Manfred Molenaar and Barbara Fath-Molenaar v Allgemeine Ortskrankenkasse Baden-Württemberg.
Date: 1998-03-05
6 Secondly, care insurance gives entitlement to direct payment of the cost of nursing home or hospital care provided to the insured person, to allowances designed to cover the absence on holiday of the third party who usually looks after the person insured and to allowances and payments for various costs entailed by the insured person's reliance on care, such as the purchase and installation of special equipment and work required to adapt the home.
14 With a view to answering that question, it must be recalled that, according to the Court's case-law (see, inter alia, Case 368/87 Hartmann Troiani v Landesversicherungsanstalt Rheinprovinz [1989] ECR 1333, paragraph 20, and Case C-443/93 Vougioukas v IKA [1995] ECR I-4033, paragraph 30), in order to safeguard the effective exercise of the right to freedom of movement enshrined in Article 48 of the EC Treaty, the Council was required, under Article 51 thereof, to set up a system to enable workers to overcome obstacles with which they might be confronted in national social security rules. In principle, the Council carried out that duty by introducing Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).
19 On this point, it must be recalled that the distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within it is based essentially on the constituent elements of each particular benefit, in particular its purpose and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation (Case C-78/91 Hughes [1992] ECR I-4839, paragraph 14).
20 The Court has consistently stated that a benefit may be regarded as a social security benefit in so far as 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 (see, in particular, Case 249/83 Hoeckx [1985] ECR 973, paragraphs 12 to 14; Case 122/84 Scrivner [1985] ECR 1027, paragraphs 19 to 21; Case C-356/89 Newton [1991] ECR I-3017; and Case C-78/91 Hughes, cited above, paragraph 15). That list is exhaustive, so that a branch of social security not mentioned therein does not fall within that category even if it confers upon recipients a legally defined position entitling them to benefits (see, in particular, Case C-25/95 Otte [1996] ECR I-3745, paragraph 22).
21 As regards the first of those two conditions, it is common ground that the provisions concerning the grant of care insurance benefits confer on recipients a legally defined right.
22 With regard to the second condition, it appears from the file that care insurance benefits are designed to develop the independence of persons reliant on care, in particular from the financial point of view. The system introduced is aimed at encouraging prevention and rehabilitation in preference to care and at promoting  home care in preference to care provided in hospital.
23 Care insurance gives entitlement to full or partial direct payment of certain expenditure entailed by the insured person's reliance on care such as care provided in the home, in specialised centres or hospitals, the purchase of equipment required by insured persons, the carrying out of work in the home and the payment of monthly financial aid allowing the insured to choose the method of assistance they prefer and, for example, to remunerate in one form or another the third party assisting them. The care insurance scheme provides cover, furthermore, against the risks of accident, old age and invalidity for some of those third parties.
24 Accordingly, benefits of that type are essentially intended to supplement sickness insurance benefits to which they are, moreover, linked at the organisational level, in order to improve the state of health and the quality of life of persons reliant on care.
25 In those circumstances, even if they have their own characteristics, such benefits must be regarded as `sickness benefits' within the meaning of Article 4(1)(a) of Regulation No 1408/71.
31 In its judgment in Case 61/65 Vaassen v Beambtenfonds Mijnbedrijf [1966] ECR 261, in particular at p. 278, the Court has already stated, in connection with Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.), which preceded Regulation No 1408/71 and used the same terminology, that the term `benefits in kind' does not exclude the possibility that such benefits may comprise payments made by the debtor institution, in particular in the form of direct payments or the reimbursement of expenses, and that `cash benefits' are essentially those designed to compensate for a worker's loss of earnings through illness.
32 As stated above, in particular at paragraphs 5, 6, 7 and 23 of this judgment, care insurance benefits consist, first, in the direct payment or reimbursement of expenses incurred as a result of the insured person's reliance on care, in particular medical expenses entailed by that condition. Such benefits, which are designed to cover care received by the person concerned, both in the home and in specialised centres, purchases of equipment and work carried out, indisputably fall within the definition of `cash benefits' referred to in Articles 19(1)(a), 25(1)(a) and 28(1)(a) of Regulation No 1408/71.
33 However, although the care allowance is also designed to cover certain costs entailed by reliance on care, in particular those relating to aid provided by a third person, rather than to compensate for loss of earnings on the part of the recipient, it nevertheless displays features distinguishing it from sickness insurance benefits in kind.
34 First, payment of the allowance is periodical and is not subject either to certain expenditure, such as care expenditure, having already been incurred, or a fortiori to the production of receipts for the expenditure incurred. Secondly, the amount of the allowance is fixed and independent of the costs actually incurred by the recipient in meeting his daily requirements. Thirdly, recipients are to a large extent unfettered in their use of the sums thus allocated to them. In particular, as the German Government itself pointed out, the care allowance may be used by recipients to remunerate a member of their family or entourage who is assisting them on a voluntary basis.
35 The care allowance thus takes the form of financial aid which enables the standard of living of persons requiring care to be improved as a whole, so as to compensate for the additional expense brought about by their condition.
36 A benefit such as the care allowance must therefore be regarded as a sickness insurance `cash benefit', as referred to in Articles 19(1)(b), 25(1)(b) and 28(1)(b) of Regulation No 1408/71.
37 In those circumstances it follows, first, from the wording of Article 19(1)(a) of Regulation No 1408/71 that an employed person residing in a Member State other than that in which he is employed is to receive, in the Member State in which he resides, benefits such as care insurance benefits in kind in so far as the legislation of that State, whatever the more specific name given to the social protection scheme of which it forms part, provides for the payment of benefits in kind designed to cover the same risks as those covered by care insurance in the Member State of employment.  Those benefits are to be paid by the institution of the place of residence in accordance with the provisions laid down by the legislation of the Member State of residence. The same is true with regard to unemployed persons and pensioners covered by the legislation of a Member State other than that in which they reside, pursuant to Articles 25(1)(a) and 28(1)(a) of Regulation No 1408/71.
41 There is no rule of Community law which requires the competent institution to ascertain whether an employed person is likely to be able to take advantage of all the benefits of a sickness insurance scheme before registering that person and collecting the appropriate contributions. The right to benefits must be assessed, on the basis of the conditions laid down by the legislation of the competent Member State, on the date when entitlement arises, so that the situation on the date when the contribution is payable is not relevant in that connection.  That is true in particular of the employed person's residence, which is not definitively settled when he joins the scheme or pays contributions.
42 Recognition of a right to exemption would amount, moreover, to accepting, as regards the scope of the risks covered by sickness insurance, a difference in the treatment of insured persons according to whether or not they resided on the territory of the State in which they were insured. To offer a migrant worker the possibility of choosing exemption would be equivalent, for the competent State, to asking him to waive in advance the benefit of the mechanism introduced by Articles 19(1), 25(1) and 28(1) of Regulation No 1408/71. No such consequence can arise either from the Treaty, in particular Articles 6 and 48(2) thereof, or from that regulation.