Anne Kuusijärvi v Riksförsäkringsverket.
Date: 1998-06-11
20 The terms `employed person' and `self-employed person' used in Article 2(1) of  Regulation No 1408/71 are defined by Article 1(a). They designate any person insured under one of the social security schemes mentioned in 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 Joined Cases C-4/95 and C-5/95 Stöber and Piosa Pereira [1997] ECR I-511, paragraph 27).
21 Accordingly, as the Court has pointed out, particularly in its judgment of 12 May 1998 in Case C-85/96 Martínez Sala [1998] ECR I-0000, paragraph 36, 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 Regulation No 1408/71, irrespective of the existence of an employment relationship.
24 Article 94(3) of Regulation No 1408/71 expressly provides that a right is to be acquired under that regulation even though it relates to a contingency which materialised prior to the date of application of that regulation in the territory of the Member State concerned.
25 Similarly, Article 94(2) of Regulation No 1408/71 provides that all periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State before the date of its application in the territory of that Member State are to be taken into consideration for the determination of rights acquired under the provisions of the regulation.
28 In that connection it should be pointed 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 not only to prevent the concurrent application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation which is applicable to them (see, in particular, Kits van Heijningen, cited above, paragraph 12).
29 It should next be emphasised that the sole purpose of Article 13(2) of Regulation No 1408/71 is to determine the national legislation applicable to persons who are in one of the situations referred to in subparagraphs (a) to (f) of that provision. As such, the provision is not intended to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch of such a scheme. As the Court has pointed out on several occasions, it is for the legislature of each Member State to lay down those conditions (see, to that effect, Kits van Heijningen, cited above, paragraph 19, and Case C-245/88 Daalmeijer [1991] ECR I-555, paragraph 15).
30 Admittedly, when the Member States lay down the conditions creating the right or the obligation to become affiliated to a social security scheme, they are under an obligation to comply with the provisions of the Community law in force and, in particular, may not exclude from the scope of the legislation at issue persons to whom it applies pursuant to Regulation No 1408/71 (Kits van Heijningen, cited above, paragraph 20).
31 Thus, in its judgment in Kits van Heijningen, cited above, at paragraph 21, the Court held that if the legislation of a Member State made affiliation to the insurance scheme which it establishes of a person employed in its territory conditional upon his residing there, Article 13(2)(a) of Regulation No 1408/71, which provides that a person employed in the territory of one Member State is to be subject to the legislation of that State, even if he resides in the territory of another Member State, would be deprived of all practical effect.
32  However, the fact that the legislation of a Member State makes the right of a person who has ceased all occupational activity in its territory, and who thus no longer satisfies the conditions laid down in Article 13(2)(a) of Regulation No 1408/71, to be or to remain affiliated to that Member State's social security scheme conditional upon his residing in its territory is not such as to deprive Article 13(2)(f) of the regulation of its practical effect or to exclude that person from the application of all social security legislation, in particular that applicable by virtue of Regulation No 1408/71.
33 On the contrary, Article 13(2)(f) is specifically intended to govern such a situation and, to that end, in the case of a person who is no longer subject to any legislation applicable by virtue of the other provisions of Article 13(2), including subparagraph (a), or of the provisions of Articles 14 to 17 of Regulation No 1408/71, declares applicable to that person the legislation of the Member State in whose territory he resides.
34 Accordingly, a person who has ceased all employment in the territory of a Member State and thus no longer satisfies the conditions laid down in Article 13(2)(a) and who, moreover, does not satisfy the conditions laid down in any other provision of Regulation No 1408/71 for the legislation of a Member State to be applicable to him is subject, by virtue of Article 13(2)(f) and in accordance with the legislation of the State in whose territory he resides, either to the legislation of the State in which he was previously employed, if he continues to reside there, or to that of the State to which, if such be the case, he has transferred his residence.
39 On this point it should first be stated that there is nothing in the wording of Article 13(2)(f) of Regulation No 1408/71 to suggest that that provision applies only to workers who have definitively ceased all occupational activity and not to persons who have merely ceased their occupational activity in a given Member State.
40 On the contrary, that provision is couched in general terms so as to cover any situation in which the legislation of a Member State ceases to be applicable to a person, for whatever reason, and not only because the person concerned has ceased his occupational activity, be it definitively or temporarily, in a given Member State.
41 To restrict the application of Article 13(2)(f) of Regulation No 1408/71 to the situation where all occupational activity has definitively ceased would thus amount to depriving that provision of part of its substance.
42 It should next be noted that, according to the third recital in the preamble to Regulation No 2195/91, Article 13(2)(f) was inserted into Regulation No 1408/71 following the judgment in Ten Holder, cited above.
57 The Court has consistently held that a benefit may be regarded as a social security benefit for the purposes of Regulation No 1408/71 where it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (judgment of 5 March 1998 in Case C-160/96 Molenaar [1998] ECR I-0000, paragraph 20).
60 It follows from the judgment in Hoever and Zachow, cited above, that a benefit intended to enable one of the parents to devote himself or herself to the raising of a young child, and designed, more specifically, to remunerate the service of bringing up a child, to meet the other costs of caring for and raising a child and, as the case may be, to mitigate the financial disadvantages entailed in giving up income from an occupational activity, must be treated as a family benefit within the meaning of Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71.
68 As the Court held in its judgment in Case 101/83 Raad van Arbeid v Brusse [1984] ECR 2223, paragraph 30, that article creates, in favour of a worker who is subject to the legislation of a Member State other than the State in whose territory the members of his family reside, a real entitlement to the family benefits provided for by the applicable legislation. That entitlement cannot be defeated by the application of a provision of that legislation by virtue of which persons not residing in the territory of the Member State in question are not to receive family benefits.
69 In accordance with the case-law of the Court (see Case 104/80 Beeck [1981] ECR 503, paragraphs 7 and 8, Case C-78/91 Hughes [1992] ECR I-4839, paragraph 28, and Hoever and Zachow, cited above, paragraph 38), that provision is also applicable to a worker who lives with his family in a Member State other than the one whose legislation is applicable to him.