 is valid in the light of Articles 51 and 235 of theEEC Treaty, now the EC Treaty, in so far as that regulation sets aside, in the caseof DLA, the principle of waiver of residence clauses laid down in Article 10 ofRegulation No 1408/71.
    
    
41. The first point to note is that, according to Article 10(1) of Regulation No 1408/71,the principle that residence clauses should be waived applies 'save as otherwiseprovided in this Regulation‘. Accordingly, the Community legislature has inter aliarestricted, in Article 69 of Regulation No 1408/71, the right to exportunemployment benefits to a period of three months. In its judgment in JoinedCases 41/79, 121/79 and 796/79 Testa and Others v Bundesanstalt für Arbeit [1980]ECR 1979, paragraph 14, the Court ruled that such a limitation is not contrary toArticle 51 of the Treaty.
    
    
42. As is clear from paragraphs 28 and 33 of the present judgment, but for the specificsystem of coordination established by Regulation No 1247/92, a person inMr Snares' position would have been able to rely on the principle of exportabilityof invalidity benefits laid down in Article 10(1) of Regulation No 1408/71 in orderto retain entitlement to DLA.
    
    
43. However, as regards special non-contributory benefits such as those at issue in themain proceedings, the Court has pointed out on numerous occasions that theprinciple of the exportability of social security benefits applies so long as derogatingprovisions have not been adopted by the Community legislature (see, in particular,Case 87/76 Bozzone v Office de Sécurité Sociale d'Outre-Mer [1977] ECR 687; Case139/82 Piscitello v Istituto Nazionale della Previdenza Sociale [1983] ECR 1427,paragraph 16; Joined Cases 379/85, 380/85, 381/85 and 93/86 Caisse Régionaled'Assurance Maladie Rhône-Alpes and Others v Giletti and Others [1987] ECR 955,paragraph 16; and Case C-236/88 Commission v France [1990] ECR I-3163,paragraph 16).
    
    
44. Second, the Court has in the past accepted that the grant of benefits closely linkedwith the social environment may be made subject to a condition of residence in theState of the competent institution (Case 313/86 Lenoir v Caisse d'AllocationsFamiliales des Alpes-Maritimes [1988] ECR 5391, paragraph 16).
    
    
45. As the Advocate General has explained in points 85 to 88 of his Opinion, benefitssuch as DLA fall within the category of benefits which, as regards the detailed rulesfor granting them, are closely linked to a particular economic and social context.
    
    
46. If a person in Mr Snares' position does not, in a particular case, satisfy theconditions applied by his new State of residence to the award of invalidity benefit,or if he receives a lower benefit there than that which he hitherto received inanother Member State, that cannot invalidate the system established by Article 10aof Regulation No 1408/71.
    
    
47. The Court has held (see, in particular, Martínez Losada and Others, cited above,paragraph 43) that, in the absence of harmonization in social security matters, theMember States remain competent to define the conditions for granting socialsecurity benefits, even if they make them more strict, provided that the conditionsadopted do not give rise to overt or disguised discrimination between Communityworkers.
    
    
48. Moreover, the system established by Article 10a of Regulation No 1408/71 containscoordination rules whose very purpose, as is clear from the sixth recital in thepreamble to Regulation No 1247/92, is to protect the interests of migrant workersin accordance with the provisions of Article 51 of the Treaty.
    
    
49. Thus, the State of residence is obliged, in appropriate cases, to take account ofperiods of employment, self-employment or residence completed in other MemberStates (Article 10a(2)), to treat benefits due under the legislation of other MemberStates as if they had been granted under the applicable legislation, with regard toentitlement to supplementary benefits (Article 10a(3)), and to treat first diagnosisof the disability or invalidity in the territory of another Member State as firstdiagnosis in the State of residence (Article 10a(4)).
    
    
50. Furthermore, benefit entitlement is not conditional on the claimant's havingpreviously been subject to the social security legislation of the State in which heapplies for the benefit, whereas this was the case prior to the entry into force ofRegulation No 1247/92 (see, in particular, Newton, cited above).
    
    
51. In the light of those considerations, it must be concluded that the system ofcoordination established by Regulation No 1247/92, in so far as it applies to DLA,is not at variance either with Article 51 of the Treaty or, indeed, with Article 235thereof. The latter provision merely made it possible, in adopting that regulation,to extend the coordination of social security schemes for which it provides to self-employed workers and members of their families, since the Treaty had notprovided specific powers to that end.
    
    
52. Admittedly, a person in Mr Snares' position could be refused a right of residencein another Member State, in this case Spain, if, contrary to the requirements ofArticle 1 of Council Directive 90/365/EEC of 28 June 1990 on the right ofresidence for employees and self-employed persons who have ceased theiroccupational activity (OJ 1990 L 180, p. 28), he was not in receipt of an invalidityor early retirement pension, or old-age benefits, or of a pension in respect of anindustrial accident or disease of an amount sufficient to avoid becoming a burdenon the social security system of that State during his period of residence there.
    
    
53. If, however, as the Court has found in the present judgment, the Communitylegislature was entitled, without infringing Article 51 of the Treaty, to decide thatspecial non-contributory benefits such as DLA were to be awarded in accordancewith the legislation of the State of residence and at its expense, that conclusioncannot be called in question on the ground that application of that rule could havethe effect of diminishing the means of the person concerned. Such a situationwould, as noted in paragraph 45 of this judgment, arise from differences existingbetween the national social security schemes in the absence of harmonization.
    
    
54. The answer to the second question must therefore be that examination ofRegulation No 1247/92, in so far as it sets aside, in the case of DLA, the principleof waiver of residence clauses laid down in Article 10 of Regulation No 1408/71,has not disclosed any factor of such a kind as to affect its validity.
    
    Costs
    
    
55. The costs incurred by the United Kingdom, German, Spanish, French and AustrianGovernments, the Council of the European Union and the Commission of theEuropean Communities, which have submitted observations to the Court, are notrecoverable. Since these proceedings are, for the parties to the main proceedings,a step in the action pending before the national tribunal, the decision on costs isa matter for that tribunal.
    
    On those grounds,

    THE COURT,

    in answer to the questions referred to it by the Social Security Commissioner byorder of 17 January 1996, hereby rules:

    1. On a proper construction of Article 10a of Council Regulation (EEC)No 1408/71 of 14 June 1971 on the application of social security schemesto employed persons, to self-employed persons and to members of theirfamilies moving within the Community, as amended and updated byCouncil Regulation (EEC) No 2001/83 of 2 June 1983, as subsequentlyamended by Council Regulation (EEC) No 1247/92 of 30 April 1992, readin conjunction with Annex IIa, disability living allowance falls within thescope of that provision and is therefore a special non-contributory benefitwithin the meaning of Article 4(2a) of that regulation, with the result thatthe position of a person such as the claimant in the main proceedings, who,after 1 June 1992 when Regulation No 1247/92 entered into force, satisfiedthe conditions for the award of that benefit, is governed exclusively by thesystem of coordination established by the said Article 10a.
       
       
    2. Examination of Regulation No 1247/92, in so far as it sets aside, in the caseof disability living allowance, the principle of waiver of residence clauseslaid down in Article 10 of Regulation No 1408/71, has not disclosed anyfactor of such a kind as to affect its validity.
       

    
    
    

Rodríguez IglesiasGulmann Ragnemalm WatheletMancini Moitinho de Almeida Kapteyn            Murray        Edward         Puissochet HirschJann Sevón

Delivered in open court in Luxembourg on 4 November 1997.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: English.