Silke Gaumain-Cerri v Kaufmännische Krankenkasse - Pflegekasse and Maria Barth v Landesversicherungsanstalt Rheinprovinz.
Date: 2004-07-08
3. In Germany, care insurance was introduced, from 1 January 1995, by the Pflegeversicherungsgesetz (Care Insurance Law, hereinafter ‘the Law’), contained in Volume XI of the Sozialgesetzbuch (German Code of Social Law, hereinafter ‘the SGB’). It is designed to cover the costs entailed if insured persons should become reliant on care, that is to say, if a permanent need were to arise for those insured to resort, in large measure, to assistance from other persons in the performance of their daily routine (bodily hygiene, nutrition, moving around, housework, and so on).
15. As the Court has consistently held, the procedure provided for in Article 234 EC is an instrument for cooperation between the Court of Justice and the national courts which enables it to provide them with the elements of interpretation of Community law they require in order to settle disputes before them. On the other hand, it is not for the Court to interpret, in the context of that procedure, the national law of a Member State and, save exceptionally, it is for the national court, which is alone in having a direct knowledge of the facts of the case and of the arguments put forward by the parties and which must assume the responsibility of giving judgment in the case, to assess, with full knowledge of the matter before it, the relevance of the questions of law raised by the dispute before it and the need for a preliminary ruling so as to enable it to give judgment (see, in particular Case 53/79 Damiani  [1980] ECR 273, paragraph 5).  In the present case, it is not apparent that the questions referred by the Sozialgericht Aachen are in any way exceptional such as to justify not examining them.
Substance
19. In the judgment in Case C-160/96 Molenaar  [1998] ECR I‑843, delivered in reply to a question raised in the context of a dispute concerning the refusal to pay the care allowance in question to persons covered by that care insurance on the ground that they did not reside in Germany, the Court stated that:
‘22 […] it appears from the file that care insurance benefits are designed to develop the independence of persons reliant on care, in particular from the financial point of view. The system introduced is aimed at encouraging prevention and rehabilitation in preference to care and at promoting home care in preference to care provided in hospital.
23 Care insurance gives entitlement to full or partial direct payment of certain expenditure entailed by the i nsured person’s reliance on care such as care provided in the home, in specialised centres or hospitals, the purchase of equipment required by insured persons, the carrying out of work in the home and the payment of monthly financial aid allowing the insured to choose the method of assistance they prefer and, for example, to remunerate in one form or another the third party assisting them. The care insurance scheme provides cover, furthermore, against the risks of accident, old age and invalidity for some of those third parties.
24 Accordingly, 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 the quality of life of persons reliant on care.
25 In those circumstances, even if they have their own characteristics, such benefits must be regarded as “sickness benefits” within the meaning of Article 4(1)(a) of Regulation No 1408/71.’
20. It follows from that judgment that benefits intended to cover the risk of old age of a third party assisting a person reliant on care, such at those provided for by the care insurance system, also constitute ‘sickness benefits’ payable to the person reliant on care, within the meaning of Article 4(1)(a) of Regulation No 1408/71. There are no circumstances peculiar to the present case which call for that assessment to be revised.
21. In particular, the fact that a third party assisting the person reliant on care is personally in receipt of such a benefit is, as PAX points out, of no consequence on account of the fact that the person whose reliance on care justifies the grant of the whole of the benefit is thereby benefiting from a scheme designed to help him to receive, in the most favourable conditions possible, the care which his condition requires. That benefit is thus fully covered by that branch of sickness insurance. The same may be said, moreover, with regard to the care allowance proper when it is used in whole or in part to remunerate the third party assisting the person reliant on care, as is Ms Barth’s case.
22. None the less, the fact that care insurance is at times provided in whole or in part by a private insurer on the basis of a private insurance contract cannot, in such a case, put it outside the scope of Regulation No 1408/71, since the conclusion of such a contract follows directly from the application of the social security legislation in issue.  In that regard, contrary to the assumption of the Greek Government in its observations to the Court, the obligation in question does not arise from provisions of industrial agreements as mentioned in the second paragraph of Article 1(j) of Regulation No 1408/71, which are in principle excluded from the scope of that regulation.
23. The answer to the first set of questions referred by the national courts as summarised in paragraph 17 of this judgment must therefore be that a benefit such as the payment, by the body providing care insurance, of old age insurance contributions of the third party providing care in the home of a person reliant on care in the circumstances of the cases in the main proceedings constitutes a sickness benefit for the benefit of the person reliant on care covered by Regulation No 1408/71.
Whether it is possible to refuse to pay the old age insurance contributions of a third person assisting a reliant person on the ground that one or other of those persons is resident on the territory of a Member State other than the competent State
26. In Molenaar , the Court stated:
‘31 In its judgment in Case 61/65 Vaassen  v Beambtenfonds Mijnbedrijf  [1966] ECR 261, in particular at p. 278, the Court has already stated, in connection with Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.), which preceded Regulation No 1408/71 and used the same terminology, that the term “benefits in kind” does not exclude the possibility that such benefits may comprise payments made by the debtor institution, in particular in the form of direct payments or the reimbursement of expenses, and that “cash benefits” are essentially those designed to compensate for a worker’s loss of earnings through illness.
32 As stated above … care insurance benefits consist, first, in the direct payment or reimbursement of expenses incurred as a result of the insured person’s reliance on care, in particular medical expenses entailed by that condition. Such benefits, which are designed to cover care received by the person concerned, both in the home and in specialised centres, purchases of equipment and work carried out, indisputably fall within the definition of “cash benefits” referred to in [Article] 19(1)(a) … of Regulation No 1408/71.
33 However, although the care allowance is also designed to cover certain costs entailed by reliance on care, in particular those relating to aid provided by a third person, rather than to compensate for loss of earnings on the part of the recipient, it nevertheless displays features distinguishing it from sickness insurance benefits in kind.
34 First, payment of the allowance is periodical and is not subject either to certain expenditure, such as care expenditure, having already been incurred, or a fortiori to the production of receipts for the expenditure incurred. Secondly, the amount of the allowance is fixed and independent of the costs actually incurred by the recipient in meeting his daily requirements. Thirdly, recipients are to a large extent unfettered in their use of the sums thus allocated to them. In particular, as the German Government itself pointed out, the care allowance may be used by recipients to remunerate a member of their family or entourage who is assisting them on a voluntary basis.
35 The care allowance thus takes the form of financial aid which enables the standard of living of persons requiring care to be improved as a whole, so as to compensate for the additional expense brought about by their condition.
36 A benefit such as the care allowance must therefore be regarded as a sickness insurance “cash benefit”, as referred to in [Article] 19(1)(b) … of Regulation No 1408/71.’
34. The status of Union citizenship enables nationals of the Member States who find themselves in the same situation to enjoy within the scope of the Treaty the same treatment in law, subject to such exceptions as are expressly provided for (see, among others, Case C-224/98 D’Hoop  [2002] ECR I-6191, paragraph 28).