Opinion of Mr Advocate General Jacobs delivered on 9 February 1995. - Claudine Delavant v Allgemeine Ortskrankenkasse für das Saarland. - Reference for a preliminary ruling: Landessozialgericht für das Saarland - Germany. - Social security for migrant workers - Council Regulation EEC Nº 1408/71 - Worker residing in a Member State other than the competent State - Benefits in kind for members of the worker's family in the State of residence. - Case C-451/93.



European Court reports 1995 Page I-01545



Opinion of the Advocate-General

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1. In this case the Landessozialgericht fuer das Saarland seeks a preliminary ruling on the interpretation of certain provisions of Council Regulation (EEC) No 1408/71 (as codified by Council Regulation (EEC) No 2001/83 (1)) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.

2. The plaintiff in the main proceedings, Dr Claudine Delavant, is a French national and works in France, where she is affiliated to a sickness insurance fund (the Caisse Primaire d' Assurance Maladie in Metz). She is married to a German national and lives with him and their two children in Saarbruecken. Dr Delavant' s husband works in Germany and is covered by private sickness insurance. It appears that under German law he is excluded from the statutory insurance scheme on the ground that his monthly income exceeds one twelfth of a particular amount fixed by law ("the annual income limit").

3. The defendant in the main proceedings, the Allgemeine Ortskrankenkasse fuer das Saarland, is a German sickness insurance fund.

4. In 1989 one of Dr Delavant' s children received in-patient treatment at the Red Cross Clinic in Saarbruecken. Dr Delavant asked the defendant institution to reimburse the cost of that treatment. After an initial refusal, the defendant acceded to that request on appeal but refused to grant a declaration that Dr Delavant and the members of her family were entitled to receive benefits in kind (by which is meant medical treatment, hospitalization, drugs, etc.) as if she were insured with the defendant and regardless of her income or that of her husband. Dr Delavant challenged that refusal, unsuccessfully, before the Sozialgericht fuer das Saarland and then appealed to the Landessozialgericht fuer das Saarland.

5. Dr Delavant based her appeal on Article 19(1)(a) and (2) of Regulation No 1408/71. Article 19 provides as follows:

"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 provisions of 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. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State.

2. The provisions of paragraph 1 shall apply by analogy to members of the family who reside in the territory of a Member State other than the competent State in so far as they are not entitled to such benefits under the legislation of the State in whose territory they reside.

Where the members of the family reside in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, benefits in kind which they receive shall be considered as being on behalf of the institution with which the employed or self-employed person is insured, unless the spouse or the person looking after the children pursues a professional or trade activity in the territory of the said Member State."

6. According to Dr Delavant, Article 19(2) means not only that she herself is entitled to receive benefits in kind provided by the defendant on behalf of her French insurance institution but also that her children are so entitled. The defendant takes the view that, while it (the defendant) is required to provide Dr Delavant with benefits in kind on behalf of her French insurance institution under Article 19(1)(a) as though she were insured with the defendant, it is not required to provide her children with such benefits by virtue of Article 19(2). The defendant bases its refusal to provide benefits in kind for the children on Paragraph 10(3) of Book V of the Sozialgesetzbuch (Social Security Code). That provision (which I shall refer to hereafter as Paragraph 10(3) SGB V) states that the children of persons affiliated to a sickness fund are not insured if the spouse of the person affiliated, being related to the children, is not himself affiliated to a statutory sickness fund and his total monthly income exceeds one twelfth of the annual income limit and is in general higher than that of the person affiliated. Dr Delavant' s husband, who is the natural father of her children, is not affiliated to a statutory sickness fund and his income exceeds the aforesaid limit and is in general higher than Dr Delavant' s income.

7. The Landessozialgericht fuer das Saarland requests a preliminary ruling on the question:

"Whether Articles 1(f)(i), 2(1), 3(1), 19(1)(a) and (2), and 20 of Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community contain a principle of law that prohibits Member States from making affiliation to a social-insurance system of the natural children of a frontier worker insured in another Member State dependent on the income level of her husband, in addition to conditions connected with the personal situation of the children themselves."

8. Article 19 of Regulation No 1408/71 has already been cited. For the sake of completeness I now cite the other articles referred to in the above question. Article 1(f)(i) defines the expression "member of the family" in the following terms:

"' Member of the family' means any person defined or recognized as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Articles 22(1)(a) and 31, by the legislation of the Member State in whose territory such person resides; where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the employed or self-employed person, this condition shall be considered satisfied if the person in question is mainly dependent on that person. Where the legislation of a Member State on sickness or maternity benefits in kind does not enable members of the family to be distinguished from the other persons to whom it applies, the term 'member of the family' shall have the meaning given to it in Annex 1."

9. Article 2(1) provides:

"This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors."

10. Article 3(1) provides:

"Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State."

11. Article 20 provides:

"A frontier worker may also obtain benefits in the territory of the competent State. Such benefits shall be provided by the competent institution in accordance with the provisions of the legislation of that State, as though the person concerned were resident in that State. Members of his family may receive benefits under the same conditions; however, receipt of such benefits shall, except in urgent cases, be conditional upon an agreement between the States concerned or between the competent authorities of those States or, in its absence, on prior authorization by the competent institution."

12. In their written observations the Commission and the Governments of Belgium, France, Germany and the Netherlands all agree that the relevant provisions of Regulation No 1408/71 do not contain the principle posited in the question referred. They all base that view on the interpretation of the expression "members of the family" in Article 19(2) of the regulation. They point out that under Article 1(f)(i) of the regulation the expression "member of the family" means "any person defined or recognized as a member of the family or designated as a member of the household by the legislation under which benefits are provided ...". They argue that in the circumstances of the present case it is therefore for German law to determine who is a member of Dr Delavant' s family and who is entitled as such to receive benefits in kind in Germany under Article 19(1)(a) of the regulation by virtue of the analogous application of that provision required by Article 19(2). They maintain that there is nothing in Community law ° and in particular nothing in Regulation No 1408/71 ° to prevent German law from denying benefits in kind to Dr Delavant' s children where her husband, being the natural father of the children, is not himself affiliated to a statutory sickness fund in Germany and has a total monthly income which exceeds a particular amount and is in general higher than Dr Delavant' s own income.

13. Although I agree with the result reached by the Commission and by the Governments of Belgium, France, Germany and the Netherlands, I am not convinced that they have reached that result by the correct method.

14. The children in question are Dr Delavant' s natural children and they live with her and their father in the family home in Saarbruecken. At the material time their ages were 11 years and 9 years. They should plainly be regarded, under any legal system which might be relevant, as members of her family. In fact, Paragraph 10(3) SGB V does not appear to imply that Dr Delavant' s children are not members of her family; it simply entails that they are not, in the circumstances of the case, entitled to sickness insurance by virtue of their mother' s affiliation to a sickness fund. The interpretation proposed by the Commission and the four governments amounts of course to saying that the expression "member(s) of the family" in Articles 1(f)(i) and 19(2) of the regulation means "members of the family who are entitled as such to social security benefits". It may be true that such an interpretation of the expression in question produces reasonable results in the present case. There is however no guarantee that it would always produce reasonable results (especially if it is borne in mind that the expression is used in many other provisions of Regulation No 1408/71) and there is in any event the fundamental objection that that is not the natural meaning of the words "member(s) of the family". If the authors of the regulation had wished to use a phrase with such a precise content, they would surely have chosen words more appropriate to their purpose than the extremely vague formula "member(s) of the family".

15. Rather than concentrate on the meaning of a particular expression, it would be more felicitous in my opinion to examine the scheme and purpose of the relevant provisions. Article 19 governs the general situation in which an employed or self-employed person resides in a Member State other than the competent State (i.e. the State in which he is insured, (2) normally the State in which he works). Article 20 deals with a particular example of that situation, namely the situation of the frontier worker who regularly crosses a frontier in order to go to work. The general principle applicable in all such situations is that the cost of providing benefits, whether in kind or in cash, to persons who reside in a Member State other than the competent State is to be borne ° not unnaturally ° by the "competent institution" (i.e. the institution with which the person in question is insured (3)).

16. The authors of the regulation recognized, however, that there are circumstances in which a person whose State of residence and State of insurance do not coincide might require medical treatment in the former, since people are as likely to fall ill in the place where they live as in the place where they work. Article 19(1)(a) therefore requires the institution of the worker' s place of residence to provide him with benefits in kind "on behalf of the competent institution". It is important to emphasize that the cost of such benefits is borne in full by the institution with which the worker is insured, as provided in Article 36(1) of the regulation. It might therefore have been thought logical to require the institution of the place of residence to provide benefits in accordance with the legislation administered by the competent institution, which will after all have to meet the cost. Such a solution would not, however, be practical, since it would require an institution to apply the legislation of another Member State. That doubtless explains why the authors of the regulation decided instead that benefits in kind should be provided by the institution of the place of residence in accordance with the provisions of the legislation administered by that institution as though the person concerned were insured with it. The obvious practical advantage of that solution is that the institution which provides benefits in kind does so in accordance with the only legislation that it can be expected to be familiar with, namely its own legislation.

17. The question which must be answered in the present case is what is meant when Article 19(2) speaks of the application by analogy of the provisions of Article 19(1) to members of the family who reside in the territory of a Member State other than the competent State. Although the concept of application by analogy is not always helpful, it seems reasonably clear in the context that what is meant is that members of the family of the insured person are entitled to receive at the place of residence the benefits in kind which they would be entitled to receive under the legislation administered by the institution of the place of residence if the insured person were insured with that institution. Applied to the present case, that means that Dr Delavant' s children are entitled to receive in Germany the benefits in kind which they would be entitled to receive if Dr Delavant were herself insured in Germany. And, as we have seen, if Dr Delavant were affiliated to the Allgemeine Ortskrankenkasse fuer das Saarland, her children would not be entitled, as a result of Paragraph 10(3) SGB V, to receive benefits in kind from that institution because her husband is not himself affiliated to a statutory sickness fund and his income exceeds the ceiling fixed by German law and is generally higher than her income.

18. Clearly, the view canvassed by Dr Delavant would only be tenable if the words "as though he were insured with it" at the end of Article 19(1)(a) were read as meaning, when that provision is applied by analogy to members of the insured person' s family, "as though the members of the family were insured with it". Such an interpretation would not, however, be logical. As has been pointed out in the written observations, if Dr Delavant worked in Germany, Paragraph 10(3) SGB V would undoubtedly be applicable and her children would not be entitled to sickness insurance in Germany by virtue of their mother' s affiliation to the defendant institution. There is no compelling reason why they should become entitled to sickness insurance in Germany (paid for by the French institution to which Dr Delavant belongs) simply because Dr Delavant works in France rather than Germany. That would be contrary to the basic principle contained in Article 19, namely the principle that, where a worker resides in a country other than the country in which he is insured, he is entitled to be treated, in the country of residence, as though he were insured there. When that principle is applied to members of the worker' s family, it can only mean that they are entitled to receive, in the country of residence, the treatment that would be accorded to them if the worker were insured in that country. Here it must be remembered that the rights of the worker' s family are derivative rights, i.e. rights which arise as a result of the family member' s relationship to an insured person as opposed to rights which a family member acquires in his own name. Dr Delavant' s argument amounts to saying that family members who live in a country other than the country in which the worker is insured must automatically be given the full status of insured persons in their own right. Such an argument is untenable because it disregards the derivative nature of the rights enjoyed by members of the worker' s family.

19. The referring court mentions several reasons for doubting whether the application of Paragraph 10(3) SGB V in the present case would be compatible with Community law. In particular, the referring court cites the Petroni (4) judgment, in which the Court of Justice held that the Community legislation on social security cannot have the effect of depriving workers of advantages guaranteed to them by the laws of a single State. The referring court observes that Paragraph 10(3) SGB V may have the effect of requiring Dr Delavant or her husband, in order to ensure that their children are covered by statutory sickness insurance in Germany, to make a further contribution, even though under French law family members are normally covered by insurance irrespective of their parents' income if they do not themselves have any income. The referring court considers that the application of Paragraph 10(3) SGB V could also lead to a breach of the principle of equal treatment: the level of contributions which a frontier worker pays in France takes into account the risk that members of his family may claim benefits in kind, and yet Article 20 prevents the family members from receiving benefits in kind, except in urgent cases, unless the two institutions concerned enter into an agreement or the competent institution grants prior authorization; as a result a frontier worker ultimately has to pay more in order to obtain insurance cover for members of his family than a person with comparable income from work which does not require cross-frontier commuting. The referring court also mentions the uncertainty that might arise owing to fluctuations in the exchange rate of the French and German currencies.

20. I do not think that any of those considerations can affect the answer to the question referred. The relevant provisions of Regulation No 1408/71 do not deprive Dr Delavant or her children of any advantage which they would enjoy under German law alone. Nor is there anything inherently wrong in the idea that persons whose income exceeds a certain level must pay additional contributions in order to obtain sickness insurance for their children. The fact that matters are arranged differently in another Member State is not relevant, since Regulation No 1408/71 does not attempt to harmonize social security law but merely coordinates the social security systems of the Member States.

21. As regards fluctuations in the exchange rate, it is true that the entitlement of Dr Delavant' s children to benefits in kind in Germany might vary periodically as a result of monetary factors, since her income might sometimes exceed the income of her husband. That uncertainty is not however different in nature from that which is caused by other factors which affect the relative income levels of a married couple, such as promotion or overtime. It should also be noted that under Paragraph 10(3) SGB V the children of a member of a sickness fund lose their entitlement to benefits in kind only if the income of the member' s spouse is in general higher than that of the member. That would seem to preclude a loss of entitlement due to short-term monetary fluctuations.

22. The question referred mentions Article 3(1) of Regulation No 1408/71, which lays down a principle of "national treatment" for persons who are covered by the regulation and reside in a Member State. That principle is clearly not infringed by Paragraph 10(3) SGB V, which does not discriminate, overtly or otherwise, on the basis of nationality. It is sufficient to note that Dr Delavant is being treated in exactly the same way as a German national in the same situation.

23. It is however true that Article 20 of the regulation appears at first sight to be capable of infringing the principle recognized in Petroni if it prevents Dr Delavant' s children from receiving benefits in kind in France which they would otherwise be entitled to under French law. The Commission states that under French law alone the children would not in fact be able to obtain such benefits in France while resident in Germany. In any event, the point is not in issue in these proceedings, which are concerned solely with the lawfulness of the practice followed by a social security institution in Germany.

Conclusion

24. Accordingly, I am of the opinion that the question referred to the Court by the Landessozialgericht fuer das Saarland should be answered as follows:

Articles 1(f)(i), 2(1), 3(1), 19(1)(a) and (2) and 20 of Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community do not prohibit a Member State from making affiliation to a social insurance system in that Member State of the children of a frontier worker insured in another Member State dependent on the income level of her husband, in addition to conditions connected with the personal situation of the children themselves.

(*) Original language: English.

(1) ° OJ 1983 L 230, p. 6. For a consolidated version of the regulation, see OJ 1992 C 325, p. 1.

(2) ° See Article 1(o) and (g) of Regulation No 1408/71.

(3) ° See Article 1(o) of Regulation No 1408/71.

(4) ° Case 24/75 Petroni v ONPTS [1975] ECR 1149.