Judgment — ECLI:EU:C:2010:698
Date: 2010-11-18
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Social security for migrant workers – European Union legislation – Scope ratione personae – Extension to nationals of non-member States not covered by that legislation on the ground of their nationality (EC-Switzerland Agreement on the free movement of persons, Annex II, Section A; Council Regulations No 1408/71, No 574/72 and No 859/2003) 2. Social security for migrant workers – Family allowances – National of non-member State lawfully resident in a Member State but not coming within the scope of Regulation No 859/2003 – Inapplicability of Community legislation (EC-Switzerland Agreement on the free movement of persons, Annex II, Section A; Council Regulations 1408/71, Arts 2, 13 and 76, and No 574/72, Art. 10(1)(a)) 1. In the case in which a national of a non-member country is lawfully resident in a Member State of the European Union and works in Switzerland, Regulation No 859/2003 extending the provisions of Regulation No 1408/71 and Regulation No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality does not apply to that person in his Member State of residence, in so far as Regulation No 859/2003 is not among the Community acts mentioned in section A of Annex II to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, which the parties to that agreement undertake to apply. Consequently, there is no obligation for the Member State of residence to apply Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, and Regulation No 574/72, in the version amended and updated by Regulation No 118/97, to that employee and his spouse. (see para. 39, operative part 1) 2. Articles 2, 13 and 76 of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, and Article 10(1)(a) of Regulation No 574/72, in the version amended and updated by Regulation No 118/97, are irrelevant in respect of a national of a non-member country residing lawfully in a Member State but not coming within the scope of Regulation No 859/2003 extending the provisions of Regulation No 1408/71 and Regulation No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, in so far as that national’s situation is governed by the legislation of the Member State of residence. The fact that that national’s children are citizens of the European Union cannot, by itself, make the refusal to grant child allowance in the Member State of residence unlawful where the statutory conditions which must be satisfied for the purposes of such a grant are not fulfilled. European Union law does not limit the power of the Member States to organise their social security schemes and, in the absence of harmonisation at European Union level, it is for the legislation of each Member State to lay down the conditions on which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. (see paras 41, 43, 45, operative part 2)