Pascual Merino García v Bundesanstalt für Arbeit.
Date: 1997-06-12
22 The expression `employed persons' used in Article 2(1) of the Regulation is defined in Article 1(a).  It means any person who is insured under one of the social security schemes referred to in Article 1(a) for the contingencies and on the conditions mentioned in that provision (Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 9).
24 However, as the Court held in Joined Cases C-4/95 and C-5/95 Stöber and Pereira [1997] ECR I-0000, paragraph 29, concerning self-employed persons, it appears from the very wording of the Annex to which Article 1(a)(ii) of Regulation No 1408/71 refers that only workers compulsorily insured under one of the schemes mentioned therein are entitled to German family benefits in accordance with Chapter 7 of Title III of the Regulation (see also to this effect Joined Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR I-0000, paragraph 29).
25 If a worker in a situation of the kind before the national court were allowed to rely on one of the other definitions of employed person set out in Article 1(a) in order to qualify for German family benefits, that would be tantamount to depriving the provision in the Annex of all effectiveness (Stöber and Pereira, cited above, paragraph 32).
26 Consequently, for the purposes of paying family benefits under German legislation in accordance with Article 73 of the Regulation, the expression `employed persons' must be construed as designating only employed persons who satisfy the definition resulting from the combined provisions of Article 1(a)(ii) and the Annex.
Validity of the Annex
27 It should first be noted that Article 51 of the EC Treaty provides for coordination, not harmonization, of the social security legislation of the various Member States. Substantive and procedural differences between the social security schemes of individual Member States, and hence in the rights of persons working in those States, are unaffected by Article 51 of the Treaty (see, in particular, Case 41/84 Pinna v Caisse d'Allocations Familiales de la Savoie [1986] ECR 1, paragraph 20).
28 Article 73 of the Regulation 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 (Hoever and Zachow, cited above, paragraph 34).
33 The Court has pointed out on a number of occasions that the principle of equal treatment to which that provision gives expression prohibits not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, achieve in practice the same result (Pinna, cited above, paragraph 23).
35 The German Government's argument that Paragraph 2(5) of the BKGG affects German nationals whose children do not satisfy the residence requirement, as well as foreigners, cannot be regarded as well founded.  As the Court held in paragraph 24 of the judgment in Pinna, the problem of members of the family residing outside the Member State responsible for paying benefits arises essentially for migrant workers (see, to the same effect, Stöber and Pereira, paragraph 38).