C-111/91

OPINION OF MR JACOBS — CASE C-111/91

OPINION OF ADVOCATE GENERAL JACOBS delivered on 16 December 1992 *

My Lords, 2. The Commission began the procedure laid down in Article 169 of the Treaty by issuing a letter of formal notice on 7 October 1987. In that letter the Commission sug- gested that the residence conditions imposed 1. In this case the Commission takes issue by Articles 11 and 12 of the Law of 20 June with certain residence conditions attached to 1977 (governing childbirth allowance) and the receipt of Luxembourg childbirth allow- by Article 1 of the Law of 30 April ance ('allocation de naissance') and maternity 1980 (governing maternity allowance) were allowance ('allocation de maternité'). By an contrary to Article 7(2) of Regulation N o application brought under Article 169 of the 1612/68, as regards employed workers, and Treaty, the Commission requests the Court contrary to Article 7 of the Treaty as regards to declare that, by imposing such conditions, self-employed workers. Article 7(2) of Regu- Luxembourg is in breach of its obligations lation N o 1612/68 provides that a worker under the following provisions of Commu- who is a national of a Member State shall, in nity law: the territory of another Member State, enjoy the same social and tax advantages as national workers. (1) Article 7(2) of Council Regulation N o 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475);

4. O n 26 July 1989 the Commission issued a supplementary letter of formal notice addressing the point on Regulation N o 1408/71 which had been raised by the Luxembourg Government. The Commission now suggested that the provisions of Luxem- 6. O n 6 July 1990, the Commission issued a bourg law which applied residence condi- reasoned opinion alleging that, by imposing tions to maternity allowance were incompat- residence conditions on the grant of child- ible with Regulation N o 1408/71, as well as birth and maternity allowances, Luxembourg with Regulation N o 1612/68. It will be had infringed its obligations under Article recalled that Regulation N o 1408/71, as 48 of the Treaty and Article 7(2) of Regu- amended, applies to both employed and self- lation N o 1612/68, under Article 52 of the employed persons and their families. Fur- Treaty, and under Regulation N o 1408/71. thermore, as regards childbirth allowance the Luxembourg was given two months to take Commission now claimed that, as far as self- the measures necessary to conform to the employed persons were concerned, the resi- Commission's reasoned opinion. N o such dence conditions imposed by Luxembourg measures having been taken, the Commis- law breached Article 52 (rather than Article sion lodged the present application at the 7) of the Treaty. Thus, the Commission now Court on 12 April 1991. alleged an infringement of Regulation N o 1612/68 and of Articles 48 and 52 of the Treaty, as regards childbirth allowance, and of Regulation N o 1408/71, as regards mater- nity allowance. The Commission also alleged a breach of Article 51 of the Treaty.

9. Title III of Regulation N o 1408/71 is enti- tled 'Special provisions relating to the vari- 2. He shall enjoy the same social and tax ous categories of benefits', and Chapter advantages as national workers. 1 (Articles 18 to 36) is entitled 'Sickness and maternity'. By Article 18(1):

» 'The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits Article 4 of Regulation N o 1408/71 provides conditional upon the completion of periods that: of insurance, employment or residence shall, to the extent necessary, take account of peri- ods of insurance, employment or residence completed under the legislation of any other ' 1 . This Regulation shall apply to all legisla- Member State as if they were periods com- tion concerning the following branches of pleted under the legislation which it admin- social security: isters.'

(a) sickness and maternity benefits; It is to be noted that 'residence' is defined in Article 1(h) of the regulation to mean 'habit- ual residence'.

10. Council Regulation N o 1247/92 of 2. This Regulation shall apply to all general 30 April 1992 (OJ 1992 L 136, p. 1) amends and special social security schemes, whether Regulation N o 1408/71 by adding, in partic- contributory or non-contributory, and to ular, the following provisions. In Article 4,

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11. In what follows I shall examine sepa- rately the provisions of Luxembourg law 'The institution of a Member State under concerning childbirth allowance and those whose legislation entitlement to benefits cov- concerning maternity allowance. It is to be ered by paragraph 1 [namely benefits noted that, although Article 48 of the Treaty referred to in Article 4(2a) which are Usted in is mentioned in the title of the Commission's Annex IIa] is subject to the completion of application, the Commission no longer periods of employment, self-employment or alleges a breach of that article in its conclu- residence shall regard, to the extent neces- sions. Furthermore, the Commission does sary, periods of employment, self- not repeat the allegation of a breach of Arti- employment or residence completed in the cle 51 which was made in its supplementary territory of any other Member State as peri- letter of notice (and which was moreover in ods completed in the territory of the first my view plainly erroneous). Thus, the Com- Member State.' mission now takes the view that it is

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OPINION OF MR JACOBS — CASE C-111/91

sufficient to allege breaches of Regulation has resided in Luxembourg for the entire N o 1612/68 and Regulation N o 1408/71, year preceding the birth. By Articles 5 and which implement Articles 48 and 51 respec- 12, the mother must also have had a postna- tively. However, the Commission still alleges tal examination within eight weeks of the a breach of Article 52 of the Treaty (but not, birth. By Article 16, the Minister for the it will be recalled, of Article 7 of the Treaty). Family may grant dispensation from the res- idence requirements imposed by Articles 11 and 12, but only if the mother declares an intention to continue to reside in Luxem- bourg and to bring up her child there. Childbirth allowance

13. By Article 12 of the Law of 20 June 1977, the second instalment of childbirth 15. The Luxembourg Government does not allowance is paid after the birth, on con- dispute that childbirth allowance is a 'social dition, in particular, that one of the parents advantage' within the meaning of Article 7(2)

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of Council Regulation N o 1612/68. It seems sufficient, in order to satisfy the requirement to me, in fact, that it would be difficult to of equal treatment, that the conditions are reach any other conclusion. As the Court has imposed on Luxembourg nationals as well as stated on a number of occasions, in particu- upon the nationals of other Member States. lar in Case 249/83 Hoeckx [1985] ECR 973, at paragraph 20 of the judgment:

Thus, loans granted on the birth of a child which were interest-free as a result of subsi- dies allocated by the national authorities have been held to be a 'social advantage' for the purpose of the regulation: see Case 65/81 Reina [1982] ECR 33. Such advantages must of course be available on equal terms to It may therefore be that criteria such as place workers who are nationals of another Mem- of origin or residence of a worker may, ber State. according to circumstances, be tantamount, as regards their practical effect, to discrimi- nation on the grounds of nationality, such as is prohibited by the Treaty and the Regu- lation.' 16. Accordingly, the Luxembourg Govern- ment concedes that childbirth allowance must be awarded on the basis of equal treat- ment as between its own nationals and those The principle that indirect or disguised dis- of other Member States. It denies however crimination is contrary to Article 48 of the that the residence conditions attached to the Treaty and Article 7 of Regulation N o receipt of Luxembourg childbirth allowance 1612/68 has recently been reaffirmed by the amount to unequal treatment. In its view it is Court in Case C-175/88 Biehl [1990] ECR

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18. It would, in my opinion, be difficult to argue that the residence requirements imposed by Articles 11 and 12 (and indeed by Article 16) of the Law of 20 June 1977 do not amount to unequal treatment of foreign nationals. Of those having children in 20. The Luxembourg Government argues, in Luxembourg, a Luxembourg national, or his the alternative, that the residence conditions or her spouse, is more likely to have resided attached to childbirth allowance are objec- in Luxembourg during the entire year pre- tively justified. Thus, even if the conditions ceding the birth than is a national of another amount to unequal treatment as between Member State. The conditions imposed by Luxembourg nationals and non-nationals, in Articles 11 and 12 therefore discriminate its view the conditions are justified in the indirectly against migrants from other Mem- general interest, and in particular for reasons ber States. of public health. According to the Luxem- bourg Government, the principal aim of the Law of 20 June 1977 is to establish a system of close medical surveillance of pregnant women and young infants, in order to reduce the risks of prenatal mortality and postnatal 19. Similarly, the condition attached to the handicap. In its view, the purpose of the ben- dispensation which may be granted by the efit is medical rather than pecuniary, its aim Minister for the Family, under Article 16 of being to ensure that women giving birth in the Law, is less likely to be satisfied by Luxembourg have attended all the medical nationals of other Member States, who may examinations required under Article 2 of the be less inclined than Luxembourg nationals Law. For that reason, the first instalment of to make Luxembourg their permanent home. benefit is paid only when the final prenatal Furthermore, as the Commission observed at examination has been completed. In the view

of the Luxembourg Government, therefore, 22. It is also to be noted that the first medi- it is only logical that those mothers who cal examination required under the Law of were unable to attend the required examina- 20 June 1977 need not take place until the tions, because they were not present in end of the third month of pregnancy. It is Luxembourg for the year preceding the true that the dental examination should take birth, should be denied the first two instal- place as soon as the pregnancy is confirmed, ments of benefit. but even in that case the mandatory deadline appears to be the third month. Strictly speaking, therefore, a period of residence of only six months would suffice to complete the required series of examinations. As we have seen, however, the residence condition is in fact imposed for the entire year preced- ing the birth. A migrant might therefore arrive in Luxembourg, establish residence there, become or discover that she is preg- nant, have all the required medical and dental examinations, give birth in Luxembourg, and yet still be ineligible for the first two instal- 21. It seems to me that the reasoning of the ments of childbirth allowance. Luxembourg Government is vulnerable on a number of counts. The basic flaw, in my opinion, is that no connection has been established between the need to encourage expectant mothers already resident in Luxembourg to have the medical examina- tions prescribed by Luxembourg law, by making completion of the series of examina- tions a condition for the receipt of the allow- ance, and the alleged need to subject other women to the same requirement. Women who are resident in other Member States may of course have considerable difficulty in satisfying such a condition. Thus, a woman who intends to migrate to Luxembourg, and who intends also to become pregnant, can hardly be expected to bring forward her arrival in Luxembourg merely in order to 23. An expectant mother might moreover receive the Luxembourg medical examina- migrate to Luxembourg during the course of tions; indeed, in practical terms it may not be her pregnancy, after having had medical possible for her to do so. Furthermore, such examinations in another Member State. The a migrant may not in any event know that Law of 20 June 1977 appears however to she is about to become pregnant. It does not make no provision for the recognition of seem to me that the system of medical sur- equivalent medical examinations performed veillance established by the Luxembourg in another Member State. It is also to be legislation would in any way be compro- observed that the residence condition mised if its requirements were not applied to imposed by Article 12 of the Law can be sat- women in such circumstances. isfied by either the mother-to-be or the other

24. In its rejoinder, the Luxembourg Gov- ernment attempts to justify the residence condition attached to the second instalment of the benefit by pointing to the need for the continuity of medical supervision. It will be recalled that, by Articles 5 and 12 of the Law 25. The Luxembourg Government is of of 20 June 1977, the mother is required to course entitled to require expectant mothers have had a postnatal examination within residing in Luxembourg to have periodic eight weeks of the birth. The Luxembourg medical examinations, although even in the Government suggests that the requirement case of those residing in Luxembourg of a rigorous and effective medical supervi- throughout their pregnancy it is doubtful sion can only be satisfied if the same doctor whether it could refuse to recognize equiva- performs the postnatal examination as per- lent examinations performed in another formed the five prenatal examinations, and Member State. It is also entitled, in my view, that the mother must therefore have been to require that women receiving childbirth resident in Luxembourg during the preg- allowance are resident in Luxembourg at the nancy as well as after the birth. As the Com- time of birth, since otherwise expectant mission pointed out at the hearing, however, mothers resident elsewhere might arrange to pregnant women enjoy a right to free move- give birth in Luxembourg merely in order to ment under the Treaty as much as any other collect the benefit. In my opinion, however, beneficiary of that right; in principle, it is for the residence conditions imposed by Articles the women themselves to decide whether to 11, 12 and 16 of the Law of 20 June 1977 go exercise that right, even if doing so would far beyond what is necessary to prevent such entail a change of medical adviser. The con- abuse. Those conditions are therefore in my tinuity of medical supervision can in any view incompatible with Article 7(2) of Regu- case be ensured, to a considerable extent, by lation N o 1612/68. Exactly the same consid- an appropriate exchange of information erations moreover apply, in my opinion, in between doctors. The Luxembourg Govern- the case of self-employed persons and their ment has not moreover explained how such a families, who are entitled to equal treatment continuity is guaranteed where only the as compared with Luxembourg nationals father has resided in Luxembourg for the pursuant to Article 52 of the Treaty.

26. I accordingly reach the conclusion that in another Member State in the year preced- the Commission's application should suc- ing the birth. The Luxembourg Government ceed in so far as it relates to childbirth allow- argues however that, at the time the Com- ance. I now therefore turn to consider the mission brought its application, Regulation application in so far as it concerns maternity N o 1408/71 did not yet extend to Luxem- allowance. bourg maternity allowance. The Luxem- bourg Government must accordingly take the view, either that maternity allowance cannot be regarded as 'maternity benefit' for the purposes of Article 4(1) of the regulation, Maternity allowance or that it must be regarded as 'social assis- tance' within the meaning of Article 4(4), which would remove it from the scope of the regulation. The Luxembourg Government recognizes however that, by virtue of the amendment made by Regulation No 27. Luxembourg maternity allowance is 1247/92 of 30 April 1992, it would now be awarded under the Law of 30 April 1980. obliged to take into account periods of resi- According to Article 1 of that law, every dence completed in the territory of other woman who is pregnant or has given birth Member States: see the new Article 10a, has the right to a maternity allowance, pro- paragraph 2, and the new Annex IIa inserted vided that she is resident in Luxembourg and by Regulation N o 1247/92, cited above in either (1) she has resided there for the entire paragraph 10. year preceding the beginning of her entitle- ment, or (2) her spouse has resided there for the preceding three years. By Article 2, the benefit is awarded for a maximum period of sixteen weeks, beginning with the eighth week preceding the presumed date of birth. Article 3 provides that the Minister for the Family may grant dispensation from those residence conditions if the mother declares 29. The Commission, on the other hand, an intention to continue to reside in Luxem- argues that Luxembourg maternity allow- bourg and to bring up her child there. ance already fell within the scope of Regu- lation N o 1408/71, even before that recent amendment, and that it was included in the new Annex IIa inserted by Regulation N o 1247/92 only for the avoidance of doubt. 28. The Luxembourg Government does not dispute that, if maternity allowance is a ben- efit falling within the scope of Regulation N o 1408/71, it is required by Article 18(1) of the regulation to take into account periods of residence completed under the legislation of another Member State. A mother who had given birth in Luxembourg and was now res- 30. In my view, the Luxembourg Govern- ident there would then be entitled to receive ment has advanced no compelling reason for the allowance, even if she had been resident regarding maternity allowance as social

33. It may also be noted that, even if it is accepted that maternity allowance falls 31. Furthermore, the Luxembourg Govern- within the scope of Regulation N o 1408/71, ment has not succeeded in demonstrating the refusal to grant the allowance to families that maternity allowance falls outside the of employed persons may amount to a scope of Article 4(1) of Regulation N o breach of Regulation N o 1612/68 rather than 1408/71. That provision expressly mentions of Regulation N o 1408/71. That is because 'maternity benefit' as a branch of social secu- Regulation N o 1408/71 applies to benefits rity covered by the regulation, a term which awarded to members of the family of work- is apt to include, in particular, maternity ers or self-employed persons only if the right allowance. Contrary to the view of the to the benefit is derived from the family rela- Luxembourg Government, it does not seem tionship with the worker or self-employed to me that maternity allowance can be distin- person; it does not extend to rights conferred guished from 'classical schemes of social direcdy on the family member: see Case security in respect of its field of application, 147/87 Zaoui [1987] E C R 5511, at para- objectives and modalities of application' (see graphs 12 and 13 of the judgment, and Case page 13 of the defence). The Luxembourg C-243/91 Taghavi [1992] ECR I-4401, at Government has not pointed to any feature paragraphs 7 to 9. Maternity allowance, of Luxembourg maternity allowance which however, is a benefit which is awarded to the would distinguish it from other, allegedly mother in her own right, rather than by vir- more classical, schemes of maternity benefit. tue of a right derived from her capacity as a All such schemes presumably have as their family member. It follows that, in the case of

(1) declare that, by imposing residence conditions on the award of childbirth allowance and maternity allowance which do not take into account periods of residence completed in another Member State, the Grand Duchy of Luxem- bourg has failed to fulfil its obligations under Article 52 of the Treaty, under Article 7(2) of Regulation N o 1612/68 and under Article 18(1) of Regulation N o 1408/71;

(2) order the Grand Duchy of Luxembourg to pay the costs.

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