Friedrich Jauch v Pensionsversicherungsanstalt der Arbeiter.
Date: 2001-03-08
17 As noted in paragraph 6 above, care allowance is included on the list of special non-contributory cash benefits within the meaning of Article 4(2a) of Regulation No 1408/71 which forms Annex IIa to that regulation. The Austrian Government submits that the inclusion of a benefit in that list suffices for it to be classified as a special non-contributory benefit. It bases its argument on the judgments in Case C-20/96 Snares [1997] ECR I-6057, Case C-297/96 Partridge [1998] ECR I-3467 and Case C-90/97 Swaddling [1999] ECR I-1075. In paragraph 30 of Snares the Court held that the fact that legislation on disability living allowance is referred to in Annex IIa to Regulation No 1408/71 is to be accepted as establishing that benefits granted under that legislation are special non-contributory benefits. In paragraph 31 of Partridge and paragraph 24 of Swaddling the Court used that analysis to determine the legal regime governing, respectively, attendance allowance and income support. It should also be observed that in those three cases the special non-contributory character of the benefits in question was not discussed.
20 As the Court has consistently held (see, for example, Case 284/84 Spruyt [1986] ECR 685, paragraphs 18 and 19), the provisions of Regulation No 1408/71 adopted to give effect to Article 51 of the EC Treaty (now, after amendment, Article 42 EC) 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. The aim of Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC), Article 50 of the EC Treaty (now Article 41 EC) and Article 51 of the Treaty would not be attained 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.
21 In that context, it is permissible for the Community legislature to adopt provisions which derogate from the principle of the exportability of social security benefits (see, inter alia, Snares, paragraph 41). Derogating provisions of that kind, such as those provided for by Article 10a of Regulation No 1408/71, must be interpreted strictly. This means that they can apply only to benefits which fulfil the conditions they define. It follows that Article 10a can apply only to benefits which satisfy the conditions defined in Article 4(2a) of Regulation No 1408/71, that is, benefits which are both special and non-contributory and are listed in Annex IIa to that regulation.
25 According to settled case-law, a benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients 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 (Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14; Case C-356/89 Newton [1991] ECR I-3017; Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15; and Molenaar, paragraph 20). It was on the basis of that case-law, taking account of the constituent elements of the German care insurance benefits, that the Court held, in paragraph 25 of Molenaar, that those benefits were to be regarded as sickness benefits within the meaning of Article 4(1)(a) of Regulation No 1408/71 and, in paragraph 36 of that judgment, that they were to be regarded as cash benefits of sickness insurance as referred to inter alia in Article 19(1)(b) of that regulation.
26 In the case in point in the main proceedings, while care allowance may possibly have a different legal regime at national level, it nevertheless remains of the same kind as the German care insurance benefits at issue in Molenaar, and is likewise granted objectively on the basis of a legally defined situation.
28 The conditions for granting care allowance and the way in which it is financed cannot have the intention or the effect of changing the character of care allowance as analysed in the Molenaar judgment, in which it was held that benefits of that type are 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 quality of life of persons reliant on care (Molenaar, paragraph 24). In those circumstances, even if they have their own characteristics, such benefits must be regarded as sickness benefits in cash within the meaning of Article 4(1)(a) and (b) of Regulation No 1408/71 (Molenaar, paragraph 25). It is of no importance in those circumstances that the care allowance 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. Thus, whether it is contributory or non-contributory, the allowance, as the German Government moreover observes, must be regarded as a cash sickness benefit within the meaning of Article 4(1)(a) of Regulation No 1408/71, and does not therefore come under Article 4(2a) of that regulation.
Non-contributory benefit
32 It must be stated, with respect to this latter argument, that no principle or provision of Community law prohibits the legislature of a Member State from establishing different social protection schemes for different social or occupational categories. The fact that only persons insured under the social security scheme receive the care allowance introduced by the BPGG is not capable by itself of establishing that that benefit is financed by their sickness insurance contributions, even though, by virtue of the Molenaar judgment, the allowance must be analysed as a sickness benefit. No rule of Community law prohibits national legislation from treating the risk of reliance on care separately and financing it differently from other sickness benefits.
33 As regards the increase in sickness insurance contributions, however, the Austrian Government itself acknowledges that this was decided on in order to compensate for the reduction of the contributory financial transfers from pension insurance to the sickness insurance institutions, that reduction in turn being intended to reduce to a proper level the federal contribution to pension insurance so as to release the necessary resources for financing the new care allowance. The financing of that benefit was therefore made possible, without altering sickness, old-age and accident benefits, by means of increasing sickness insurance contributions. The link, albeit indirect, with sickness insurance contributions is all the stronger in that the abstraction of resources from sickness insurance is made from the contributory portion of receipts. Care allowance is therefore contributory in character.