Ghislain Leclere and Alina Deaconescu v Caisse nationale des prestations familiales.
Date: 2001-05-31
29 Having regard to the wide discretion which the Council enjoys in implementing Articles 48 and 51 of the Treaty (See Case C-360/97 Nijhuis [1999] ECR I-1919, paragraph 30), the fact that a category of benefits is not affected by the co-ordination provisions of Regulation No 1408/71 cannot on any view render the relevant provisions of that regulation invalid. Restriction of the scope of Regulation No 1408/71 cannot in itself have the effect of adding further disparities to those resulting from the lack of harmonisation of national legislation or of infringing the principle of equal treatment.
32 As regards, second, special non-contributory benefits, which, according to Annex IIa to Regulation No 1408/71, include the Luxembourg maternity allowance, it is open to the Community legislature when implementing Article 51 of the Treaty to adopt provisions which derogate from the principle of exportability of social security benefits. In particular, as the Court has already accepted, a condition of residence in the State of the competent institution may legitimately be required for the grant of benefits closely linked with the social environment (see Lenoir, paragraph 16, and Snares, paragraph 42).
37 The provisions of Regulation No 1408/71 on the waiving of residence clauses are measures applying Article 51 of the Treaty adopted for the establishment, in the field of social security, of freedom of movement for workers guaranteed in Article 48 of the Treaty (see, in particular, concerning the interpretation of Articles 10a and 11 of Regulation No 1408/71, Case C-215/99 Jauch [2001] ECR I-1901, paragraph 20). Therefore the inclusion of the Luxembourg maternity allowance as a special non-contributory benefit paid exclusively in the territory of the Member State of residence in Annex IIa, point I. Luxembourg, (b), of Regulation No 1408/71 is contrary to Articles 48 and 51 of the Treaty. Accordingly, the grant of that benefit cannot be conditional upon residence in the territory of the competent State.
41 It must be remembered that, for the purposes of Article 77 of Regulation No 1408/71, the benefits for dependent children to which persons receiving pensions are entitled irrespective of the Member State where they reside are family allowances and family allowances alone (see, in particular, Case C-33/99 Fahmi and Esmoris Cerdeiro-Pinedo Amado [2001] ECR I-2415, paragraph 33).
42 Under Article 1(u)(ii) of Regulation No 1408/71, family allowances means periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members of the family. The Court has already held that the definition of family allowances in Article 1(u)(ii) of Regulation No 1408/71 is the definition to be used in interpreting Article 77 (see Lenoir, paragraph 10).
49 However, that definition is of no consequence when it comes to determining the respective scope of Articles 73 and 77 of Regulation No 1408/71. In that regard, it should be recalled that the specific purpose of Article 77 is to define the conditions in which a person in receipt of a pension may claim a dependent child's allowance from a Member State under whose legislation he receives a pension and that that provision expressly restricts its scope to family allowances. In those circumstances, neither Article 73, which, unlike Article 77, is not a special rule, nor any other provision of that regulation can be interpreted as meaning that it enables the recipient of a pension who resides outside the territory of the paying Member State to obtain from that Member State dependent child allowances other than family allowances (see Fahmi and Esmoris Cerdeiro-Pinedo Amado, paragraph 34).
50 The fact that the pension is subject to deductions under a compulsory sickness insurance scheme does not take the person concerned out of the category of persons receiving pensions and into the category, excluding the former, of employed or self-employed persons within the meaning of Article 73 of Regulation No 1408/71.
55 It should be recalled that, in the context of Article 48 of the Treaty and Regulation No 1612/68, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. Once the employment relationship has ended, the person concerned as a rule loses his status of worker, although that status may produce certain effects after the relationship has ended, and a person who is genuinely seeking work must also be classified as a worker (see, to that effect, Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraph 17, Case 39/86 Lair [1988] ECR 3161, paragraphs 31 to 36, and Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 32).
56 The Court has thus held that the effects connected with the status of worker which continue after the end of the employment relationship for persons not or no longer having their residence in the territory of the Member State in which they worked include the right of the employees of steel companies in eastern and northern France affected by reorganisation to be awarded concessionary supplementary retirement points (Commission v France, paragraph 41) and also the right to a benefit awarded in the Netherlands to agricultural workers whose contract of employment came to an end as a result of the setting aside of land belonging to their former employer (Meints, paragraphs 40 and 41).
57 As stated in paragraph 41 of Meints, the situations referred to in the preceding paragraph correspond to benefits the payment of which is dependent on the prior existence of an employment relationship which has come to an end and is intrinsically linked to the recipients' objective status as workers.