WRITTEN QUESTION E-2411/01

by Armin Laschet (PPE-DE) to the Commission

(21 August 2001)

Subject: EC Regulations 1408/71 and 118/97

EC Council Regulation No 118/97(1) of 2 December 1996 amending and updating Regulation (EEC) No 1408/71(2) on the application of social security schemes to employed persons, to self-employed persons and to members of their families lays down rules concerning the receipt of social security benefits.

1. Is it correct that, on the basis of the exclusion criteria for professional bodies referred to in Regulation 118/97, a lawyer resident in Belgium and working on a self-employed basis in Germany is not entitled to child-rearing benefits despite being compulsorily insured with the Bar?

2. Are efforts being made by the Commission to put an end to this discrimination against national citizens simply on the basis of residence in another Member State?

(1) OJ L 28, 30.1.1997, p. 1.

(2) OJ L 149, 5.7.1971, p. 2.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(19 October 2001)

The Commission would like to draw the attention of the Honourable Member to the fact that Community law notably Council Regulations (EEC) No 1408/71 and (EEC) No 574/72 protects the social security rights of migrant workers by coordinating the different national social security schemes of Member States(1). According to Article 13 (2) b) of Regulation (EEC) No 1408/71, a person who is self-employed in the territory of one Member State but who resides in the territory of another Member State is subject to the social security legislation of the Member State where he carries out the self-employment. A person who works as a self-employed lawyer in Germany but who resides in Belgium should consequently be subject to German social security legislation.

According to German law, one of the conditions for eligibility to the German child-raising allowance (Erziehungsgeld) is, as a rule, the person's residence in Germany. However, following a ruling by the European Court of Justice(2) and infringement proceedings initiated by the Commission against Germany, the relevant German law was amended as of 1 January 2001 and now gives the right to child-raising allowance to Community or European Economic Area (EEA) nationals, who do not reside in Germany but in another Community or EEA Member State, if they carry out an employed or self-employed activity in Germany of not only limited working hours.

Furthermore, Regulation (EEC) No 1408/71 provides that if a person is subject to German social security legislation he or she is entitled to family benefits, like the child-raising allowance, also in respect of family members who reside in another Member State. It should be noted that according to Annex I Part I. Point C. Germany of Regulation (EEC) No 1408/71, the condition to be fulfilled in order to qualify as a self-employed person for the purpose of receiving family benefits under Regulation (EEC) No 1408/71 is to be pursuing self-employment from which follows the obligation to join, or pay contributions in respect of, an old-age insurance within a scheme for self-employed persons in Germany, or to join a German scheme within the framework of compulsory insurance.

Therefore, as long as a person fulfils these criteria, he or she is principally entitled under Regulation (EEC) No 1408/71 to receive German family benefits, even if the person resides in another Member State.

In the view of the Commission this also applies to a person who is insured under a German special scheme for self-employed like the special scheme for barristers and counsel. Although it is correct that these schemes are not considered to be legislation within the meaning of Regulation (EEC) No 1408/71 and are therefore excluded from the scope of the Regulation, in the view of the Commission their exclusion only implies that a person insured with these schemes may not rely on the provisions of the Regulation concerning the risks for which he is insured under these special schemes, i.e. against the risks of old-age and invalidity. Their exclusion does, however, not have any implications concerning the application of the provisions of the Regulation concerning other risks. This is confirmed by the fact that, according to the above mentioned Annex I, a person is considered to be self-employed for the purpose of granting family benefits by a German institution if he/she is obligatorily insured against old-age within such a German special scheme for self-employed.

This conclusion is also consistent with the conclusions of the European Court of Justice with regard to Article 43 (ex-Article 54) of the EC Treaty in the two cases C-4/95 and C-5/95(3) which also concerned the question of entitlement to German family benefits for self-employed persons.

(1) 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 L 149, 5.7.1971. Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 OJ L 74, 27.3.1972. Council Regulation (EC) No 118/97 of 2 December 1996 amending and updating Regulations (EEC) No 1408/71 and (EEC) No 574/72 OJ L 28, 30.1.1997.

(2) Judgement of 10 October 1996 Hoever/Zachow C-245/94 and C-312/94, ECR 1996 pg I-4895.

(3) Judgement of 30 January 1997 Stöber/Pereira C-4/95 and C-5/95, ECR 1997 pg I-0511.