Judgment;Summary — ECLI:EU:C:2020:177
Date: 2020-03-05
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation  C-135/19 — 1 
Case C-135/19 
Request for a preliminary ruling 
Date lodged: 
20 February 2019 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
19 December 2018 
Appellant on a point of law: 
Pensionsversicherungsanstalt 
Respondent in the appeal on a point of law: 
CW 
  
[...] 
The Oberster Gerichtshof (Supreme Court, Austria), sitting as the court dealing 
with appeals on points of law (‘Revision’) in matters of employment and welfare 
law [...], in the welfare law dispute between the applicant, CW [...] Germany, [...] 
and the defendant, the Pensionsversicherungsanstalt (Pension Insurance 
Institution), 1021 Vienna, [...] regarding the rehabilitation allowance 
(‘Rehabilitationsgeld’), subsequent to the appeal on a point of law brought by the 
defendant against the judgment of 17 January 2018 [...] of the Oberlandesgericht 
Linz (Higher Regional Court, Linz), sitting as the court dealing with appeals in 
matters of employment and welfare law, by which the judgment of the 
Landesgericht Salzburg (Salzburg Regional Court), sitting as a court in matters of 
employment and welfare law, of 29 September 2017 [...] was confirmed, has made 
the following [Or. 2] 
  
EN 
REQUEST FOR A PRELIMINARY RULING OF 19. 12. 2018 — CASE C-135/19 
 
2  
Anonymised version 
Order: 
A. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling: 
1. Pursuant to the provisions of Regulation (EC) No 883/2004 of the European 
Parliament and of the Council of 29 April 2004 on the coordination of social 
security systems, is the Austrian rehabilitation allowance to be regarded 
– as a sickness benefit pursuant to Article 3(1)(a) of the regulation, or 
– as an invalidity benefit pursuant to Article 3(1)(c) of the regulation, or 
– as an unemployment benefit pursuant to Article 3(1)(h) of the regulation? 
2. In the light of primary law, is Regulation (EC) No 883/2004 to be 
interpreted as meaning that, as the former State of residence and State of 
employment, a Member State is obliged to pay benefits such as the Austrian 
rehabilitation allowance to a person who is resident in another Member State if 
that person completed the majority of the periods of insurance from the sickness 
and pension branches as an employee in that other Member State (after the 
transfer of residence to that country years previously) and has not since then 
received benefits from the health and pension insurance scheme of the former 
State of residence and employment? 
B. [...] [Or. 3] [...] [stay of proceedings] 
Grounds: 
I. Facts 
The Austrian citizen CW (applicant), who was born on 28 October 1965, learned 
the profession of office assistant and worked in Austria until 1990. In around 
1990, she moved to Germany as a result of her marriage to a German citizen, and 
has since then been living in Germany. After emigrating, she was in employment 
solely in Germany, most recently as an office assistant in 2013. She completed 59 
months for which there were insurance periods in Austria (27 paid contribution 
months and 32 credited contribution months) and 235 months for which there 
were insurance periods in Germany. Since the end of 1990, she has no longer been 
subject to the Austrian statutory social security system and has not received any 
benefits from Austria. 
In the proceedings pending before the Supreme Court, the dispute concerns the 
question of whether the Austrian rehabilitation allowance can be ‘exported’ to 
Germany to the benefit of the applicant. 
PENSIONSVERSICHERUNGSANSTALT 
 
3 
Anonymised version 
II. Legal basis in EU law 
1. Regulation (EC) No 883/2004 applies to sickness benefits (Article 3(1)(a)), 
invalidity benefits (Article 3(1)(c)) and unemployment benefits (Article 3(1)(h)). 
2. Pursuant to Article 11(3)(a) of the regulation, a person pursuing an activity 
as an employed or self-employed person in a Member State is subject to the 
legislation of that Member State. [Or. 4] 
3. Alternatively, pursuant to Article 11(3)(e) of the regulation, the legal system 
of the Member State of residence is applicable if the person is not pursuing an 
activity as an employed person. 
III. National law: 
1. By way of the Law of 2012 amending social legislation (Sozialrechts-
Änderungsgesetz 2012, SRÄG 2012 — Federal Law Gazette [BGBl.] I 2013/3), 
which came into force on 1 January 2014, the ‘temporary invalidity pension’ was 
abolished for insured persons born after 31 December 1963. This benefit had been 
intended for cases of temporary invalidity. Since 1 January 2014, the invalidity 
pension has essentially been restricted to those who are longer employable on the 
labour market, in particular because the invalidity is expected to be permanent. 
2. As from 1 January 2014, for cases of temporary invalidity, new benefits 
replaced the temporary invalidity pension, namely the rehabilitation allowance 
and the retraining allowance. The retraining allowance pursuant to Paragraph 39b 
of the Arbeitslosenversicherungsgesetz (Law on unemployment insurance, ‘the 
AlVG’) is payable to the insured person by the Arbeitsmarktservice (Austrian 
Public Employment Service) during occupational rehabilitation: the rehabilitation 
allowance pursuant to Paragraph 143a of the Allgemeines 
Sozialversicherungsgesetz (General Law on social security, ‘the ASVG’) must be 
provided by the competent sickness insurance institution during the medical 
rehabilitation. Recipients of the rehabilitation allowance are subject to partial 
compulsory insurance (Teilversicherung) in the sickness insurance scheme 
(Paragraph 8(1)(1)(d) ASVG). 
3. The priority of restoring the capacity for work before pension benefits are 
granted is also procedurally ensured by the fact that an application for a pension 
based on the insured event of reduced capacity for employment is to be interpreted 
primarily as an application for the granting of rehabilitation benefits, including 
[Or. 5] the rehabilitation allowance (Paragraph 361(1) ASVG). There is no 
provision for the insured person to make a separate application for the granting of 
the rehabilitation allowance. 
4. Paragraph 143a ASVG (‘Rehabilitation Allowance’), in the version here 
applicable, reads, in extract: 
REQUEST FOR A PRELIMINARY RULING OF 19. 12. 2018 — CASE C-135/19 
 
4  
Anonymised version 
‘(1)  Persons in respect of whom, upon application, it has been established via 
official decision that the requirements for entitlement … [to the rehabilitation 
allowance] … are met shall be entitled to the rehabilitation allowance for the 
duration of the temporary invalidity (incapacity for work) with effect from the 
relevant date. The continued existence of the temporary invalidity (incapacity for 
work) is to be checked by the sickness insurance institution in the context of case 
management whenever required, but in any event at the end of a period of one 
year of the rehabilitation allowance being granted by the last appraisal, 
specifically via the ‘Kompetenzzentrum Begutachtung’ (Competence Centre for 
appraisals). The determination as to whether there is entitlement to the 
rehabilitation allowance and as to its withdrawal is made by decision of the 
pension insurance institution. 
(2)  The rehabilitation allowance is payable in the amount of the sickness benefit 
… and, from the 43rd day, in the amount of the increased sickness benefit …, 
which would have been payable on the basis of the last [activity as an employed 
person substantiating] compulsory insurance in the sickness insurance scheme, 
….’ 
5. Paragraph 143b ASVG (‘Case Management’) reads, in extract: 
‘The sickness insurance institutions must fully support the … [recipients of the 
rehabilitation allowance] … in order to guarantee a medically state-of-the-art 
treatment process for the transition period between medical treatment and 
rehabilitation for restoring capacity for work and to ensure that the necessary steps 
of providing care are executed in an optimal manner. In this context, during the 
medical treatment and rehabilitation for restoring capacity to work, the insured 
person must be supported in the coordination of the further steps to be taken and 
monitored in such a way that an individual care plan is created following an 
appropriate assessment of needs and implemented by the individual service 
providers. In the context of the case [Or. 6] management, consideration should be 
given to the fact that the insured persons are subject to regular appraisals in the 
Competence Centre …’ 
IV. Arguments of the parties and forms of order sought 
1. On 18 June 2015, the applicant sought to be granted an invalidity pension, 
or, in the alternative, medical rehabilitation measures as well as a rehabilitation 
allowance from the sickness insurance scheme, or, in the alternative, occupational 
rehabilitation measures. The applicant claims that she is unable to work. She has a 
close connection with Austria, being an Austrian citizen, and had completed 
months for which there were insurance periods in Austria, for which she could 
expect appropriate benefits in return. She lives near Austria and is in close contact 
with her parents and two siblings, who live in Austria. 
2. The defendant Pension Insurance Institution contests the existence of 
invalidity and — if temporary invalidity were to exist — the obligation to pay the 
PENSIONSVERSICHERUNGSANSTALT 
 
5 
Anonymised version 
rehabilitation allowance to the applicant, who resides in Germany. The 
rehabilitation allowance is a sickness benefit under EU law. ‘Exporting’ it would 
not lead to appropriate solutions. A low number of insurance months completed in 
Austria would lead to unreasonably large benefits — owing to the lack of a 
reduction factor according to the respective proportions of the periods of 
insurance completed in the individual Member States. It is not possible for the 
Pension Insurance Institution to provide medical rehabilitation measures abroad 
within the meaning of the national provisions on the rehabilitation allowance. The 
applicant, it is argued, does not have close ties with the Austrian social security 
system. 
V. Proceedings to date [Or. 7] 
1. The court of first instance (Salzburg Regional Court, sitting as a court in 
matters of employment and welfare law) dismissed the form of order sought in 
relation to the grant of the invalidity pension. It stated that, as from 18 June 2015, 
there was temporary invalidity that was expected to last for at least six months, 
and there was a right to medical rehabilitation measures as from that date. 
Occupational rehabilitation measures were not appropriate. The applicant was 
entitled, as from that date, to the rehabilitation allowance from the sickness 
insurance scheme at the statutory level for the remainder of her temporary 
invalidity. 
2. The court of second instance (Higher Regional Court, Linz, sitting as the 
court dealing with appeals in matters of employment and welfare law) did not 
allow the appeal brought by the Pension Insurance Institution solely in relation to 
the granting of the rehabilitation allowance. 
3. The Pension Insurance Institution has lodged an appeal on a point of law 
(‘Revision’) against that decision with the Supreme Court. It requests that the 
form of order sought be dismissed in full. In her response to the appeal on a point 
of law, the applicant requests that the appeal on a point of law be dismissed. 
VI. Grounds for the questions referred 
1. The applicant was in employment in Germany from 1990 until, most 
recently, 2013. Since emigrating to Germany, she was no longer subject to 
Austrian sickness or pension insurance. She did not receive any sickness or 
pension insurance benefits in Austria (such as a temporary invalidity pension or 
sickness benefit, for example). 
2. In accordance with the criteria developed by the Court of Justice of the 
European Union for distinguishing [Or. 8] between sickness benefits and 
invalidity benefits (Court of Justice, 21 July 2011, C-503/09, Stewart, 
ECLI:EU:2011:500, paragraph 37 et seq.; see also Court of Justice, 10 January 
1980, 69/79, Jordens-Vosters, ECLI:EU:C:1980:7), the prevailing view in Austria 
REQUEST FOR A PRELIMINARY RULING OF 19. 12. 2018 — CASE C-135/19 
 
6  
Anonymised version 
classifies the rehabilitation allowance as a sickness benefit (Article 3(1)(a) of 
Regulation [EC] No 883/2004), because it does not cover the risk of disability, 
where it is probable that such disability will be permanent or long-term. The 
rehabilitation allowance is closely connected with medical rehabilitation 
activation measures. Its purpose is to provide compensation for the loss of income 
caused by sickness for the period in which the person concerned has to undergo 
medical rehabilitation measures. The calculation is based on the calculation of the 
sickness benefit. 
3. If the Austrian rehabilitation allowance is a cash sickness benefit pursuant to 
Article 3(1)(a) of Regulation (EC) No 883/2004, the referring court takes the view 
that, pursuant to Article 11(3)(e) of the regulation, the State of residence — 
Germany — is responsible for sickness insurance benefits. Article 7 of the 
regulation only prohibits the social security institution obliged to pay benefits 
from reducing or withdrawing benefits because the claimant resides in another 
Member State. 
4. However, the rehabilitation allowance is structured in such a way that it also 
displays characteristics of an invalidity benefit. It requires that compulsory 
insurance (sickness and pension insurance) contributions have been paid, meaning 
that it is not granted until a certain qualifying period has been fulfilled. The 
[Or. 9] rehabilitation allowance can be claimed only by submitting an invalidity 
pension application to the pension insurance institution. Although the 
rehabilitation allowance can be granted only if the invalidity is not permanent, the 
invalidity must exist for longer than six months, which is generally not the case 
with sickness. 
5. In the decision of 30 June 2011, C-388/09, da Silva Martins, 
ECLI:EU:C:2011:439, the Court of Justice did indeed equate the German care 
allowance with sickness benefits (Article 4(1)(a) of Regulation [EEC] 
No 1408/71). It stressed, however, that, unlike sickness benefits, care allowance 
benefits are not in principle intended to be paid on a short-term basis, and they 
may, as regards the details of their application, display characteristics which 
resemble the invalidity and old-age branches (paragraph 48). The Court of Justice 
found that Germany, as the former State of employment, was obliged to continue 
paying the German care allowance to a Portuguese agricultural worker after he 
had returned to his country of origin. It regarded (at least in cases where voluntary 
insurance contributions continue to be paid to the care insurance scheme) the 
discontinuation of the care allowance on account of having returned to the country 
of origin despite the continued payment of contributions as being inconsistent 
with Article 48 TFEU and as placing the former migrant worker at a disadvantage 
in comparison with persons entitled to a retirement pension in a single Member 
State who have spent their entire working life in a single Member State before 
transferring their residence to another Member State on their retirement 
(paragraphs 77 to 79). ‘Exportation’ requires that the State of origin does not 
make provision for cash benefits such as the care allowance. [Or. 10] 
PENSIONSVERSICHERUNGSANSTALT 
 
7 
Anonymised version 
6. The referring court assumes that there is no sickness insurance cash benefit 
in Germany that is comparable to the Austrian rehabilitation allowance. 
7. Although the Austrian rehabilitation allowance requires that compulsory 
insurance contributions have been paid, it actually differs significantly from a 
pension benefit or care allowance benefit in terms of structure and purpose. 
Entitlement to the rehabilitation allowance exists only if it has been established, 
upon application, that the temporary invalidity is expected to last for a period of at 
least six months and occupational rehabilitation measures are not appropriate. It is 
not a permanent benefit for probable disability. The medical rehabilitation 
measures that the sickness insurance institution organises in the context of case 
management and that the insured person undergoes are intended to bring about the 
person’s reintegration into the national labour market in the foreseeable future and 
thus avoid permanent incapacity for work. Thus, the rehabilitation allowance is 
not to be regarded as a mere preliminary step towards a permanent invalidity 
pension. The amount of the rehabilitation allowance is calculated and paid out by 
the sickness insurance institution pursuant to Paragraph 143a(2) to (4) ASVG. It is 
based on the amount of the sickness benefit. There is no pro-rata calculation based 
on the insurance periods completed under the pension insurance scheme. The 
rehabilitation allowance is therefore calculated independently of the amount paid 
in contributions. Unlike in the da Silva Martins case, no contributions are paid in 
respect of a separate care insurance scheme relating, not [Or. 11] to the risk of 
sickness in the strict sense, but rather to that of the special nature of a benefit such 
as that of the care allowance. 
8. As the purpose of medical rehabilitation and of the — directly connected — 
granting of the rehabilitation allowance consists in enabling persons with impaired 
performance to return to the labour market, it would also be conceivable for the 
rehabilitation allowance to be classified as an unemployment benefit pursuant to 
Article 3(1)(h) of Regulation (EC) No 883/2004 (Court of Justice, 4 June 1987, 
375/85, Campana, ECLI:EU:C: 1987:253). However, regarding entitlement to the 
rehabilitation allowance, the ASVG does not establish a connection with the threat 
of unemployment or with existing unemployment. 
9. The referring court takes the view that it is not clear that non-exportation of 
the rehabilitation allowance in the case of the applicant, who had not received (or 
applied for) any Austrian benefits such as a temporary invalidity pension since 
emigrating to Germany over 20 years ago, would have the effect of restricting 
freedom of movement. 
VII. Stay of proceedings 
[...] 
Supreme Court, 
Vienna, 19 December 2018