Opinion of the Advocate General — ECLI:EU:C:1998:180
Date: 1998-04-30
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Social security for migrant workers;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

summary, all the benefits
to be granted pursuant to this act are linked
to the beneficiaries' possession of Greek
nationality or Greek origin. For example, loss
of Greek nationality results directly in the
loss of entitlement to benefit. 16
7. The Commission is of the view that all the
benefits based on the abovementioned provi­
sions are linked to Greek nationality, 17 which
constitutes discrimination on grounds of
nationality contrary to Community law. It
claims that such unequal treatment is based
either directly on the legislative provisions or,
in any event, on discriminatory administra­
tive practice such as, for example, in the
application of Law 1910/1944. According to
the Commission, the unequal treatment is in
breach of the prohibition of discrimination
15 — Sec Articles 3, 4 and 7 of the Decree-Law.
16 — See, for example, Article 13(2)(d) and Article 14(1)(c) of the
Ministerial Order.
17 — This refers to Greek nationality or origin. When the term
'nationality' is mentioned below, it should be construed in
the broad sense.
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OPINION OF MR ALBER — CASE C-185/96
under Community law in several of the forms
which that prohibition takes in the Treaty
and in secondary Community legislation.
8. The Commission bases its claim on Articles
7, 18 48 and 52 of the Treaty and on Article 7
of Regulation No 1612/68, 19 Article 7 of
Regulation No 1251/70, 20 Article 7 of Direc­
tive 75/34 21 and Article 3 of Regulation No
1408/71. 22
9. It maintains that the benefits have in
common the fact that they are all allowances
of a social nature, some of which are means-
tested and others are not. Viewed from a
purely abstract standpoint, some of the ben­
efits may fall within the scope of both Regu­
lation No 1408/71 and Regulation No 1612/68.
It is the circumstances of each individual case
which are the decisive factor. The Commis­
sion points out that the Court has held that a
benefit may, purely hypothetically, fall within
the scope of both regulations. 23
10. According to the Commission, some of
the benefits must be classified as family ben­
efits or family allowances within the meaning
of Regulation No 1408/71. 24 In assessing
whether a benefit is covered by Regulation
No 1612/68, Regulation No 1408/71, Regula­
tion No 1251/70 or Directive 75/34, the deci­
sive factor is the claimant's personal situation.
Thus it is relevant whether he is employed or
self-employed, whether he is in work or
making use of his right to remain, and whether
he is asserting his own or derivative rights. At
the Court's request, the Commission pro­
duced a list of the legislative provisions in
question and their potential scope.
11. In so far as the Greek Government pleads
that some of the benefits are granted for
demographic reasons, the Commission points
out that, according to the Court's case-law, 25
demographic considerations cannot justify
discrimination. Finally, the Commission notes
that the submission of a draft law amending
the legislative provisions objected to must, at
least in part, be regarded as an admission of
the need to amend the provisions in question.
The employment legislation referred to by
the Greek Government is not part of the
subject-matter of the proceedings.18 — Although in its application the Commission bases its view
on Article 7 of the Treaty, the general principle of the pro­
hibition of discrimination now appears in Article 6 by virtue
of the Maastricht Treaty.
19 — Cited in footnote 1.
20 — Cited in footnote 2.
21 — Cited in footnote 3.
22 — Cited in footnote 4.
23 — Judgment in Case C-111/91 Commission v Luxembourg
[1993] ECR I-817, at paragraph 21.
24 — Article 1(u).
25 — Judgment in Case 65/81 Reina v Landeskreditbank Baden-
Württemberg [1982] ECR 33, at paragraph 15.
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COMMISSION v GREECE
12. The Greek Government is of the opinion
that the action is unfounded. In addition, it
contends that for some of the objections there
are no grounds. An inaccurate account has
thus been given of the original cases.
13. According to the Greek Government, the
legal situation of large families is governed by
various provisions. The rights granted to such
families are contained in several legal instru­
ments. Even the definition of 'large family' is
not uniform. The multiplicity of legislative
provisions to be taken into consideration
explains why, up to now, full account has not
been taken of Community citizens. Their rec­
ognition as persons entitled to benefits is
under way.
14. According to the Greek Government, the
benefits paid to members of large families
have in common an historical and sociological
basis. Protection of the family has constitu­
tional rank. In view of the increasing per­
centage of old people in the Greek popula­
tion, a number of the benefits are based on
demographic reasons. Some of the provisions
referred to by the Commission are outdated.
Articles 3, 4, 5, 6, 9 and 12 of Law 1910/1944
are now, for various reasons, nugatory or
irrelevant to these proceedings. 26
15. It contends that large-family status within
the meaning of Law 1910/1944 is not the
decisive criterion for the award of the ben­
efits provided for by Decree-Law
1153/1972. 27 Moreover, Community citizens
could also receive those benefits since Annex
I to the Act of Accession contains a list,
referred to in Article 21 of the Act, under
title 'IX. Social Policy' of which a letter
Έ . Greece', containing a definition of workers
entitled for the purposes of granting family
allowances, 28 has been inserted in Annex V
to Regulation No 1408/71.
16. According to the Greek Government, the
benefits under Article 63 of Law 1892/1990 29
are granted in pursuit of demographic objec­
tives. They are in the nature of an award in
recognition of the special contribution which
a mother of a large family makes to society.
In particular, the pension for life is granted
'as an honour'. That pension in particular
cannot be classified as falling under Regula­
tion No 1408/71 or under Regulation No
1612/68. In so far as demographic reasons
alone are not sufficient to justify the grant of
benefits to persons of Greek origin, moral
recognition of a contribution to society is a
further factor which must be taken into
26 — See Article 5 of the Law, which provides for an exemption
from military service.
27 — See point 6(2) above.
28 — See OJ 1979 L 291, p. 99, 101.
29 — See point 6(3) above.
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OPINION OF MR ALBER — CASE C-185/96
account. In that respect, the Greek Govern­
ment refers to the Court's Judgments in the
Even and de Vos cases. 30 Moreover, it points
out that the legislation is being amended with
regard to the other benefits referred to in
Article 63 of Law 1892/1990. Greek employ­
ment legislation is in any case undergoing a
review for the purpose of adapting it to the
requirements of Community law.
17. The amendment of the Law 31 by Article
39 of Law No 2459/97, announced by the
Greek Government by letter of 3 April 1997,
has essentially the following content: Articles
1 and 2 of Law No 1910/1944 (definition and
procedure for the recognition of a family as
large) are expressly extended to apply to Com­
munity citizens. 32 The benefits described in
Article 63(1) to (3) of Law 1892/1990 (family
benefits payable monthly to the mother) are
expressly made accessible to Community
nationals, under the same conditions as apply
to Greeks. 33
C — Opinion
a — Admissibility
18. In view of the change in the law which
has taken place in the course of the written
procedure, the question arises, at least in part,
as to whether there is a legal interest in
bringing these proceedings.
19. By virtue of the fact that the Greek Gov­
ernment has enacted legal provisions which
— on the assumption at least — have at least
partially remedied the situation giving rise to
the action, this case may not, in part, need to
proceed to judgment. However, it is not usual,
in Treaty infringement proceedings, for the
Court to declare that there is no need for the
case to proceed to judgment. That is due to
the particular characteristics of such proceed­
ings. On the one hand, it is common practice
for the Commission, as the applicant in Treaty
infringement proceedings, to bring the pro­
ceedings to an end by discontinuance of its
action if the situation not in conformity with
the Treaty has been remedied. The structure
of Treaty infringement proceedings, with their
obligatory pre-litigation procedure, is
designed to allow an amicable settlement at
any stage of the proceedings. 34 On the other
hand, the Court has consistently held that a
legal interest in bringing proceedings must be
affirmed where the conduct objected to per­
sists after expiry of the period laid down in
the reasoned opinion. 35
30 — See judgments in Case 207/78 Even [1979] ECR 2019 and
Case C-315/94 de Vos [1996] ECR I-1417.
31 — Official Gazette No 17 of 18 February 1997, part A.
32 — See Article 39(5) of Law No 2459/97.
33 — See Article 39(6) of Law No 2459/97.
34 — It is settled case-law that the purpose of the pre-litigation
procedure is also to give the Member State concerned an
opportunity to comply with its obligations under Commu­
nity law. See the judgments in Case C-207/96 Commission v
Italy [1997] ECR I-6869, at paragraph 17, and Case C-96/95
Commission v Germany [1997] ECR I-1653, at paragraph
22.
35 — See the judgments in Case C-361/95 Commission v Spain
[1997] ECR I-7351, at paragraphs 13 and 14, Case C-61/94
Commission v Germany [1996] ECR I-3989, at paragraph
42, and Case C-123/94 Commission v Greece [1995] ECR
I-1457, at paragraph 7.
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COMMISSION v GREECE
20. It is undisputed that the legislative provi­
sions objected to by the Commission were
fully in force at the time of expiry of the
period laid down in the reasoned opinion. In
principle, therefore, it can be assumed without
further examination that there is a legal interest
in bringing the proceedings.
b — Substance
21. The prohibition of discrimination under
Community law, which is enshrined in the
Treaty, is one of the cornerstones of the Com­
munity legal order. It is inherent in the fun­
damental freedoms. Articles 6, 48(2) and 52
of the Treaty are therefore the correct starting
point as regards freedom of movement for
persons. The prohibition of inequality of treat­
ment on grounds of nationality is given con­
crete expression in acts of secondary Com­
munity legislation and thus takes effect in the
particular legislative context.
22. For example, Article 7(1) and (2) of Regu­
lation No 1612/68 on freedom of movement
for workers within the Community provides
as follows:
'(1) A worker who is a national of a Member
State may not, in the territory of another
Member State, be treated differently from
national workers by reason of his nation­
ality in respect of any conditions of
employment and work, in particular as
regards remuneration, dismissal, and
should he become unemployed, reinstate­
ment or re-employment;
(2) He shall enjoy the same social and tax
advantages as national workers.'
Again for example, Article 3(1) of Regulation
No 1408/71, on the application of social secu­
rity schemes to employed persons, to self-
employed persons and to members of their
families moving within the Community, pro­
vides as follows:
'Subject to the special provisions of this Regu­
lation, persons resident in the territory of one
of the Member States to whom this Regula­
tion applies shall be subject to the same obli­
gations and enjoy the same benefits under the
legislation of any Member State as the nationals
of that State.'
In accordance with Article 7 of Regulation
No 1251/70, on the right of workers to remain
in the territory of a Member State after having
been employed in that State, '[t]he right to
equality of treatment, established by Council
Regulation (EEC) No 1612/68, shall apply
also to persons coming under the provisions
of this Regulation.'
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OPINION OF MR ALBER — CASE C-185/96
Finally, Article 7 of Directive 75/34, con­
cerning the right of nationals of a Member
State to remain in the territory of another
Member State after having pursued therein an
activity in a self-employed capacity, provides
as follows: 'Member States shall apply to per­
sons having the right to remain in their ter­
ritory the right of equality of treatment rec­
ognised by the Council Directives on the
abolition of restrictions on freedom of estab­
lishment pursuant to Title III of the General
Programme which provides for such aboli­
tion.'
23. In summary, it can be concluded that the
principle under Community law of equal
treatment for employed persons and self-
employed persons is applicable during their
working life and beyond in so far as they
exercise their right to remain. According to
the scope ratione personae of the relevant
provisions, the principle of equal treatment
also applies to the members of the families of
the persons concerned.
24. All the benefits provided for by the Greek
legislation in question, which are the subject-
matter of these proceedings, are benefits of a
social character which either fall within the
scope of Regulation No 1408/71 or are cov­
ered by Article 7 of Regulation No 1612/68.
The scope ratione materiae of Regulation
No 1408/71 is defined in Article 4 as follows:
'1 . This Regulation shall apply to all legisla­
tion concerning the following branches of
social security:
(h) family benefits
»
25. The Court has consistently held that a
benefit may be regarded as a social security
benefit 'in so far as it is granted, without any
individual and discretionary assessment of
personal needs, to recipients on the basis of a
legally defined position, and provided that it
concerns one of the risks expressly listed in
Article 4(1) of Regulation No 1408/71.' 36
36 — See the judgment in Case C-111/91 Commission v Luxem­
bourg [1993] ECR I-817, at paragraph 29, with further refer­
ences.
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COMMISSION v GREECE
26. Article 1 (u) contains a definition of family
benefits and allowances. It states: '(i) "family
benefits" means all benefits in kind or in cash
intended to meet family expenses under the
legislation provided for in Article 4 (1) (h),
excluding the special childbirth allowances
mentioned in Annex II; (ii) "family allow­
ances" means periodical cash benefits granted
exclusively by reference to the number and,
where appropriate, the age of members of the
family.'
Annex II to the regulation does not list any
childbirth or adoption allowances for Greece.
It expressly states: 'None'.
27. As the Commission rightly states, it is in
fact necessary to examine the specific situa­
tion of the person entitled in order to deter­
mine conclusively which of the abovemen-
tioned Community legislative provisions
should be applied. However, such an exami­
nation is not possible at the abstract level of
Treaty infringement proceedings. Neverthe­
less, that does not, in principle, preclude a
finding of a breach, contrary to Community
law, of the principle of equal treatment since
all the abovementioned legislative provisions
are an expression of the prohibition, in Com­
munity law, of discrimination on grounds of
nationality.
1. Law 1910/1944
28. There is no dispute that Articles 1 and 2
of Law 1910/1944 lay down the conditions
and procedures for obtaining 'large-family'
status in the strict legal sense. Although those
provisions do not make any explicit reference
to Greek nationality, it must be assumed that
it was consistent administrative practice for
such recognition to be reserved for nationals
of Greek origin. That is shown, first, by the
complaints which prompted the Commission
to act. Secondly, the Greek Government's
defence also gives grounds for supposing that
the recognition of a family as large within the
meaning of the legislation in question was
denied to Community nationals since the
Greek Government relied initially only on
the obsoleteness of the Law, although Law
No 2459/97 did subsequently extend the appli­
cation of Articles 1 and 2 of Law 1910/1944
to Community nationals.
29. Even if, as the Greek Government argues,
Articles 3, 4, 5, 6, 9 and 12 of Law 1910/1944
are obsolete, Articles 7, 8, 10 and 11 are still
of relevance, as the Commission also expressly
pointed out during the oral procedure. They
deal with social advantages, for the grant of
which recognition as a large family, within
the meaning of Articles 1 and 2, is an indis­
pensable condition. Article 7 of the Law, for
example, provides for costs incurred in legal
proceedings to be reduced by half. Article 8
deals with certain tax reliefs and tax exemp­
tions. As well as certain public service advan-
I-6611
OPINION OF MR ALBER — CASE C-185/96
tages, Article 10 concerns fare reductions for
public transport. Article 11 deals with welfare
payments intended to assist, for example, with
the care of under-age or sick children or con­
tribute towards the financing of daughters'
dowries.
2. Decree-Law 1153/1972
30. This decree-law contains direct discrimi­
nation on grounds of nationality since it
expressly requires beneficiaries to be of Greek
nationality. It is true that the Greek Govern­
ment takes the view that the Act of Acces­
sion gave Community nationals access to the
benefits. However, the part of the Act of
Accession it refers to contains only a defini­
tion of the workers entitled to claim family
allowances for the purpose of applying Regu­
lation No 1408/71. The rules for the grant of
such benefits are not cited. Even if those rules
operate implicidy within the scope of Regula­
tion No 1408/71, that does not in any way
alter the wording of Decree-Law No
1153/1972, which must then be regarded as
unclear. The Court has consistently held that
the alteration of an administrative practice is
not sufficient to remedy a legal situation which
is incompatible with the Treaty. 37 The provi­
sions concerned must be unambiguously
adapted to the requirements of Community
law.
3. Law 1892/1990
31. The benefits provided for under Article
63(1) to (3) of this Law are family benefits
within the meaning of Regulation No 1408/71,
the receipt of which is expressly reserved for
Greeks by Ministerial Order No CIa/440 of
7/21 February 1991. However, the Court has
held 38 that demographic reasons, on which
the Greek Government bases the grant of the
benefits, cannot justify discrimination on
grounds of nationality. Nor do the provisions
in question represent a misleading interpreta­
tion of national law in the light of Commu­
nity law, but are discriminatory rules enacted
expressly after the accession to the European
Community.
32. However, the same is also true of the
pension granted under Article 63(4) of the
Law. As 'periodical cash benefits granted
exclusively by reference to the number and,
where appropriate, the age of members of the
family', it must be regarded as a family allow-
37 — See judgments in Case C-197/96 Commission v France [1997]
ECR I-1489, at paragraph 14, and Case C-334/94 Commis­
sion v France [1996] ECR I-1307, at paragraph 30.
38 — See the judgment in the Reina case (cited in footnote 25).
I - 6612
COMMISSION v GREECE
ance for the purpose of Regulation No
1408/71. A worker's spouse also is entitled,
within the scope of Regulation No 1408/71,
to rely on the principle of equal treatment
under Article 3 of the Regulation. 39
33. Even if one should have doubts with
regard to the classification of the benefit
according to the categories in Regulation No
1408/71, it must in any case be assumed that
it constitutes a social advantage within the
meaning of Article 7(2) of Regulation No
1612/68. The Court has consistently defined
such advantages as all advantages 'which,
whether or not linked to a contract of employ­
ment, are generally granted to national
workers because of their objective status as
workers or by virtue of the mere fact of their
residence on the national territory, and whose
extension to workers who are nationals of
other Member States therefore seems likely to
facilitate the mobility of such workers within
the Community'. 40 Even if the mother of the
large family did not have the status of worker
herself, it would be sufficient if the father
were to be regarded as a worker within the
meaning of the provision since, under Article
10 of Regulation No 1612/68, the worker's
spouse is also a beneficiary of the regulation.
The provision of equal treatment in the field
of social advantages, provided for in Article
7(2) of Regulation No 1612/68, has been con­
sistently upheld by the Court in favour of the
members of workers' families. 41 It follows
that the pension provided for by Article 63(4)
of the Law must be granted to Community
nationals who are mothers of several children
under the same conditions as it is granted to
Greek women.
34. It must be said, in response to the Greek
Government's argument that the pension is
granted 'as an honour' in recognition of the
merits of mothers of large families and must
therefore be reserved for Greek women, that
the contribution to society of mothers who
are Community nationals is comparable to
that of Greek women. It may be assumed
that the parents and children of a large family
who are established in Greece pay taxes and
social security contributions to the Greek
scheme. Social usefulness therefore extends
far beyond a moral contribution. The judg­
ments in the Even and de Vos cases, which
concerned, respectively, an advantage in the
drawing of the old-age pension to compen­
sate for hardships suffered for the country in
wartime 42 and partial compensation under
social security legislation for the consequences
of the obligation to perform military ser­
vice, 43 are not applicable to the circumstances
of this case. The latter are not comparable to
the situation of a beneficiary who has made
personal sacrifices for the country of which
he is a national. In so far as the advantage
under Article 63(4) of Law No 1892/1990
must be regarded as falling within the scope
ratione materiae of Regulations Nos 1408/71
and 1612/68, that view is also confirmed by
39 — Judgment of 30 April 1996 in Case C-308/93 Cabanis-Issarte
[1996] ECR I-2097, at paragraph 44.
40 — Judgment in Case C-57/96 Meints [1997] ECR 1-6689, at
paragraph 39.
41 — Judgment in the Cabanis-Issarte case, at paragraph 38.
42 — See the Even case, cited in footnote 30, at paragraph 23.
43 — See the de Vos case, cited in footnote 30, at paragraph 21.
I-6613
OPINION OF MR ALBER — CASE C-185/96
the Romero judgment 44 in which periods of
training interrupted by compulsory military
service, including in another Member State,
were held to be reckonable periods for the
purposes of granting orphan's benefit.
35. Finally, it is necessary to examine Article
39 of Law No 2459/97. The Commission is
right in maintaining that this Law has only
partially remedied the situation incompatible
with the Treaty. The ambiguity in Decree-Law
No 1153/1972 continues to exist. The ben­
efits under Article 63 of Law 1892/1990 have
been rendered only partly accessible to Com­
munity nationals. To compound matters, Law
No 1892/1990 in conjunction with Ministe­
rial Order No CIa/440 of 7/21 February 1991,
was not enacted until well after the accession
of the Hellenic Republic to the European
Community. With regard to the benefits under
Article 63(4) of Law No 1892/1990, the Greek
Government persists in its view that discrimi­
nation can be justified on demographic
grounds. Consequently, even taking into con­
sideration Law No 2459/97, 45 the Hellenic
Republic should be found to have failed to
fulfil its obligations under the Treaty. How­
ever, that Law is not a decisive factor since
the legal situation at the time of the expiry of
the period laid down in the reasoned opinion
clearly constitutes a Treaty infringement. The
form of order sought by the Commission
should therefore be granted in full.
Costs
In accordance with the first paragraph of
Article 69(2) of the Rules of Procedure, the
unsuccessful party is to be ordered to pay the
costs if they have been applied for in the
unsuccessful party's pleadings. Since,
according to the solution proposed above, the
defendant would be the unsuccessful party, it
should be ordered to pay the costs.
D — Conclusion
36. In the light of the foregoing I propose that the Court :
(1) declare that, by precluding, by regulation or administrative practice, on grounds
of their nationality, Community workers, whether employees or self-employed,
44 — Judgment in Case C-131/96 Mora Romero [1997] ECR
I-3659.
45 — On the content of the law, see point 17 above.
I - 6614
COMMISSION v GREECE
and the members of their families, from being attributed large-family status for
the purpose of the award of the benefits provided for members of large families
and from being awarded family supplements, the Hellenic Republic has failed
to fulfil its obligations under Community law, in particular Articles 48 and 52
of the EC Treaty, Article 7 of Regulation (EEC) No 1251/70, Article 7 of
Directive 75/34/EEC and Article 3 of Regulation (EEC) No 1408/71;
(2) order the Hellenic Republic to pay the costs.
I-6615