Opinion of the Advocate General — ECLI:EU:C:1997:599
Date: 1997-12-09
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary 
I — Introduction I - 846 
II — Reliance on care as a risk for insurance purposes I - 847 
III — The national provisions I - 848 
IV — Facts I - 8 5 1 
V — Question referred for a preliminary ruling I - 852 
VI — Subject-matter of the order for reference I - 852 
VII — Community legal framework I - 853 
VIII — Substance I - 8 5 5 
A — Characterisation of the insurance in question I - 855 
(a) Social security benefit I - 857 
(b) Regulation N o 1408/71 I - 859 
(c) Benefit in kind or cash benefit I - 863 
B — Exportability I - 865 
C — Affiliation to an insurance scheme: consequences I - 870 
(a) Affiliation to an insurance scheme I - 870 
(b) Receipt of benefits as the counterpart to affiliation to an insurance 
scheme I - 873 
D — Regulation N o 1612/68 I - 8 7 6 
IX — Conclusion I - 8 7 9 
I — Introduction 
1. By a reference for a pre l iminary rul ing 
submit ted b y the Sozialgericht Kar ls ruhe 
(Ge rmany) the C o u r t is asked to in terpre t 
Articles 6 and 48(2) of the E C Treaty. 
2. T h e dispute in the main proceedings arose 
f rom the fact that a marr ied couple of w o r k -* Original language: Greek. 
I - 8 4 6 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
ers, a Dutch national and his German wife, 
who reside in France and work in Germany, 
are subject and contribute compulsorily to 
the German care insurance scheme, but are 
not entitled to obtain benefits under that 
system while they reside abroad. 
II — Reliance on care as a risk for insurance 
purposes 
3. The risk of reliance on care has always 
existed as a social phenomenon, but is rela­
tively recent as the subject-matter of social 
insurance. Accordingly, I consider it expedi­
ent, before setting out the relevant national 
provisions, to point to certain basic charac­
teristics of that risk, as shown by a brief sur­
vey of the relevant theory and practice. 1 
4. Reliance on care can be defined, generally, 
as a person's inability to be independent and 
his consequent need for assistance from a 
third person for the performance of his 
everyday routine. 
Reliance on care is usually a consequence of 
old age, but can also be a result of illness, 
invalidity, accident and so forth. 
Benefits for persons reliant on care in the 
above sense have long existed and will con­
tinue to exist, either 'within special branches 
of social security, such as that covering, for 
example, the elderly or the disabled, or as an 
aspect of social assistance. There is, however, 
now a trend towards amalgamation of the 
disparate benefits and the creation of a sepa­
rate branch of social security relating to reli­
ance on care. 2 
1 — The information in question is drawn from the written 
observations of the parties in the present case and the pend­
ing Case C-40/97 Jordy, from the Minutes of the Sixth Con­
ference of the European Social Security Ministers of the 
Council of Europe, which took place in Lisbon from 29 to 
31 May 1995 (Strasbourg 1995) —hereinafter 'the Minutes' 
and from the article by G. Igl, 'Coordination et nouvelles 
formes de protection sociale' in the volume commemorating 
the 25th anniversary of the adoption of Regulation No 
1408/71 which has not yet been published. The latter two 
sources were relied upon and adduced by the German Gov­
ernment and the Commission. 
2 — With regard to the Member States of the European Union, 
the situation could, in 1995, be summarised as follows: 
(a) a first group of countries gives priority to autonomous 
benefits to persons reliant on care (Austria, Germany, Den­
mark, United Kingdom, Ireland, Luxembourg, Portugal, 
Sweden, Finland); 
(b) in other countries care benefits are linked to other ben­
efits, such as old-age or invalidity pensions (Belgium, Spain); 
(c) in a third group of countries, benefits for persons reliant 
on care are granted principally through social welfare 
schemes, or at local or regional level (France, Greece, Italy); 
(d) elsewhere, finally, there are certain benefits which are not 
restricted particularly to persons reliant on care, but partly 
cover their needs (Netherlands) — sec the Minutes, p. 61. It 
should be noted, however, that since then a number of 
changes have occurred, such as the vote for new legislation in 
France laying down a special care benefit for the aged (Law 
N o 97-60 of 24.1.1997 (JORF of 25 February 1997, p. 1280)), 
a sign of the rapid development in the area of insurance 
against reliance on care. 
I - 8 4 7 
OPINION OF MR COSMAS — CASE C-160/96 
5. Benefits are provided in kind, or in cash, 
or a combination of both. Under certain leg­
islation it is up to the person concerned to 
choose the appropriate type of benefit. Ben­
efits in kind include home care or, in the 
most serious cases, care in specialised estab­
lishments, as well as making available to the 
person concerned any medicines or equip­
ment required. Such care is provided either 
'unofficially', that is to say by a spouse or 
other family member or relative, 3 or by vol­
unteers, or by professionals linked to the 
competent social services. Cash benefits con­
sist of periodical benefits awarded instead of 
benefits in kind or in parallel with them, 
whether or not at the option of the person 
concerned. Their level depends principally 
on the degree of reliance on care and possi­
bly also on the financial situation of the per­
son reliant on care (mainly where reliance on 
care is linked to social assistance). 
As regards award of benefits, there are two 
priorities: (a) to ensure people are cared for 
at home and in familiar surroundings, rather 
than in an institution, which remains the 
exception, out of respect for the dignity and 
independence of the individual and (b) reha­
bilitation rather than the mere payment of 
benefits. 
6. Provision is also made for the third party 
caring for the person reliant on care, particu­
larly where that care is provided by profes­
sionals. Thus, in certain countries the person 
giving assistance is compulsorily or voluntar­
ily insured through the person reliant on 
care, and is entitled also to certain (paid) free 
days and holidays. There are, however, pro­
posals for those advantages to be extended to 
carers who are not professionals (such as 
family members). 4 
III — The national provisions 
7. In Germany, the provision of home care 
to persons requiring it was first introduced 
in 1988 as part of sickness insurance and was 
included in Book V of the Sozialgesetzbuch 
(German Social Security Code, hereinafter 
'the SGB'). The aim of those benefits was, 
first, as far as possible, to enable the persons 
concerned to remain in their own home and 
to prevent their being placed in institutions. 
Persons reliant on care were, however, able 
to choose to receive a monthly allowance, 
instead of assistance in the home, of 
DM 400, if they were in a position to obtain 
3 — This is the most common case. They are the unsung heroes 
in the case of persons reliant on care, in particular where the 
latter remain at home. There is increasing awareness, how­
ever, that measures should also be taken to protect those per­
sons because of the range of risks they run (psychological 
damage, social isolaûon, and so forth) as a result of being 
continually occupied in looking after someone reliant on 
care. 4 — Minutes, p. 52. 
I - 8 4 8 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
the appropriate care themselves from a third 
party. 
8. Those benefits were replaced and 
improved, from 1 January 1995, by the Pfle­
geversicherungsgesetz (Care Insurance Law), 
which makes up Book XI of the SGB and 
governs the situation in this case. 
9. Here too the risk of reliance on care con­
sists in being unable to care for oneself inde­
pendently. In other words it affects persons 
who need, either temporarily or perma­
nently, to resort to help from others to 
accomplish some or all routine tasks such as 
those connected with personal hygiene, 
meals, mobility, housework, and so forth. 
Persons reliant on care do not take part in 
active life (in the sense, obviously, that they 
are, temporarily or permanently, unfit for 
work) and the state of their health is not 
expected to improve. 5 
10. Care insurance is compulsory inter alia 
for any person insured, either voluntarily or 
compulsorily, against sickness. Responsibil­
ity for administering care insurance has been 
given to the sickness insurance institutions. 
11. The insurance is funded by contribu­
tions from workers and employers. The level 
of contribution amounts, for each of them, 
to 0.85% of gross pay. 
12. As regards benefits, those insured, pro­
vided they have completed a certain insur­
ance period (at present one year, which will 
increase in stages to five years by the year 
2000), are entitled, first, to home care, which 
includes benefits in kind, or a monthly 
allowance, or a combination of both. 
Benefits in kind (Paragraph 36) consist, 
mainly, in specialised staff being made avail­
able by the insurance institution for the pro­
vision of home care. The monthly ceiling on 
the cost of services provided depends on the 
level of reliance on care. 6 
5 — Sec the observations of the German Government in Case 
C-40/97 Jordy. According to the German Government, that 
risk these days affects 1.65 million persons in Germany. 
6 — Category I: up to DM 750; Category II: up to DM 1 800; 
Category III: up to DM 2 800. In special cases the ceiling in 
respect of Category III may reach DM 3 750. 
I - 849 
OPINION OF MR COSMAS — CASE C-160/96 
Instead of benefits in kind, the person reliant 
on care is entitled to opt for a monthly 
allowance ('the care allowance'), which will 
enable him to obtain the appropriate form of 
care from a care assistant (Paragraph 37). 7 In 
that case, the competent institution examines 
persons reliant on care to verify their con­
dition every six months (Categories I and II) 
or every three months (Category III). 
The person concerned may, however, opt for 
a combination of the two types of benefits 
(Paragraph 38). 
In addition provision is made for the insured 
to receive the material and technical assis­
tance required to improve their condition 
such as, for example, rental or purchase and 
installation of special equipment, the perfor­
mance of work to adapt the home or the cost 
of replacing, while they are on holiday, the 
care assistants who usually look after the 
insured (Paragraph 40). 
13. Secondly, the insured are entitled to 
nursing care in establishments where home 
care proves to be inadequate or inappropri­
ate. Such nursing care may take place partly 
or wholly in an establishment (Paragraph 
41). The competent institution covers the 
cost of nursing care effected partly in an 
establishment up to a certain ceiling (Para­
graph 41). 8 
14. Lastly, provision is also made for ben­
efits for the care assistants such as payment 
of their insurance contributions in respect of 
sickness and accidents at work (Paragraph 
44) as well as for special courses for the fam­
ily of the person reliant on care and for those 
who provide assistance on a voluntary basis 
(Paragraph 45). 
15. Pursuant to Paragraph 34(1) of Book XI 
of the SGB, entitlement to benefits is sus­
pended inter alia so long as an insured per­
son remains abroad, even if the need for care 
arose during a temporary stay abroad. 9 
7 — The level of the monthly allowance is fixed and is equivalent 
to approximately half the ceiling on benefits in kind, or DM 
400, 800 and 1 300 for categories I, II, and HI. 
8 — DM 750, 1 500 and 2 100 for categories I, I I and III resp­c¬ 
tively. 
9 — Absence abroad is, however, allowed, basically for holiday 
purposes, for up to six weeks each year for the person reliant 
on care and for the care assistant, during which time cash 
benefits will continue to be paid (see the reply of the Ger­
man Government to the question put by the Court). 
I - 8 5 0 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
IV — Facts 
16. Manfred and Barbara Molenaar, the 
plaintiffs in the main proceedings, who are 
respectively of Dutch and German national­
ity, live in France and work in Germany. 
17. In December 1994 and January 1995, the 
AOK Baden Württemberg, the defendant in 
the main proceedings, informed them that 
from 1 January 1995 they would have to be 
insured against the risk of reliance on care 
and pay the relevant insurance contributions 
but that, pursuant to Paragraph 34 of the 
SGB, referred to above, their entitlement to 
the corresponding insurance benefits was 
suspended as long as they were resident 
abroad. 
18. Mr and Mrs Molenaar initiated proceed­
ings in the Socialgericht Karlsruhe, seeking: 
(a) principally, a declaration that, subject to 
the generally applicable conditions for 
entitlement being fulfilled, they were 
entitled to care insurance benefits even if 
they were resident abroad; 
(b) in the alternative, a declaration that, sub­
ject to those same conditions, they were 
entitled to be reimbursed for costs of 
care incurred; 
(c) in the further alternative, a declaration 
that they were not required to be insured 
against the risk of reliance on care; 
(d) as a purely precautionary claim, an order 
that the defendant exempt the plaintiffs 
from the requirement of insurance and 
reimburse to them the contributions 
paid. 
19. The Socialgericht held that the two first 
questions were inadmissible under German 
administrative law, principally because they 
did not relate to a specific factual situation 
requiring protection. 10 
20. On the other hand, it held that the other 
two claims, in particular the third, raise the 
question whether Articles 6 and 48(2) of the 
Treaty permit national legislation to require 
the payment of insurance contributions in 
the context of a compulsory insurance 
scheme against a risk such as that in the main 
10 — This clearly means that, since the insurance risk has not 
materialised, there is no question of the grant of a specific 
benefit or refund of specific costs. 
I - 8 5 1 
OPINION OF MR COSMAS — CASE C-160/96 
proceedings, when the benefits in question 
are not payable because the person entitled is 
resident in another Member State. Accord­
ingly, the national court submitted the fol­
lowing question to the Court for a prelimi­
nary ruling. 
V — Question referred for a preliminary 
ruling 
'Are Articles 6 and 48(2) of the EC Treaty to 
be interpreted as restricting the right of a 
Member State to set up a social security sys­
tem covering the risk of need of care as part 
of statutory compulsory insurance arrange­
ments under which persons residing in 
another Member State are liable to pay com­
pulsory contributions, even though their 
entitlement to benefits is simultaneously 
excluded or suspended because of their place 
of residence?' 
VI — Subject-matter of the order for refer­
ence 
21. It is settled case-law that Article 6 of the 
Treaty which lays down the general principle 
of the prohibition of discrimination on 
grounds of nationality, can only be applied 
on its own to situations governed by 
Community law in respect of which the 
Treaty lays down no specific prohibition of 
discrimination. 
In the matter of freedom of movement for 
workers the principle of discrimination has 
been given effect and specific expression by 
Articles 48 to 51 of the Treaty and by acts of 
the Community institutions adopted on the 
basis of those articles, and in particular by 
Regulation N o 1408/71 and Regulation N o 
1612/68. 
Consequendy, if a case such as that in point 
in the main proceedings falls within the 
scope of those articles of the Treaty and of 
the Community regulations adopted on the 
basis of them, it is unnecessary to give a rul­
ing on the interpretation of Article 6 of the 
Treaty. 11 
22. From the formulation of the question it 
has referred, it would appear that the 
national court entertains no doubts as to the 
compatibility of the residence clause laid 
down in Paragraph 34 of the SGB with 
Community law, but wonders about the 
implications of that clause as regards the 
compulsory nature of the insurance and the 
payment of insurance contributions. Fur­
thermore, the national court does not 
directly raise the question of the legal classi­
fication of the insurance in question from the 
point of view of Community law. However, 
11 — See, inter alia, Case C-131/96 Romero [1997] ECR I-3659, 
paragraphs 10 to 12. 
I - 852 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
from the fact that it cites Articles 19 and 22 
of Regulation N o 1408/71 it follows indi­
rectly that it considers the insurance to fall 
within the scope of that regulation ratione 
materiae, specifically under Chapter 1 of 
Title III, concerning sickness and maternity. 
Moreover, the reasoning of the parties who 
submitted observations, concerns, in large 
part, the question whether the benefits at 
issue are covered by Regulation No 1408/71 
and possibly also by Regulation N o 1612/68. 
23. In my view those questions are closely 
connected and should be examined specifi­
cally. The main question is that of the legal 
classification of the benefits in question from 
the point of view of Community law. Given 
that those benefits are obviously social in 
nature, there are two possible interpreta­
tions: either they constitute social security 
benefits within the meaning of Article 51 of 
the Treaty and Regulation N o 1408/71, in 
which case the further question arises as to 
which particular category of Article 4(1) of 
that regulation they fall within; alternatively 
they constitute a social advantage, within the 
meaning of Article 7 of Regulation N o 
1612/68, and are part of the social assistance 
system. The reply to that question will deter­
mine the reply to the questions whether the 
benefits in question can be exported, 
whether the insurance cover and the pay­
ment of insurance contributions are compul­
sory, and whether the contributions paid can 
be reimbursed. Accordingly, the questions 
which arise must be studied first in the light 
of Articles 48 and 51 of the Treaty and, more 
specifically, of Regulations Nos 1408/71 and 
1612/68. 
24. In that connection, suffice it to note that, 
according to settled case-law, in order to give 
as complete a reply as possible to the 
national court, the Court is not prevented 
from examining the questions raised objec­
tively by the order for reference, in the light 
of the appropriate rules of Community 
law. 12 
VII — Community legal framework 
25. In view of the foregoing, the Commu­
nity provisions which are relevant to the 
present situation are as follows: 
(i) The EC Treaty 
Article 6, first paragraph: 'Within the scope 
of application of this Treaty, and without 
prejudice to any special provisions contained 
therein, any discrimination on grounds of 
nationality shall be prohibited.' 
12 — See inter alia Case C-237/94 O'Flynn [1996] ECR I-2617, 
paragraphs 24 and 25, and Case C-131/95 Huijbrechts 
[1997] ECR I-1409, paragraph 11. 
I - 853 
OPINION OF MR COSMAS — CASE C-160/96 
Article 48(2): 'Such freedom of movement 
shall entail the abolition of any discrimi­
nation based on nationality between workers 
of the Member States as regards employ­
ment, remuneration and other conditions of 
work and employment.' 
(ii) Regulation N o 1408/71 13 
Article 4: ' 1 . This Regulation shall apply to 
all legislation concerning the following 
branches of social security: 
(a) sickness and maternity benefits; 
(b) invalidity benefits, including those 
intended for the maintenance or 
improvement of earning capacity; 
(c) old-age benefits; 
2 a. This Regulation shall also apply to spe­
cial non-contributory benefits which are 
provided under legislation or schemes other 
than those referred to in paragraph 1 or 
excluded by virtue of paragraph 4, where 
such benefits are intended: 
(a) either to provide supplementary, substi­
tute or ancillary cover against the risks 
covered by the branches of social secu­
rity referred to in paragraph 1(a) to (h); 
or 
(b) solely as specific protection for the dis­
abled.' 
Article 10: ' 1 . Save as otherwise provided in 
this Regulation, invalidity, old-age or survi­
vors' cash benefits, pensions for accidents at 
work or occupational diseases and death 
grants acquired under the legislation of one 
or more Member States shall not be subject 
to any reduction, modification, suspension, 
withdrawal or confiscation by reason of the 
fact that the recipient resides in the territory 
of a Member State other than that in which 
the institution responsible for payment is 
situated. ...' 
Article 10a: 'Notwithstanding the provisions 
of Article 10 and Title III, persons to whom 
this Regulation applies shall be granted 
13 — Regulation (EEC) N o 1408/71 of the Council on the appli­
cation of social security schemes to employed persons, to 
self-employed persons and to members of their families 
moving within the Community (OJ, English Special Edi­
tion 1971 (II), p. 416), as amended and updated by Council 
Regulation (EC) N o 118/97 of 2 December 1996 (OJ 1997 
L 28, p. 1). 
I - 8 5 4 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
the special non-contributory cash benefits 
referred to in Article 4(2a) exclusively in the 
territory of the Member State in which they 
reside, in accordance with the legislation of 
that State, provided that such benefits are 
listed in Annex IIa. Such benefits shall be 
granted by and at the expense of the institu­
tion of the place of residence.' 
Article 19: ' 1 . An employed or self-
employed person residing in the territory of 
a Member State other than the competent 
State, who satisfies the conditions of the leg­
islation of the competent State for entitle-
ment to benefits, taking account where 
appropriate of the provisions of Article 18, 
shall receive in the State in which he is resi­
dent: 
(a) benefits in kind provided on behalf of 
the competent institution by the institu­
tion of the place of residence in accord­
ance with the legislation administered by 
that institution as though he were 
insured with it; 
(b) cash benefits provided by the competent 
institution in accordance with the legisla­
tion which it administers. ...' 
(iii) Regulation N o 1612/68 14 
Article 7: ' 1 . A worker who is a national of a 
Member State may not, in the territory of 
another Member State, be treated differendy 
from national workers by reason of his 
nationality in respect of any conditions of 
employment and work, in particular as 
regards remuneration, dismissal, and should 
he become unemployed, reinstatement or 
re-employment; 
2. He shall enjoy the same social and tax 
advantages as national workers.' 
VIII — Substance 
A — Characterisation of the insurance in 
question 
26. The legal characterisation of the legisla­
tion at issue at first presents a practical diffi­
culty because, as stated above, in this case 
the risk insured has not materialised. The 
14 — Regulation (EEC) No 1612/68 of the Council of 15 Octo­
ber 1968 on freedom of movement for workers within the 
Community (OJ, English Special Edition 1968 (II), p. 475). 
I - 855 
OPINION OF MR COSMAS — CASE C-160/96 
plaintiffs have not in fact reached a state 
where they are reliant on care in the sense of 
the German legislation and, accordingly, they 
have never been awarded the specific benefit 
in respect of reliance on care or had it with­
drawn from them, a situation regarding 
which the court of reference might entertain 
doubts. 15 That would certainly have simpli­
fied matters because the insurance in ques­
tion covers a number of benefits which have 
their own peculiarities and it is rather odd to 
lump them all together. Nevertheless, given 
that the observations of the parties concen­
trate mainly on benefits in kind and on the 
care allowance, I shall deal with them below, 
without however overlooking the overall 
framework. 
27. In connection with that characterisation, 
a methodological problem now arises •which 
conceals a substantive problem. 
The former is the question whether our 
examination should begin with Regulation 
N o 1408/71 or with Regulation N o 1612/68. 
On that point some judgments give priority 
to one regulation, generally assuming that, 
since the benefit falls under the first regu­
lation, examination of the other is unneces­
sary, 16 whereas others take the opposite 
approach. 17 
The substantive problem consists in whether 
one regulation alone may be applied to one 
and the same benefit (hence precluding 
application of the other regulation) or 
whether it is possible to apply both regula­
tions. The question is clearly of significance, 
since the provisions of the two texts are not 
identical. In any event, the case-law of the 
Court has not been consistent on that ques­
tion. 18 
28. Despite the fact that, as I shall show at 
the appropriate point, it cannot be ruled out 
that that benefit, by its nature, constitutes a 
social security benefit and a social advantage, 
it is more correct to examine first whether 
the benefits in question constitute social 
security benefits. That is because the provi­
sions of both Article 51 of the Treaty and of 
Regulation N o 1408/71 which lays down the 
details, are more specific than the provisions 
of Article 48 of the Treaty and Regulation 
N o 1612/68 adopted on the basis thereof. 
15 — From that point of view, the situation is clearer in the pend­
ing case C-40/97 Jordy. In that case the insured person, of 
German nationality, who was in receipt of an invalidity 
pension and a care allowance transferred his residence to 
Spain, the consequence of which was that the competent 
German institution withdrew the allowance. The court of 
reference took the view that that allowance constituted a 
sickness benefit under Regulation N o 1408/71, and asked 
the Court whether the allowance constituted a benefit in 
kind or a cash benefit. 
16 — See, for example, Case C-78/91 Hughes [1992] ECR I-4839, 
paragraph 29. 
17 — See, for example, Case 261/83 Castelli [1984] ECR 3199 and 
Case C-111/91 Commission v Luxembourg [1993] ECR 
I-817, paragraph 6. 
18 — See below, point 96 et seq. 
I - 8 5 6 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
(a) Social security benefit 
29. The case-law usually concludes that a 
benefit should be classified as a 'social secu­
rity benefit' in the context of Regulation N o 
1408/71 by attributing special weight inter 
alia to whether or not it falls within the 
branches of social security listed in Article 
4(1) thereof. The fact that a benefit is a social 
security benefit emerges clearly on compar­
ing them with social assistance benefits, 
which are expressly excluded from the regu­
lation, under Article 4(4) thereof, particu­
larly in relation to certain mixed or hybrid 
benefits, which have something of both cat­
egories at the same time. 
30. Thus it has been consistently held that 
the distinction between the benefits excluded 
from the scope of Regulation N o 1408/71 
and those which fall within its scope is based 
essentially on the constituent elements of 
each particular benefit, in particular its pur­
poses and the conditions on which it is 
granted, and not on whether a benefit is clas­
sified as a social security benefit by national 
legislation. 19 
31. The Court has also, on a number of 
occasions, stressed that a benefit is to be 
regarded as a social security benefit if it is 
granted to recipients, on the basis of a legally 
defined position, without any individual and 
discretionary assessment of personal needs 
(which is a characteristic of social assistance) 
and if it concerns one of the risks expressly 
listed in Article 4(1) of Regulation 
N o 1408/71. 20 
32. However, the concept of social security 
should not be confused with the specific 
branches of social security listed exhaus­
tively 21 in Article 4(1)(a) to (h) of the regu­
lation. In reality the concept of social secu­
rity has a wider, autonomous and 
Community content 22 which flows from 
Article 51 of the Treaty, in other words from 
a rule which has greater authority than 
Regulation N o 1408/71. It is to that concept, 
as a generic term, that the Community legis­
lature must be regarded as referring in the 
first sentence of Article 4(1) before going on 
to list as types of social security certain 
social security risks in respect of which it 
was chosen to lay down coordinating rules. 
33. For that reason the case-law, in particu­
lar in the case of mixed benefits, and in 
general of benefits whose classification is 
19 — Case 249/83 Hoeckx [1985] ECR 973, paragraph 11; Joined 
Cases C-245/94 and C-312/94 Hoever and Zachow [1996] 
ECR I-4895, paragraph 17. Sec also Hughes, cited in foot­
note 16, paragraph 14. 
20 — See Hughes, cited above in footnote 16, paragraph 15, and 
Hoever and Zachow, cited in footnote 19, paragraph 18. 
21 — Sec below, point 40. 
22 — As has already been indicated by Advocate General Mayras 
in his Opinion in Case 14/72 Heinze [1972] ECR 1105, at 
p. 1119, where he speaks of the 'Community concept of 
social security'. 
I - 8 5 7 
OPINION OF MR COSMAS — CASE C-160/96 
difficult, provided it has been concluded that 
the benefit at issue more closely resembles a 
social security benefit than a social assistance 
benefit states that the benefit 'falls, as regards 
the persons covered by Regulation N o 3, 
within the area of social security within the 
meaning of Article 51 of the Treaty and of 
the Community Regulations thereunder' 23 
or that it 'falls, in so far as this person is con­
cerned, within the field of social security 
within the meaning of Article 51 of the 
Treaty and of the Regulations for carrying 
this provision into effect' 24 or 'in principle 
falls within the field of social security 
referred to in Article 51 of the EEC Treaty 
and is not excluded from the scope of Regu­
lation N o 1408/71 by the provisions of 
Article 4(4) thereof'. 2 5 A benefit falls within 
this definition if it is of an 'intrinsic social 
security character', 26 that is to say in view of 
its specific characteristics, which make it a 
social security benefit rather than a benefit of 
any other sort. 
34. The fact that the above texts do not con­
tain a definition of social security (in other 
words giving a precise specification of the 
concept — a technique which is rarely 
employed in Community law) should not 
come as a surprise. The legislature avoids 
'rigidifying' vague legal concepts that are 
fluid and constantly evolving. Those con­
cepts acquire specific content at the time 
when they are applied by the legislature, and, 
in the final analysis, by the Court of Justice, 
in the light of the purpose of Article 51, 
which is to ensure freedom of movement for 
workers, and in view of the legal and social 
conditions prevailing at the time of applica­
tion. That is also the case as far as the defini­
tion of social security is concerned. Accord­
ingly, Regulation N o 3 (Journal Officiel 
1958, p. 561) and its successor, Regulation 
N o 1408/71, which, originally at least, were 
limited to mere coordination of national 
social security systems, 27 leaving aside the 
definition of the concept, listed the most 
usual and, perhaps, most important branches 
of social security at the time, and left 
unregulated special or as yet simply 
unknown cases of social security risks. 28 
35. The question whether a benefit has the 
character of a social security benefit is thus 
partly independent of the question of the 
branch of social security listed in the regu­
lation under which it is to be classified, and 
takes precedence over that question. It is 
23 — Case 39/74 Costa [1974] ECR 1251, paragraph 11. 
24 — Case 24/74 Biosan [1974] ECR 999, paragraph 15, and Case 
63/76 Inzirillo [1976] ECR 2057, paragraph 9. It is interest­
ing that the judgment in the latter case next considers 
whether the person concerned falls within the scope rottone 
personae of the regulation (paragraph 10). 
25 — Case 139/82 Piscitello [1983] ECR 1427, paragraph 13. 
26 — Biason judgment, cited in footnote 24, paragraph 12, and 
Joined Cases 379/85, 380/85, 381/85 and 93/86 Gaeta and 
Others [1987] ECR 955, paragraph 11. See also Case 
C-236/88 Commission v France [1990] ECR I-3163, para­
graph 10, my emphasis. 
27 — It is evident, in my view, that the regulation has changed 
over the years into an instrument for at least partial har­
monisation of the Member States' social security legislation. 
28 — As Advocate General Mancini, as he then was, emphasised, 
Article 4 of the Regulation lists the nine traditional sectors 
established by the International Labour Organisation (ILO) 
Convention on minimum standards of social security (No 
102, 28 June 1952). However, with the exception of a few 
cases (family benefits, death grants and the like) it does not 
define the various benefits (see the Opinion of 5 July 1983 
in Case 171/82 Valentini v Assedic [1983] ECR 2157, at 
p. 2177). 
I - 8 5 8 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
thus quite clear that the benefit is a social 
security benefit within the meaning of 
Article 51 of the Treaty and the regulation, 
but is not yet 29 included amongst the ben­
efits (provided for by legislation), referred to 
in Article 4(1) of the regulation, with the 
result that there is a lacuna in the law. 
36. The question which arises in connection 
with those cases which fall within this lacuna 
left by Article 51 of the Treaty and the list in 
Regulation N o 1408/71 is whether, in the 
absence of any coordination, they can be 
decided on the basis of the provisions of the 
Treaty and the general principles of Commu­
nity law. I am inclined to believe that they 
can. The same principle applies as in the case 
of the adoption of rules on compulsory 
insurance cover and the rules on the rights 
and duties of the insured, which, as a rule, 
are a matter for the Member States. The 
Court has held that 'it is for the legislature of 
each Member State to lay down the condi­
tions creating the right or the obligation to 
become affiliated to a social security scheme 
or to a particular branch under such a 
scheme provided always that in this connec­
tion there is no discrimination between 
nationals of the host State and nationals of 
the other Member States'. 30 Similarly, in the 
field of social security, which is a matter for 
Community law where it concerns migrant 
workers, the Member States are bound to 
respect the general principles of Community 
law — such as the principles of equal treat­
ment, non-discrimination and proportional­
ity. 31 Recourse to such general rules is, to 
some extent, a last resort, which is justified 
where the case in point is not covered by 
more specific legal provisions. 32 This is 
however not so in the present case. 
(b) Regulation N o 1408/71 
37. I propose, first, to consider the benefits 
in issue from the point of view of the plain­
tiffs in the main proceedings and in the light 
of Regulation N o 1408/71. 
38. The first point to be made is that the 
plaintiffs fall within the scope ratione perso­
nae of Regulation N o 1408/71 as they are 
insured against sickness under the social 
security system in Germany. 33 
29 — See Case C-25/95 Otte [1996] ECR I-3745, in which the 
Court found that the German adaptation allowance was 
similar in some respects to pre-retirement benefits, 'which 
are not yet covered by the Regulation' (paragraph 33). 
30 — Case 110/79 Coonan [1980] ECR 1445, paragraph 12. 
31 — In accordance with that principle the Court has consistently 
held, in cases which raise questions outside a purely 
national framework, that the Member States must respect 
the fundamental principles of the Treaty even when they are 
enacting measures in areas which fall within their terms of 
reference, such as the law of property (Case 182/83 Fearon 
[1984] ECR 3677, paragraph 7), or intellectual property 
(Joined Cases C-92/92 and C-326/92 Phil Collins and Oth­
ers [1993] ECR I-5145, paragraph 22), or direct taxation 
(Case C-279/93 Schumacher [1995] ECR I-225, paragraph 
21), etc. 
32 — Romero cited in footnote 11. 
33 — Case C-20/96 Snares [1997] ECR I-6057, paragraph 28. 
I - 8 5 9 
OPINION OF MR COSMAS — CASE C-160/96 
39. Accordingly, if one applies the criteria 
developed by the case-law for benefits which 
fall within the scope rattorte materiae of the 
Regulation and those which do not, it is clear 
that these benefits are indisputably social 
security benefits. Irrespective of whether 
benefits equivalent to the benefits in issue 
have already been granted in Germany under 
a sickness insurance scheme, 34 to be subject 
to compulsory care insurance a person must 
be insured under a sickness insurance 
scheme, the position of the insured must be 
legally defined, the insurance must be com­
pulsory and require the payment of contri­
butions, the grant of benefits must not be at 
the discretion of the administration and must 
not depend on an assessment of personal 
needs (except within the limits established by 
law) and need must not be the only or main 
criterion relied on. Although none of these, 
on its own, is decisive, they can none the 
less, in combination, bestow the character of 
social security benefits on the benefits in 
issue. 
40. Obviously this does not mean that the 
benefits in issue automatically fall within the 
scope of Regulation N o 1408/71. As has 
been held, the list of risks contained in 
Article 4(1) of the Regulation is exhaustive 
and only national social security legislation 
covering those risks falls within the material 
scope of the regulation. 35 
41. Examination of the question whether the 
German legislation in issue falls within one 
of these cases leads to a negative conclusion 
because the risk of reliance on care is con­
nected with that of old-age, sickness or 
invalidity but is not exactly equivalent to any 
of them. However, the fact that a law does 
not fall directly within one of the cases in 
question does not mean that it is automati­
cally excluded from the scope of the regu­
lation. The Court has extended the material 
scope of the regulation to laws which have a 
sufficient link with those to which the regu­
lation expressly applies, 36 so that they can be 
deemed equivalent to the latter cases. 37 
42. The benefits in issue could prima facie be 
sickness benefits, old-age benefits or invalid­
ity benefits. 
43. As the Court has held, 'the essential 
characteristic of the old-age benefits referred 
to in Article 4(1)(c) ... of Regulation N o 
1408/71 lies in the fact that they are intended 
to safeguard the means of subsistence of per­
sons who, when they reach a certain age, 
leave their employment and are no longer 
required to hold themselves available for 
work at the Employment .Office'. 38 In view 
of the fact that the benefits in issue do not 
have that purpose, I do not believe that they 
34 — See above, point 7. 
35 — See Hoeckx, cited in footnote 19, paragraph 12, and Case 
122/84 Scrivner[1985] ECR 1027, paragraph 16 et seq. 
36 — See Otte, cited in footnote 29, paragraph 23. 
37 — See Hughes, cited in footnote 16, paragraph 22, and Case 
C-356/89 Newton [1991] ECR I-3017, paragraph 22. 
38 — Valentini, cited in footnote 28, paragraph 14. 
I -860 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
have such a close link with old-age benefits 
that they can be said to be equivalent. Nor 
can decisive importance be attached to the 
fact that, statistically, the benefits in the case 
of reliance on care are paid to older people in 
the main, as this is a typical but not a neces­
sary factor and thus cannot be viewed as a 
component of the benefit. 
44. For similar reasons, I do not think that 
the benefits in issue have the degree of con­
nection with invalidity benefits necessary in 
this case for them to be deemed equivalent to 
such benefits. 
45. It remains only to compare the benefits 
in issue with sickness benefits. 
46. The first point to make is that the con­
cept of 'sickness benefits' is defined at Com­
munity level and must be interpreted uni­
formly. 39 The definition of this concept, 
which is not laid down in Regulation N o 
1408/71, cannot, however, be based on strict 
medical criteria, but only on legal criteria 
and common experience. From that point of 
view, it is significant that, first, Article 18 of 
Regulation (EEC) N o 574/72 of the Council 
of 21 March 1972 fixing the procedure for 
implementing Regulation (EEC) N o 1408/71 
(OJ, English Special Edition 1972(1), p. 159), 
puts cash benefits in the event of sickness on 
a par with those in the event of incapacity 
for work, and, second, special cases of sick­
ness are covered in a separate chapter of 
Regulation N o 1408/71 (Chapter 4 of Title 
III, entitled 'Accidents at work and occupa­
tional diseases'). 40 It is thus clear that the 
concept of sickness in Chapter 2 of Title III, 
which represents the general law concerning 
sickness, should be interpreted broadly, so as 
to include any physical problem which 
entails incapacity for work, as long as that 
problem is not covered in a separate chapter 
of the regulation. The Court has, moreover, 
interpreted the concept of sickness benefits 
widely, including, for example, benefits for 
the purpose of preventive care or rehabilita­
tion. For instance, on the subject of the clas­
sification of legislation on the treatment of 
tuberculosis patients and the protection of 
those in contact with them, the Court, in its 
judgment in Heinze, 41 stressed, first, that the 
concept of social security was to be regarded 
as including the aim of preventing the spread 
of disease, which could not be regarded as a 
mere measure of social assistance (paragraph 
4). The Court went on to hold that 'a provi­
sion which establishes a direct link between 
the affiliation of an individual to a pension 
39 — Case 69/79 Jordens- Voam [1980] ECR 75, paragraph 7. 
40 — Case 22/86 Rmdont [1987] ECR 1339. 
4 1 — Cited in footnote 22. It is of particular note that the Ger­
man legislation in issue in that case covered various benefits 
similar to the benefits in issue in the present proceedings, 
such as medical treatment at home or hospital treatment, 
cash benefits, such as the payment of a subsistence allow­
ance, grants on commencing or resuming work, as well as 
specific benefits such as a grant for the purpose of employ­
ing a care assistant in the home or a replacement (see tne 
opinion of Advocate General Mayras [1972] ECR 1116). 
I - 8 6 1 
OPINION OF MR COSMAS — CASE C-160/96 
insurance scheme and the acquisition of a 
right to benefits which are payable by pen­
sion insurance organisations to insured per­
sons and their dependants, as a result of the 
fact that they have contracted tuberculosis 
and chiefly in order to bring about their 
recovery, must be regarded as forming part 
of the legislation governing social security' 
(paragraph 5) and that 'the social security 
benefits which, although not related to the 
"earning capacity" of the insured person, 
are also awarded to the members of his fam­
ily and are principally intended to aid the 
recovery of the invalid and to protect those 
who are in contact with him must be 
regarded as sickness benefits' (operative part, 
paragraph 2). 
47. This being the case, and in view of the 
characteristics of the legislation in issue 
which I have outlined, 42 and particularly of 
the fact that care insurance is compulsory 
and is automatically included in sickness 
insurance cover, I am inclined to take the 
view that the legislation in issue treats reli­
ance on care as a weakness or reduction of 
physical capacity, which it regards as equiva­
lent to sickness in the wider sense. 43 Its pur­
pose is to supplement and extend sickness 
insurance, either by using existing sickness 
benefits, as such or supplemented by new 
elements, or new benefits which have the 
same purpose. This being so, this area of 
insurance overall, as a system providing ben­
efits, appears prima facie to be a 'new 
branch' of social security, which it is some­
what difficult to classify on the basis of the 
traditional categories listed in Article 4(1) of 
Regulation N o 1408/71. However, I believe 
that an appropriately wide interpretation of 
the terms 'social security' and 'sickness' and 
analysis of the characteristics of the insur­
ance in issue point to the conclusion that it is 
equivalent to sickness insurance. Conse­
quently, the benefits in question must be 
regarded as being equivalent to sickness ben­
efits in the 'wide sense. Moreover, on that 
point, the opinion of almost all the parties 
who submitted written observations (plain­
tiffs, Austrian, German and Swedish Gov­
ernments) seems to be the same, if we disre­
gard the Commission, which is unwilling to 
put reliance on care on a par with any other 
risk and stresses the need to adopt coordi­
nating rules. 
48. I would add that, from a practical point 
of view, reliance on care, in the sense 
described above, can easily be brought under 
the same umbrella as the other insurable 
risks in Regulation N o 1408/71, of which it 
is a consequence in practice. This facilitates 
the operation of benefits in respect of reli­
ance on care as sickness benefits, given that 
the latter, which comprise various benefits in 
kind and in cash, are more easily combined 
with benefits relating to other insurable risks 
42 — See point 7 et seq. and point 39 above. 
43 — I cannot resist pointing out that, in Greek, the language 
which, together with Latin, is the derivation of most of the 
international medical vocabulary, the term 'asthenia' is 
made up of the negatory prefix 'a', and 'sthenos' meaning 
(strength, power or vigour), and can mean either 'sickness 
or 'lack of strength, power or vigour'. It is this lack of 
strength which is the defining characteristic of reliance on 
care. Note that in international medical terminology, the 
term 'asthenia' (French: asthénie; English: asthenia; Italian 
and Spanish: astenia; German: Asthenic) refers to the 
pathological diminution of physical faculties. 
I - 8 6 2 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
which, as a general rule, only comprise cash 
benefits. 44 
49. I must make one final observation to 
conclude my observations on the legal classi­
fication of benefits. I said a little earlier that I 
felt there was not a very close connection 
between benefits in respect of reliance on 
care and old-age and sickness benefits. The 
absence of a close link means, I think, that 
the relationship between the risks of old-age 
or invalidity and that of reliance on care and 
thus between the respective benefits cannot 
be considered to be that of 'principal' and 
'subordinate'. It is true that in the judgments 
in Biason, Giletti and Others, and Commis­
sion v France 45 the Court held that the 
supplementary allowance designed to 
increase the amount of old-age, survivors' 
and invalidity pensions came within the 
social security system of Regulation N o 
1408/71, since it was an automatic appendage 
of benefits already covered by the regulation. 
However, I do not think that this case-law 
can be applied in this case, at least as regards 
the benefits in respect of reliance on care in 
the strict sense, which are benefits in kind, 
essentially for two reasons. First, in those 
cases, the benefits were of the same type 
(pension and supplement to pension, that is 
to say, cash benefits), which is not necessar­
ily so in the present case. Second, the supple­
ment was an 'automatic' appendage of the 
basic pension, whereas, in this case, the pay­
ment of benefits in respect of reliance on 
care is simply a possible consequence of the 
materialisation of other insured risks. 
(c) Benefit in kind or cash benefit 
50. Taking as our premiss that the benefits in 
issue are sickness benefits, we need to con­
sider whether they are benefits in kind or 
cash benefits. This question only arises in 
connection with the care allowance since 
there is no doubt as to the answer with 
regard to the other benefits. The question is 
important in particular because of its impli­
cations for the exportability of the care 
allowance, which will be considered below. 
51. The German Government, referring to 
the judgment in Vaassen-Gòbbels, 46 states 
that the care allowance is a substitute for 
benefits in kind. This is because it is in fact 
paid instead of other benefits in respect of 
reliance on care provided for by the SGB. 
The German Government points out further 
that, although the insured is not required to 
furnish documentary evidence of expendi­
ture arising from his reliance on care, he is 
none the less subject to periodic checks to 
verify the extent to which the allowance is 
used to meet needs deriving from his reliance 
on care; if it is not, the allowance may be 
stopped. 
44 — Sec Jordens-Vosters, cited above in footnote 39. 
45 — Cited in footnotes 24 and 26. 46 — Case 61/65 [1966] ECR 261. 
I - 8 6 3 
OPINION OF MR COSMAS — CASE C-160/96 
52. On the other hand, the plaintiffs, the 
Austrian and Swedish Governments and the 
Commission take the view that the allow­
ance is a cash benefit. They point out, in that 
connection, that the monthly allowance is 
not intended to cover specific expenses and 
that there is no systematic monitoring of the 
way it is used. 
53. According to the case-law the term 'ben­
efits in kind' does not exclude the possibility 
that such benefits may comprise payments 
made by the competent institution, for 
example in the form of repayment of costs 
incurred by the insured for medical treat­
ment or medicines and it is immaterial 
whether such payments are made directly to 
the person concerned or to third persons. 47 
Moreover, cash benefits are essentially those 
designed to compensate for a worker's loss 
of earnings through illness, and therefore 
intended to cover his maintenance, which 
might otherwise be jeopardised. 48 
54. In this case we must not overlook the 
fact that the care allowance in issue is paid so 
that the insured himself can arrange for the 
type of care which suits him, whilst being 
subject to periodic checks by the competent 
institution. From that point of view, the care 
allowance is comparable to a benefit in kind, 
as the German Government argues. 
55. However, this allowance does not con­
sist in the reimbursement of specific 
expenses of treatment, as in the Vaassen-
Göbbels case. Rather, as the other parties 
who submitted observations rightly point 
out, the amount of the monthly allowance is 
fixed, it depends on the degree of reliance on 
care and, as I have said, 49 it is equivalent to 
half the monthly ceiling on benefits in kind 
for category I and to less than half that ceil­
ing for categories II and III. Furthermore, 
whereas, for serious cases in category III, 
there is provision for increases in benefits in 
kind, there is no such provision, as far as I 
am aware, in the case of the allowance for 
that category. From that point of view, the 
care allowance does not appear to constitute 
a 'substitute' for benefits in kind. It is of 
course not ruled out that a competent insti­
tution might cover only part of the expenses 
incurred by the insured, but even in such 
cases, it generally reimburses a percentage of 
the expenses incurred, which is not the situ­
ation in the present case. 
56. Furthermore, in this case, the possibility 
open to the insured under the German legis­
lation to choose for himself the form of care 
which suits him, usually by relying on a rela­
tive or acquaintance, is of particular signifi­
cance. That option is also available for seri­
ous cases in category III, but there do not 
appear to be any strict rules or limitations on 
the insured's right to apply to receive cash 
benefits rather than benefits in kind. This 
47 — Vaassen-Göbbeb, cited above in footnote 46. 
48 — Cose C-206/94 Paktu [1996] ECR I-2357, paragraph 20; 
Case C-325/93 Del Grosso [1995] ECR I-939, paragraph 25; 
and Vaassen-Göbbels, cited above in footnote 46. 49 — See footnote 7. 
I - 864 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
freedom of choice is not in any way an argu­
ment for the classification of the allowance 
in issue as a sickness benefit in kind or a sub­
stitute for such a benefit. Indeed, in the case 
of sickness benefits in kind and particularly 
in serious cases, the insured is, as a general 
rule, required to follow the treatment pre­
scribed by the doctor and cannot choose it 
freely, still less treat himself in exchange for a 
flat-rate payment. 
57. Finally, I do not think that the fact that 
the insured is subject to periodic checks and 
that the payment of the allowance may be 
stopped under certain circumstances, which, 
I confess, I have not fully understood, is of 
crucial importance. I say this because it 
appears that those checks are intended to 
verify that the legal conditions for the grant 
of the allowance still obtain (that is to say, to 
ascertain whether the insured is still reliant 
on care or whether he has recovered, which 
ought logically to entail the stopping of the 
allowance, and also to ascertain whether the 
degree of reliance on care is unchanged or 
whether the condition of the person con­
cerned has improved or deteriorated, which 
might raise the question of his reclassifica­
tion in another category and, as a result, the 
payment of the appropriate allowance for the 
new category), rather than to monitor the 
way the allowance is used in practice. 
Moreover, the use of such checks is nothing 
new. Under Article 18 of Regulation N o 
574/72 fixing the procedure for implement­
ing Article 19 of Regulation N o 1408/71, the 
administrative checks and medical examina­
tions carried out by the institution of the 
place of residence (or the medical examina­
tions which the competent institution is 
empowered to carry out) have the same pur­
pose, that is to say, they are intended to con­
firm the incapacity for work (or persistence 
thereof) so that the 'worker can receive (or 
continue to receive) the sickness benefits in 
kind in his place of residence. 
58. In view of these latter characteristics, 
which are of decisive weight, I take the view 
that the care allowance is a cash benefit in 
respect of sickness, intended to compensate 
the insured for his loss of income or pension 
by reason of the increased expenditure 
necessitated by his failing health. 50 
B — Exportability 
59. I will now turn to the question whether 
it is possible to export the benefits in issue, 
and the care allowance in particular. On that 
point, the German Government argues that 
the care allowance, as a 'substitute' for 
sickness benefits in kind, cannot, as a rule, 
be exported, where the country of resi­
dence does not provide similar benefits 
50 — Either on equipment or on payments of salary to a third 
party who provides his services or on tokens of gratitude 
for a relative or third party who provides services voluntar­
ily and to whom no salary can be paid. 
I - 8 6 5 
OPINION OF MR COSMAS — CASE C-160/96 
(Article 19(1)(a) of Regulation N o 1408/71). 
On the other hand, the other parties who 
submitted observations are of the view that 
the care allowance in issue could be exported 
as a cash benefit, either on the basis of 
Article 19(1) of Regulation N o 1408/71 
(plaintiffs and Austrian Government) or 
Article 7 and Article 48(2) of the Treaty 
(Swedish Government and Commission). 
60. Before I consider the provisions of the 
Treaty, I propose to look at the question of 
exportability in the light of the regulation. 
61. If we take the view I have already put 
forward, that is to say, that the care allow­
ance in issue is a cash benefit in respect of 
sickness, matters are simplified. Under 
Article 19(1)(b) of Regulation N o 1408/71, 
which gives concrete expression to the 
requirements laid down by Article 51(b) of 
the Treaty, it is not permissible to withhold 
this benefit on the sole ground that the 
recipient resides in the territory of a Member 
State other than that in which the institution 
responsible for payment is situated. 51 Any 
provision of national legislation relating to 
residence, which has the effect of preventing 
the export of a cash benefit in respect of 
sickness is thus contrary to those provisions 
and the national court must disapply it. This 
is the conclusion to be drawn from the above 
Community legislation as such, without 
recourse being necessary to Article 48(2) of 
the Treaty and Article 3(1) of Regulation N o 
1408/71, which lay down the prohibition on 
discrimination on grounds of nationality. 52 
62. Let us none the less consider whether 
the same conclusion is called for in the case 
of sickness benefits in kind. 
63. I must say at the outset that I do not 
share the view of the German Government, 
that benefits such as those in issue, even if 
one assumes that they are both sickness ben­
efits in kind, cannot be exported if benefits 
in respect of reliance on care similar to the 
German benefits are not available in other 
Member States. 
64. Article 19(1)(a) of Regulation N o 
1408/71 53 does not, in my view, mean that 
sickness benefits are granted by the compe­
tent institution of the State of residence 
only if that State has a 'system' or 'branch' 
51 — Sec Newton, cited in footnote 37, paragraph 24, on the 
invalidity benefit under Article 10 of Regulation N o 
1408/71. 
52 — Case 51/73 Smieja [1973] ECR 1213, paragraph 10 et seq. 
53 — 1 cite this article only because it concerns persons in active 
employment like the plaintiffs and because the parties 
invoke it. However, the same arguments apply to the other 
articles of Chapter 1 of Title III of the Regulation with the 
same wording (see paragraph 56 above). 
I - 8 6 6 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
of sickness insurance which is equivalent to 
that of the State of employment, but that 
they are also granted if it is objectively pos­
sible for the institution concerned to pay the 
required benefit, regardless of the specific 
designation of the social security system of 
which the benefit forms part. 
65. In Jordens-Vosters, 54 it was held that the 
term 'sickness benefits' includes all benefits 
provided in the case of sickness, including 
health care, whatever the type of social legis­
lation or whatever benefits are provided, as 
long as the legislation in question relates to a 
branch of social security which concerns 
them (paragraph 8). 
Accordingly, such benefits include 'benefits 
under legislation concerning invalidity which 
are in the nature of medical or surgical ben­
efits' (paragraph 9). 
66. In that judgment it was also held that 
Regulation N o 1408/71, which 'lays down a 
whole set of rules founded in particular upon 
the prohibition of discrimination on grounds 
of nationality or residence and upon the 
maintenance by a worker of his rights 
acquired by virtue of one or more social 
security schemes which are or have been 
applicable to him' (paragraph 11), cannot be 
interpreted, in the light, also, of Article 19 
and Article 28 of the regulation, as meaning 
that the competent institution of the member 
State of employment is precluded from 
granting additional social benefits to an 
insured person who resides in another Mem­
ber State, to which the insured person is not 
entitled but which the competent institution 
of the Member State of employment may 
allow him or her (paragraphs 13 and 14). 
67. Furthermore, the Court held in Pierik 
I 55: 'Within the context of the general objec­
tives of the Treaty Article 22 of the regu­
lation constitutes one of the measures 
intended to permit a worker who is a 
national of one of the Member States of the 
Community, without regard to the national 
institution to which he is affiliated or the 
place of his residence, to receive benefits in 
kind provided in any other Member State' 
(paragraph 14). 
In that judgment the Court also held that the 
words 'benefits in kind provided on behalf 
of the competent institution by the institu­
tion of the place of stay or residence' (Article 
22(1)(b)(i)) do not refer solely to benefits in 
kind provided in the Member State of resi­
dence but also to benefits which the compe­
tent institution is empowered to provide 
(paragraph 21). 
As the Court held, this is because the regu­
lation requires that the worker should be 
able to receive the most appropriate and 
effective treatment required by his state of 
health provided in any Member State, what­
ever the place of his residence (paragraphs 17 
and 22). 
54 — Cited in footnote 39. 55 — Case 117/77 Pierik I [1978] ECR 825. 
I - 8 6 7 
OPINION OF MR COSMAS — CASE C-160/96 
68. In addition, in Pierik II, 56 the Court 
confirmed and expounded further the judg­
ment in Pierik I and again held, in connec­
tion with Article 22(1) of Regulation N o 
1408/71, that the institution of the Member 
State to which the person concerned goes to 
receive the treatment is required to provide it 
even if, under the legislation which it admin­
isters, 'it does not have a duty but only has a 
power to grant it' (paragraphs 13 to 15). 
69. Of course, in Pierik I and I I , the Court 
interpreted Article 22 of Regulation N o 
1408/71, which concerns sickness benefits in 
the event of a stay, that is to say, the tempo­
rary residence abroad of a worker (Article 
1(i)), whereas 'Article 19 applies to workers 
who reside in a Member State other than the 
competent State, that is to say workers who 
have their "habitual residence" in that State 
(Article 1(h) of the regulation)'. 57 
70. The almost identical wording of the two 
articles (Article 19(1)(a) and Article 22(1)(i) 
— and also of Article 25(1)(a) and Article 
28(1)(a)) in my view leaves no room for 
doubt that the same rules must apply in the 
case of all sickness benefits in kind in Chap­
ter 1 of Title III of the regulation. 58 In his 
State of residence, a worker must accord­
ingly receive all sickness benefits in kind 
which can be granted under the legislation of 
that State irrespective of the more specific 
designation of the system of social protec­
tion of which they are part. In other words, 
the competent institution of the State of resi­
dence can only refuse to grant benefits in 
kind if the treatment required by the state of 
health of the insured is entirely unknown 
and it is wholly impossible for the compe­
tent institution to provide it, not only 
because its legislation does not provide for 
any separate benefits in the case of reliance 
on care or does provide for such benefits but 
under a different branch of social security. 
71. It would be illogical and contrary to the 
objectives of the regulation to take the view 
that the regulation requires health protection 
of a higher standard using all available means 
for a 'worker who is temporarily resident in 
another Member State whereas it settles for 
health protection of a lower standard using 
only the means immediately available where 
that same worker has his habitual residence 
in that same Member State. 
72. If that is the position in the case of pure 
benefits in kind, I see no difficulty over the 
export of the care allowance, even if one 
56 — Case 182/78 Pierik II [1979] ECR 1977. 
57 — Case C-215/90 Twomry [1992] ECR I-1823, paragraph 15. 58 — See Twomey, cited in the previous footnote, paragraph 16. 
I - 868 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
assumes that it is a substitute for sickness 
benefits in kind, as the German Government 
argues. None of the practical reasons which 
might make the export of sickness benefits in 
kind more difficult (inability of the compe­
tent institution of the place of residence to 
provide equivalent benefits etc.) obtain in 
this case. As I have already explained, this is 
because, where the insured elects to have the 
care allowance paid, he makes his own 
arrangements for the necessary care by a 
relative or trusted acquaintance. As long as 
there are such people in his place of resi­
dence, I cannot see how one can deny him 
the right to assistance from such people in 
his place of residence. 
73. The German Government has argued 
that the non-exportation of the benefit in the 
present case is justified by the close connec­
tion between the benefit in issue and the 
reality of the social and economic environ­
ment in Germany. 
74. In its judgment in Lenoir59 the Court 
distinguished between family benefits which 
come under Article 77 of Regulation N o 
1408/71 and benefits which are not covered 
by that regulation. It concluded that two 
family benefits provided for by French legis­
lation, namely the salaire unique allowance 
and the rentree scolaire allowance were not 
covered (paragraph 11) with the result that 
they could not be exported when the recipi­
ent moved abroad. As the question was 
raised whether Article 77 was valid inasmuch 
as it did not include those two allowances, 
the Court held, if I have interpreted its 
decision correctly, that the article is valid as 
it includes all family benefits which are 
granted on the basis of objective criteria such 
as the number of children and their age. 
'Benefits of another kind ... [obviously the 
salaire unique allowance] as in the case, for 
example, of ... [the rentrée scolaire allowance] 
intended to cover certain costs incurred at 
the beginning of the school year, are in most 
cases closely linked with the social environ­
ment and therefore with the place where the 
persons concerned reside' (paragraph 16). 
75. However, this case-law cannot be 
applied to the present case. As I have already 
explained, 60 the care allowance supplements 
and extends sickness benefits and is therefore 
deemed to be equivalent to sickness benefits 
within the meaning of Article 4(1)(a) and 
Article 19 of the regulation and is not 
excluded by virtue of any other provision. It 
cannot therefore be treated differently from 
the benefits to which it is deemed to be 
equivalent. 61 Moreover, I am not of the view 
that the care allowance is specifically linked 
with the German social and economic envi­
ronment, as the insured risk is, in any event, 
common to all the Member States regardless 
of whether it is covered by different systems 
of social protection or of whether the 
59 — Case 313/86 Lenoir [1988] ECR 5391. 
60 — See above, point 47. 
61 — See Commission v France, cited in footnote 26, paragraph 
I - 8 6 9 
OPINION OF MR COSMAS — CASE C-160/96 
benefits granted are to some extent of a dif­
ferent type and amount. 
76. I have already answered, at point 57, the 
argument of the German Government that it 
is difficult to monitor the benefit abroad. I 
will therefore confine myself to pointing out 
that, according to consistent case-law, practi­
cal difficulties which arise in the application 
of the regulations in force must not prejudice 
the rights which individuals derive from the 
principles of the social legislation of the 
Community and that such practical prob­
lems may always be referred to the Admin­
istrative Commission set up by Article 81(d) 
of the regulation. 62 
In any event, it is not acceptable for practical 
problems to cause the right to benefits to be 
forfeited, particularly in the case of frontier 
workers such as the plaintiffs in the main 
proceedings. As they rightly argue, even if 
the competent German institution wishes the 
insured to be examined by its own doctors, 
in the case of workers who Uve a few kilo­
metres from the German-French border such 
an examination is neither difficult nor par­
ticularly expensive to arrange. 
C — Affiliation to an insurance scheme: con­
sequences 
(a) Affiliation to an insurance scheme 
77. By the third and fourth claim which the 
plaintiffs made in the national court, they 
seek, in the alternative, (that is to say, in the 
event that the court should rule that they 
have no right to benefits because they do not 
reside in Germany), exemption from the 
obligation to be affiliated to an insurance 
scheme and the reimbursement of the contri­
butions paid. 
78. The national court viewed these claims 
as important on the tacit assumption that the 
residence clause under German law posed no 
problem from the point of view of Commu­
nity law. 
79. I have already put forward my view that 
the insurance in issue comes under the 
Chapter of Regulation N o 1408/71 concern­
ing sickness benefits, in which inter alia 
questions of the export of the benefits in 
question are dealt with and that a residence 
clause such as that in Paragraph 34 of Book 
XI is contrary to the regulation. If we accept 
62 — Sec Commission v France, cited in footnote 26, paragraph 
17, and Case 187/73 Callerneyn [1974] ECR 553, paragraph 
12. 
I - 8 7 0 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
that interpretation, from which it follows, in 
essence, that the plaintiffs' main claims must 
be allowed, there is no need to consider the 
questions arising out of the plaintiffs' alter­
native claims. I will therefore confine myself 
to a discussion of these questions in sum­
mary form. 
80. The Court has consistently held that, as 
Community law now stands, Member States 
retain their powers to organise their social 
security systems. 63 The requirements and 
conditions of membership of a statutory 
social security scheme such as that in issue 
include both compulsory membership of a 
specific branch of social security and com­
pulsory payment of contributions to finance 
that branch. Such systems have a social 
objective and are based on the principle of 
solidarity, which requires compulsory insur­
ance under such systems and compulsory 
payment of contributions in order to ensure 
financial equilibrium and the continuing 
existence of such systems. 64 
81. However, as I have already said, 65 the 
power of the Member States to legislate in 
the field of social security is not unlimited. It 
is limited by Article 48 to Article 51 of the 
Treaty which do not allow social security 
measures to be adopted which directly or 
indirecdy discriminate against migrant work­
ers. Thus, it is for the Member States to lay 
down the conditions creating the right or the 
obligation to become affiliated to a social 
security scheme or to a particular branch 
under such a scheme provided always that in 
this connection there is no discrimination 
between nationals of the host State and 
nationals of the other Member States. 66The 
objective of Article 51 of the Treaty would 
not be attained if the Member States could 
lay down conditions for the acquisition or 
retention of the right to benefits in such a 
way that they can be fulfilled only by 
nationals of the Member State concerned, or 
conditions under which that right is lost or 
suspended and which are more apt to occur 
in the case of nationals of other Member 
States than in the case of nationals of the 
competent Member State. 67 
82. In the present case it is undisputed that 
the plaintiffs have acquired a right to the rel­
evant benefits through their compulsory 
membership of the German care insurance 
system; the only point in issue is whether the 
right they have acquired can be suspended 
because of their residence in another Mem­
ber State. Moreover they are covered for the 
purposes of care insurance by reason of their 
63 — Case 238/82 Duphar and Others [1984] ECR 523, para­
graph 16; Joined Cases C-159/91 and C-160/91 Poucet and 
Pistre [1993] ECR I-637, paragraph 6; and C-238/94 Garcia 
and Others [1996] ECR I-1673, paragraph 15. 
64 — See Poucet and Pistre, paragraphs 8 to 13, and Garcia, para­
graph 14, cited above. 
65 — See point 36 above. 
66 — Coonan, cited in footnote 30, paragraphs 12 and 15. 
67 — Case 1/78 Kenny [1978] ECR 1489, paragraph 17, and Case 
C-349/87 Paraschi [1991] ECR I-4501, paragraph 23. 
I - 8 7 1 
OPINION OF MR COSMAS — CASE C-160/96 
sickness insurance cover, that is to say, that 
cover is based on objective criteria and is not 
dependent on their place of residence. In the 
present case, German law 68 thus rightly 
requires the plaintiffs to have care insurance 
cover and to pay the insurance contributions 
even though they live in another Member 
State and the German Government rightly 
invokes the principle of solidarity on that 
point. 
83. Furthermore, it has been held, in this 
connection, that Regulation N o 3 (like Regu­
lation N o 1408/71) envisages national legisla­
tion as a whole and that the question of the 
reimbursement of contributions thus falls 
within its field of application if that question 
is covered by national legislation and only 
the general principles laid down in the regu­
lation need be applied, such as the principle 
of equal treatment and the principle of the 
waiver of residence clauses. 69 In view of this, 
Regulation N o 3 did not preclude the reim­
bursement of social security contributions 
under national legislation under certain cir­
cumstances even if the insured later came 
under the compulsory insurance scheme of 
another Member State, as this would limit 
the freedom of the insured to decide on his 
own best interests, within the framework of 
the options open to him under national leg­
islation. 70 
84. Some provisions of Regulation N o 
1408/71 deal with questions arising in con­
nection with the reimbursement of contribu­
tions. For example, Article 1(t) provides that 
'benefits' includes reimbursement of contri­
butions; Article 10(2) provides that, where, 
under the legislation of a Member State, 
reimbursement of contributions is condi­
tional upon the person concerned having 
ceased to be subject to compulsory insur­
ance, this condition is not to be considered 
satisfied as long as the person concerned is 
subject to compulsory insurance as a worker 
under the legislation of another Member 
State. However, these provisions are essen­
tially directed to the right to reimbursement 
of contributions as provided for in the legis­
lation applicable in each case, but do not 
provide a basis for a right to reimbursement 
of contributions at Community level. 
Finally, Article 17(a) of the regulation, to 
which the Austrian Government referred 
and which concerns the right of the recipient 
of a pension to be exempted from the appli­
cation of the legislation of his State of resi­
dence, is quite specific: it cannot be applied 
by analogy, nor can any general principle be 
derived from it. 
85. The plaintiffs cannot therefore request 
exemption from compulsory insurance or 
reimbursement of insurance contributions 68 — As the lex loci laboris and therefore as the applicable law 
pursuant to Article 13(2)(a) and Article 19(1) of Regulation 
N o 1408/71 (Case C-451/93 Delavant [1995] ECR I-1545, 
paragraph 14). 
69 — Case 104/76 Jansen [1977] ECR 829, paragraphs 6 and 7, 
and Case C-28/92 Leguaye-Nulsen [1993] ECR I-6857, 
paragraphs 12 and 21. 70 — Jansen, cited above in footnote 69, paragraph 12. 
I - 8 7 2 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
unless this is possible under the national 
legislation applicable. 
(b) Receipt of benefits as the counterpart to 
affiliation to an insurance scheme 
86. If compulsory insurance and the obliga­
tion to pay contributions are not contrary to 
Community law, the question arises whether 
the insured have acquired a Community 
right to the associated benefits, as the Aus­
trian Government, in particular, argues. 
87. It is clear from the case-law of the Court 
of Justice, that Community law envisages the 
relationship between contributions and ben­
efits as one which gives rise to rights and 
obligations on both sides. In this relationship 
benefits are seen as compensation for the 
payment of contributions such that the obli­
gation to be insured gives rise to a right to 
the payment of the relevant benefits. 
88. For instance, it has been held that 'the 
system of aggregation and apportionment of 
the benefits provided for in Article 46 is 
based on the assumption that the benefits are 
normally financed, acquired on the basis of 
the recipient's own contributions and calcu­
lated by reference to the length of time dur­
ing which he has been affiliated to the insur­
ance scheme'. 71 
89. Furthermore, the Court held, in inter­
preting Article 33 of Regulation N o 
1408/71, 72 that 'it appears from that provi­
sion that such deductions from pensions may 
be made by the institution of a Member State 
only in respect of those insured persons who 
in return receive sickness and maternity ben­
efits from the institution of that Member 
State responsible for such benefits. But such 
deductions may not be made where the ben­
efits in question are not borne by an institu­
tion of that Member State. That is the case in 
relation to insured persons who reside in the 
territory of another Member State and who 
are in receipt, by virtue of that residence, of 
benefits from the competent institution of 
that Member State under Articles 27 to 32 of 
Regulation N o 1408/71.' 73 
90. The second paragraph inserted into 
Article 33 by Regulation N o 2332/89 pro­
vided, on the other hand, that a State of resi­
dence in which a general system of social 
71 — Valentini, cited in footnote 28, paragraph 14. 
72 — In the version applicable before the amendment introduced 
by Council Regulation N o 3232/89 of 18 July 1989 (OJ 
1989 L 224, p. 1), which added a second paragraph. 
73 — Case 275/83 Commission v Belgium [1985] ECR 1097, 
paragraph 3, and Case C-253/90 Commission v Belgium 
[1992] ECR I-531, paragraph 13. 
I - 8 7 3 
OPINION OF MR COSMAS — CASE C-160/96 
security applies and whose legislation makes 
no provision for a right to a pension cannot 
require a pensioner to pay contributions in 
respect of benefits to be paid by the compe­
tent institution of another Member State by 
reason of the fact that he lives in the terri­
tory of the first State. 
The Court interpreted that new article in 
Noij 74 and held: 'Those provisions pursue 
the objective of Regulation N o 1408/71, 
which is to contribute to the establishment 
of the fullest possible freedom of movement 
for migrant workers. With that end in view, a 
number of other provisions are designed to 
remove barriers to that fundamental freedom 
similar to those resulting from the contribu­
tions at issue, in particular barriers arising 
from the transfer of residence from one 
Member State to another and the simulta­
neous application of several national legisla­
tive systems. It would be contrary to that 
objective if, in the absence of grounds of gen­
eral interest, a worker could be deprived of 
part of a pension received under the legisla­
tion of one Member State simply because he 
has gone to reside in another Member State' 
(paragraph 13). 
In that judgment the Court also declared 
that the provisions contained in Article 33 
'constitute the application of a more general 
principle according to which a pensioner can­
not be required, because he resides in the ter­
ritory of a Member State, to pay compulsory 
insurance contributions to cover benefits 
payable by an institution of another Member 
State' (paragraph 14, emphasis added) and 
went on to state that this did not preclude 
the Member State of residence of the person 
concerned from making him subject to a 
general insurance system (paragraph 15). 
91. The importance which Community law 
attaches to the relationship between contri­
butions and benefits emerges, it seems to me, 
a contrario, from the fact that Regulation N o 
1247/92 75 (Article 4(2a)) expressly provides 
that Regulation N o 1408/71 also applies to 
special non-contributory benefits. Moreover 
such benefits are to be granted exclusively by 
and at the expense of the institution of the 
place of residence (Article 10a), whereas 
before the amendment, according to the 
case-law of the Court, the principle that resi­
dence clauses should be waived applied. Pre­
cisely because these benefits are not financed 
by contributions from the insured and con­
sequently are exclusively linked with the 
possibilities and conditions obtaining in the 
State which grants them, the Council was 
able to exclude them from the application of 
the principle that residence clauses should be 
waived and the Court was able to rule that 
such a limitation is not contrary to Article 51 
of the Treaty. 76 
92. Accordingly, in my view, it is possible to 
formulate a general principle underlying 
Community law on social security for 
74 — Case C-140/88 Noij [1991] ECR I-387. 
75 — Council Regulation (EEC) of 30 April 1992 amending 
Regulation (EEC) No 1408/71 (OJ 1992 L 136, p. 1). 
76 — Sec Snares, cited in footnote 33, paragraph 39 et seq. 
I - 8 7 4 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
migrant workers and according to which, 
where a compulsory insurance system 
requiring payment of contributions in the 
competent State has been applicable to such 
workers and they have acquired a right 
under the legislation of that State, they have 
the right to the corresponding benefits in 
any event, unless Community law expressly 
provides otherwise. 
93. This principle would be something more 
than the protection of acquired rights or the 
principle of the exportability of benefits, 
essentially in three respects. First, it would 
emphasise the legal nature of the personal 
right of the migrant worker, to receive any­
where in the Community the benefits which 
he has helped to finance himself using 
income from his employment or possibly 
also his savings. Thus the contribution of the 
European worker, that is to say, of the Euro­
pean citizen, to the construction of the 
economy and the social security system of 
the Member States through his work would 
be acknowledged. Second, it would highlight 
the fact that the principle of solidarity, 
which, as I have already said, applies to 
statutory social security systems, works both 
ways. Thus it not only requires that a 
worker make sacrifices for the benefit of the 
system but also requires the system to show 
solidarity when necessary, that is to say, 
when the insured risk materialises. Third, it 
would cover all benefits whether in cash or 
in kind, as the latter, which are just as vital as 
the former, are not essentially different from 
them as both are intended to meet the vital 
needs of the insured. Thus attention would 
be drawn to the true significance of Article 
51 of the Treaty which, in providing as it 
does that the Council is inter alia to make 
arrangements to secure 'payment of benefits 
to persons resident in the territories of Mem­
ber States', offers a minimum guarantee. 77 
The objective can be nothing less than to 
guarantee the 'payment' of all social security 
benefits. 
94. This principle of interpretation could be 
applied in the present case and has already 
been applied in this Opinion to the questions 
of the legal characterisation of the benefit in 
issue and its classification in one of the tra­
ditional categories of Regulation N o 1408/71 
and to the question of the interpretation of 
Article 19(1)(a) of the regulation as regards 
the payment of benefits in kind in the case of 
sickness abroad. 
95. In that context, the argument of the Ger­
man Government, that the plaintiffs must 
pay contributions throughout their life to a 
system, which, if they live in another Mem­
ber State, will offer them nothing in the 
event of need, allegedly for reasons of soli­
darity, is not only weak but is contrary to 
Community law. 
77 — Sec, in that connection, Case 242/83 Patteri [1984] ECR 
3171, paragraph 8. 
I - 8 7 5 
OPINION OF MR COSMAS — CASE C-160/96 
D — Regulation No 1612/68 
96. I would like to say a few words on the 
possible characterisation of the benefits in 
issue as a social advantage within the mean­
ing of Regulation N o 1612/68, a question 
which the Commission raised. 
97. There have been some fluctuations in the 
case-law on the question of the relationship 
between Regulation N o 1408/71 and Regu­
lation N o 1612/68. 78 Examination of the 
case-law shows that there are essentially two 
approaches. 
(a) According to the first, if a benefit falls 
within one regulation, it cannot come 
under the other. In some cases the Court 
expressly held that it is necessary first to 
examine whether the rule or benefit in 
issue falls within the definition of social 
security within the meaning of Article 51 
of the Treaty and Regulation N o 3 or 
Regulation N o 1408/71, since only if it 
does not can the question whether it is a 
social advantage within the meaning of 
Article 7 of Regulation N o 1612/68 be 
put. 79 
(b) According to the second, which appears 
to have won the day, it cannot be ruled 
out that the same benefit may fall within 
both the definition of social security and 
that of social advantage with the result 
that both regulations can be applied 
together. 
(i) Thus, in Inzirillo 80 it was held that 
an allowance for handicapped adults 
is both a social security benefit 
within the meaning of Article 51 of 
the Treaty and Regulation N o 
1408/71 (paragraphs 9 and 22) and a 
social advantage within the meaning 
of Article 7 of Regulation N o 
1612/68 (paragraph 21). 
(ii) Then came the judgment in Commis­
sion v Belgium, 81 in which the 
Court ruled that by maintaining the 
requirement of a period of residence 
on Belgian territory which workers 
from other Member States subject to 
Belgian legislation must fulfil in 
order to qualify for the grant of the 
allowances for handicapped persons, 
the guaranteed income for old 
people and the minimum means of 
subsistence (minimex), the Kingdom 
of Belgium had failed to fulfil its 
obligations under the EEC Treaty 
and, in particular, Article 7(2) of 
Regulation N o 1612/68 and Article 3 
of Regulation N o 1408/71. 
(iii) That case-law was confirmed by the 
judgment in Commission v Luxem-
78 — See above, paragraph 27. 
79 — Case 1/72 Frilli [1972] ECR 457, at paragraph 4 and Scriv-
ner, cited in footnote 35, at paragraph 16. See also Heinze, 
cited in footnote 22, at paragraph 4, which indirectly 
expresses the same view. 
80 — Cited in footnote 24. 
81 — Case C-326/90 Commission v Belgium [1992] ECR I-5517. 
I - 8 7 6 
MOLENAAR v AOK BADEN-WÜRTTEMBERG 
bourg. 82 In that judgment the 
Court held, in connection with a 
maternity allowance, as follows: 
'since Regulation N o 1612/68 is of 
general application regarding the 
free movement of workers, Article 
7(2) thereof may apply to social 
advantages which, at the same time, 
fall specifically within the scope of 
Regulation N o 1408/71' (paragraph 
21). 83 
(iv) The Court also reiterated that view 
in Schmid 84 (paragraph 17). In that 
judgment it was held that an allow­
ance for a disabled adult comes 
within the substantive scope of 
Regulation N o 1408/71 (paragraph 
10), but that it cannot be claimed for 
the benefit of persons not coming 
within the scope ratione personae of 
the regulation (disabled adult 
daughter of a migrant worker — 
paragraph 14). However the Court 
held that this allowance was (also) a 
social advantage within the meaning 
of Regulation N o 1612/68 (para­
graph 18) which a migrant worker 
could claim for the benefit of his 
daughter (paragraph 26). 85 
98. It should first be observed that there is 
no watertight partition between Articles 48 
and 49 of the Treaty, which are mentioned in 
the preamble to Regulation N o 1612/68, and 
Article 51, on which Regulation N o 1408/71 
is based. The two articles first mentioned are 
in Chapter 1 of Title III which seeks to 
secure freedom of movement for workers. 
Moreover, Article 48(2), in speaking of the 
abolition of any discrimination based on 
nationality as regards 'conditions of work', is 
referring also to social security provisions. 86 
99. However, in my view, the connection 
between the two categories and their com­
mon purpose is not sufficient to justify the 
application of both regulations in all cases. 
Article 51 of the Treaty is a lex specialis in 
relation to Article 48, and it must be 
assumed that the regulations adopted on the 
basis of the two provisions bear the same 
relation to one another. Moreover, when 
82 — Cited above in footnote 17. 
83 — In other cases, the case-law suggests indirectly that it is pos­
sible to apply both regulations concurrently. For example, 
in answer to the question whether it is possible to transfer 
rights in the field of social security from one Member State 
to another on the basis of Regulation N o 1612/68 or on the 
basis of Regulation N o 1408/71, the Court first found that 
the purpose of Regulation N o 1612/68 was the systematic 
application of the rule of national treatment as far as all 
conditions of employment and work are concerned, and 
went on to hold: 'It is not the purpose of that regulation to 
create rights by virtue of insurance periods completed in 
another Member State if such rights, in the case of the 
nationals of the host State, do not derive from national pro­
visions. There are therefore no grounds for having recourse 
to the provisions of Regulation N o 1612/68 in a case such 
as this' (Coonan, cited in footnote 30, paragraph 6). The 
passage I have emphasised suggests, to my mind, that when 
there is provision for insurance rights under national legis­
lation for nationals of a State, me same rights must be 
granted to nationals of other Member States under the same 
conditions on the basis (also) of Regulation N o 1612/68. 
84 — Case C-310/91 Schmid [1993] ECR I-3011. 
85 — I could also mention an intermediate approach, according 
to which the Court first rules that a particular benefit falls 
within the definition of social security and then takes the 
view that there is no need to consider the question whether 
that benefit is also a social advantage. However, no clear 
conclusions can be drawn from that case-law (Case 39/74 
Costa [1974] ECR 1251, paragraphs 12 to 14. See also 
Hughes, cited in footnote 19). 
86 — Case 41/84 Pinna [1986] ECR 1, paragraph 21, and Case 
359/87 Pinna [1989] ECR 585. 
I - 8 7 7 
OPINION OF MR COSMAS — CASE C-160/96 
Regulation N o 1612/68 was adopted, Regu­
lation N o 3 was already in force and covered 
the same matters as Regulation N o 1408/71 
which later replaced it; in the absence of any 
evidence to the contrary, it must therefore be 
assumed that Regulation N o 1612/68 gov­
erns the matters which were not already cov­
ered by Regulation N o 3 (and therefore 
which now come under Regulation N o 
1408/71), and that these regulations conse­
quently have a different substantive scope. It 
may be added that the scope of Regulation 
No 1408/71 has been somewhat different 
since the self-employed were brought under 
the regulation. 87 
100. The judgments cited above under (i) to 
(iv) do not, in my view, provide any support 
for the opposite view. In reality they concern 
special benefits which fall within the defini­
tion of both social security and social assis­
tance and which the case-law of the Court of 
Justice has usually classified in the first cat­
egory. The possibilities available for applying 
both regulations concurrently are, in so far 
as they still exist at all, now extremely lim­
ited following the settlement of the matter 
by Regulation N o 1247/92. As regards ben­
efits which fall unequivocally within the 
definition of social security, such as, in my 
view, the benefits in issue, to which the 
detailed provisions of Regulation N o 
1408/71 apply, I cannot, in any case, see 
what the general provisions of Regulation 
No 1612/68 could add. I therefore take the 
view that there is no need to consider that 
regulation. 
101. If, none the less, one were disposed to 
accept that the benefits in issue were a social 
advantage, it should be noted that Article 48 
of the Treaty and Article 7 of the regulation 
not only prohibit overt discrimination on 
grounds of nationality but also indirect dis­
crimination on those grounds. As was the 
case in O'Flynn, 88 this involved conditions 
which affect essentially or predominantly 
migrant workers and also conditions appli­
cable without distortion which can more eas­
ily be satisfied by national workers than by 
migrant workers or which entail the risk that 
they may operate to the particular detriment 
of migrant workers (paragraph 18). Such dis­
criminatory provisions are only permissible, 
by way of exception, if they are justified by 
objective considerations and are proportion­
ate to the aim pursued by the national law 
(paragraph 19). 
102. A residence clause such as that in issue 
in the present case must be viewed as such a 
condition because it can more easily be satis­
fied by national workers than by workers 
from the other Member States.89 The 
purpose of the benefit, which is to enable 
persons reliant on care to live in dignity, is 
not linked to the place where such people 
87 — Regulation (EEC) No 1390/81 (OJ 1981 L 143, p. 1). 
88 — Cited in footnote 12. 
89 — See, in particular, the recent Case C-57/96 M eints [1997] 
ECR I-6689, paragraph 46. 
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MOLENAAR v AOK BADEN-WÜRTTEMBERG 
live, whilst the avoidance of the cost of 
medical checks abroad does not, as such, 
constitute a sufficient ground for the suspen­
sion of benefits, particularly when, as in the 
present case, 90 the persons concerned are 
frontier workers, but merely in some cases a 
ground for reducing the benefits to be 
granted, should it be proved that their cost is 
higher than the cost of equivalent benefits 
which are granted to nationals who live in 
areas of Germany which are remote or diffi­
cult to access. 91 
In the light of the foregoing considerations, I 
propose that the Court should answer the 
question referred to it for a preliminary rul­
ing as follows: 
IX — Conclus ion 
A benefit such as the care allowance which is in issue in the main proceedings is to 
be deemed equivalent to a cash benefit in respect of sickness in the sense which that 
concept has in Title I I I , Chap te r 1 of Regulat ion N o 1408/71, and therefore falls 
wi th in the relevant provis ions of that Chapter , which include Article 19(1). 
F o r that reason, compulsory affiliation to a scheme of care insurance and the obliga­
t ion to pay insurance cont r ibut ions are n o t cont rary to the provisions of the Treaty 
o r of Regulat ion N o 1408/71. 
90 — Sec above, point 76. 91 — See O'Flynn, cited in footnote 12, paragraphs 28 and 29. 
I -879