Opinion of the Advocate General — ECLI:EU:C:2004:315
Date: 2004-05-25
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Social security for migrant workers – Community rules – Scope ratione materiae – Benefits paid as an advance on maintenance payments for minor children – Person with maintenance obligation serving a prison sentence – Included (Council Regulation No 1408/71, Arts 1(u)(i) and 4(1)(h)) 2. Social security for migrant workers – Community rules – Scope ratione personae – Person covered by unemployment insurance during a period of imprisonment – Included (Council Regulation No 1408/71, Art. 2(1)) 3. Social security for migrant workers – Applicable legislation – Person having ceased all occupational activity in one Member State and having transferred his residence to another Member State – Prisoner having started to serve his sentence in one Member State and having been transferred to another Member State – Application of the legislation of the latter State (Council Regulation No 1408/71, Art. 13(2)(a) and (f)) 4. Social security for migrant workers – Family benefits – Person having ceased all occupational activity in one Member State and having transferred his residence to another Member State – Applicable national legislation making the grant of those benefits conditional on residence – Whether permissible (Art. 12 EC; Council Regulation No 1408/71, Art. 3) 1. The expression ‘to meet family expenses’ in Article 1(u)(i) of Regulation No 1408/71 is to be interpreted as referring in particular to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance (‘Unterhalt’) of children. It follows from this that a benefit, such as the advance on maintenance payments, provided for by the Österreichisches Bundesgesetz über die Gewährung von Vorschüssen auf den Unterhalt von Kindern (Unterhaltsvorschussgesetz) (Austrian Federal Law on the Grant of Advances for the Maintenance of Children) and granted on the ground that the father of the child, the person with the maintenance obligation, is serving a prison sentence, constitutes a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71. (see para. 27) 2. A person has the status of employed person within the meaning of Regulation No 1408/71 where he is covered, if only in respect of a single risk, compulsorily or an optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship. Therefore, a person covered by unemployment insurance during a period in which he was serving a prison sentence is an employed person within the meaning of Article 2(1) of that regulation. (see paras 32-33) 3. Where an employed person within the meaning of Article 2(1) of Regulation No 1408/71 has been transferred, as a prisoner, from the Member State where he has ceased all occupational activity and has started to serve his sentence to another Member State, from which he comes in order to serve the remainder of his sentence there, it is the legislation of the latter Member State which, in the area of family benefits and in accordance with the provisions of Article 13(2) of that regulation, is the applicable legislation. (see paras 44, 52, operative part) 4. Although Article 12 EC and Article 3 of Regulation No 1408/71 are designed to eliminate discrimination on grounds of nationality which might result from the legislation or administrative practice of a Member State, they cannot have the effect of introducing disparities in treatment which may follow from differences in national legislation pertaining to family benefits designated as applicable under conflict of law rules such as those contained in Article 13(2) of Regulation No 1408/71. In a situation where an employed person has been transferred, as a prisoner, from the Member State where he has ceased all occupational activity and has started to serve his sentence to another Member State, from which he originates, in order to serve the remainder of his sentence, those provisions do not preclude the legislation of the first Member State making the grant of family benefits provided for by internal law to members of the family of such a Community national subject to the condition that he remain a prisoner on its territory. (see paras 51-52, operative part)