Opinion of the Advocate General — ECLI:EU:C:2012:805
Date: 2012-12-13
Language of the case: French
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Third Chamber), 21 February 2013 1. Social security — Migrant workers — EU legislation — Scope ratione personae — Condition — ‘Worker’ within the meaning of Regulation No 1408/71 — Definition — Person insured under the social security scheme of a Member State (Council Regulation No 1408/71, as amended by Regulation No 1399/1999, Arts 2 and 4(1)) 2. Social security — Migrant workers — Orphans’ benefits — EU rules — Purpose — Determination of the applicable law (Council Regulation No 1408/71, as amended by Regulation No 1399/1999, Arts 78(2)(a) and (b) and 79(1) first para.) 3. Social security — Migrant workers — Power of the Member States to organise their social security systems — Limits — Compliance with EU law (Council Regulation No 1408/71, as amended by Regulation No 1399/1999) 4. Social security — Migrant workers — Orphans' benefits — Benefits payable by the State of residence — Aggregation of the periods necessary to acquire the right to benefits –National legislation providing for the taking into account of periods of insurance and employment completed only by the deceased parent in another Member State, but not those of the surviving parent — Unlawful (Arts 21 TFEU, 45 TFEU to 48 TFEU; Council Regulation No 1408/71, as amended by Regulation No 1399/1999, Arts 72, 78(2)(b), and 79(1) second para. (a)) 1. See the text of the decision. (see paras 28-30) 2. It is true that Article 78(2) of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1399/1999, governs only, in accordance with the very wording of points (a) and (b) of the first subparagraph thereof, the right to benefits for the orphan of a deceased employed person. Similarly, the wording of the first subparagraph of Article 79(1) of Regulation No 1408/71, in relation to the payment of benefits, refers only to the situation of the deceased. However, those provisions merely set out a conflict rule, the purpose of which is simply to determine, in the case of orphans whose deceased parent was an employed person, which legislation is applicable and which institution is required to pay the benefits provided for under that legislation. By contrast, those provisions are not intended to lay down the conditions creating the right to benefits for orphans. In the absence of harmonisation at the EU level, each Member State retains the power to determine in its legislation, in compliance with EU law, the conditions pursuant to which benefits may be granted under a social security scheme. The result is that, for the purposes of Article 78(2) and the first subparagraph of Article 79(1) of Regulation No 1408/71, the status of deceased employed person constitutes merely a connecting factor which determines, first, whether those provisions are applicable and, second, in conjunction with the orphan’s place of residence, which national legislation is applicable. (see paras 35-37, 39, 41, 42) 3. See the text of the decision. (see paras 40, 41) 4. Article 72, Article 78(2)(b) and point (a) of the second subparagraph of Article 79(1) of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1399/1999, must be interpreted as meaning that, where the national legislation of a Member State provides that a right to benefits for orphans can be established by both the deceased parent and the surviving parent, provided that they have the status of employed persons, those provisions require that periods of insurance and employment completed by the surviving parent in another Member State be taken into account in the aggregation of the periods necessary to acquire the right to benefits in the first of those Member States. In that regard, it is not relevant that the surviving parent cannot rely on any period of insurance or employment in that Member State during the reference period laid down by that national legislation for the acquisition of that right. Articles 45 TFEU and 48 TFEU, as well as Regulation No 1408/71 which was adopted to implement them, are intended in particular to prevent a worker who, by exercising his right of freedom of movement, has been employed in more than one Member State from being treated, without objective justification, less favourably than one who has completed his entire career in only one Member State. However, the refusal of a Member State to take account, when determining whether a right to benefits for orphans exits, of periods of insurance and employment completed in another Member State by an employed person, who is the national of that Member State and the surviving parent of a child of a deceased employed person, is likely to disadvantage that employed person on the sole ground that he exercised his right to freedom of movement, as guaranteed under Article 45 TFEU, and, consequently, could deter him from returning to his Member State of origin following the death of his partner by exercising his right to freedom of movement under that same provision or under Article 21 TFEU. (see paras 54, 55, 62, operative part)