Keywords

Summary



Keywords

1. Social security for migrant workers ° Community rules ° Matters covered ° Benefits covered and benefits excluded ° Criteria for distinguishing between them ° Child-raising allowance intended to meet the recipient' s family expenses, granted on the basis of objective and legally defined criteria ° Included

(Council Regulation No 1408/71, Art. 4(1)(h))

2. Social security for migrant workers ° Family benefits ° Employed person subject to the legislation of one Member State but residing with his or her family in another Member State ° Spouse' s right to receive child-raising allowance provided for by the legislation of the State of employment

(Council Regulation No 1408/71, Art. 73)

3. Social policy ° Equal treatment for men and women in matters of social security ° Matters covered by Directive 79/7 ° Child-raising allowance intended to secure maintenance of the family during the stage in which children are raised ° Excluded

(Council Directive 79/7, Art. 3(1) and (2))

Summary

1. The distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation.

A benefit such as a child-raising allowance, which is automatically granted to persons fulfilling certain objective, legally defined criteria, without any individual and discretionary assessment of personal needs, and which is intended to meet family expenses and more particularly to remunerate the service of bringing up a child, to meet other costs of caring for and bringing up a child and, as the case may be, to mitigate the financial disadvantages entailed in giving up income from full-time employment, for the allowance must be granted whether or not the recipient is in employment, must be treated as a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.

2. Where an employed person is subject to the legislation of a Member State and lives with his or her family in another Member State, that person' s spouse is entitled, under Article 73 of Regulation No 1408/71, to receive a family benefit such as child-raising allowance in the State of employment. The spouse cannot be refused such benefit on the basis of the distinction between a worker' s personal rights and the derived rights acquired by members of his or her family, since that distinction is relevant only where a member of a worker' s family relies on provisions of Regulation No 1408/71 which are applicable solely to workers and not to members of their families, such as those relating to unemployment benefits, and does not, in principle, apply to family benefits.

This must be the position because Article 73 is intended in particular to prevent Member States from making entitlement to, and the amount of, family benefits dependent on residence of the members of the worker' s family in the Member State providing the benefits, so that Community workers are not deterred from exercising their right to freedom of movement, and because, if a Member State could make the grant of such a child-raising allowance to a worker' s spouse who is not resident in that State subject to the condition that the spouse must be employed in its own territory, the worker could be deterred from exercising his right to freedom of movement, contrary to the purpose and spirit of Article 73 of the regulation.

3. Article 3(1) and (2) of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, which defines the matters covered by the directive, must be interpreted as meaning that a child-raising allowance, which is intended to secure the maintenance of the family during the stage in which children are being raised, does not fall within the scope of that directive. A family benefit such as child-raising allowance of that kind does not provide direct and effective protection against one of the risks listed in Article 3(1).