Opinion of the Advocate General — ECLI:EU:C:2002:151
Date: 2002-03-07
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Finland

Summary of the Judgment 
1. Social security for migrant workers — Community rules — Matters covered — 
Benefits covered and benefits excluded — Criteria for distinguishing between 
them — Home child-care allowance — Included 
(Council Regulation No 1408/71) 
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SUMMARY — CASE C-333/00 
2. Social security for migrant workers — Community rules — Matters covered — 
Benefits covered and benefits excluded — Criteria for distinguishing between 
them — Benefit intended to meet the recipient's family expenses — Included 
(Council Regulation No 1408/71, Art. 1(u)(i) and Art. 4(1)(h)) 
3. Social security for migrant workers — Family benefits — Employed person subject to 
the legislation of one Member State but residing with his or her family in another 
Member State — Spouse's right to receive home child-care allowance provided for by 
the legislation of the State of employment 
(Council Regulation No 1408/71, Art. 73) 
1. A benefit can be regarded as a social 
security benefit only if it is granted 
without any individual and discretion­
ary assessment of personal needs to 
recipients on the basis of a legally 
defined position. 
A benefit such as the home child-care 
allowance provided for by Laki lasten 
kotihoiden ja yksityisen hőiden tuesta 
(Law No 1128/1996 on home child-
care allowance and private child-care 
allowance), satisfies that condition: the 
provisions concerning the grant of that 
allowance confer on the recipients a 
legally defined right and care money 
and the care supplement are paid auto­
matically to persons who fulfil certain 
objective criteria, without any individ­
ual and discretionary assessment of 
individual needs. 
(see paras 22-23) 
2. A benefit such as the home child-care 
allowance provided for by the Laki 
lasten kotihoidon ja yksityisen hoidon 
tuesta (Law No 1128/96 on home 
child-care allowance and private child-
care allowance) comes within the defi­
nition of family benefits and therefore 
relates to the risk mentioned in 
Article 4(1)(h) of Regulation No 1408/71. 
It is intended to meet family expenses 
within the meaning of Article 1(u)(i) of 
the Regulation. 
The expression 'to meet family expen­
ses' in Article 1(u)(i) of Regulation 
No 1408/71 which defines 'family 
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MAAHEIMO 
benefits' is to be interpreted as refer­
ring, in particular, to a public con­
tribution to a family's budget to allevi­
ate the financial burdens involved in 
the maintenance of children. 
(see paras 24-25, operative part 1) 
3. According to Article 73 of Regulation 
No 1408/71, a worker subject to the 
legislation of a Member State is to be 
entitled to the family benefits provided 
for by the legislation of the first 
Member State for members of his 
family residing in the territory of 
another Member State, as though they 
were residing in the territory of the first 
State. 
Where a worker lives with his family in 
a Member State other than the one 
whose legislation is applicable to him, 
the spouse of the worker is also entitled 
to rely on that article. 
Article 73 of Regulation No 1408/71 is 
intended to prevent Member States 
from making entitlement to family 
benefits dependent on residence of the 
members of the worker's family in the 
Member State providing the benefits, 
so that Community workers are not 
deterred from exercising their right to 
freedom of movement. Accordingly, it 
is all the more at odds with the purpose 
of Ar t i c le 73 of R e g u l a t i o n 
No 1408/71 to impose a condition of 
actual residence. 
Therefore, Article 73 of Regulation 
No 1408/71 must be interpreted as 
meaning that if the grant of a benefit 
such as the home child-care allowance 
depends on the child's actual residence 
in the territory of the competent 
Member State, that condition must be 
held to be satisfied where the child 
resides in the territory of another 
Member State. 
(see paras 31-34, operative part 2) 
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