Nils Laurin Effing.
Date: 2005-01-20
12. Under the Convention on the Transfer of Sentenced Persons, opened for signature on 21 March 1983 in Strasbourg (‘the Convention’) and to which declarations of the Republic of Austria have been attached (BGBl. I, 1986, No 524), and Paragraph 76 of the Auslieferungs‑ und Rechtshilfegesetz (Law applicable in matters of extradition and judicial assistance, ARGH, BGBl. I, 1979, No 529), persons sentenced in the territory of a State signatory to the Convention (sentencing State) may, pursuant to Article 2 thereof, ask to be transferred to their State of origin (administering State) in order to serve the sentence which has been imposed upon them. In so doing, pursuant to Article 9(1)(b) of the Convention, a sanction prescribed by the law of the administering State for the same offence may be substituted for the sanction imposed in the sentencing State.
13. According to the Convention’s recitals, the purpose of such a transfer is inter alia to further the social rehabilitation of sentenced persons, by allowing foreigners who are deprived of their liberty as a result of their commission of a criminal offence to serve their sentences within their own society.
26. It follows from those judgments, Offermanns  at paragraph 49 and Humer  at paragraph 33, that such advances are family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71.
27. Accordingly, in the present case it suffices to point out that the fact that the advances on maintenance payments were granted pursuant to Paragraph 4(3) of the UVG, namely on the ground that the father of the claimant, the person with the maintenance obligation, was serving a prison sentence, and not pursuant to the general provision in Paragraph 3 of the UVG, cannot affect the classification of the advances in question as ‘family benefits’ within the meaning of Article 4(1)(h) of Regulation No 1408/71. According to Article 1(u)(i) of that regulation, the term ‘family benefits’ includes all benefits in cash or in kind intended to meet family expenses. In that connection, the Court has held that the expression ‘to meet family expenses’ in Article 1(u)(i) is to be interpreted as referring in particular to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance (‘Unterhalt’) of children ( Offermanns , paragraph 41).
31. The terms ‘employed person’ and ‘self‑employed person’ contained in that provision are defined in Article 1(a) of that regulation. They include any person insured under any of the social security schemes referred to in Article 1(a) against the contingencies and subject to the conditions referred to in that provision (Case C‑2/89 Kits van Heijningen  [1990] ECR I‑1755, paragraph 9; and Joined Cases C‑4/95 and C‑5/95 Stöber and Piosa Pereira  [1997] ECR I‑511, paragraph 27).
32. It follows, as the Court has stated in particular in paragraph 36 of Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, that a person has the status of employed person within the meaning of Regulation No 1408/71 where he is covered, if only in respect of a single risk, compulsorily or on an optional basis, by a general or special social security scheme mentioned in Article 1(a) of Regulation No 1408/71, irrespective of the existence of an employment relationship.
38. In that connection the Court points out that the provisions of Title II of Regulation No 1408/71, of which Article 13 forms part, constitute a complete and uniform system of conflict rules. Those provisions are intended in particular to prevent the concurrent application of a number of national legislative systems and the complications which might ensue (Case C‑275/96 Kuusijärvi  [1998] ECR I‑3419, paragraph 28).
39. The law applicable to the situation of an employed person in one of the situations covered by the provisions of Title II of Regulation No 1408/71 must therefore be determined in accordance with those provisions. Admittedly, as stated by the Advocate General in point 37 of her Opinion, the application of provisions from another system of legislation is not thereby always precluded. As observed by the Commission, such a situation may arise for example when two spouses work in two different Member States whose respective sets of legislation both provide for the payment of similar family benefits (see, in that regard, Case C‑119/91 McMenamin  [1992] ECR I‑6393). In the present case, however, it is clear that nothing in the file submitted to the Court suggests that the claimant in the main proceedings may come within the scope of application of Regulation No 1408/71 in any capacity other than as a ‘member of the family’ of his father within the meaning of that regulation.
41. By contrast, Article 13(2)(f) of Regulation No 1408/71 covers situations where the legislation of a Member State ceases to be applicable to the person concerned, on the ground, notably, that he has ceased carrying on his occupational activities without the legislation of another Member State becoming applicable to him in accordance with the rules laid down in Articles 13 to 17 of that regulation. In such a case the person in question is subject to the legislation of the Member State where he resides.
42. As regards the interpretation of Article 13(2)(a) of Regulation No 1408/71, it is true that, prior to the insertion of Article 13(2)(f) of that regulation, that provision was interpreted as meaning that an employed person who ceases carrying on his activities in the territory of one Member State and moves to another Member State without working there remains subject to the legislation of the Member State where he was last employed, regardless of how much time has elapsed since the end of the activities in question and the end of the employment relationship (Case 302/84 Ten Holder  [1986] ECR 1821, paragraph 15), unless the cessation was definitive (Case C‑140/88 Noij  [1991] ECR I‑387, paragraphs 9 and 10; and Case C‑215/90 Twomey  [1992] ECR I‑1823, paragraph 10).
43. However, Article 13(2)(f), which was introduced into Regulation No 1408/71 following the judgment in Ten Holder , implies that a cessation of all occupational activity, regardless of whether it is temporary or definitive, places the person in question outside the scope of application of Article 13(2)(a). Article 13(2)(f) thus applies inter alia to a person who has ceased carrying on occupational activity in one Member State and has transferred his residence to another Member State (see Kuusijärvi , paragraphs 39 to 42 and 50).
46. The Court notes, moreover, that Articles 73 and 74 of that regulation provide that employed persons subject to the legislation of a Member State (or unemployed persons drawing unemployment benefits under the legislation of a Member State) are entitled, in respect of the members of their family who are residing in another Member State, to the family benefits provided for by the legislation of the former State (see, in particular, Kuusijärvi , paragraph 68).
50. The Court observes in this respect that Article 12(1) EC prohibits, within the scope of application of the Treaty, and without prejudice to the special provisions contained therein, any discrimination on grounds of nationality. That rule has been implemented, with respect to employed persons, by Articles 39 EC to 42 EC, and by acts of the Community institutions adopted on the basis of those articles and, in particular, by Regulation No 1408/71. Article 3 of that regulation is designed in particular to ensure for workers covered by the regulation, in accordance with Article 39 EC, equality in the area of social security without distinction as to nationality (Case 1/78 Kenny  [1978] ECR 1489, paragraphs 9 and 11).