Commission of the European Communities v Hellenic Republic.
Date: 1998-10-29
18 On that point, it must be borne in mind that the Court has consistently held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-361/95 Commission v Spain [1997] ECR I-7351, paragraph 13).
19 Since the present action calls for consideration of the application of the principle of equal treatment in relation to both social advantages and social security benefits (as to the joint application of Regulations Nos 1612/68 and 1408/71, see Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 27), the meaning of those concepts must be re-examined.
20 First, as regards social advantages, it is settled law that this concept embraces all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community (Martínez Sala, paragraph 25).
21 As the Commission has argued, it follows from that definition that all the advantages for which the Greek legislation at issue provides in relation to large families constitute social advantages within the meaning of Article 7(2) of Regulation No 1612/68.  Pursuant to that provision, therefore, workers who are nationals of other Member States must be eligible for those advantages on the same terms as national workers.  Equal treatment in that sense must also extend to dependent members of their families (Case C-3/90 Bernini [1992] ECR I-1071, paragraph 28).
23 Furthermore, both Decree-Law No 1153/1972 and the combined provisions of Law No 1892/1990 and the implementing decree of 7 and 21 February 1991 expressly make the award of the benefits for which they provide subject to conditions concerning the Greek nationality or Greek origins of family members.
24 In imposing a discriminatory nationality requirement, that administrative practice, like those legislative provisions, infringes Article 48(2) of the Treaty, Article 7(2) of Regulation No 1612/68 and Article 7 of Regulation No 1251/70.  For the same reason, they also constitute an infringement of Article 52 of the Treaty and Article 7 of Directive 75/34 (Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 17).
25 Secondly, as regards social security benefits, the Court has ruled on numerous occasions that 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 provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (Commission v Luxembourg, paragraph 29, and the case-law cited).
30 It must be observed that the maintenance in force, even if only in a formal way, of legislation which, if it had not become obsolete, would infringe Community law, is likely to engender doubt incompatible with the principle of legal certainty, in so far as such a situation exacerbates the difficulties for potential beneficiaries in ascertaining the extent of their rights.
31 The Greek Government also contends that, notwithstanding the express provisions of Decree-Law No 1153/1972, the benefits provided for therein are not reserved for Greek nationals but, in accordance with the directly applicable provisions of Regulation No 1408/71, are also paid to Community nationals.
32 On that point, suffice it to recall that, according to established case-law, the maintenance of national legislation which is in itself incompatible with Community law, even if the Member State concerned acts in accordance with Community law,  gives rise to an ambiguous state of affairs by maintaining, as regards those subject  to the law who are concerned, a state of uncertainty as to the possibilities for them of relying on Community law (Case C-307/89 Commission v France [1991] ECR I-2903, paragraph 13, and the case-law cited).
34 On that point, it should be recalled that the Court has consistently held that social measures cannot be regarded as exempt from the application of the rules of Community law solely because they have been adopted for reasons of demographic policy (Case 65/81 Reina [1982] ECR 33, paragraph 15).
35 Consequently, it must be held that, by precluding by regulation or administrative practice on the grounds of their nationality employed or self-employed workers from other Member States and the members of their families from being attributed large-family status for the purpose of the award of special benefits for such families and from being awarded family allowances, the Hellenic Republic has failed to fulfil its obligations under Articles 48 and 52 of the EC Treaty, Article 7 of Regulation No 1612/68, Article 7 of Regulation No 1251/70, Article 7 of Directive 75/34 and Article 3 of Regulation No 1408/71.