Opinion of the Advocate General — ECLI:EU:C:2003:671
Date: 2003-12-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment Freedom of movement for persons – Social security for migrant workers – Community rules – Material scope – Compensation for ex-prisoners of war – Excluded (Art. 39(2) EC; Council Regulation No 1612/68, Art. 7(2), and Council Regulation No 1408/71, Art. 4(4)) Article 39(2) EC, Article 4(4) of Regulation No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, as amended and updated by Regulation No 118/97, and Article 7(2) of Regulation No 1612/68 on freedom of movement for workers within the Community, must be interpreted as not precluding national legislation which refuses to grant an allowance in favour of former prisoners of war on the ground that the applicant did not hold the nationality of the Member State involved when the application was made, but that of another Member State. Having regard to its aim and the conditions for its grant, such an allowance is covered by Article 4(4) of Regulation No 1408/71, which provides that it does not apply to ‘benefit schemes for victims of war or its consequences’, so that it is excluded from the material scope of that regulation. Furthermore, such an allowance does not fall within the category of advantages granted to national workers principally because of their status as workers or national residents and, as a result, does not fulfil the essential characteristics of the ‘social advantages’ referred to in Article 7(2) of Regulation No 1612/68. The same conclusion must be reached in the light of Article 39(2) EC, which covers conditions of employment, remuneration and other working conditions, which cannot cover compensatory allowances which are linked to service rendered in wartime by citizens to their own country and whose essential aim is to provide those citizens with a benefit because of the hardships they endured for that country. (see paras 16, 18-21, operative part)