Opinion of Mr Advocate General Cosmas delivered on 9 December 1997. - Manfred Molenaar and Barbara Fath-Molenaar v Allgemeine Ortskrankenkasse Baden-Württemberg. - Reference for a preliminary ruling: Sozialgericht Karlsruhe - Germany. - Freedom of movement for workers - Benefits designed to cover the risk of reliance on care. - Case C-160/96.



European Court reports 1998 Page I-00843



Opinion of the Advocate-General

I - Introduction

1 By a reference for a preliminary ruling submitted by the Sozialgericht Karlsruhe (Germany) the Court is asked to interpret Articles 6 and 48(2) of the EC Treaty.

2 The dispute in the main proceedings arose from the fact that a married couple of workers, a Dutch national and his German wife, who reside in France and work in Germany, are subject and contribute compulsorily to the German care insurance scheme, but are not entitled to obtain benefits under that system while they reside abroad.

II - Reliance on care as a risk for insurance purposes

3 The risk of reliance on care has always existed as a social phenomenon, but is relatively recent as the subject-matter of social insurance. Accordingly, I consider it expedient, before setting out the relevant national provisions, to point to certain basic characteristics of that risk, as shown by a brief survey of the relevant theory and practice. (1)

4 Reliance on care can be defined, generally, as a person's inability to be independent and his consequent need for assistance from a third person for the performance of his everyday routine. Reliance on care is usually a consequence of old age, but can also be a result of illness, invalidity, accident and so forth.

Benefits for persons reliant on care in the above sense have long existed and will continue to exist, either within special branches of social security, such as that covering, for example, the elderly or the disabled, or as an aspect of social assistance. There is, however, now a trend towards amalgamation of the disparate benefits and the creation of a separate branch of social security relating to reliance on care. (2)

5 Benefits are provided in kind, or in cash, or a combination of both. Under certain legislation it is up to the person concerned to choose the appropriate type of benefit. Benefits in kind include home care or, in the most serious cases, care in specialised establishments, as well as making available to the person concerned any medicines or equipment required. Such care is provided either `unofficially', that is to say by a spouse or other family member or relative, (3) or by volunteers, or by professionals linked to the competent social services. Cash benefits consist of periodical benefits awarded instead of benefits in kind or in parallel with them, whether or not at the option of the person concerned. Their level depends principally on the degree of reliance on care and possibly also on the financial situation of the person reliant on care (mainly where reliance on care is linked to social assistance).

As regards award of benefits, there are two priorities: (a) to ensure people are cared for at home and in familiar surroundings, rather than in an institution, which remains the exception, out of respect for the dignity and independence of the individual and (b) rehabilitation rather than the mere payment of benefits.

6 Provision is also made for the third party caring for the person reliant on care, particularly where that care is provided by professionals. Thus, in certain countries the person giving assistance is compulsorily or voluntarily insured through the person reliant on care, and is entitled also to certain (paid) free days and holidays. There are, however, proposals for those advantages to be extended to carers who are not professionals (such as family members). (4)

III - The national provisions

7 In Germany, the provision of home care to persons requiring it was first introduced in 1988 as part of sickness insurance and was included in Book V of the Sozialgesetzbuch (German Social Security Code, hereinafter `the SGB'). The aim of those benefits was, first, as far as possible, to enable the persons concerned to remain in their own home and to prevent their being placed in institutions.

Persons reliant on care were, however, able to choose to receive a monthly allowance, instead of assistance in the home, of DM 400, if they were in a position to obtain the appropriate care themselves from a third party.

8 Those benefits were replaced and improved, from 1 January 1995, by the Pflegeversicherungsgesetz (Care Insurance Law), which makes up Book XI of the SGB and governs the situation in this case.

9 Here too the risk of reliance on care consists in being unable to care for oneself independently. In other words it affects persons who need, either temporarily or permanently, to resort to help from others to accomplish some or all routine tasks such as those connected with personal hygiene, meals, mobility, housework, and so forth. Persons reliant on care do not take part in active life (in the sense, obviously, that they are, temporarily or permanently, unfit for work) and the state of their health is not expected to improve. (5)

10 Care insurance is compulsory inter alia for any person insured, either voluntarily or compulsorily, against sickness. Responsibility for administering care insurance has been given to the sickness insurance institutions.

11 The insurance is funded by contributions from workers and employers. The level of contribution amounts, for each of them, to 0.85% of gross pay.

12 As regards benefits, those insured, provided they have completed a certain insurance period (at present one year, which will increase in stages to five years by the year 2000), are entitled, first, to home care, which includes benefits in kind, or a monthly allowance, or a combination of both.

Benefits in kind (Paragraph 36) consist, mainly, in specialised staff being made available by the insurance institution for the provision of home care. The monthly ceiling on the cost of services provided depends on the level of reliance on care. (6)

Instead of benefits in kind, the person reliant on care is entitled to opt for a monthly allowance (`the care allowance'), which will enable him to obtain the appropriate form of care from a care assistant (Paragraph 37). (7) In that case, the competent institution examines persons reliant on care to verify their condition every six months (Categories I and II) or every three months (Category III).

The person concerned may, however, opt for a combination of the two types of benefits (Paragraph 38).

In addition provision is made for the insured to receive the material and technical assistance required to improve their condition such as, for example, rental or purchase and installation of special equipment, the performance of work to adapt the home or the cost of replacing, while they are on holiday, the care assistants who usually look after the insured (Paragraph 40).

13 Secondly, the insured are entitled to nursing care in establishments where home care proves to be inadequate or inappropriate. Such nursing care may take place partly or wholly in an establishment (Paragraph 41). The competent institution covers the cost of nursing care effected partly in an establishment up to a certain ceiling (Paragraph 41). (8)

14 Lastly, provision is also made for benefits for the care assistants such as payment of their insurance contributions in respect of sickness and accidents at work (Paragraph 44) as well as for special courses for the family of the person reliant on care and for those who provide assistance on a voluntary basis (Paragraph 45).

15 Pursuant to Paragraph 34(1) of Book XI of the SGB, entitlement to benefits is suspended inter alia so long as an insured person remains abroad, even if the need for care arose during a temporary stay abroad. (9)

IV - Facts

16 Manfred and Barbara Molenaar, the plaintiffs in the main proceedings, who are respectively of Dutch and German nationality, live in France and work in Germany.

17 In December 1994 and January 1995, the AOK Baden Württemberg, the defendant in the main proceedings, informed them that from 1 January 1995 they would have to be insured against the risk of reliance on care and pay the relevant insurance contributions but that, pursuant to Paragraph 34 of the SGB, referred to above, their entitlement to the corresponding insurance benefits was suspended as long as they were resident abroad.

18 Mr and Mrs Molenaar initiated proceedings in the Socialgericht Karlsruhe, seeking:

(a) principally, a declaration that, subject to the generally applicable conditions for entitlement being fulfilled, they were entitled to care insurance benefits even if they were resident abroad;

(b) in the alternative, a declaration that, subject to those same conditions, they were entitled to be reimbursed for costs of care incurred;

(c) in the further alternative, a declaration that they were not required to be insured against the risk of reliance on care;

(d) as a purely precautionary claim, an order that the defendant exempt the plaintiffs from the requirement of insurance and reimburse to them the contributions paid.

19 The Socialgericht held that the two first questions were inadmissible under German administrative law, principally because they did not relate to a specific factual situation requiring protection. (10)

20 On the other hand, it held that the other two claims, in particular the third, raise the question whether Articles 6 and 48(2) of the Treaty permit national legislation to require the payment of insurance contributions in the context of a compulsory insurance scheme against a risk such as that in the main proceedings, when the benefits in question are not payable because the person entitled is resident in another Member State. Accordingly, the national court submitted the following question to the Court for a preliminary ruling.

V - Question referred for a preliminary ruling

`Are Articles 6 and 48(2) of the EC Treaty to be interpreted as restricting the right of a Member State to set up a social security system covering the risk of need of care as part of statutory compulsory insurance arrangements under which persons residing in another Member State are liable to pay compulsory contributions, even though their entitlement to benefits is simultaneously excluded or suspended because of their place of residence?'

VI - Subject-matter of the order for reference

21 It is settled case-law that Article 6 of the Treaty which lays down the general principle of the prohibition of discrimination on grounds of nationality, can only be applied on its own to situations governed by Community law in respect of which the Treaty lays down no specific prohibition of discrimination.

In the matter of freedom of movement for workers the principle of discrimination has been given effect and specific expression by Articles 48 to 51 of the Treaty and by acts of the Community institutions adopted on the basis of those articles, and in particular by Regulation No 1408/71 and Regulation No 1612/68.

Consequently, if a case such as that in point in the main proceedings falls within the scope of those articles of the Treaty and of the Community regulations adopted on the basis of them, it is unnecessary to give a ruling on the interpretation of Article 6 of the Treaty. (11)

22 From the formulation of the question it has referred, it would appear that the national court entertains no doubts as to the compatibility of the residence clause laid down in Paragraph 34 of the SGB with Community law, but wonders about the implications of that clause as regards the compulsory nature of the insurance and the payment of insurance contributions. Furthermore, the national court does not directly raise the question of the legal classification of the insurance in question from the point of view of Community law. However, from the fact that it cites Articles 19 and 22 of Regulation No 1408/71 it follows indirectly that it considers the insurance to fall within the scope of that regulation ratione materiae, specifically under Chapter 1 of Title III, concerning sickness and maternity. Moreover, the reasoning of the parties who submitted observations, concerns, in large part, the question whether the benefits at issue are covered by Regulation No 1408/71 and possibly also by Regulation No 1612/68.

23 In my view those questions are closely connected and should be examined specifically. The main question is that of the legal classification of the benefits in question from the point of view of Community law. Given that those benefits are obviously social in nature, there are two possible interpretations: either they constitute social security benefits within the meaning of Article 51 of the Treaty and Regulation No 1408/71, in which case the further question arises as to which particular category of Article 4(1) of that regulation they fall within; alternatively they constitute a social advantage, within the meaning of Article 7 of Regulation No 1612/68, and are part of the social assistance system. The reply to that question will determine the reply to the questions whether the benefits in question can be exported, whether the insurance cover and the payment of insurance contributions are compulsory, and whether the contributions paid can be reimbursed. Accordingly, the questions which arise must be studied first in the light of Articles 48 and 51 of the Treaty and, more specifically, of Regulations Nos 1408/71 and 1612/68.

24 In that connection, suffice it to note that, according to settled case-law, in order to give as complete a reply as possible to the national court, the Court is not prevented from examining the questions raised objectively by the order for reference, in the light of the appropriate rules of Community law. (12)

VII - Community legal framework

25 In view of the foregoing, the Community provisions which are relevant to the present situation are as follows:

(i) The EC Treaty

Article 6, first paragraph: `Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.'

Article 48(2): `Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.'

(ii) Regulation No 1408/71 (13)

Article 4: `1. This Regulation shall apply to all legislation concerning the following branches of social security:

(a) sickness and maternity benefits;

(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;

(c) old-age benefits;

...

2a. This Regulation shall also apply to special non-contributory benefits which are provided under legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended:

(a) either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1(a) to (h);

or

(b) solely as specific protection for the disabled.'

Article 10: `1. Save as otherwise provided in this Regulation, invalidity, old-age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated. ...'

Article 10a: `Notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence.'

Article 19: `1. An employed or self-employed person residing in the territory of a Member State other than the competent State, who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, shall receive in the State in which he is resident:

(a) benefits in kind provided on behalf of the competent institution by the institution of the place of residence in accordance with the legislation administered by that institution as though he were insured with it;

(b) cash benefits provided by the competent institution in accordance with the legislation which it administers. ...'

(iii) Regulation No 1612/68 (14)

Article 7: `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 nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment;

2. He shall enjoy the same social and tax advantages as national workers.'

VIII - Substance

A - Characterisation of the insurance in question

26 The legal characterisation of the legislation at issue at first presents a practical difficulty because, as stated above, in this case the risk insured has not materialised. The plaintiffs have not in fact reached a state where they are reliant on care in the sense of the German legislation and, accordingly, they have never been awarded the specific benefit in respect of reliance on care or had it withdrawn from them, a situation regarding which the court of reference might entertain doubts. (15) That would certainly have simplified matters because the insurance in question covers a number of benefits which have their own peculiarities and it is rather odd to lump them all together. Nevertheless, given that the observations of the parties concentrate mainly on benefits in kind and on the care allowance, I shall deal with them below, without however overlooking the overall framework.

27 In connection with that characterisation, a methodological problem now arises which conceals a substantive problem.

The former is the question whether our examination should begin with Regulation No 1408/71 or with Regulation No 1612/68. On that point some judgments give priority to one regulation, generally assuming that, since the benefit falls under the first regulation, examination of the other is unnecessary, (16) whereas others take the opposite approach. (17)

The substantive problem consists in whether one regulation alone may be applied to one and the same benefit (hence precluding application of the other regulation) or whether it is possible to apply both regulations. The question is clearly of significance, since the provisions of the two texts are not identical. In any event, the case-law of the Court has not been consistent on that question. (18)

28 Despite the fact that, as I shall show at the appropriate point, it cannot be ruled out that that benefit, by its nature, constitutes a social security benefit and a social advantage, it is more correct to examine first whether the benefits in question constitute social security benefits. That is because the provisions of both Article 51 of the Treaty and of Regulation No 1408/71 which lays down the details, are more specific than the provisions of Article 48 of the Treaty and Regulation No 1612/68 adopted on the basis thereof.

(a) Social security benefit

29 The case-law usually concludes that a benefit should be classified as a `social security benefit' in the context of Regulation No 1408/71 by attributing special weight inter alia to whether or not it falls within the branches of social security listed in Article 4(1) thereof. The fact that a benefit is a social security benefit emerges clearly on comparing them with social assistance benefits, which are expressly excluded from the regulation, under Article 4(4) thereof, particularly in relation to certain mixed or hybrid benefits, which have something of both categories at the same time.

30 Thus it has been consistently held that the distinction between the 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. (19)

31 The Court has also, on a number of occasions, stressed that a benefit is to be regarded as a social security benefit if it is granted to recipients, on the basis of a legally defined position, without any individual and discretionary assessment of personal needs (which is a characteristic of social assistance) and if it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. (20)

32 However, the concept of social security should not be confused with the specific branches of social security listed exhaustively (21) in Article 4(1)(a) to (h) of the regulation. In reality the concept of social security has a wider, autonomous and Community content (22) which flows from Article 51 of the Treaty, in other words from a rule which has greater authority than Regulation No 1408/71. It is to that concept, as a generic term, that the Community legislature must be regarded as referring in the first sentence of Article 4(1) before going on to list as types of social security certain social security risks in respect of which it was chosen to lay down coordinating rules.

33 For that reason the case-law, in particular in the case of mixed benefits, and in general of benefits whose classification is difficult, provided it has been concluded that the benefit at issue more closely resembles a social security benefit than a social assistance benefit states that the benefit `falls, as regards the persons covered by Regulation No 3, within the area of social security within the meaning of Article 51 of the Treaty and of the Community Regulations thereunder' (23) or that it `falls, in so far as this person is concerned, within the field of social security within the meaning of Article 51 of the Treaty and of the Regulations for carrying this provision into effect' (24) or `in principle falls within the field of social security referred to in Article 51 of the EEC Treaty and is not excluded from the scope of Regulation No 1408/71 by the provisions of Article 4(4) thereof'. (25) A benefit falls within this definition if it is of an `intrinsic social security character', (26) that is to say in view of its specific characteristics, which make it a social security benefit rather than a benefit of any other sort.

34. The fact that the above texts do not contain a definition of social security (in other words giving a precise specification of the concept - a technique which is rarely employed in Community law) should not come as a surprise. The legislature avoids `rigidifying' vague legal concepts that are fluid and constantly evolving. Those concepts acquire specific content at the time when they are applied by the legislature, and, in the final analysis, by the Court of Justice, in the light of the purpose of Article 51, which is to ensure freedom of movement for workers, and in view of the legal and social conditions prevailing at the time of application. That is also the case as far as the definition of social security is concerned. Accordingly, Regulation No 3 (Journal Officiel 1958, p. 561) and its successor, Regulation No 1408/71, which, originally at least, were limited to mere coordination of national social security systems, (27) leaving aside the definition of the concept, listed the most usual and, perhaps, most important branches of social security at the time, and left unregulated special or as yet simply unknown cases of social security risks. (28)

35. The question whether a benefit has the character of a social security benefit is thus partly independent of the question of the branch of social security listed in the regulation under which it is to be classified, and takes precedence over that question. It is thus quite clear that the benefit is a social security benefit within the meaning of Article 51 of the Treaty and the regulation, but is not yet (29) included amongst the benefits (provided for by legislation), referred to in Article 4(1) of the regulation, with the result that there is a lacuna in the law.

36. The question which arises in connection with those cases which fall within this lacuna left by Article 51 of the Treaty and the list in Regulation No 1408/71 is whether, in the absence of any coordination, they can be decided on the basis of the provisions of the Treaty and the general principles of Community law. I am inclined to believe that they can. The same principle applies as in the case of the adoption of rules on compulsory insurance cover and the rules on the rights and duties of the insured, which, as a rule, are a matter for the Member States. The Court has held that `it is for the legislature of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme provided always that in this connection there is no discrimination between nationals of the host State and nationals of the other Member States'. (30) Similarly, in the field of social security, which is a matter for Community law where it concerns migrant workers, the Member States are bound to respect the general principles of Community law - such as the principles of equal treatment, non-discrimination and proportionality. (31) Recourse to such general rules is, to some extent, a last resort, which is justified where the case in point is not covered by more specific legal provisions. (32) This is however not so in the present case.

(b) Regulation No 1408/71

37. I propose, first, to consider the benefits in issue from the point of view of the plaintiffs in the main proceedings and in the light of Regulation No 1408/71.

38. The first point to be made is that the plaintiffs fall within the scope ratione personae of Regulation No 1408/71 as they are insured against sickness under the social security system in Germany. (33)

39. Accordingly, if one applies the criteria developed by the case-law for benefits which fall within the scope ratione materiae of the Regulation and those which do not, it is clear that these benefits are indisputably social security benefits. Irrespective of whether benefits equivalent to the benefits in issue have already been granted in Germany under a sickness insurance scheme, (34) to be subject to compulsory care insurance a person must be insured under a sickness insurance scheme, the position of the insured must be legally defined, the insurance must be compulsory and require the payment of contributions, the grant of benefits must not be at the discretion of the administration and must not depend on an assessment of personal needs (except within the limits established by law) and need must not be the only or main criterion relied on. Although none of these, on its own, is decisive, they can none the less, in combination, bestow the character of social security benefits on the benefits in issue.

40. Obviously this does not mean that the benefits in issue automatically fall within the scope of Regulation No 1408/71. As has been held, the list of risks contained in Article 4(1) of the Regulation is exhaustive and only national social security legislation covering those risks falls within the material scope of the regulation. (35)

41. Examination of the question whether the German legislation in issue falls within one of these cases leads to a negative conclusion because the risk of reliance on care is connected with that of old-age, sickness or invalidity but is not exactly equivalent to any of them. However, the fact that a law does not fall directly within one of the cases in question does not mean that it is automatically excluded from the scope of the regulation. The Court has extended the material scope of the regulation to laws which have a sufficient link with those to which the regulation expressly applies, (36) so that they can be deemed equivalent to the latter cases. (37)

42. The benefits in issue could prima facie be sickness benefits, old-age benefits or invalidity benefits.

43. As the Court has held, `the essential characteristic of the old-age benefits referred to in Article 4(1)(c) ... of Regulation No 1408/71 lies in the fact that they are intended to safeguard the means of subsistence of persons who, when they reach a certain age, leave their employment and are no longer required to hold themselves available for work at the Employment Office'. (38) In view of the fact that the benefits in issue do not have that purpose, I do not believe that they have such a close link with old-age benefits that they can be said to be equivalent. Nor can decisive importance be attached to the fact that, statistically, the benefits in the case of reliance on care are paid to older people in the main, as this is a typical but not a necessary factor and thus cannot be viewed as a component of the benefit.

44. For similar reasons, I do not think that the benefits in issue have the degree of connection with invalidity benefits necessary in this case for them to be deemed equivalent to such benefits.

45. It remains only to compare the benefits in issue with sickness benefits.

46. The first point to make is that the concept of `sickness benefits' is defined at Community level and must be interpreted uniformly. (39) The definition of this concept, which is not laid down in Regulation No 1408/71, cannot, however, be based on strict medical criteria, but only on legal criteria and common experience. From that point of view, it is significant that, first, Article 18 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (OJ, English Special Edition 1972(I), p. 159), puts cash benefits in the event of sickness on a par with those in the event of incapacity for work, and, second, special cases of sickness are covered in a separate chapter of Regulation No 1408/71 (Chapter 4 of Title III, entitled `Accidents at work and occupational diseases'). (40) It is thus clear that the concept of sickness in Chapter 2 of Title III, which represents the general law concerning sickness, should be interpreted broadly, so as to include any physical problem which entails incapacity for work, as long as that problem is not covered in a separate chapter of the regulation. The Court has, moreover, interpreted the concept of sickness benefits widely, including, for example, benefits for the purpose of preventive care or rehabilitation. For instance, on the subject of the classification of legislation on the treatment of tuberculosis patients and the protection of those in contact with them, the Court, in its judgment in Heinze, (41) stressed, first, that the concept of social security was to be regarded as including the aim of preventing the spread of disease, which could not be regarded as a mere measure of social assistance (paragraph 4). The Court went on to hold that `a provision which establishes a direct link between the affiliation of an individual to a pension insurance scheme and the acquisition of a right to benefits which are payable by pension insurance organisations to insured persons and their dependants, as a result of the fact that they have contracted tuberculosis and chiefly in order to bring about their recovery, must be regarded as forming part of the legislation governing social security' (paragraph 5) and that `the social security benefits which, although not related to the "earning capacity" of the insured person, are also awarded to the members of his family and are principally intended to aid the recovery of the invalid and to protect those who are in contact with him must be regarded as sickness benefits' (operative part, paragraph 2).

47. This being the case, and in view of the characteristics of the legislation in issue which I have outlined, (42) and particularly of the fact that care insurance is compulsory and is automatically included in sickness insurance cover, I am inclined to take the view that the legislation in issue treats reliance on care as a weakness or reduction of physical capacity, which it regards as equivalent to sickness in the wider sense. (43) Its purpose is to supplement and extend sickness insurance, either by using existing sickness benefits, as such or supplemented by new elements, or new benefits which have the same purpose. This being so, this area of insurance overall, as a system providing benefits, appears prima facie to be a `new branch' of social security, which it is somewhat difficult to classify on the basis of the traditional categories listed in Article 4(1) of Regulation No 1408/71. However, I believe that an appropriately wide interpretation of the terms `social security' and `sickness' and analysis of the characteristics of the insurance in issue point to the conclusion that it is equivalent to sickness insurance. Consequently, the benefits in question must be regarded as being equivalent to sickness benefits in the wide sense. Moreover, on that point, the opinion of almost all the parties who submitted written observations (plaintiffs, Austrian, German and Swedish Governments) seems to be the same, if we disregard the Commission, which is unwilling to put reliance on care on a par with any other risk and stresses the need to adopt coordinating rules.

48. I would add that, from a practical point of view, reliance on care, in the sense described above, can easily be brought under the same umbrella as the other insurable risks in Regulation No 1408/71, of which it is a consequence in practice. This facilitates the operation of benefits in respect of reliance on care as sickness benefits, given that the latter, which comprise various benefits in kind and in cash, are more easily combined with benefits relating to other insurable risks which, as a general rule, only comprise cash benefits. (44)

49. I must make one final observation to conclude my observations on the legal classification of benefits. I said a little earlier that I felt there was not a very close connection between benefits in respect of reliance on care and old-age and sickness benefits. The absence of a close link means, I think, that the relationship between the risks of old-age or invalidity and that of reliance on care and thus between the respective benefits cannot be considered to be that of `principal' and `subordinate'. It is true that in the judgments in Biason, Giletti and Others, and Commission v France (45) the Court held that the supplementary allowance designed to increase the amount of old-age, survivors' and invalidity pensions came within the social security system of Regulation No 1408/71, since it was an automatic appendage of benefits already covered by the regulation. However, I do not think that this case-law can be applied in this case, at least as regards the benefits in respect of reliance on care in the strict sense, which are benefits in kind, essentially for two reasons. First, in those cases, the benefits were of the same type (pension and supplement to pension, that is to say, cash benefits), which is not necessarily so in the present case. Second, the supplement was an `automatic' appendage of the basic pension, whereas, in this case, the payment of benefits in respect of reliance on care is simply a possible consequence of the materialisation of other insured risks.

(c) Benefit in kind or cash benefit

50. Taking as our premiss that the benefits in issue are sickness benefits, we need to consider whether they are benefits in kind or cash benefits. This question only arises in connection with the care allowance since there is no doubt as to the answer with regard to the other benefits. The question is important in particular because of its implications for the exportability of the care allowance, which will be considered below.

51. The German Government, referring to the judgment in Vaassen-Göbbels, (46) states that the care allowance is a substitute for benefits in kind. This is because it is in fact paid instead of other benefits in respect of reliance on care provided for by the SGB. The German Government points out further that, although the insured is not required to furnish documentary evidence of expenditure arising from his reliance on care, he is none the less subject to periodic checks to verify the extent to which the allowance is used to meet needs deriving from his reliance on care; if it is not, the allowance may be stopped.

52. On the other hand, the plaintiffs, the Austrian and Swedish Governments and the Commission take the view that the allowance is a cash benefit. They point out, in that connection, that the monthly allowance is not intended to cover specific expenses and that there is no systematic monitoring of the way it is used.

53. According to the case-law the term `benefits in kind' does not exclude the possibility that such benefits may comprise payments made by the competent institution, for example in the form of repayment of costs incurred by the insured for medical treatment or medicines and it is immaterial whether such payments are made directly to the person concerned or to third persons. (47) Moreover, cash benefits are essentially those designed to compensate for a worker's loss of earnings through illness, and therefore intended to cover his maintenance, which might otherwise be jeopardised. (48)

54. In this case we must not overlook the fact that the care allowance in issue is paid so that the insured himself can arrange for the type of care which suits him, whilst being subject to periodic checks by the competent institution. From that point of view, the care allowance is comparable to a benefit in kind, as the German Government argues.

55. However, this allowance does not consist in the reimbursement of specific expenses of treatment, as in the Vaassen-Göbbels case. Rather, as the other parties who submitted observations rightly point out, the amount of the monthly allowance is fixed, it depends on the degree of reliance on care and, as I have said, (49) it is equivalent to half the monthly ceiling on benefits in kind for category I and to less than half that ceiling for categories II and III. Furthermore, whereas, for serious cases in category III, there is provision for increases in benefits in kind, there is no such provision, as far as I am aware, in the case of the allowance for that category. From that point of view, the care allowance does not appear to constitute a `substitute' for benefits in kind. It is of course not ruled out that a competent institution might cover only part of the expenses incurred by the insured, but even in such cases, it generally reimburses a percentage of the expenses incurred, which is not the situation in the present case.

56. Furthermore, in this case, the possibility open to the insured under the German legislation to choose for himself the form of care which suits him, usually by relying on a relative or acquaintance, is of particular significance. That option is also available for serious cases in category III, but there do not appear to be any strict rules or limitations on the insured's right to apply to receive cash benefits rather than benefits in kind. This freedom of choice is not in any way an argument for the classification of the allowance in issue as a sickness benefit in kind or a substitute for such a benefit. Indeed, in the case of sickness benefits in kind and particularly in serious cases, the insured is, as a general rule, required to follow the treatment prescribed by the doctor and cannot choose it freely, still less treat himself in exchange for a flat-rate payment.

57. Finally, I do not think that the fact that the insured is subject to periodic checks and that the payment of the allowance may be stopped under certain circumstances, which, I confess, I have not fully understood, is of crucial importance. I say this because it appears that those checks are intended to verify that the legal conditions for the grant of the allowance still obtain (that is to say, to ascertain whether the insured is still reliant on care or whether he has recovered, which ought logically to entail the stopping of the allowance, and also to ascertain whether the degree of reliance on care is unchanged or whether the condition of the person concerned has improved or deteriorated, which might raise the question of his reclassification in another category and, as a result, the payment of the appropriate allowance for the new category), rather than to monitor the way the allowance is used in practice.

Moreover, the use of such checks is nothing new. Under Article 18 of Regulation No 574/72 fixing the procedure for implementing Article 19 of Regulation No 1408/71, the administrative checks and medical examinations carried out by the institution of the place of residence (or the medical examinations which the competent institution is empowered to carry out) have the same purpose, that is to say, they are intended to confirm the incapacity for work (or persistence thereof) so that the worker can receive (or continue to receive) the sickness benefits in kind in his place of residence.

58. In view of these latter characteristics, which are of decisive weight, I take the view that the care allowance is a cash benefit in respect of sickness, intended to compensate the insured for his loss of income or pension by reason of the increased expenditure necessitated by his failing health. (50)

B - Exportability

59. I will now turn to the question whether it is possible to export the benefits in issue, and the care allowance in particular. On that point, the German Government argues that the care allowance, as a `substitute' for sickness benefits in kind, cannot, as a rule, be exported, where the country of residence does not provide similar benefits (Article 19(1)(a) of Regulation No 1408/71). On the other hand, the other parties who submitted observations are of the view that the care allowance in issue could be exported as a cash benefit, either on the basis of Article 19(1) of Regulation No 1408/71 (plaintiffs and Austrian Government) or Article 7 and Article 48(2) of the Treaty (Swedish Government and Commission).

60. Before I consider the provisions of the Treaty, I propose to look at the question of exportability in the light of the regulation.

61. If we take the view I have already put forward, that is to say, that the care allowance in issue is a cash benefit in respect of sickness, matters are simplified. Under Article 19(1)(b) of Regulation No 1408/71, which gives concrete expression to the requirements laid down by Article 51(b) of the Treaty, it is not permissible to withhold this benefit on the sole ground that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated. (51) Any provision of national legislation relating to residence, which has the effect of preventing the export of a cash benefit in respect of sickness is thus contrary to those provisions and the national court must disapply it. This is the conclusion to be drawn from the above Community legislation as such, without recourse being necessary to Article 48(2) of the Treaty and Article 3(1) of Regulation No 1408/71, which lay down the prohibition on discrimination on grounds of nationality. (52)

62. Let us none the less consider whether the same conclusion is called for in the case of sickness benefits in kind.

63. I must say at the outset that I do not share the view of the German Government, that benefits such as those in issue, even if one assumes that they are both sickness benefits in kind, cannot be exported if benefits in respect of reliance on care similar to the German benefits are not available in other Member States.

64. Article 19(1)(a) of Regulation No 1408/71 (53) does not, in my view, mean that sickness benefits are granted by the competent institution of the State of residence only if that State has a `system' or `branch' of sickness insurance which is equivalent to that of the State of employment, but that they are also granted if it is objectively possible for the institution concerned to pay the required benefit, regardless of the specific designation of the social security system of which the benefit forms part.

65. In Jordens-Vosters, (54) it was held that the term `sickness benefits' includes all benefits provided in the case of sickness, including health care, whatever the type of social legislation or whatever benefits are provided, as long as the legislation in question relates to a branch of social security which concerns them (paragraph 8).

Accordingly, such benefits include `benefits under legislation concerning invalidity which are in the nature of medical or surgical benefits' (paragraph 9).

66. In that judgment it was also held that Regulation No 1408/71, which `lays down a whole set of rules founded in particular upon the prohibition of discrimination on grounds of nationality or residence and upon the maintenance by a worker of his rights acquired by virtue of one or more social security schemes which are or have been applicable to him' (paragraph 11), cannot be interpreted, in the light, also, of Article 19 and Article 28 of the regulation, as meaning that the competent institution of the member State of employment is precluded from granting additional social benefits to an insured person who resides in another Member State, to which the insured person is not entitled but which the competent institution of the Member State of employment may allow him or her (paragraphs 13 and 14).

67. Furthermore, the Court held in Pierik I (55): `Within the context of the general objectives of the Treaty Article 22 of the regulation constitutes one of the measures intended to permit a worker who is a national of one of the Member States of the Community, without regard to the national institution to which he is affiliated or the place of his residence, to receive benefits in kind provided in any other Member State' (paragraph 14).

In that judgment the Court also held that the words `benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence' (Article 22(1)(b)(i)) do not refer solely to benefits in kind provided in the Member State of residence but also to benefits which the competent institution is empowered to provide (paragraph 21).

As the Court held, this is because the regulation requires that the worker should be able to receive the most appropriate and effective treatment required by his state of health provided in any Member State, whatever the place of his residence (paragraphs 17 and 22).

68. In addition, in Pierik II, (56) the Court confirmed and expounded further the judgment in Pierik I and again held, in connection with Article 22(1) of Regulation No 1408/71, that the institution of the Member State to which the person concerned goes to receive the treatment is required to provide it even if, under the legislation which it administers, `it does not have a duty but only has a power to grant it' (paragraphs 13 to 15).

69. Of course, in Pierik I and II, the Court interpreted Article 22 of Regulation No 1408/71, which concerns sickness benefits in the event of a stay, that is to say, the temporary residence abroad of a worker (Article 1(i)), whereas `Article 19 applies to workers who reside in a Member State other than the competent State, that is to say workers who have their "habitual residence" in that State (Article 1(h) of the regulation)'. (57)

70. The almost identical wording of the two articles (Article 19(1)(a) and Article 22(1)(i) - and also of Article 25(1)(a) and Article 28(1)(a)) in my view leaves no room for doubt that the same rules must apply in the case of all sickness benefits in kind in Chapter 1 of Title III of the regulation. (58) In his State of residence, a worker must accordingly receive all sickness benefits in kind which can be granted under the legislation of that State irrespective of the more specific designation of the system of social protection of which they are part. In other words, the competent institution of the State of residence can only refuse to grant benefits in kind if the treatment required by the state of health of the insured is entirely unknown and it is wholly impossible for the competent institution to provide it, not only because its legislation does not provide for any separate benefits in the case of reliance on care or does provide for such benefits but under a different branch of social security.

71. It would be illogical and contrary to the objectives of the regulation to take the view that the regulation requires health protection of a higher standard using all available means for a worker who is temporarily resident in another Member State whereas it settles for health protection of a lower standard using only the means immediately available where that same worker has his habitual residence in that same Member State.

72. If that is the position in the case of pure benefits in kind, I see no difficulty over the export of the care allowance, even if one assumes that it is a substitute for sickness benefits in kind, as the German Government argues. None of the practical reasons which might make the export of sickness benefits in kind more difficult (inability of the competent institution of the place of residence to provide equivalent benefits etc.) obtain in this case. As I have already explained, this is because, where the insured elects to have the care allowance paid, he makes his own arrangements for the necessary care by a relative or trusted acquaintance. As long as there are such people in his place of residence, I cannot see how one can deny him the right to assistance from such people in his place of residence.

73. The German Government has argued that the non-exportation of the benefit in the present case is justified by the close connection between the benefit in issue and the reality of the social and economic environment in Germany.

74. In its judgment in Lenoir (59) the Court distinguished between family benefits which come under Article 77 of Regulation No 1408/71 and benefits which are not covered by that regulation. It concluded that two family benefits provided for by French legislation, namely the salaire unique allowance and the rentrée scolaire allowance were not covered (paragraph 11) with the result that they could not be exported when the recipient moved abroad. As the question was raised whether Article 77 was valid inasmuch as it did not include those two allowances, the Court held, if I have interpreted its decision correctly, that the article is valid as it includes all family benefits which are granted on the basis of objective criteria such as the number of children and their age. `Benefits of another kind ... [obviously the salaire unique allowance] as in the case, for example, of ... [the rentrée scolaire allowance] intended to cover certain costs incurred at the beginning of the school year, are in most cases closely linked with the social environment and therefore with the place where the persons concerned reside' (paragraph 16).

75. However, this case-law cannot be applied to the present case. As I have already explained, (60) the care allowance supplements and extends sickness benefits and is therefore deemed to be equivalent to sickness benefits within the meaning of Article 4(1)(a) and Article 19 of the regulation and is not excluded by virtue of any other provision. It cannot therefore be treated differently from the benefits to which it is deemed to be equivalent. (61) Moreover, I am not of the view that the care allowance is specifically linked with the German social and economic environment, as the insured risk is, in any event, common to all the Member States regardless of whether it is covered by different systems of social protection or of whether the benefits granted are to some extent of a different type and amount.

76. I have already answered, at point 57, the argument of the German Government that it is difficult to monitor the benefit abroad. I will therefore confine myself to pointing out that, according to consistent case-law, practical difficulties which arise in the application of the regulations in force must not prejudice the rights which individuals derive from the principles of the social legislation of the Community and that such practical problems may always be referred to the Administrative Commission set up by Article 81(d) of the regulation. (62)

In any event, it is not acceptable for practical problems to cause the right to benefits to be forfeited, particularly in the case of frontier workers such as the plaintiffs in the main proceedings. As they rightly argue, even if the competent German institution wishes the insured to be examined by its own doctors, in the case of workers who live a few kilometres from the German-French border such an examination is neither difficult nor particularly expensive to arrange.

C - Affiliation to an insurance scheme: consequences

(a) Affiliation to an insurance scheme

77. By the third and fourth claim which the plaintiffs made in the national court, they seek, in the alternative, (that is to say, in the event that the court should rule that they have no right to benefits because they do not reside in Germany), exemption from the obligation to be affiliated to an insurance scheme and the reimbursement of the contributions paid.

78. The national court viewed these claims as important on the tacit assumption that the residence clause under German law posed no problem from the point of view of Community law.

79. I have already put forward my view that the insurance in issue comes under the Chapter of Regulation No 1408/71 concerning sickness benefits, in which inter alia questions of the export of the benefits in question are dealt with and that a residence clause such as that in Paragraph 34 of Book XI is contrary to the regulation. If we accept that interpretation, from which it follows, in essence, that the plaintiffs' main claims must be allowed, there is no need to consider the questions arising out of the plaintiffs' alternative claims. I will therefore confine myself to a discussion of these questions in summary form.

80. The Court has consistently held that, as Community law now stands, Member States retain their powers to organise their social security systems. (63) The requirements and conditions of membership of a statutory social security scheme such as that in issue include both compulsory membership of a specific branch of social security and compulsory payment of contributions to finance that branch. Such systems have a social objective and are based on the principle of solidarity, which requires compulsory insurance under such systems and compulsory payment of contributions in order to ensure financial equilibrium and the continuing existence of such systems. (64)

81. However, as I have already said, (65) the power of the Member States to legislate in the field of social security is not unlimited. It is limited by Article 48 to Article 51 of the Treaty which do not allow social security measures to be adopted which directly or indirectly discriminate against migrant workers. Thus, it is for the Member States to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme provided always that in this connection there is no discrimination between nationals of the host State and nationals of the other Member States. (66) The objective of Article 51 of the Treaty would not be attained if the Member States could lay down conditions for the acquisition or retention of the right to benefits in such a way that they can be fulfilled only by nationals of the Member State concerned, or conditions under which that right is lost or suspended and which are more apt to occur in the case of nationals of other Member States than in the case of nationals of the competent Member State. (67)

82. In the present case it is undisputed that the plaintiffs have acquired a right to the relevant benefits through their compulsory membership of the German care insurance system; the only point in issue is whether the right they have acquired can be suspended because of their residence in another Member State. Moreover they are covered for the purposes of care insurance by reason of their sickness insurance cover, that is to say, that cover is based on objective criteria and is not dependent on their place of residence. In the present case, German law (68) thus rightly requires the plaintiffs to have care insurance cover and to pay the insurance contributions even though they live in another Member State and the German Government rightly invokes the principle of solidarity on that point.

83. Furthermore, it has been held, in this connection, that Regulation No 3 (like Regulation No 1408/71) envisages national legislation as a whole and that the question of the reimbursement of contributions thus falls within its field of application if that question is covered by national legislation and only the general principles laid down in the regulation need be applied, such as the principle of equal treatment and the principle of the waiver of residence clauses. (69) In view of this, Regulation No 3 did not preclude the reimbursement of social security contributions under national legislation under certain circumstances even if the insured later came under the compulsory insurance scheme of another Member State, as this would limit the freedom of the insured to decide on his own best interests, within the framework of the options open to him under national legislation. (70)

84. Some provisions of Regulation No 1408/71 deal with questions arising in connection with the reimbursement of contributions. For example, Article 1(t) provides that `benefits' includes reimbursement of contributions; Article 10(2) provides that, where, under the legislation of a Member State, reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance, this condition is not to be considered satisfied as long as the person concerned is subject to compulsory insurance as a worker under the legislation of another Member State. However, these provisions are essentially directed to the right to reimbursement of contributions as provided for in the legislation applicable in each case, but do not provide a basis for a right to reimbursement of contributions at Community level.

Finally, Article 17(a) of the regulation, to which the Austrian Government referred and which concerns the right of the recipient of a pension to be exempted from the application of the legislation of his State of residence, is quite specific: it cannot be applied by analogy, nor can any general principle be derived from it.

85. The plaintiffs cannot therefore request exemption from compulsory insurance or reimbursement of insurance contributions unless this is possible under the national legislation applicable.

(b) Receipt of benefits as the counterpart to affiliation to an insurance scheme

86. If compulsory insurance and the obligation to pay contributions are not contrary to Community law, the question arises whether the insured have acquired a Community right to the associated benefits, as the Austrian Government, in particular, argues.

87. It is clear from the case-law of the Court of Justice, that Community law envisages the relationship between contributions and benefits as one which gives rise to rights and obligations on both sides. In this relationship benefits are seen as compensation for the payment of contributions such that the obligation to be insured gives rise to a right to the payment of the relevant benefits.

88. For instance, it has been held that `the system of aggregation and apportionment of the benefits provided for in Article 46 is based on the assumption that the benefits are normally financed, acquired on the basis of the recipient's own contributions and calculated by reference to the length of time during which he has been affiliated to the insurance scheme'. (71)

89. Furthermore, the Court held, in interpreting Article 33 of Regulation No 1408/71, (72) that `it appears from that provision that such deductions from pensions may be made by the institution of a Member State only in respect of those insured persons who in return receive sickness and maternity benefits from the institution of that Member State responsible for such benefits. But such deductions may not be made where the benefits in question are not borne by an institution of that Member State. That is the case in relation to insured persons who reside in the territory of another Member State and who are in receipt, by virtue of that residence, of benefits from the competent institution of that Member State under Articles 27 to 32 of Regulation No 1408/71.' (73)

90. The second paragraph inserted into Article 33 by Regulation No 2332/89 provided, on the other hand, that a State of residence in which a general system of social security applies and whose legislation makes no provision for a right to a pension cannot require a pensioner to pay contributions in respect of benefits to be paid by the competent institution of another Member State by reason of the fact that he lives in the territory of the first State.

The Court interpreted that new article in Noij (74) and held: `Those provisions pursue the objective of Regulation No 1408/71, which is to contribute to the establishment of the fullest possible freedom of movement for migrant workers. With that end in view, a number of other provisions are designed to remove barriers to that fundamental freedom similar to those resulting from the contributions at issue, in particular barriers arising from the transfer of residence from one Member State to another and the simultaneous application of several national legislative systems. It would be contrary to that objective if, in the absence of grounds of general interest, a worker could be deprived of part of a pension received under the legislation of one Member State simply because he has gone to reside in another Member State' (paragraph 13).

In that judgment the Court also declared that the provisions contained in Article 33 `constitute the application of a more general principle according to which a pensioner cannot be required, because he resides in the territory of a Member State, to pay compulsory insurance contributions to cover benefits payable by an institution of another Member State' (paragraph 14, emphasis added) and went on to state that this did not preclude the Member State of residence of the person concerned from making him subject to a general insurance system (paragraph 15).

91. The importance which Community law attaches to the relationship between contributions and benefits emerges, it seems to me, a contrario, from the fact that Regulation No 1247/92 (75) (Article 4(2a)) expressly provides that Regulation No 1408/71 also applies to special non-contributory benefits. Moreover such benefits are to be granted exclusively by and at the expense of the institution of the place of residence (Article 10a), whereas before the amendment, according to the case-law of the Court, the principle that residence clauses should be waived applied. Precisely because these benefits are not financed by contributions from the insured and consequently are exclusively linked with the possibilities and conditions obtaining in the State which grants them, the Council was able to exclude them from the application of the principle that residence clauses should be waived and the Court was able to rule that such a limitation is not contrary to Article 51 of the Treaty. (76)

92. Accordingly, in my view, it is possible to formulate a general principle underlying Community law on social security for migrant workers and according to which, where a compulsory insurance system requiring payment of contributions in the competent State has been applicable to such workers and they have acquired a right under the legislation of that State, they have the right to the corresponding benefits in any event, unless Community law expressly provides otherwise.

93. This principle would be something more than the protection of acquired rights or the principle of the exportability of benefits, essentially in three respects. First, it would emphasise the legal nature of the personal right of the migrant worker, to receive anywhere in the Community the benefits which he has helped to finance himself using income from his employment or possibly also his savings. Thus the contribution of the European worker, that is to say, of the European citizen, to the construction of the economy and the social security system of the Member States through his work would be acknowledged. Second, it would highlight the fact that the principle of solidarity, which, as I have already said, applies to statutory social security systems, works both ways. Thus it not only requires that a worker make sacrifices for the benefit of the system but also requires the system to show solidarity when necessary, that is to say, when the insured risk materialises. Third, it would cover all benefits whether in cash or in kind, as the latter, which are just as vital as the former, are not essentially different from them as both are intended to meet the vital needs of the insured. Thus attention would be drawn to the true significance of Article 51 of the Treaty which, in providing as it does that the Council is inter alia to make arrangements to secure `payment of benefits to persons resident in the territories of Member States', offers a minimum guarantee. (77) The objective can be nothing less than to guarantee the `payment' of all social security benefits.

94. This principle of interpretation could be applied in the present case and has already been applied in this Opinion to the questions of the legal characterisation of the benefit in issue and its classification in one of the traditional categories of Regulation No 1408/71 and to the question of the interpretation of Article 19(1)(a) of the regulation as regards the payment of benefits in kind in the case of sickness abroad.

95. In that context, the argument of the German Government, that the plaintiffs must pay contributions throughout their life to a system, which, if they live in another Member State, will offer them nothing in the event of need, allegedly for reasons of solidarity, is not only weak but is contrary to Community law.

D - Regulation No 1612/68

96. I would like to say a few words on the possible characterisation of the benefits in issue as a social advantage within the meaning of Regulation No 1612/68, a question which the Commission raised.

97. There have been some fluctuations in the case-law on the question of the relationship between Regulation No 1408/71 and Regulation No 1612/68. (78) Examination of the case-law shows that there are essentially two approaches.

(a) According to the first, if a benefit falls within one regulation, it cannot come under the other. In some cases the Court expressly held that it is necessary first to examine whether the rule or benefit in issue falls within the definition of social security within the meaning of Article 51 of the Treaty and Regulation No 3 or Regulation No 1408/71, since only if it does not can the question whether it is a social advantage within the meaning of Article 7 of Regulation No 1612/68 be put. (79)

(b) According to the second, which appears to have won the day, it cannot be ruled out that the same benefit may fall within both the definition of social security and that of social advantage with the result that both regulations can be applied together.

(i) Thus, in Inzirillo (80) it was held that an allowance for handicapped adults is both a social security benefit within the meaning of Article 51 of the Treaty and Regulation No 1408/71 (paragraphs 9 and 22) and a social advantage within the meaning of Article 7 of Regulation No 1612/68 (paragraph 21).

(ii) Then came the judgment in Commission v Belgium, (81) in which the Court ruled that by maintaining the requirement of a period of residence on Belgian territory which workers from other Member States subject to Belgian legislation must fulfil in order to qualify for the grant of the allowances for handicapped persons, the guaranteed income for old people and the minimum means of subsistence (minimex), the Kingdom of Belgium had failed to fulfil its obligations under the EEC Treaty and, in particular, Article 7(2) of Regulation No 1612/68 and Article 3 of Regulation No 1408/71.

(iii) That case-law was confirmed by the judgment in Commission v Luxembourg. (82) In that judgment the Court held, in connection with a maternity allowance, as follows: `since Regulation No 1612/68 is of general application regarding the free movement of workers, Article 7(2) thereof may apply to social advantages which, at the same time, fall specifically within the scope of Regulation No 1408/71' (paragraph 21). (83)

(iv) The Court also reiterated that view in Schmid (84) (paragraph 17). In that judgment it was held that an allowance for a disabled adult comes within the substantive scope of Regulation No 1408/71 (paragraph 10), but that it cannot be claimed for the benefit of persons not coming within the scope ratione personae of the regulation (disabled adult daughter of a migrant worker - paragraph 14). However the Court held that this allowance was (also) a social advantage within the meaning of Regulation No 1612/68 (paragraph 18) which a migrant worker could claim for the benefit of his daughter (paragraph 26). (85)

98. It should first be observed that there is no watertight partition between Articles 48 and 49 of the Treaty, which are mentioned in the preamble to Regulation No 1612/68, and Article 51, on which Regulation No 1408/71 is based. The two articles first mentioned are in Chapter 1 of Title III which seeks to secure freedom of movement for workers. Moreover, Article 48(2), in speaking of the abolition of any discrimination based on nationality as regards `conditions of work', is referring also to social security provisions. (86)

99. However, in my view, the connection between the two categories and their common purpose is not sufficient to justify the application of both regulations in all cases. Article 51 of the Treaty is a lex specialis in relation to Article 48, and it must be assumed that the regulations adopted on the basis of the two provisions bear the same relation to one another. Moreover, when Regulation No 1612/68 was adopted, Regulation No 3 was already in force and covered the same matters as Regulation No 1408/71 which later replaced it; in the absence of any evidence to the contrary, it must therefore be assumed that Regulation No 1612/68 governs the matters which were not already covered by Regulation No 3 (and therefore which now come under Regulation No 1408/71), and that these regulations consequently have a different substantive scope. It may be added that the scope of Regulation No 1408/71 has been somewhat different since the self-employed were brought under the regulation. (87)

100. The judgments cited above under (i) to (iv) do not, in my view, provide any support for the opposite view. In reality they concern special benefits which fall within the definition of both social security and social assistance and which the case-law of the Court of Justice has usually classified in the first category. The possibilities available for applying both regulations concurrently are, in so far as they still exist at all, now extremely limited following the settlement of the matter by Regulation No 1247/92. As regards benefits which fall unequivocally within the definition of social security, such as, in my view, the benefits in issue, to which the detailed provisions of Regulation No 1408/71 apply, I cannot, in any case, see what the general provisions of Regulation No 1612/68 could add. I therefore take the view that there is no need to consider that regulation.

101. If, none the less, one were disposed to accept that the benefits in issue were a social advantage, it should be noted that Article 48 of the Treaty and Article 7 of the regulation not only prohibit overt discrimination on grounds of nationality but also indirect discrimination on those grounds. As was the case in O'Flynn, (88) this involved conditions which affect essentially or predominantly migrant workers and also conditions applicable without distortion which can more easily be satisfied by national workers than by migrant workers or which entail the risk that they may operate to the particular detriment of migrant workers (paragraph 18). Such discriminatory provisions are only permissible, by way of exception, if they are justified by objective considerations and are proportionate to the aim pursued by the national law (paragraph 19).

102. A residence clause such as that in issue in the present case must be viewed as such a condition because it can more easily be satisfied by national workers than by workers from the other Member States. (89) The purpose of the benefit, which is to enable persons reliant on care to live in dignity, is not linked to the place where such people live, whilst the avoidance of the cost of medical checks abroad does not, as such, constitute a sufficient ground for the suspension of benefits, particularly when, as in the present case, (90) the persons concerned are frontier workers, but merely in some cases a ground for reducing the benefits to be granted, should it be proved that their cost is higher than the cost of equivalent benefits which are granted to nationals who live in areas of Germany which are remote or difficult to access. (91)

In the light of the foregoing considerations, I propose that the Court should answer the question referred to it for a preliminary ruling as follows:

IX - Conclusion

A benefit such as the care allowance which is in issue in the main proceedings is to be deemed equivalent to a cash benefit in respect of sickness in the sense which that concept has in Title III, Chapter 1 of Regulation No 1408/71, and therefore falls within the relevant provisions of that Chapter, which include Article 19(1).

For that reason, compulsory affiliation to a scheme of care insurance and the obligation to pay insurance contributions are not contrary to the provisions of the Treaty or of Regulation No 1408/71.

(1) - The information in question is drawn from the written observations of the parties in the present case and the pending Case C-40/97 Jordy, from the Minutes of the Sixth Conference of the European Social Security Ministers of the Council of Europe, which took place in Lisbon from 29 to 31 May 1995 (Strasbourg 1995) - hereinafter `the Minutes' and from the article by G. Igl, `Coordination et nouvelles formes de protection sociale' in the volume commemorating the 25th anniversary of the adoption of Regulation No 1408/71 which has not yet been published. The latter two sources were relied upon and adduced by the German Government and the Commission.

(2) - With regard to the Member States of the European Union, the situation could, in 1995, be summarised as follows:

(a) a first group of countries gives priority to autonomous benefits to persons reliant on care (Austria, Germany, Denmark, United Kingdom, Ireland, Luxembourg, Portugal, Sweden, Finland);

(b) in other countries care benefits are linked to other benefits, such as old-age or invalidity pensions (Belgium, Spain);

(c) in a third group of countries, benefits for persons reliant on care are granted principally through social welfare schemes, or at local or regional level (France, Greece, Italy);

(d) elsewhere, finally, there are certain benefits which are not restricted particularly to persons reliant on care, but partly cover their needs (Netherlands) - see the Minutes, p. 61. It should be noted, however, that since then a number of changes have occurred, such as the vote for new legislation in France laying down a special care benefit for the aged (Law No 97-60 of 24.1.1997 (JORF of 25 February 1997, p. 1280)), a sign of the rapid development in the area of insurance against reliance on care.

(3) - This is the most common case. They are the unsung heroes in the case of persons reliant on care, in particular where the latter remain at home. There is increasing awareness, however, that measures should also be taken to protect those persons because of the range of risks they run (psychological damage, social isolation, and so forth) as a result of being continually occupied in looking after someone reliant on care.

(4) - Minutes, p. 52.

(5) - See the observations of the German Government in Case C-40/97 Jordy. According to the German Government, that risk these days affects 1.65 million persons in Germany.

(6) - Category I: up to DM 750; Category II: up to DM 1 800; Category III: up to DM 2 800. In special cases the ceiling in respect of Category III may reach DM 3 750.

(7) - The level of the monthly allowance is fixed and is equivalent to approximately half the ceiling on benefits in kind, or DM 400, 800 and 1 300 for categories I, II, and III.

(8) - DM 750, 1 500 and 2 100 for categories I, II and III respectively.

(9) - Absence abroad is, however, allowed, basically for holiday purposes, for up to six weeks each year for the person reliant on care and for the care assistant, during which time cash benefits will continue to be paid (see the reply of the German Government to the question put by the Court).

(10) - This clearly means that, since the insurance risk has not materialised, there is no question of the grant of a specific benefit or refund of specific costs.

(11) - See, inter alia, Case C-131/96 Romero [1997] ECR I-3659, paragraphs 10 to 12.

(12) - See inter alia Case C-237/94 O'Flynn [1996] ECR I-2617, paragraphs 24 and 25, and Case C-131/95 Huijbrechts [1997] ECR I-1409, paragraph 11.

(13) - Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1).

(14) - Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475).

(15) - From that point of view, the situation is clearer in the pending case C-40/97 Jordy. In that case the insured person, of German nationality, who was in receipt of an invalidity pension and a care allowance transferred his residence to Spain, the consequence of which was that the competent German institution withdrew the allowance. The court of reference took the view that that allowance constituted a sickness benefit under Regulation No 1408/71, and asked the Court whether the allowance constituted a benefit in kind or a cash benefit.

(16) - See, for example, Case C-78/91 Hughes [1992] ECR I-4839, paragraph 29.

(17) - See, for example, Case 261/83 Castelli [1984] ECR 3199 and Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 6.

(18) - See below, point 96 et seq.

(19) - Case 249/83 Hoeckx [1985] ECR 973, paragraph 11; Joined Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR I-4895, paragraph 17. See also Hughes, cited in footnote 16, paragraph 14.

(20) - See Hughes, cited above in footnote 16, paragraph 15, and Hoever and Zachow, cited in footnote 19, paragraph 18.

(21) - See below, point 40.

(22) - As has already been indicated by Advocate General Mayras in his Opinion in Case 14/72 Heinze [1972] ECR 1105, at p. 1119, where he speaks of the `Community concept of social security'.

(23) - Case 39/74 Costa [1974] ECR 1251, paragraph 11.

(24) - Case 24/74 Biason [1974] ECR 999, paragraph 15, and Case 63/76 Inzirillo [1976] ECR 2057, paragraph 9. It is interesting that the judgment in the latter case next considers whether the person concerned falls within the scope ratione personae of the regulation (paragraph 10).

(25) - Case 139/82 Piscitello [1983] ECR 1427, paragraph 13.

(26) - Biason judgment, cited in footnote 24, paragraph 12, and Joined Cases 379/85, 380/85, 381/85 and 93/86 Giletti and Others [1987] ECR 955, paragraph 11. See also Case C-236/88 Commission v France [1990] ECR I-3163, paragraph 10, my emphasis.

(27) - It is evident, in my view, that the regulation has changed over the years into an instrument for at least partial harmonisation of the Member States' social security legislation.

(28) - As Advocate General Mancini, as he then was, emphasised, Article 4 of the Regulation lists the nine traditional sectors established by the International Labour Organisation (ILO) Convention on minimum standards of social security (No 102, 28 June 1952). However, with the exception of a few cases (family benefits, death grants and the like) it does not define the various benefits (see the Opinion of 5 July 1983 in Case 171/82 Valentini v Assedic [1983] ECR 2157, at p. 2177).

(29) - See Case C-25/95 Otte [1996] ECR I-3745, in which the Court found that the German adaptation allowance was similar in some respects to pre-retirement benefits, `which are not yet covered by the Regulation' (paragraph 33).

(30) - Case 110/79 Coonan [1980] ECR 1445, paragraph 12.

(31) - In accordance with that principle the Court has consistently held, in cases which raise questions outside a purely national framework, that the Member States must respect the fundamental principles of the Treaty even when they are enacting measures in areas which fall within their terms of reference, such as the law of property (Case 182/83 Fearon [1984] ECR 3677, paragraph 7), or intellectual property (Joined Cases C-92/92 and C-326/92 Phil Collins and Others [1993] ECR I-5145, paragraph 22), or direct taxation (Case C-279/93 Schumacker [1995] ECR I-225, paragraph 21), etc.

(32) - Romero cited in footnote 11.

(33) - Case C-20/96 Snares [1997] ECR I-6057, paragraph 28.

(34) - See above, point 7.

(35) - See Hoeckx, cited in footnote 19, paragraph 12, and Case 122/84 Scrivner [1985] ECR 1027, paragraph 16 et seq.

(36) - See Otte, cited in footnote 29, paragraph 23.

(37) - See Hughes, cited in footnote 16, paragraph 22, and Case C-356/89 Newton [1991] ECR I-3017, paragraph 22.

(38) - Valentini, cited in footnote 28, paragraph 14.

(39) - Case 69/79 Jordens-Vosters [1980] ECR 75, paragraph 7.

(40) - Case 22/86 Rindone [1987] ECR 1339.

(41) - Cited in footnote 22. It is of particular note that the German legislation in issue in that case covered various benefits similar to the benefits in issue in the present proceedings, such as medical treatment at home or hospital treatment, cash benefits, such as the payment of a subsistence allowance, grants on commencing or resuming work, as well as specific benefits such as a grant for the purpose of employing a care assistant in the home or a replacement (see the opinion of Advocate General Mayras [1972] ECR 1116).

(42) - See point 7 et seq. and point 39 above.

(43) - I cannot resist pointing out that, in Greek, the language which, together with Latin, is the derivation of most of the international medical vocabulary, the term `asthenia' is made up of the negatory prefix `a', and `sthenos' meaning (strength, power or vigour), and can mean either `sickness' or `lack of strength, power or vigour'. It is this lack of strength which is the defining characteristic of reliance on care. Note that in international medical terminology, the term `asthenia' (French: asthénie; English: asthenia; Italian and Spanish: astenia; German: Asthenie) refers to the pathological diminution of physical faculties.

(44) - See Jordens-Vosters, cited above in footnote 39.

(45) - Cited in footnotes 24 and 26.

(46) - Case 61/65 [1966] ECR 261.

(47) - Vaassen-Göbbels, cited above in footnote 46.

(48) - Case C-206/94 Paletta [1996] ECR I-2357, paragraph 20; Case C-325/93 Del Grosso [1995] ECR I-939, paragraph 25; and Vaassen-Göbbels, cited above in footnote 46.

(49) - See footnote 7.

(50) - Either on equipment or on payments of salary to a third party who provides his services or on tokens of gratitude for a relative or third party who provides services voluntarily and to whom no salary can be paid.

(51) - See Newton, cited in footnote 37, paragraph 24, on the invalidity benefit under Article 10 of Regulation No 1408/71.

(52) - Case 51/73 Smieja [1973] ECR 1213, paragraph 10 et seq.

(53) - I cite this article only because it concerns persons in active employment like the plaintiffs and because the parties invoke it. However, the same arguments apply to the other articles of Chapter 1 of Title III of the Regulation with the same wording (see paragraph 56 above).

(54) - Cited in footnote 39.

(55) - Case 117/77 Pierik I [1978] ECR 825.

(56) - Case 182/78 Pierik II [1979] ECR 1977.

(57) - Case C-215/90 Twomey [1992] ECR I-1823, paragraph 15.

(58) - See Twomey, cited in the previous footnote, paragraph 16.

(59) - Case 313/86 Lenoir [1988] ECR 5391.

(60) - See above, point 47.

(61) - See Commission v France, cited in footnote 26, paragraph 13.

(62) - See Commission v France, cited in footnote 26, paragraph 17, and Case 187/73 Callemeyn [1974] ECR 553, paragraph 12.

(63) - Case 238/82 Duphar and Others [1984] ECR 523, paragraph 16; Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993] ECR I-637, paragraph 6; and C-238/94 García and Others [1996] ECR I-1673, paragraph 15.

(64) - See Poucet and Pistre, paragraphs 8 to 13, and García, paragraph 14, cited above.

(65) - See point 36 above.

(66) - Coonan, cited in footnote 30, paragraphs 12 and 15.

(67) - Case 1/78 Kenny [1978] ECR 1489, paragraph 17, and Case C-349/87 Paraschi [1991] ECR I-4501, paragraph 23.

(68) - As the lex loci laboris and therefore as the applicable law pursuant to Article 13(2)(a) and Article 19(1) of Regulation No 1408/71 (Case C-451/93 Delavant [1995] ECR I-1545, paragraph 14).

(69) - Case 104/76 Jansen [1977] ECR 829, paragraphs 6 and 7, and Case C-28/92 Leguaye-Neelsen [1993] ECR I-6857, paragraphs 12 and 21.

(70) - Jansen, cited above in footnote 69, paragraph 12.

(71) - Valentini, cited in footnote 28, paragraph 14.

(72) - In the version applicable before the amendment introduced by Council Regulation No 3232/89 of 18 July 1989 (OJ 1989 L 224, p. 1), which added a second paragraph.

(73) - Case 275/83 Commission v Belgium [1985] ECR 1097, paragraph 3, and Case C-253/90 Commission v Belgium [1992] ECR I-531, paragraph 13.

(74) - Case C-140/88 Noij [1991] ECR I-387.

(75) - Council Regulation (EEC) of 30 April 1992 amending Regulation (EEC) No 1408/71 (OJ 1992 L 136, p. 1).

(76) - See Snares, cited in footnote 33, paragraph 39 et seq.

(77) - See, in that connection, Case 242/83 Patteri [1984] ECR 3171, paragraph 8.

(78) - See above, paragraph 27.

(79) - Case 1/72 Frilli [1972] ECR 457, at paragraph 4 and Scrivner, cited in footnote 35, at paragraph 16. See also Heinze, cited in footnote 22, at paragraph 4, which indirectly expresses the same view.

(80) - Cited in footnote 24.

(81) - Case C-326/90 Commission v Belgium [1992] ECR I-5517.

(82) - Cited above in footnote 17.

(83) - In other cases, the case-law suggests indirectly that it is possible to apply both regulations concurrently. For example, in answer to the question whether it is possible to transfer rights in the field of social security from one Member State to another on the basis of Regulation No 1612/68 or on the basis of Regulation No 1408/71, the Court first found that the purpose of Regulation No 1612/68 was the systematic application of the rule of national treatment as far as all conditions of employment and work are concerned, and went on to hold: `It is not the purpose of that regulation to create rights by virtue of insurance periods completed in another Member State if such rights, in the case of the nationals of the host State, do not derive from national provisions. There are therefore no grounds for having recourse to the provisions of Regulation No 1612/68 in a case such as this' (Coonan, cited in footnote 30, paragraph 6). The passage I have emphasised suggests, to my mind, that when there is provision for insurance rights under national legislation for nationals of a State, the same rights must be granted to nationals of other Member States under the same conditions on the basis (also) of Regulation No 1612/68.

(84) - Case C-310/91 Schmid [1993] ECR I-3011.

(85) - I could also mention an intermediate approach, according to which the Court first rules that a particular benefit falls within the definition of social security and then takes the view that there is no need to consider the question whether that benefit is also a social advantage. However, no clear conclusions can be drawn from that case-law (Case 39/74 Costa [1974] ECR 1251, paragraphs 12 to 14. See also Hughes, cited in footnote 19).

(86) - Case 41/84 Pinna [1986] ECR 1, paragraph 21, and Case 359/87 Pinna [1989] ECR 585.

(87) - Regulation (EEC) No 1390/81 (OJ 1981 L 143, p. 1).

(88) - Cited in footnote 12.

(89) - See, in particular, the recent Case C-57/96 Meints [1997] ECR I-6689, paragraph 46.

(90) - See above, point 76.

(91) - See O'Flynn, cited in footnote 12, paragraphs 28 and 29.