EN Official Journal of the European Union C 220/2

Judgment of the Court (Third Chamber) of 16 July 2009 (reference for a preliminary ruling from the Bayerisches Landessozialgericht (Germany)) — Petra von Chamier Glisczinski v Deutsche Angestellten-Krankenkasse

(Case C-208/07) (1)

(Social security - Regulation (EEC) No 1408/71 - Title III, Chapter 1 - Articles 18 EC, 39 EC and 49 EC - Benefits in kind intended to cover the risk of reliance on care - Residence in a Member State other than the competent State - Social security system of the Member State of residence not including benefits in kind linked to the risk of reliance on care)

2009/C 220/02

Language of the case: German

Referring court

Bayerisches Landessozialgericht

Parties to the main proceedings

Applicant: Petra von Chamier Glisczinski

Defendant: Deutsche Angestellten-Krankenkasse

Re:

Reference for a preliminary ruling — Bayerisches Landessozialgericht — Interpretation of Article 19(1)(a) and 19(2) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971(II), p. 416) in the light of Articles 18 EC, 39 EC and 49 EC and in conjunction with Article 10 of 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) — National legislation under which a member of the family of an employed person residing in a Member State other than the competent State and in receipt in the competent Member State of combined benefits (cash benefits and benefits in kind) is entitled only to be paid a care allowance (‘Pflegegeld’), calculated in accordance with the law of the competent State, where the legislation of the State of residence does not provide for benefits in kind in respect of care received in that Member State — Export of benefits in kind to another Member State whose social security system provides only for cash benefits.

Operative part of the judgment

1. Where, unlike the social security system of the competent State, that of the Member State of residence of a person reliant on care, insured as a member of the family of an employed or self-employed person within the meaning of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended in turn by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, does not provide for the provision of benefits in kind in situations of reliance on care such as those of that person, Articles 19 or 22(1)(b) of that regulation do not of themselves require the provision of such benefits outside the competent State by or on behalf of the competent institution.;

2. Where, unlike the social security system of the competent State, that of the Member State of residence of a person reliant on care, insured as a member of the family of an employed or self-employed person within the meaning of Regulation No 1408/71, as amended and updated by Council Regulation No 118/97, as amended in turn by Regulation No 1386/2001, does not provide for the provision of benefits in kind in given situations of reliance on care, Article 18 EC does not preclude, in circumstances such as those of the main proceedings, legislation such as that introduced by Paragraph 34 of Book XI of the Social Security Code (Sozialgesetzbuch), on the basis of which a competent institution refuses in such circumstances to pay, independently of the mechanisms introduced by Article 19 or, as the case may be, Article 22(1)(b) of that regulation and for an unlimited period, the costs linked to a stay in a care home situated in the Member State of residence up to an amount equal to the benefits to which that person would have been entitled if he had received the same care in a care home — party to a service agreement — situated in the competent State.

(1) OJ C 155, 07.07.2007.