Christine Dodl and Petra Oberhollenzer v Tiroler Gebietskrankenkasse.
Date: 2005-06-07
27. In that connection, it must be pointed out that there is no single definition of worker/employed or self-employed person in Community law; it varies according to the area in which the definition is to be applied (Case C-85/96 Martínez Sala  [1998] ECR I‑2691, paragraph 31). It is therefore necessary to consider the meaning of the term ‘employed person’ that is envisaged in the context of Regulation No 1408/71.
29. The terms ‘employed person’ and ‘self-employed person’ are defined by Article 1(a) of Regulation No 1408/71. They designate any person insured under one of the social security schemes mentioned in the aforementioned Article 1(a) for the contingencies and under the conditions mentioned in that provision (Case C-2/89 Kits van Heijningen  [1990] ECR I-1755, paragraph 9, and Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 20).
30. Accordingly a person has the status of an ‘employed person’ within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship ( Martínez Sala , cited above, paragraph 36, and Kuusijärvi , cited above, paragraph 21).
31. Thus, as the Advocate General pointed out in paragraph 12 of his Opinion, in the light of the case-law of the Court, it is therefore not the status of the employment relationship which determines whether or not a person continues to fall within the scope ratione personae  of Regulation No 1408/71, but the fact that he or she is covered against risks under a social security scheme mentioned in Article 1(a) of that regulation. It follows from this that the mere suspension of the main obligations of an employment relationship for a given period of time cannot deprive the employee of his or her status as an ‘employed person’ within the meaning of Article 73 of that regulation.
34. The answer to the first question must therefore be that a person has the status of an ‘employed person’ within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship. It is for the national court to make the necessary enquiries to determine whether the claimants in the main proceedings belonged to a branch of the Austrian social security system during the periods in respect of which the allowances in issue were applied for and, accordingly, whether they were ‘employed persons’ within the meaning of Article 1(a).
The second question
46. That provision is intended to prevent Member States from making entitlement to and the amount of family benefits dependent on residence of the members of the worker’s family in the Member State providing the benefits, so that Community workers are not deterred from exercising their right to freedom of movement (see, in particular, Hoever and Zachow , cited above, paragraph 34, and Case C-333/00 Maaheimo [2002] ECR I-10087, paragraph 34).
47. Article 73 of Regulation No 1408/71 goes together with the rule laid down in Article 13(2)(a) of the same regulation which states that a worker employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State. That arrangement stems from the objective of Regulation No 1408/71, which is to guarantee all workers who are nationals of the Member States and who move within the Community equality of treatment in regard to the different national laws and the enjoyment of social security benefits irrespective of the place of their employment or of their residence, and it must be interpreted uniformly in all Member States regardless of the arrangements made by national laws on the acquisition of entitlement to family benefits (Case 104/80 Beeck  [1981] ECR 503, paragraph 7).
49. It must be pointed out, however, that whilst the said Article 73 constitutes a general rule, it is not an absolute rule. The entitlement which the claimants in the main proceedings derive, in their capacity as ‘employed persons’, from Article 13 and Article 73 of Regulation No 1408/71 must be set against the rules against overlapping in that regulation and in Regulation No 574/72, since there is a risk that entitlement under the legislation of the State of residence could overlap with that under the legislation of the State of employment.
53. It is apparent from the wording of Article 76 of Regulation No 1408/71 that that provision is intended to resolve cases where entitlement to family benefits under Article 73 of that regulation overlaps with entitlement under the national legislation of the family members’ State of residence by reason of the carrying on of an occupation. It is common ground that Article 76 is not relevant in the present case, since entitlement to family benefits under German law is conditional on the claimant’s being resident in Germany and having no, or no full-time, employment.
58. In McMenamin , cited above, paragraphs 24 and 25, the Court clarified the meaning of the periphrasis ‘the person entitled to the family benefits or family allowances, or the person to whom they are paid’. It held that it must be understood as encompassing in particular, apart from the spouse, a person who is not or is no longer married to the person entitled to benefits in pursuance of Article 73 of Regulation No 1408/71 or that person himself if the overlapping entitlement to family allowances arises because that person is also working in the State of residence. The legislature chose to define that group of persons by their common characteristic, namely their status as persons entitled to family allowances in the Member State of residence, rather than by giving an exhaustive list.
59. The Court then held that the exercise by a person having the care of children, and, in particular, by the spouse of the person entitled in pursuance of Article 73 of Regulation No 1408/71, of a professional or trade activity in the Member State of residence of the children suspends, under Article 10 of Regulation No 574/72, the right to allowances in pursuance of Article 73 of Regulation No 1408/71 up to the amount of the allowances of the same kind actually paid by the Member State of residence, irrespective of who is designated as directly entitled to the family allowances by the legislation of that State ( McMenamin , cited above, paragraph 27).
60. That interpretation of Article 10(1)(b)(i) of Regulation No 574/72 can be directly applied to situations such as that in the case in the main proceedings with regard to the exercise by Ms Dodl’s spouse and Ms Oberhollenzer’s partner of a professional or trade activity in the Member State of residence. Consequently, it is that State, in this case, the Federal Republic of Germany, which is responsible for paying the family benefits in issue.
64. The answer to the second question must therefore be that where the legislation of the Member State of employment and that of the Member State of residence of an employed person each provide for an entitlement to family benefits in respect of the same member of that person’s family and for the same period, the Member State responsible for paying those benefits is, in principle, the Member State of employment pursuant to Article 10(1)(a) of Regulation No 574/72. However, where a person having the care of children, in particular the spouse or partner of the employed person, carries out a professional or trade activity in the Member State of residence, the family benefits must be paid by that Member State in application of Article 10(1)(b)(i) of Regulation No 574/72, irrespective of who is designated as directly entitled to those benefits by the legislation of that State. In that situation, the payment of family benefits by the Member State of employment is to be suspended up to the sum of family benefits provided for by the legislation of the Member State of residence.
Costs