EN Official Journal of the European Union C 252/4

Judgment of the Court (Second Chamber) of 30 June 2011 (reference for a preliminary ruling from the Bundessozialgericht (Germany)) — Joao Filipe da Silva Martins v Bank Betriebskrankenkasse — Pflegekasse

(Case C-388/09) (1)

(Reference for a preliminary ruling - Social security - Regulation (EEC) No 1408/71 - Articles 15, 27 and 28 - Articles 39 EC and 42 EC - Former migrant worker - Work in the Member State of origin and in another Member State - Retirement in the Member State of origin - Pensions paid by both Member States - Separate social security scheme covering the risk of reliance on care - Existence in the other former Member State of employment - Optional continued affiliation to that scheme - Maintenance of the right to a care allowance after the return to the Member State of origin)

2011/C 252/05

Language of the case: German

Referring court

Bundessozialgericht

Parties to the main proceedings

Applicant: Joao Filipe da Silva Martins

Defendant: Bank Betriebskrankenkasse — Pflegekasse

Re:

Reference for a preliminary ruling — Bundessozialgericht — Interpretation of the provisions of Community law on the free movement of persons and social security of migrant workers, particularly Articles 39 and 42 EC and Articles 27 and 28 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 (OJ 1971 L 149, p. 2) — Former migrant worker drawing a pension in his State of origin and in the former State of employment and entitled in the latter to a benefit covering the risk of dependence (‘Pflegegeld’) not existing in the social security system of the State of origin — Maintenance of the right to that benefit after return to the State of origin

Operative part of the judgment

Articles 15 and 27 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 by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, must be interpreted as not precluding a person in a situation such as that at issue in the main proceedings, who draws retirement pensions from retirement insurance funds both of his Member State of origin and of the Member State in which he spent most of his working life and has moved from that Member State to his Member State of origin, from continuing, by reason of optional continued affiliation to a separate care insurance scheme in the Member State in which he spent most of his working life, to receive a cash benefit corresponding to that affiliation, in particular where cash benefits relating to the specific risk of reliance on care do not exist in the Member State of residence, that being a matter for the referring court to ascertain.

If, contrary to that hypothesis, cash benefits relating to the risk of reliance on care are provided for under the legislation of the Member State of residence, but only at a lower level than that of the benefits relating to that risk from the other pension-paying Member State, Article 27 of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1386/2001, must be interpreted as meaning that such a person is entitled, at the expense of the competent institution of the latter State, to additional benefits equal to the difference between the two amounts.

(1) OJ C 312, 19.12.2009