Secretary of State for Work and Pensions v Tolley (deceased, acting in the proceedings by her personal representative).
Date: 2017-02-01
30


As regards the first ground of inadmissibility put forward by the United Kingdom Government, it should be pointed out that Article 267 TFEU gives national courts the widest discretion to refer matters to the Court if they consider that a case pending before them raises questions involving interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case. National courts thus have the power and, in certain cases, an obligation, to make a reference for a preliminary ruling once they find, either of their own motion or at the request of the parties, that the substance of the dispute involves a question to be resolved which falls within the scope of the first paragraph of that article. That is the reason why the fact that the parties to the main proceedings have not raised a point of EU law before the referring court does not preclude the latter from bringing the matter before the Court of Justice (judgment of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraphs 64 and 65 and the case-law cited).
31


The system of reference for a preliminary ruling is based on a dialogue between one court and another, the initiation of which depends entirely on the national court’s assessment as to whether a reference is appropriate and necessary (judgment of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 66).
32


Furthermore, whilst it may well be in the interests of the proper administration of justice for a question not to be referred for a preliminary ruling until after both parties have been heard, it must nevertheless be recognised that the fact that they have been heard beforehand is not among the conditions required to set in motion the procedure under Article 267 TFEU (see, to that effect, judgment of 3 March 1994, Eurico Italia and Others, C‑332/92, C‑333/92 and C‑335/92, EU:C:1994:79, paragraph 11).
34


As to the second ground of inadmissibility, it need merely be recalled that, even when there is case-law of the Court resolving the point of law at issue, national courts remain entirely at liberty to bring a matter before the Court if they consider it appropriate to do so, and the fact that the provisions whose interpretation is sought have already been interpreted by the Court does not deprive the Court of jurisdiction to give a further ruling (judgment of 17 July 2014, Torresi, C‑58/13 and C‑59/13, EU:C:2014:2088, paragraph 32 and the case-law cited).
38


According to the Court’s case-law, a person has the status of an ‘employed or self-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 referred to in Article 1(a) of that regulation, irrespective of the existence of relations as such a person (judgment of 10 March 2011, Borger, C‑516/09, EU:C:2011:136, paragraph 26 and the case-law cited).
41


The fact that Mrs Tolley died before reaching the retirement age is not capable of calling that conclusion into question. Whether or not a person falls within the scope ratione personae of Regulation No 1408/71 does not depend on the materialisation of the contingency covered (see, to that effect, judgment of 10 March 2011, Borger, C‑516/09, EU:C:2011:136, paragraph 30).
43


Next, it should be recalled that a benefit is regarded as a social security benefit where it is granted without any individual and discretionary assessment of personal needs, on the basis of a statutorily defined position, and it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (judgment of 18 October 2007, Commission v Parliament and Council, C‑299/05, EU:C:2007:608, paragraph 56 and the case-law cited).
45


In order to distinguish between the various categories of social security benefits, the risk covered by each benefit must be taken into consideration (judgment of 18 July 2006, De Cuyper , C‑406/04, EU:C:2006:491, paragraph 27).
46


In that regard, the Court has held that benefits which are granted objectively on the basis of a statutorily defined position and are intended to improve the state of health and quality of life of persons reliant on care have as their essential purpose supplementing sickness insurance benefits and must be regarded as ‘sickness benefits’ for the purposes of Article 4(1)(a) of Regulation No 1408/71 (judgments of 5 March 1998, Molenaar, C‑160/96, EU:C:1998:84, paragraphs 23 to 25, and of 18 October 2007, Commission v Parliament and Council, C‑299/05, EU:C:2007:608, paragraph 61 and the case-law cited).
53


The fact that, for the purposes of grant of the care component of DLA, the reduction in mobility must relate to a substantial period of time is not such as to change the purpose of that allowance, which is to improve the quality of life of persons reliant on care (see, by analogy, judgment of 18 October 2007, Commission v Parliament and Council, C‑299/05, EU:C:2007:608, paragraph 63).
54


Furthermore, the Court has held that benefits, such as that at issue in the main proceedings, relating to the risk of reliance on care must be treated as sickness benefits, within the meaning of Article 4(1)(a) of Regulation No 1408/71, although, unlike sickness benefits stricto sensu, they are not in principle intended to be paid on a short-term basis and they may, particularly as regards the details of their application, display characteristics which in practice also resemble to a certain extent the invalidity and old-age branches (see, to that effect, judgment of 30 June 2011, da Silva Martins, C‑388/09, EU:C:2011:439, paragraphs 47 and 48).
57


Regulation No 1408/71 does not set up a common scheme of social security, but allows different national social security schemes to exist and its sole objective is to ensure the coordination of those schemes. It thus allows different schemes to continue to exist, creating different claims on different institutions against which the claimant possesses direct rights by virtue either of national law alone or of national law supplemented, where necessary, by EU law (judgment of 21 February 2013, Dumont de Chassart, C‑619/11, EU:C:2013:92, paragraph 40 and the case-law cited).
58


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 may 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 (judgment of 11 June 1998, Kuusijärvi, C‑275/96, EU:C:1998:279, paragraph 28).
59


Thus, where a person falls within the scope ratione personae of Regulation No 1408/71, as defined in Article 2 thereof, the rule in Article 13(1) of the regulation that the legislation of a single Member State is to apply is in principle applicable and the national legislation applicable is determined in accordance with the provisions of Title II of the regulation (judgment of 19 March 2015, Kik, C‑266/13, EU:C:2015:188, paragraph 47).
60


As regards Article 13(2) of Regulation No 1408/71, its sole purpose is to determine the national legislation applicable to persons who are in one of the situations referred to in subparagraphs (a) to (f) thereof (judgment of 11 June 1998, Kuusijärvi, C‑275/96, EU:C:1998:279, paragraph 29).
61


So far as concerns, in particular, Article 13(2)(f), it should be noted that the fact that the legislation of a Member State ceases to be applicable constitutes a condition for the application of that provision (see, to that effect, judgment of 19 March 2015, Kik, C‑266/13, EU:C:2015:188, paragraph 51).
64


The conditions under which the legislation of a Member State ceases to be applicable to a person are not defined in Article 13(2)(f) of Regulation No 1408/71. Thus, it is for the national legislation of each Member State to lay down those conditions (see, to that effect, judgment of 19 March 2015, Kik, C‑266/13, EU:C:2015:188, paragraph 51).
71


It should be pointed out at the outset that Article 19 of Regulation No 1408/71, headed ‘Residence in a Member State other than the competent State — General rules’, guarantees, at the expense of the competent State, the right for an employed or self-employed person, as well as for members of that person’s family, residing in another Member State the condition of whom requires treatment in the territory of the Member State of residence to receive sickness benefits in kind provided by the institution of the latter Member State (judgment of 16 July 2009, von Chamier-Glisczinski, C‑208/07, EU:C:2009:455, paragraph 42).
74


Next, Article 22(1)(b) of Regulation No 1408/71 concerns, inter alia, the situation where an employed or self-employed person transfers his residence during sickness to a Member State other than that of the competent institution (see, to that effect, judgment of 16 July 2009, von Chamier-Glisczinski, C‑208/07, EU:C:2009:455, paragraph 45).
80


Moreover, the Court has already held that, by the reference to an ‘employed or self-employed person’ in Article 22(1)(b) thereof, Regulation No 1408/71 does not seek to restrict the scope of that provision to active, as opposed to inactive, employed or self-employed persons (see, to that effect, judgment of 31 May 1979, Pierik, 182/78, EU:C:1979:142, paragraph 7).