C-84/77

JUDGMENT OF THE COURT OF 19 JANUARY 1978 1

Caisse Primaire d'Assurance Maladie d'Eure-et-Loir v Alicia Tessier, née Recq (preliminary ruling requested by the French Cour de Cassation)

'Persons to whom Regulation No 1408/71 is applicable — social security scheme applicable to all residents'

Case 84/77

1. Social security for migrant workers — National scheme applicable to all residents — Application to a national of another Member State — Community rules — Benefit — Grant — Condition — Status as employed person — Definition with regard to British legislation — Criterion — Payment of social security contributions (Regulation No 1408/71, Art. 1 (a) (ii) and Annex V)

2. Social security for migrant workers — Community rules — Employed person — Insurance periods completed under the legislation of another Member State — Acquisition of a right — Accrued rights — Taking into account (Regulation No 1408/71, Art. 18)

and

Alicia Tessier, Née Recq, residing in Paris,

on the interpretation, as regards the effects in the field of social security of an au pair placement, of Regulation No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community,

THE COURT

composed of: H. Kutscher, President, M. Sørensen and G. Bosco (Presidents of Chambers), A. M. Donner, P. Pescatore, Lord Mackenzie Stuart and A. O'Keeffe, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

'the Sickness Fund'), whose head office respondent to the appeal in cassation, is in Chartres, to reimburse the costs she who had now become Mrs Tessier and had incurred by way of benefits in kind was living in Paris, could not at the time under the sickness insurance scheme. claim to be a dependant of her father The Commission de Recours Gracieux within the meaning of the French (appeals committee) of the Sickness legislation, the question arose whether or not she was able to claim social Fund refused to grant her request on the ground that the applicant could not security benefits in kind in her own obtain the reimbursement of her right under Regulation (EEC) No

2. Whether the rights acquired by such Journal, English Special Edition 1971 a national during his stay must be (II), p. 416). taken into account by any other On 21 November 1974 Miss Recq Member State as if they were lodged an appeal against the decision of periods laid down for the acquisition the Sickness Fund with the Commission of a right under its own legislation'. de Premiere Instance du Contentieux de la Sécurité Sociale (Tribunal of First The judgment of the French Cour de Instance for Disputes Concerning Social Cassation was received at the.

the European Communities on 21 benefits as a dependant of her father. September and by the Government of The Sickness Fund lodged an appeal in the United Kingdom on the same date. cassation against that decision on 23 Upon hearing the report of the Judge- May 1975. Rapporteur and the views of the The French Cour de Cassation, Social Advocate General the Court decided to Chamber, by judgment of 3 June 1977, open the oral procedure without found that even if hypothetically the holding a preparatory inquiry.

financed does not enable a person Article 1 (a) (ii) of Regulation No 1408/71 as the manner in which the working as an au pair to be identified as an employed person as required by the British social security scheme is administered or financed does not allow first indent of that provision. such a person to be identified as an employed person. The status of persons engaged au pair is in fact determined by the European It is true that Mrs Tessier received the Agreement on Au Pair Placements, free treatment granted under British signed at Strasbourg on 24 November legislation to any person residing in 1969. According to the preamble to that Great Britain: however, in her status as agreement persons placed au pair a person engaged au pair she did not belong neither to the student category fall within the system of National nor to the worker category but to a Insurance which in England is restricted special category which has features of to employed persons in the strict sense both. The definition of au pair of the term: in England Mrs Tessier had placement contained in Article 2 of the the status of a student. agreement rules out classification as a migrant worker. A migrant worker does Accordingly the reply to the first not go abroad to improve his linguistic question put by the Cour de Cassation knowledge and general culture in can only be in the negative: exchange for certain services but for the purposes of work for which he receives A national of a Member State who, normal remuneration. However, a while residing in the territory of another person placed au pair receives board Member State for the purposes of and lodging, is given adequate time to working there au pair and of following attend language courses as well as for a part-time course of study, receives in cultural and vocational improvement, that State social security benefits in kind receives a certain sum of money as is not a migrant worker within the pocket money and renders to the meaning of Article 1 of Regulation No receiving family services consisting in 1408/71.

The second question England could have received social With regard to Article 18 of Regulation security benefits in kind may be No 1408/71 concerning the aggregation regarded as having been insured under of insurance periods it should be noted the regulation. that in England Mrs Tessier was not Under the legislation of the United covered by the National Insurance Kingdom the right to sickness benefits scheme and did not have the status of in kind is not dependent upon the an employed person in that country. She completion of insurance periods or was merely insured under the English periods of residence.

Any medical social insurance cover in her own right. treatment available to a person, who is The answer to the second question not already a migrant worker to whom should therefore also be in the negative. Regulation No 1408/71 applies, who enters Great Britain under an au pair The Government of the United Kingdom arrangement will be the same as is observes that in England under the available to any other non-employed Statement of Immigration Rules for visitor to the United Kingdom; the Control on Entry laid before the United medical treatment is in no way Kingdom Parliament on 25 January dependent upon preceding insurance 1973 an au pair placement does not periods or periods of residence.

The following systems. On the other hand the term answer should therefore be given to the 'worker' in Article 1 of Regulation No first question: 1408/71 means a person who is compulsorily or voluntarily insured for A national of a Member State, staying one or more of the contingencies in the territory of another Member covered by the branches of social State under an au pair arrangement security dealt with in the regulation. which does not have the effect of The question arises therefore whether a making that person subject to a person who during a period spent in compulsory insurance scheme or an

optional continued insurance scheme, is In the present case it is necessary to not constituted a migrant worker within determine whether the fact of having the meaning of Article 1 of Regulation received sickness benefits in kind during (EEC) No 1408/71 by virtue of a stay in the United Kingdom is receiving social security benefits in kind sufficient to enable Mrs Tessier to be which are provided for all persons, identified as an employed person within whether workers or not, whilst they are the meaning of the British legislation. staying in that State. The British social security scheme is not a scheme confined to employed persons; The second question it covers all the working population and If the answer to the first question is to even, for certain risks, in particular the effect of that proposed above it will medical treatment, all residents. not be necessary to give any answer to the second question. Under Article 1 (a) (ii) of Regulation No 1408/71 employed persons can thus The observations of the Commission of only be identified having regard to the the European Communities are sub­ manner in which the scheme is stantially as follows: administered or financed. In this respect Annex V of the regulation sets out The first question under heading I, United Kingdom: The regulations adopted in application '1. All persons required to pay contri­ of Article 51 of the EEC Treaty, which butions as employed workers shall is itself to be found in the chapter be regarded as workers for the relating to the freedom of movement of purposes of Article 1 (a) (ii) of the workers, are only applicable to workers regulation'. and assimilated persons. Because of the development of the different national social security systems it became more As the order making the reference does and more difficult to make a distinction not indicate whether, during her stay in between employed persons and self- the United Kingdom, Mrs Tessier employed workers; therefore in Article received wages in respect of which she had to make contributions two 1 (a) of Regulation No 1408/71 the Council preferred to substitute for the hypotheses are possible: either Mrs Tessier received remuneration in term 'wage-earners or assimilated addition to certain benefits in kind; if workers' formerly used in Regulation No 3 of 1958 a definition of the the remuneration was in excess of £ 8

employed person and therefore as a rights which she could have acquired in worker within the meaning of Article 1 whatever way, under the social security of Regulation No 1408/71 if under a legislation of the United Kingdom scheme for employed persons the cannot be taken into account for the insurance is either compulsory or on an acquisition of a right to benefit in optional continued basis. If on the other another Member State. hand the insurance is compulsory under a social security scheme for all residents If however the person in question could or for the whole working population the be identified as a worker during her manner in which such scheme is stay in the United Kingdom, Regulation administered or financed should enable No 1408/71 would be applicable to her a person entitled to sickness insurance in its entirety; in particular, by virtue of benefits to be identified as an employed Article 18 of the regulation it would be person; failing such criteria the person possible to aggregate the periods must be insured for some other completed under the British legislation contingency specified in Annex V under as though they were periods completed a scheme for employed persons, either under French legislation. compulsorily or on an optional continued basis.

It is under a social security scheme for all also possible that Mrs Tessier's position residents or for the whole working popu is covered by Article 71 of Regulation lation, if the application of the social No 1408/71 as she is an unemployed security legislation of the Member State person who, during her last em in which he resides enables him to be ployment, was residing in a Member identified as an employed person. State other than the competent State; in such a case in implementation of Article The second question 71 (1) (b) (ii) she would be covered by The answer to this question is derived the provisions of Article 25 (2). directly from the conclusion reached in In any event the rights acquired by Mrs respect of the first question. Tessier during her stay in the United As the person in question cannot be Kingdom could only be taken into identified or regarded as a worker account in so far as in the United within the meaning of Article 1 of Regu Kingdom she was in employment giving lation No 1408/71 she does not fall her the status of worker within the within the personal sphere of meaning of Regulation No 1408/71. application of that regulation as defined

JUDGMENT OF 19.1.1978 — CASE 84/77

Rights acquired by a national of a III — Oral procedure Member State on the territory of The Commission, represented by its another Member State can only be Legal Adviser, Marie-Jose Jonczy, taken into consideration by the first presented oral argument and its answers State for the application of Regulation to the questions put by the Court of No 1408/71 in so far as, at the time of Justice at the hearing on 30 November 1977. acquiring those rights, the national could claim the status of worker within The Advocate General delivered his the meaning of Article 1 of that regu­ opinion at the hearing on 14 December lation. 1977.

Decision

1 By a judgment of 3 June 1977, which was received at the Court on 5 July 1977, the French Cour de Cassation, Social Chamber, referred to the Court for a preliminary ruling, pursuant to Article 177 of the EEC Treaty, two questions concerning the determination of the field of application of Regu­ lation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416) concerning the position with regard to the French sickness insurance scheme of a person who in the United Kingdom had been covered by a social security scheme applicable to all residents.

2 It appears from the judgment making the reference that after completing her schooling in France, Mrs Tessier (who at the time of the facts giving rise to the action was Miss Recq), the respondent in the main proceedings, stayed for a certain time in Great Britain working as an au pair and attending evening classes.

7 The Caisse Primaire d'Assurance Maladie lodged an appeal on a point of law against that decision and the Cour de Cassation took the view that even if Mrs Tessier could not claim to be a dependant of her father in order to receive social security benefits on her return to France, the question arose whether she might not be entitled to claim the benefits in her own right by virtue of Regulation No 1408/71 because she could have been regarded as an insured person under that regulation for the duration of her stay in Great Britain in accordance with the local legislation with the result that that insurance period would have to be assimilated to the reference period laid down by French law.

8 In order to settle this point of law the Cour de Cassation asks:

'1. Whether a national of a Member State who, while residing in the territory of another Member State for the purposes of working there au pair and, at the same time, of following a part-time course of study, receives in that State social security benefits in kind, is a migrant worker within the meaning of Article 1 of Regulation No 1408/71;

JUDGMENT OF 19. 1. 1978 CASE 84/77

2. Whether the rights acquired by such a national during his stay must be taken into account by any other Member State as if they were periods laid down for the acquisition of a right under its own legislation'.

9 According to the wording of Article 2 of Regulation No 1408/71 the regu­ lation is applicable in particular to workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States.

13 In the absence of any criteria based on the manner in which the scheme is administered or financed, pursuant to the first indent of Article 1 (a) (ii), for the United Kingdom such identification depends by virtue of the second indent and of Annex V on whether the person concerned was required to pay social security contributions as an employed person.

CAISSE PRIMAIRE D'ASSURANCE MALADIE D'EURE-ET-LOIR v RECQ

14 It is for the competent national authorities to establish whether or not that condition is fulfilled in a particular case.

15 If a person can be thus identified as a 'worker' within the meaning of Regu­ lation No 1408/71 it follows that in accordance with Article 18 (1) of that regulation the institution of a Member State whose legislation makes the acquisition, retention or recovery of entitlement to benefits conditional upon the completion of insurance or employment periods must, in so far as is necessary, take into account the insurance or employment periods completed under the legislation of any other Member State as though such periods had been completed under its own legislation.

16 A reply to this effect should therefore be given to the questions referred to the Court by the Cour de Cassation.

Costs

OPINION OF MR REISCHL — CASE 84/77

United Kingdom in particular, in the absence of any other criterion, such identification depends by virtue of Annex V to that regulation on whether he was required to pay social security contributions as an employed person.

2. Rights acquired by a person who can be identified as a worker within the meaning of Article 1 (a) (ii) of Regulation No 1408/71 during his residence in a Member State must be taken into account by any other Member State as if they were periods required for the acquisition of a right under its own legislation.

Kutscher Sørensen Bosco

Donner Pescatore Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 19 January 1978.