Opinion of the Advocate General — ECLI:EU:C:1997:153
Date: 1997-03-13
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgmen t 
1. Freedom of movement for persons — Workers — Equal treatment — Social advantages — 
Members of family — Indirect entitlement — Child of a national of a Member State who 
died before accession of his country of origin to the Community — Excluded 
(EC Treaty, Art. 48; Council ReguLtion No 1612/68, Arts 7(2) and 10) 
2. Social security for migrant workers — Equal treatment — Family benefits — Orphans' ben­
efits — Right to extension of an orphan's benefit provided for by the legisUtion of a Member 
State where the recipient's training was interrupted by military service — AssimUation of 
military service in another Member State to national military service for the purposes of 
granting the extension 
(Council ReguLtion No 1408/71, Art. 3(1)) 
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SUMMARY — CASE C-131/96 
1. Members of a worker's family within the 
meaning of Article 10 of Regulation N o 
1612/68 qualify only indirectly for the 
equal treatment accorded to the worker 
himself by Article 7 of that regulation. 
It follows that where a national of a 
Member State has died before the acces­
sion of his country of origin to the Com­
munity and therefore does not have the 
status of a worker within the meaning of 
Article 48 of the Treaty or of Regulation 
N o 1612/68, his child cannot benefit, as a 
member of the family of a Community 
worker, from the equal treatment rule laid 
down by Article 7 of Regulation No 
1612/68. 
2. Article 3(1) of Regulation N o 1408/71 on 
the application of social security schemes 
to employed persons, to self-employed 
persons and to members of their families 
moving within the Community, as 
amended and updated by Regulation No 
2001/83, must be interpreted as meaning 
that, where the legislation of a Member 
State provides for extension of the right 
to an orphan's benefit beyond the age of 
25 for recipients of such benefits whose 
training has been interrupted by their 
military service, that State is required to 
assimilate military service in another 
Member State to military service under its 
own legislation. 
The equal treatment rule laid down by 
that provision prohibits not only overt 
discrimination based on the nationality of 
the beneficiaries of social security 
schemes but also all covert forms of dis­
crimination which, through the applica­
tion of other distinguishing criteria, lead 
in fact to the same result. The refusal to 
assimilate military service in another 
Member State to military service com­
pleted in the State concerned is liable to 
result in nationals of other Member States 
being unable to benefit from the right to 
extension of the orphan's benefit beyond 
the age of 25 for a period equal to that of 
their military service where the recipient's 
training is interrupted by reason of such 
service. 
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