Opinion of the Advocate General — ECLI:EU:C:2008:493
Date: 2008-09-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services;Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Social security for migrant workers – Sickness insurance (Council Regulation No 1408/71, Arts 19 and 22(1)(b)) 2. Citizenship of the European Union – Right of free movement and residence in the territory of a Member State – Social security for migrant workers (Arts 18 EC and 42 EC; Council Regulation No 1408/71) 1. Where, unlike the social security system of the competent State, that of the Member State of residence of a person reliant on care, insured as a member of the family of an employed or self‑employed person within the meaning of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended in turn by Regulation No 1386/2001, does not provide for the provision of benefits in kind in situations of reliance on care such as the situation of that person, Articles 19 or 22(1)(b) of that regulation do not of themselves require the provision of such benefits outside the competent State by or on behalf of the competent institution. However, Articles 19 and 22 of Regulation No 1408/71 cannot be interpreted to mean that, in the case of residence in a Member State other than the competent State, the socially insured person’s access to benefits in kind is governed exclusively by the legislation of the Member State of residence, so that, where the legislation of the latter Member State does not provide for the grant of benefits in kind covering the risk in respect of which entitlement to such benefits is claimed, those provisions have the effect of preventing the competent institution from granting such benefits in kind. It would be both to go beyond the objective of Regulation No 1408/71 and to exceed the purpose and scope of Article 42 EC to interpret that regulation as prohibiting a Member State from granting workers and members of their family broader social protection than that arising from the application of that regulation. (see paras 55-57, operative part 1) 2. Where, unlike the social security system of the competent State, that of the Member State of residence of a person reliant on care, insured as a member of the family of an employed or self‑employed person within the meaning of Regulation No 1408/71, as amended and updated by Council Regulation No 118/97, as amended in turn by Regulation No 1386/2001, does not provide for the provision of benefits in kind in given situations of reliance on care, Article 18 EC does not preclude national legislation on the basis of which a competent institution refuses in such circumstances to pay, independently of the mechanisms introduced by Article 19 or, as the case may be, Article 22(1)(b) of that regulation and for an unlimited period, the costs linked to a stay in a care home situated in the Member State of residence up to an amount equal to the benefits to which that person would have been entitled if he had received the same care in a care home – party to a service agreement – situated in the competent State. As Article 42 EC provides for the coordination, not the harmonisation, of the legislation of the Member States, substantive and procedural differences between the social security systems of individual Member States, and hence in the rights of persons who are insured persons there, are unaffected by that provision. In those circumstances, Article 18(1) EC cannot guarantee to an insured person that a move to another Member State will be neutral as regards social security, in particular as regards sickness benefits. In view of the disparities existing between the schemes and legislation of the Member States in this field, such a move may, depending on the case, be more or less advantageous or disadvantageous for the person concerned, according to the combination of national rules applicable pursuant to Regulation No 1408/71. (see paras 84-85, 88, operative part 2)