Ingrid Hoever and Iris Zachow v Land Nordrhein-Westfalen.
Date: 1996-10-10
17 The Court has repeatedly held that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of each particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation (see, in particular, the judgment in Case C-78/91 Hughes [1992] ECR I-4839, paragraph 14).
18 In that regard, it has, on a number of occasions, stressed that a benefit is to be regarded as a social security benefit if it is granted to recipients without any individual and discretionary assessment of personal needs on the basis of a legally defined position and if it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (judgment in Hughes, cited above, paragraph 15).
19 A benefit such as the child-raising allowance at issue in the present cases meets those conditions.
20 As far as the first condition is concerned, the provisions relating to the grant of German child-raising allowance confer a legally defined right, and the allowance is granted automatically to persons who fulfil certain objective criteria, without any individual and discretionary assessment of personal needs.
21 The point made by the Luxembourg Government that the child-raising allowance is a flat-rate sum which does not vary according to the number or age of the children does not detract from the objective nature of the criteria for granting the benefit. In any event, the documents before the Court show that the amount of the benefit does in fact vary according to the financial situation of the family and, indirectly, depending on the number of children.
22 As regards the second condition, the German Government maintains that the child-raising allowance does not have the same purpose as a "family benefit" within the meaning of Article 1(u)(i) of Regulation No 1408/71 since the child-raising allowance is intended, by conferring a personal right, to remunerate the particular parent who both takes on the task of raising a child and personally fulfils the conditions for grant of the allowance.
23 That argument cannot be accepted. The aim of a benefit such as that at issue is to meet family expenses within the meaning of Article 1(u)(i) of Regulation No 1408/71.
24 First, child-raising allowance is paid only where the family of the person concerned comprises one or more children. Furthermore, its amount varies partly according to the age and number of the children, and also according to the parents' income.
25 Second, as the German Government has pointed out in its written observations, child-raising allowance is intended to enable one of the parents to devote himself or herself to the raising of a young child. As the referring court has stressed, the allowance is aimed more particularly at remunerating the service of bringing up a child, meeting other costs of caring for and bringing up a child and, as the case may be, mitigating the financial disadvantages entailed in giving up income from full-time employment.
26 Third, the link between child-raising allowance and child-raising leave, to which the German Government draws attention, cannot remove the allowance from the scope of Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71 since it must be granted to the recipient, whether or not he or she is an employed person.
27 Consequently, the answer to Question 1 in Cases C-245/94 and C-312/94 must be that a benefit such as the child-raising allowance provided for by the BErzGG, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which is intended to meet family expenses, must be treated as a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.
Question 2(a) in Case C-245/94 and Question 2 in Case C-312/94
29 First of all, neither Mrs Hoever nor Mrs Zachow disputes that they are not persons covered by Regulation No 1408/71, since they are not subject to social insurance within the meaning of Part I.C of Annex I to that regulation (relating to Germany), which defines the conditions to be fulfilled in order to qualify as an employed person for the purposes of the application of Article 73 in Germany. On the other hand, Mr Hoever and Mr Zachow do fulfil those criteria. They are therefore covered by Regulation No 1408/71 and may consequently be regarded as employed persons within the meaning of Article 73 of that regulation.
30 Furthermore, in cases such as these, the plaintiffs' entitlement to child-raising allowance does not depend on their status as members of a worker' s family. In order to be eligible for the allowance, they must personally fulfil the conditions laid down in Paragraph 1(4) of the BErzGG.
31 The German, Spanish and French Governments and the Commission have referred in this regard to the line of authority beginning with the judgment in Case 40/76 Kermaschek [1976] ECR 1669 (paragraph 7), according to which the members of a worker' s family can claim, under Regulation No 1408/71, only derived rights acquired through their status as a member of the family of a worker, that is to say, of a person who can claim the rights to benefits covered by the regulation in his own right (for application of that case-law to Article 73 of Regulation No 1408/71, see the judgment in Hughes, cited above).
32 However, in the judgment of 30 April 1996 in Case C-308/93 Cabanis-Issarte (not yet published in the European Court Reports, paragraph 34), the scope of the rule in Kermaschek was limited to cases in which a member of a worker' s family relies on provisions of Regulation No 1408/71 which are applicable solely to workers and not to members of their families, such as Articles 67 to 71, relating to unemployment benefits. That is not the case with Article 73 of the regulation, the precise purpose of which is to guarantee members of the family residing in a Member State other than the competent State the grant of the family benefits provided for by the applicable legislation.
34 Next, it must be remembered that Article 73 of Regulation No 1408/71 is intended in particular 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 Case C-321/93 Imbernon Martínez [1995] ECR I-2821, paragraph 21).
35 If, as in the main proceedings in the present cases, the grant of child-raising allowance ° which is a family benefit ° were subject to the condition that the spouse of a worker, who is not resident in Germany, must be employed within the territory to which the BErzGG applies, the worker could be deterred from exercising his right to freedom of movement.
36 Consequently, it would be contrary to the purpose and spirit of Article 73 of Regulation No 1408/71 to deprive a worker' s spouse of a benefit to which he or she would have been entitled if the spouse had remained in the State providing that benefit.
37 Lastly, as the Advocate General observes in point 50 of his Opinion, family benefits by their nature cannot be regarded as payable to an individual in isolation from his family circumstances. Since the grant of a benefit such as German child-raising allowance is intended to meet family expenses, the choice of the parent who is to receive the allowance is not of importance.
38 It follows from all the foregoing considerations that, where an employed person is subject to the legislation of a Member State and lives with his or her family in another Member State, that person' s spouse is entitled, under Article 73 of Regulation No 1408/71, to receive a benefit such as child-raising allowance in the State of employment.
Question 2(b) in Case C-245/94