Silvia Hosse v Land Salzburg.
Date: 2006-02-21
24. As the Court has consistently held, the provisions of Regulation No 1408/71 adopted to give effect to Article 42 EC must be interpreted in the light of the objective of that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers. The aim of Articles 39 EC, 40 EC, 41 EC and 42 EC would not be attained if, as a consequence of the exercise of their right to freedom of movement, workers were to lose the social security advantages guaranteed them by the legislation of one Member State, especially where those advantages represent the counterpart of contributions which they have paid (see, for example, Case 284/84 Spruyt  [1986] ECR 685, paragraphs 18 and 19).
25. In this context, the Community legislature is entitled to adopt provisions which derogate from the principle that social security benefits are exportable (see, inter alia, Case C‑20/96 Snares  [1997] ECR I‑6057, paragraph 41). Such derogating provisions, and a fortiori Article 4(2b) of Regulation No 1408/71, which excludes certain specific benefits from the scope of that regulation, must be interpreted strictly. This means that that article can apply only to benefits which satisfy cumulatively the conditions it lays down, that is, benefits which are both special and non-contributory, are mentioned in Annex II, Section III, to the regulation, and are laid down by legislation whose application is limited to part of the territory of a Member State.
36. The scheme of Regulation No 1408/71 shows that the concept of ‘social security benefit’ within the meaning of Article 4(1) and the concept of ‘special non-contributory benefit’ within the meaning of Article 4(2a) and (2b) of the regulation are mutually exclusive. A benefit which satisfies the conditions of a ‘social security benefit’ within the meaning of Article 4(1) of Regulation No 1408/71 therefore cannot be analysed as a ‘special non-contributory benefit’.
37. A benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Case 249/83 Hoeckx  [1985] ECR 973, paragraphs 12 to 14; Case C-78/91 Hughes  [1992] ECR I-4839, paragraph 15; Case C‑160/96 Molenaar  [1998] ECR I‑843, paragraph 20; and Jauch , paragraph 25).
38. It follows that benefits which are granted objectively on the basis of a legally defined position and are intended to improve the state of health and life of persons reliant on care have the essential purpose of supplementing sickness insurance benefits, and must be regarded as ‘sickness benefits’ within the meaning of Article 4(1)(a) of Regulation No 1408/71 ( Molenaar , paragraphs 24 and 25, and Jauch , paragraph 28).
39. A care allowance such as that granted under the SPGG is intended to compensate, in the form of a flat-rate contribution, for the additional expenditure resulting from the recipients’ condition of reliance on care, in particular the cost of the assistance it is necessary to provide them with.
40. The amount of such a care allowance depends of the degree of reliance on care. It corresponds to the time spent on care, expressed in terms of hours per month. Assessment of reliance on care is regulated in detail in a measure laying down a classification according to degrees of reliance. The other income of the person reliant on care has no effect on the amount of the care allowance.
41. The allowance is paid to persons who do not receive any pension under the Federal provisions. Those persons are essentially members of the families of socially insured persons, recipients of social assistance, disabled workers, and persons receiving pensions from the provinces and municipalities.
42. Consequently, while a care allowance such as that at issue in the main proceedings may have a different system from that applicable to the German benefits of insurance against reliance on care at issue in Molenaar  and the Austrian federal care allowance at issue in Jauch , it none the less remains of the same kind as those benefits.
43. Moreover, as the Court observed in Jauch , the conditions for the grant of care allowance and the way in which it is financed cannot have the intention or the effect of changing the character of care allowance as analysed in the Molenaar  and Jauch  judgments. The fact that the grant of the benefit is not necessarily linked to payment of a sickness insurance benefit or a pension awarded on a basis other than sickness insurance cannot therefore change that analysis.
44. In those circumstances, even if they have their own particular characteristics, such benefits must be regarded as sickness benefits within the meaning of Article 4(1)(a) of Regulation No 1408/71.
48. A sickness benefit such as the care allowance under the SPGG which takes the form of financial aid which enables the standard of living of persons reliant on care to be improved as a whole, so as to compensate for the additional expense brought about by their condition, is a ‘cash benefit’ of sickness insurance referred to in Article 19(1)(b) of Regulation No 1408/71 (see Molenaar , paragraphs 35 and 36).
52. It is true that the Court has held that, by virtue of Article 2 of Regulation No 1408/71, members of the family of a worker have only derived rights, that is, rights acquired in that capacity, not rights of their own which they enjoy without any relation of kinship with the worker (see, in particular, Case 40/76 Kermaschek  [1976] ECR 1669, paragraph 7).