Fritz Stöber (C-4/95) and José Manuel Piosa Pereira (C-5/95) v Bundesanstalt für Arbeit.
Date: 1997-01-30
27 The expression `self-employed persons' used in that provision is defined by Article 1(a) of Regulation No 1408/71.  It means any person who is insured under one of the social security schemes referred to in Article 1(a) for the contingencies and on the conditions mentioned in that provision (Kits van Heijningen, paragraph 9).
29 However, according to the terms of Annex I, point I, C, (b), to which Article 1(a)(ii) of Regulation No 1408/71 refers, only workers compulsorily insured under one of the schemes mentioned therein are entitled to German family benefits in accordance with Chapter 7 of Title III of Regulation No 1408/71.
30 Admittedly, as the Court has held (see, in particular, Case 300/84 Van Roosmalen [1986] ECR 3097, paragraphs 18 and 20), the expression `self-employed person' within the meaning of Regulation No 1408/71 must be interpreted broadly, having regard to its objective of contributing towards the establishment of the greatest possible freedom of movement for migrant workers, a principle which is one of the foundations of the Community.
31 However, as the German Government has rightly observed, in so far as Regulation No 3427/89 included self-employed persons among the persons covered by Article 73 of Regulation No 1408/71, the Community legislator was itself entitled to determine which of them it intended to qualify to benefit under its provisions.  Accordingly, as far as German family benefits are concerned, the Community legislator chose as its criterion compulsory old-age insurance under a scheme for self-employed persons or within the framework of compulsory old-age insurance.
32 If a worker in a situation of the kind before the national court were allowed to rely on one of the other definitions of `self-employed person' set out in Article 1(a) in order to qualify for German social security benefits, that would be tantamount to depriving the provision in the annex of all effectiveness.
33 As the Advocate General observed in point 32 of his Opinion, it is not possible to reject that conclusion on the basis of the judgment in Kits van Heijningen, in which the Court merely clarified the scope of Regulation No 1408/71, as defined in Article 2, without seeking to resolve the problems connected with the various definitions set out in Article 1(a) of the regulation.
34 Consequently, where the competent institution for the payment of family benefits is German, the notion of self-employed person within the meaning of Article 73 of Regulation No 1408/71 must be interpreted as referring only to persons satisfying the specific conditions set forth in the second indent of Article 1(a)(ii) and point I, C, (b) of Annex I, the definitions set out in Article 1(a)(i) and (iv) being applicable as appropriate to the other contingencies against which the worker is voluntarily insured.
35 Under the aforementioned provision of Annex I, whether a person has the capacity of a self-employed person depends, inter alia, on whether he is affiliated to an old-age insurance scheme.  In the case of self-employed persons, it is permissible under German law for them to join such a scheme within a specified period of their commencing self-employment.
36 In this connection, it should be noted that there is nothing to prevent Member States from restricting entitlement to family benefits to persons belonging to a solidarity system constituted by an old-age insurance scheme.  The Member States are at liberty to determine the conditions for entitlement to social security benefits, since Regulation No 1408/71 merely plays a coordinating role.
38 Accordingly, that law treats nationals who have not exercised their right to free movement and migrant workers differently, to the detriment of the latter, since it is primarily the latter's children who do not reside in the territory of the Member State granting the benefits in question.
40 It should be specified in this connection that, unlike in Case C-15/90 Middleburgh [1991] ECR I-4655, paragraphs 14 and 15, the rules which, as regards freedom of establishment, are essential for the purpose, in particular of ensuring that benefits are in fact used for the upkeep of dependent children and avoiding overlapping payments, have been adopted by the Community legislator as regards the periods in question.  In cases such as those before the national court, therefore, the national authorities must apply by analogy such of those rules as are applicable to self-employed persons coming within the scope of Regulation No 1408/71.