Anna Humer.
Date: 2002-02-05
33 The Court accordingly ruled, in paragraph 49 of Offermanns, that a benefit such as an advance on maintenance payments provided for by the UVG does constitute a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.
The scope ratione personae of Regulation No 1408/71
39 In this regard, the purpose of Articles 73 and 74 of Regulation No 1408/71 is precisely to guarantee members of the family residing in a Member State other than the competent State the grant of the family benefits provided for by the applicable legislation (see, with regard to Article 73 of Regulation No 1408/71, Joined Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR I-4895, paragraph 32).
42 Admittedly, as the Swedish Government has pointed out, Regulation No 1408/71 does not expressly cover family situations following a divorce. However, contrary to that Government's argument, there is nothing to justify the exclusion of such situations from the scope of Regulation No 1408/71.
43 One of the normal consequences of a divorce is that custody of children is granted to one of the parents, with whom those children will reside. It is possible, for a variety of reasons (in this case as the result of a divorce), that the parent with custody of a child will leave his or her Member State of origin and become established in another Member State in order to work there. In such a case, the residence of the minor child will also be transferred to that other Member State.
48 With regard to the first objection, it follows from the title of Regulation No 1408/71 and from Article 2 thereof that this regulation governs the application of social security schemes to members of the family of employed persons or self-employed persons moving within the Community, with the result that, if a member of the family of a worker resides in a Member State other than that in which the worker resides, the provisions of Regulation No 1408/71 are, in principle, applicable (see, along these lines, Case 115/77 Laumann [1978] ECR 805, paragraph 5, and Case C-194/96 Kulzer [1998] ECR I-895, paragraph 30).
50 With regard to the second objection, it is true that the UVG establishes an original right vested in the child. That said, family benefits by their nature cannot be regarded as payable to an individual in isolation from his or her family circumstances (see Hoever and Zachow, paragraph 37). It follows, as regards application of Articles 73 and 74 of Regulation No 1408/71, first, that the legal classification of the benefit under domestic law has no bearing on their interpretation and, second, that it is irrelevant that the person to whom that benefit is to be awarded is a member of the worker's family rather than the worker himself.
51 According to the Court's case-law, the spouse of an employed person can directly claim a right to family benefits under Article 73 of Regulation No 1408/71 provided that he or she is a member of the family of a worker who fulfils the conditions laid down in Article 73 and provided also that under national legislation the family benefits concerned are provided for family members (see Case C-78/91 Hughes [1992] ECR I-4839, paragraph 26, and Hoever and Zachow, paragraphs 30 and 38). There is nothing to prevent that reasoning from being extended to all family members.