Opinion of the Advocate General — ECLI:EU:C:2005:621
Date: 2005-10-20
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Social security for migrant workers – Community rules – Interpretation in the light of the Treaty objectives (Arts 39 EC to 42 EC; Council Regulation No 1408/71, Art. 4(2b) and Annexe II, Section III) 2. Social security for migrant workers – Community rules – Material scope – Benefits covered and benefits excluded – Distinguishing criteria (Council Regulation No 1408/71, Art. 4(1)(a) and (2b)) 3. Social security for migrant workers – Community rules – Personal scope (Council Regulation No 1408/71, Art. 19) 1. The provisions of Regulation No 1408/71, adopted to give effect to Article 42 EC, must be interpreted in the light of the objective of that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers. The aim of Articles 39 EC, 40 EC, 41 EC and 42 EC would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid. In this context, while the Community legislature is entitled to adopt provisions which derogate from the principle that social security benefits are exportable, those derogating provisions, such as Article 4(2b) of Regulation No 1408/71, which excludes certain specific benefits from the scope of that regulation, must be interpreted strictly. This means that that article can apply only to benefits which satisfy cumulatively the conditions it lays down, that is, benefits which are both special and non-contributory, are mentioned in Annex II, Section III, to the regulation, and are laid down by legislation whose application is limited to part of the territory of a Member State. (see paras 24-25) 2. The scheme of Regulation No 1408/71 shows that the concept of ‘social security benefit’ within the meaning of Article 4(1) and the concept of ‘special non-contributory benefit’ within the meaning of Article 4(2a) and (2b) of the regulation are mutually exclusive. A benefit which satisfies the conditions of a ‘social security benefit’ within the meaning of Article 4(1) of Regulation No 1408/71 therefore cannot be analysed as a ‘special non-contributory benefit’. A care allowance granted objectively on the basis of a legally defined position and intended to compensate, in the form of a flat-rate contribution, for the additional expenditure resulting from the recipients’ condition of reliance on care, in particular the cost of the assistance it is necessary to provide them with, does not therefore constitute a special non-contributory benefit within the meaning of Article 4(2b), since it has the essential purpose of supplementing sickness insurance benefits and must thus be regarded as a ‘sickness benefit’ within the meaning of Article 4(1)(a) of Regulation No 1408/71. (see paras 36, 38-39, 46, operative part 1) 3. A member of the family of a worker employed in one Member State who lives with his family in another Member State may, where he fulfils the other conditions of grant, claim from the competent institution of the worker’s place of employment payment of a care allowance intended to compensate, in the form of a flat-rate contribution, for the additional expenditure resulting from the recipients’ condition of reliance on care, as a sickness benefit in cash as provided for in Article 19 of Regulation No 1408/71, in so far as the member of the family is not entitled to a similar benefit under the legislation of the State in whose territory he resides. (see para. 56, operative part 2)