Joao Filipe da Silva Martins v Bank Betriebskrankenkasse - Pflegekasse.
Date: 2011-06-30
37. It should be recalled that persons entitled to draw pensions under the legislations of one or more Member States, even if they are not in gainful occupation, are covered by the provisions concerning workers of Regulation No 1408/71 by virtue of their insurance under a social security scheme, unless they are subject to special provisions (see, to that effect, Case C‑194/96 Kulzer  [1998] ECR I‑895, paragraph 24, and Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt and Others  [2007] ECR I‑11895, paragraph 57).
38. It is also settled case-law that a benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Case 249/83 Hoeckx  [1985] ECR 973, paragraphs 12 to 14; Case 122/84 Scrivner and Cole  [1985] ECR 1027, paragraphs 19 to 21; Case C‑356/89 Newton  [1991] ECR I‑3017; and Case C‑78/91 Hughes  [1992] ECR I‑4839, paragraph 15).
39. It is widely acknowledged that a growing number of persons in the European Union, following a reduction in their independence, often because of their advanced age, are in a situation of reliance on others to carry out the basic routines of everyday life.
40. It is only comparatively recently that the risk of such reliance (‘the risk of reliance on care’) has been covered specifically by the social security schemes of several Member States. That risk does not appear expressly in the list in Article 4(1) of Regulation No 1408/71 as one of the kinds of benefits which fall within the scope of that regulation.
41. As can be seen from paragraph 38 above, that list is exhaustive, so that a branch of social security not mentioned in it does not fall within that category even if it confers upon recipients a legally defined position entitling them to benefits (see, inter alia, Case C‑25/95 Otte  [1996] ECR I‑3745, paragraph 22, and Molenaar , paragraph 20).
42. In those circumstances, the Court, applying the case-law cited in paragraph 38 above and taking into account the constituent elements of German care insurance benefits, held essentially in paragraphs 22 to 25 of Molenaar  that benefits such as those provided under the German care insurance scheme, even if they have their particular characteristics, must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71.
43. The Court observed in particular that benefits such as the German care allowance were essentially intended to supplement sickness insurance benefits, to which they are moreover linked at the organisational level, in order to improve the state of health and the quality of life of persons reliant on care ( Molenaar , paragraph 24). The Court also held that the German care allowance, which takes the form of financial aid enabling the standard of living of persons reliant on care to be improved as a whole, so as to compensate for the additional expense brought about by their condition, were to be regarded as ‘cash benefits’ referred to inter alia in Article 28(1)(b) of Regulation No 1408/71 (see Molenaar , paragraphs 35 and 36).
44. That analysis was followed in other cases relating to German care insurance (see Joined Cases C‑502/01 and C‑31/02 Gaumain-Cerri and Barth  [2004] ECR I‑6483, paragraphs 19 to 23, 25 and 26, and Case C‑208/07 von Chamier-Glisczinski  [2009] ECR I‑6095, paragraph 40).
45. Similarly, as regards certain social security benefits under national schemes other than the German care insurance scheme, the Court has held in essence that benefits that are granted objectively on the basis of a legally defined position and are intended to improve the state of health and life of persons reliant on care must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71 (see, to that effect, Case C‑215/99 Jauch  [2001] ECR I‑1901, paragraph 28; Case C‑286/03 Hosse  [2006] ECR I‑1771, paragraphs 38 to 44; and Case C‑299/05 Commission  v Parliament and Council  [2007] ECR I‑8695, paragraphs 10, 61 and 70).
46. The Court has also stated in this respect that it is of no importance that the benefit in question is intended to provide a financial supplement, having regard to a person’s reliance on care, to a pension paid on a basis other than sickness (see Jauch , paragraph 28) or that the grant of the benefit is not necessarily linked to the provision of a sickness insurance benefit (see, to that effect, Hosse , paragraph 43). It is also irrelevant that a particular benefit, unlike the benefits at issue in some of the Court’s judgments in this field cited above, does not have the essential object of supplementing sickness insurance benefits (see, to that effect, Commission  v Parliament and Council , paragraph 70).
47. Accordingly, although, in the absence of provisions in Regulation No 1408/71 referring specifically to the risk of reliance on care, the Court has treated certain benefits relating to that risk as ‘sickness benefits’ within the meaning of Article 4(1)(a) of the regulation, it has nevertheless always acknowledged that benefits relating to the risk of reliance on care are at most supplementary to the ‘classic’ sickness benefits that fall within that provision stricto sensu  (‘sickness benefits stricto sensu ’) and are not necessarily an integral part of them.
48. Thus, unlike sickness benefits stricto sensu , benefits relating to the risk of reliance on care – being generally long-term benefits – are not in principle intended to be paid on a short-term basis. Moreover, as follows in particular from the circumstances of the case-law mentioned in paragraphs 45 and 46 above, it cannot be ruled out that, although benefits relating to the risk of reliance on care must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71, they may, particularly as regards the details of their application, display characteristics which in practice also resemble to a certain extent the invalidity and old-age branches referred to in Article 4(1)(b) and (c), without being strictly identifiable with either of them.
52. It must therefore be examined, first, whether, as the national court appears to consider, the conflict-of-law rules in Article 15(2) of Regulation No 1408/71 preclude a person in a situation such as that of Mr da Silva Mart ins from continuing to be insured in the German care insurance scheme on the basis of optional continued insurance where, following a change of his State of residence, he is now covered in principle, in accordance with Article 13(2)(f) of the regulation, by the social security scheme of the new Member State of residence (see, on the latter point, Case C‑302/02 Laurin Effing  [2005] ECR I‑553, paragraph 41).
53. It is true that the intention of the provisions of Regulation No 1408/71 determining the legislation applicable to employed and self-employed persons moving within the European Union is that those persons should in principle be subject to the social security scheme of one Member State only, so as to avoid the application of more than one national legislation and the complications that might ensue (see, inter alia, Case 302/84 Ten Holder  [1986] ECR 1821, paragraphs 19 and 20, and Case C‑16/09 Schwemmer  [2010] ECR I‑0000, paragraph 40). That principle of a single social security scheme finds expression in particular in Article 13(1) of Regulation No 1408/71 (see, to that effect, Case C‑227/03 van Pommeren-Bourgondiën  [2005] ECR I‑6101, paragraph 38, and Case C‑352/06 Bosmann  [2008] ECR I‑3827, paragraph 16).
64. In those circumstances, it is for the referring court to verify, having regard to the case-law cited in paragraphs 42 to 46 above, the proposition that there is no social security scheme in Portugal relating to the risk of reliance on care (see also, by analogy, Jauch , paragraph 26).
67. So in the situation at issue in the main proceedings it is for the Portuguese Republic – one of the States from which a retirement pension is due to Mr da Silva Martins – as his Member State of residence to ensure payment of sickness benefits stricto sensu  (see, by analogy, Case C‑50/05 Nikula  [2006] ECR I‑7029, paragraphs 22 and 23).
69. Having regard to the considerations set out in paragraphs 40 to 48 above, in the absence of provisions in Regulation No 1408/71 concerning specifically the risk of reliance on care, Article 27 of that regulation must, in circumstances such as those at issue in the main proceedings, be interpreted in the light of the objectives underlying the regulation, taking into account the particular features of benefits relating to the risk of reliance on care as opposed to sickness benefits stricto sensu  (see, inter alia, by analogy, Case 100/78 Rossi  [1979] ECR 831, paragraph 12, and Case C‑168/88 Dammer  [1989] ECR 4553, paragraph 20).
70. In this respect it should be noted that the provisions of Regulation No 1408/71 enacted to give effect to Article 48 TFEU must be interpreted in the light of the objective of that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers (see, inter alia, Case 10/78 Belbouab  [1978] ECR 1915, paragraph 5; Jauch , paragraph 20; Hosse , paragraph 24; and Case C‑287/05 Hendrix  [2007] ECR I‑6909, paragraph 52).
71. Since Article 48 TFEU provides for the coordination, not the harmonisation, of the legislations of the Member States (see, inter alia, Case 21/87 Borowitz [1988] ECR 3715, paragraph 23), substantive and procedural differences between the social security schemes of individual Member States, and hence in the rights of persons who are insured persons there, are unaffected by that provision, as each Member State retains the power to determine in its legislation, in compliance with European Union law, the conditions for granting benefits under a social security scheme (see, to that effect, von Chamier-Glisczinski , paragraph 84, and Case C‑345/09 van Delft and Others  [2010] ECR I‑0000, paragraph 99).
72. In that context, the primary law of the European Union cannot guarantee to an insured person that moving to another Member State will be neutral in terms of social security, in particular where sickness benefits are concerned. Thus, the application, possibly under the provisions of Regulation No 1408/71, following a change of Member State of residence, of national legislation that is less favourable as regards social security benefits may in principle be compatible with the requirements of primary European Union law on freedom of movement for persons (see, inter alia, by analogy, von Chamier-Glisczinski , paragraphs 85 and 87).
73. However, according to settled case-law, such compatibility would exist only to the extent that, in particular, the national legislation concerned does not place the worker at a disadvantage compared to those who pursue all their activities in the Member State where it applies and does not purely and simply result in the payment of social security contributions on which there is no return (see, to that effect, Joined Cases C‑393/99 and C‑394/99 Hervein and Others  [2002] ECR I‑2829, paragraph 51; Case C‑493/04 Piatkowski  [2006] ECR I‑2369, paragraph 34; Case C‑3/08 Leyman  [2009] ECR I‑9085, paragraph 45; and van Delft and Others , paragraph 101).
74. As the Court has repeatedly held, the aim of Articles 45 TFEU and 48 TFEU would not be achieved if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid (see, inter alia, to that effect, Case 24/75 Petroni  [1975] ECR 1149, paragraph 13; Case 284/84 Spruyt  [1986] ECR 685, paragraph 19; Case C‑59/95 Bastos Moriana and Others  [1997] ECR I‑1071, paragraph 17; Jauch , paragraph 20; and Bosmann , paragraph 29).
75. The European Union legislation on the coordination of national social security legislations, taking account in particular of its underlying objectives, cannot, except in the case of an express exception in conformity with those objectives, be applied in such a way as to deprive a migrant worker or those claiming under him of benefits granted solely by virtue of the legislation of a single Member State (see, inter alia, Case 9/67 Colditz  [1967] ECR 227, 234; Rossi , paragraph 14; and Schwemmer , paragraph 58 and the case-law cited).
76. Moreover, the Court has also held that Articles 45 TFEU to 48 TFEU and Regulation No 1408/71 adopted to implement them are intended in particular to prevent a worker who, by exercising his right of freedom of movement, has been employed in more than one Member State from being treated, without objective justification, less favourably than one who has completed his entire career in only one Member State (see, inter alia, to that effect, Case 104/76 Jansen  [1977] ECR 829, paragraph 12; Case C‑10/90 Masgio  [1991] ECR I‑1119, paragraphs 17, 19 and 23; Case C‑443/93 Vougioukas  [1995] ECR I‑4033, paragraphs 41 and 42; Case C‑322/95 Iurlaro  [1997] ECR I‑4881, paragraphs 23 and 30; and Leyman , paragraph 45).