Patricia Dumont de Chassart v Office national d’allocations familiales pour travailleurs salariés (ONAFTS).
Date: 2013-02-21
28. Under Article 2 of Regulation No 1408/71, which determines who falls within the scope ratione personae of the regulation, the latter applies to the survivors of employed persons who ‘have been subject’ to the social security scheme of one or more Member States for the purposes of Article 4(1) of that regulation (see, to that effect, Case 115/77 Laumann  [1978] ECR 805, paragraph 5, and Case C-131/96 Mora Romero  [1997] ECR I-3659, paragraph 21).
32. In so far as concerns the right to benefits for orphans, it should be noted that the rules laid down in Article 78 of Regulation No 1408/71 seek to determine the Member State whose legislation governs the granting of those benefits, which in principle are granted in accordance with the legislation of that Member State alone. It is clear from Article 78(2)(b)(i) that, where the deceased parent was subject to the legislation of several Member States, those benefits are to be granted in accordance with the legislation of the Member State in whose territory the orphan of the deceased employed person resides. The Member State of residence is thus specified by that provision as having sole competence to grant the benefits in question (see, inter alia, Case C-59/95 Bastos Moriana and Others  [1997] ECR I-1071, paragraphs 15 and 18, and Case C-225/10 Pérez García and Others  [2011] ECR I-10111, paragraph 39).
35. In that regard, the Court of Justice notes that it is true that Article 78(2) of Regulation No 1408/71 governs only, in accordance with the very wording of points (a) and (b) of the first subparagraph thereof, the right to benefits for ‘the orphan of a deceased employed … person’. That provision thus does not apply, as the Court has held, to the case of children who have become orphans as a result of the death of a parent who was not himself an employed person (Case 1/88 Baldi  [1989] ECR 667, paragraph 15).
38. Those provisions are intended not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by that regulation are not left without social security cover because there is no legislation which is applicable to them (see, by analogy, Case C-275/96 Kuusijärvi  [1998] ECR I-3419, paragraph 28).
39. By contrast, as such, those provisions are not intended to lay down the conditions creating the right to benefits for orphans. It is for the legislation of each Member State to lay down those conditions (see Case C-106/11 Bakker  [2012] ECR, paragraph 32 and the case-law cited).
40. Regulation No 1408/71 does not set up a common scheme of social security, but allows different national social security schemes to exist and its sole objective is to ensure the coordination of those schemes. It thus allows different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by European Union law (Case C-331/06 Chuck  [2008] ECR I-1957, paragraph 27).
41. In the absence of harmonisation at the European Union level, each Member State retains the power to determine in its legislation, in compliance with European Union law, the conditions pursuant to which benefits may be granted under a social security scheme (see, to that effect and inter alia, Case C-345/09 van Delft and Others  [2010] ECR I-9879, paragraphs 84 and 99, and Case C-388/09 da Silva Martins [2011] ECR I-5737, paragraph 71 and the case-law cited).
50. As the Court has already held (Case C-257/10 Bergström  [2011] ECR I-13227, paragraph 44), a Member State which is competent to award a family benefit cannot demand that an insurance period must have been completed in its own territory in addition to periods of insurance and employment completed in another Member State.
51. The wording of both Article 72 of Regulation No 1408/71 and that of point 7 of Annex VI A to that regulation, which concerns the granting of benefits for orphans in Belgium, is completely unambiguous in that regard. Article 72 requires that account be taken, for the purposes of aggregation, of ‘periods of insurance, employment or self-employment completed in any other Member State’, as if they were periods completed under the legislation of the competent authorities, whereas under Annex VI A ‘account shall be taken’ of periods of insurance and periods of employment completed under the legislation of another Member State (see, to that effect, Bergström , paragraph 41).
52. Moreover, it should be borne in mind that Regulation No 1408/71 was adopted on the basis of Article 51 of the EEC Treaty (later Article 51 of the EC Treaty and, subsequently, after amendment, Article 42 EC, now Article 48 TFEU), which empowered the Council of the European Union to adopt such measures in the field of social security as were necessary to provide freedom of movement for workers, making arrangements to that end to secure the aggregation for migrant workers and their dependants, for the purposes of acquiring and retaining the right to benefits and of calculating the amount of benefits, of ‘all periods’ taken into account under the laws of the several countries ( Bergström , paragraph 42).
53. That interpretation is also in line with the objective pursued by Article 48 TFEU, in the light of which the provisions of Regulation No 1408/71 must be interpreted, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers (see, inter alia, da Silva Martins , paragraph 70, and Joined Cases C-611/10 and C-612/10 Hudzinski and Wawrzyniak  [2012] ECR, paragraph 53; see, to that effect, Bergström , paragraph 43).
54. Articles 45 TFEU to 48 TFEU, and Regulation No 1408/71, adopted to implement them, are intended in particular to prevent the situation in which a worker who has exercised his right of free movement is treated, without objective justification, less favourably than one who has completed his entire career in only one Member State (see, to that effect, da Silva Martins , paragraph 76, and Hudzinski and Wawrzyniak , paragraph 80).
59. Finally, in so far as concerns Case 110/79 Coonan  [1980] ECR 1445, paragraph 13 and Case 70/80 Vigier  [1981] ECR 229, paragraphs 19 and 20, also relied on at the hearing, although it is true that the Court held in those judgments that, where national legislation makes affiliation to a social security scheme conditional on prior affiliation by the person concerned to the national social security scheme, Regulation No 1408/71 does not compel Member States to treat as equivalent insurance periods completed in another Member State and those which must have been completed previously on national territory, suffice it to note that the present case does not concern the affiliation to a social security scheme, since Mrs Dumont de Chassart is affiliated to the Belgium social security scheme for employed persons.