Opinion of the Advocate General — ECLI:EU:C:1997:335
Date: 1997-07-01
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Citizenship of the Union;Right of entry and residence;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment
1. Socialsecurity for migrant workers — Community rules — Scope ratione materiae — Child-
raising allowance intended to meet family expenses of the recipient, granted on the basis of
objective and legally defined criteria — Whether included
(Council Regulation No 1408/71, Art. 4(1)(h))
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SUMMARY — CASE C-85/96
2. Freedom of movement for persons — Workers — Equal treatment — Sodai advantages —
Definition — Child-raising allowance intended to meet family expenses of the recipient,
granted on the basis of objective and legally defined criteria— Whether included
(Council Regulation 1612/68, Art. 7(2))
3. Freedom of movement for persons — Workers — Definition of worker — Definition varying
according to area in which it is applied — Worker within the meaning of Article 48 of the
Treaty and Regulation No 1612/68 — Definition — Employed person within the meaning of
Regulation No 1408/71 — Definition
(EC Treaty, Arts 48 and 51; Council Regulations Nos 1612/68 and 1408/71, Arts 1(a) and 2))
4. Citizenship of the European Union — Treaty provisions — Scope ratione personae —
National of one Member State lawfully residing on the territory of another Member State —
Whether included — Effect — Benefit of rights attaching to the status of citizen of the Euro­
pean Union
(EC Treaty, Arts 6 and 8(2))
5. Community law — Principles— Equal treatment — Discrimination on grounds of national­
ity — Child-raising allowance — Conditions for granting — National rules requiring only
nationals of other Member States to produce a residence permit — Not permissible
(EC Treaty, Art. 6)
1. A benefit such as the child-raising allow­
ance, which is automatically granted to
persons fulfilling certain objective criteria,
without any individual and discretionary
assessment of personal needs, and which
is intended to meet family expenses, falls
within the scope ratione materiae of
Community law as a family benefit
within the meaning of Article 4(1 )(h) of
Regulation No 1408/71.
2. A benefit such as the child-raising allow­
ance, which is automatically granted to
persons fulfilling certain objective criteria,
without any individual and discretionary
assessment of personal needs, and which
is intended to meet family expenses, falls
within the scope ratione materiae of
Community law as a social advantage
within the meaning of Article 7(2) of
Regulation No 1612/68.
The concept of social advantage covers all
the advantages which, whether or not
linked to a contract of employment, are
generally granted to national workers pri­
marily because of their objective status as
workers or by virtue of the mere fact of
their residence on the national territory
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MARTÍNEZ SALA v FREISTAAT BAYERN
and whose extension to workers who are
nationals of other Member States there­
fore seems likely to facilitate the mobility
of such workers within the Community
3. There is no single definition of worker in
Community law: it varies according to
the area in which the definition is to be
applied. For instance, the definition of
worker used in the context of Article 48
of the Treaty and Regulation No 1612/68
does not necessarily coincide with the
definition applied in relation to Article 51
of the Treaty and Regulation No 1408/71.
In the context of Article 48 of the Treaty
and Regulation No 1612/68, a person
who, for a certain period of time, per­
forms services for and under the direction
of another person in return for which he
receives remuneration must be considered
to be a worker.
On the other hand, a person has the sta­
tus of employed person within the mean­
ing of Regulation No 1408/71 where he is
covered, even if only in respect of a single
risk, compulsorily or on an optional
basis, by a general or special social secu­
rity scheme mentioned in Article 1(a) of
Regulation No 1408/71, irrespective of
the existence of an employment relation­
ship.
4. A national of a Member State lawfully
residing in the territory of another Mem­
ber State comes within the scope ratione
personae of the provisions of the Treaty
on European citizenship and can rely on
the rights laid down by the Treaty which
Article 8(2) attaches to the status of citi­
zen of the Union, including the right, laid
down in Article 6, not to suffer discrimi­
nation on grounds of nationality within
the scope of application ratione materiae
of the Treaty.
5. Community law precludes a Member
State from requiring nationals of other
Member States authorised to reside in its
territory to produce a formal residence
permit issued by the national authorities
in order to receive a child-raising allow­
ance, whereas that Member State's own
nationals are only required to be perma­
nently or ordinarily resident in that
Member State.
For the purposes of the grant of the ben­
efit in question, possession of a residence
permit cannot be constitutive of the right
to the benefit when, for the purposes of
recognition of the right of residence, it
has only declaratory and probative force.
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