C-451/93

DELAVANT

OPINION OF ADVOCATE GENERAL JACOBS delivered on 9 February 1995 *

1. In this case the Landessozialgericht für 3. The defendant in the main proceedings, das Saarland seeks a preliminary ruling on the Allgemeine Ortskrankenkasse für das the interpretation of certain provisions of Saarland, is a German sickness insurance Council Regulation (EEC) N o 1408/71 (as fund. codified by Council Regulation (EEC) N o 2001/83 *) on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Commu- nity.

I-1547

OPINION OF MR JACOBS — CASE C-451/93

' 1 . An employed or self-employed person they are not entitled to such benefits under residing in the territory of a Member State the legislation of the State in whose territory other than the competent State, who satisfies they reside. the conditions of the legislation of the com- petent State for entitlement to benefits, tak- ing account where appropriate of the provi- sions of Article 18, shall receive in the State in which he is resident:

Where the members of the family reside in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance (a) benefits in kind provided on behalf of the or employment, benefits in kind which they competent institution by the institution receive shall be considered as being on behalf of the place of residence in accordance of the institution with which the employed with the provisions of the legislation or self-employed person is insured, unless administered by that institution as though the spouse or the person looking after the he were insured with it; children pursues a professional or trade activity in the territory of the said Member State.'

children of persons affiliated to a sickness in the above question. Article l(f)(i) defines fund are not insured if the spouse of the per- the expression 'member of the family' in the son affiliated, being related to the children, is following terms: not himself affiliated to a statutory sickness fund and his total monthly income exceeds one twelfth of the annual income limit and is in general higher than that of the person affiliated. Dr Delavant's husband, who is the natural father of her children, is not affiliated to a statutory sickness fund and his income exceeds the aforesaid limit and is in general '"Member of the family" means any person higher than Dr Delavant's income. defined or recognized as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Articles 22(1 )(a) and 31, by the legisla- tion of the Member State in whose territory such person resides; where, however, the said 7. The Landessozialgericht für das Saarland legislations regard as a member of the family requests a preliminary ruling on the ques- or a member of the household only a person tion: living under the same roof as the employed or self-employed person, this condition shall be considered satisfied if the person in ques- tion is mainly dependent on that person. Where the legislation of a Member State on sickness or maternity benefits in kind does 'Whether Articles l(f)(i), 2(1), 3(1), 19(l)(a) not enable members of the family to be dis- and (2), and 20 of Regulation (EEC) tinguished from the other persons to whom N o 1408/71 on the application of social secu- it applies, the term "member of the family" rity schemes to employed persons, to self- shall have the meaning given to it in employed persons and to members of their Annex 1.' families moving within the Community con- tain a principle of law that prohibits Member States from making affiliation to a social- insurance system of the natural children of a frontier worker insured in another Member State dependent on the income level of her husband, in addition to conditions connected with the personal situation of the children 9. Article 2(1) provides: themselves.'

12. In their written observations the Com- 'Subject to the special provisions of this mission and the Governments of Belgium, Regulation, persons resident in the territory France, Germany and the Netherlands all of one of the Member States to whom this agree that the relevant provisions of Regu- Regulation applies shall be subject to the lation N o 1408/71 do not contain the princi- same obligations and enjoy the same benefits ple posited in the question referred. They all under the legislation of any Member State as base that view on the interpretation of the the nationals of that State.' expression 'members of the family' in Arti- cle 19(2) of the regulation. They point out that under Article l(f)(i) of the regulation the expression 'member of the family' means 'any person defined or recognized as a mem- ber of the family or designated as a member of the household by the legislation under 11. Article 20 provides: which benefits are provided ...'. They argue that in the circumstances of the present case it is therefore for German law to determine who is a member of Dr Delavant's family and who is entitled as such to receive bene- fits in kind in Germany under Article 19(l)(a) of the regulation by virtue of ' A frontier worker may also obtain benefits the analogous application of that provision in the territory of the competent State. Such required by Article 19(2). They maintain that benefits shall be provided by the competent there is nothing in Community law — and in institution in accordance with the provisions particular nothing in Regulation of the legislation of that State, as though the N o 1408/71 — to prevent German law from person concerned were resident in that State. denying benefits in kind to Dr Delavant's Members of his family may receive benefits children where her husband, being the natu- under the same conditions; however, receipt of such benefits shall, except in urgent cases, ral father of the children, is not himself affil- be conditional upon an agreement between iated to a statutory sickness fund in Ger-

13. Although I agree with the result reached by the Commission and by the Governments of Belgium, France, Germany and the Neth­ erlands, I am not convinced that they have reached that result by the correct method. 15. Rather than concentrate on the meaning of a particular expression, it would be more felicitous in my opinion to examine the scheme and purpose of the relevant provi­ sions. Article 19 governs the general situa­ tion in which an employed or self-employed 14. The children in question are Dr Dela­ person resides in a Member State other than vanťs natural children and they Uve with her the competent State (i. e. the State in which and their father in the family home in Saar­ he is insured, 2 normally the State in which brücken. At the material time their ages were he works). Article 20 deals with a particular 11 years and 9 years. They should plainly be example of that situation, namely the situa­ regarded, under any legal system which tion of the frontier worker who regularly might be relevant, as members of her family. crosses a frontier in order to go to work. The In fact, Paragraph 10(3) SGB V does not general principle applicable in all such situa­ appear to imply that Dr Delavanťs children tions is that the cost of providing benefits, are not members of her family; it simply whether in kind or in cash, to persons who entails that they are not, in the circumstances reside in a Member State other than the com­ of the case, entitled to sickness insurance by petent State is to be borne — not unnaturally virtue of their mother's affiliation to a sick­ — by the 'competent institution' (i. e. the ness fund. The interpretation proposed by institution with which the person in question the Commission and the four governments 3 is insured ) . amounts of course to saying that the expres­ sion 'member(s) of the family' in Articles l(f)(i) and 19(2) of the regulation means 'members of the family who are enti­ tled as such to social security benefits'. It may be true that such an interpretation of the expression in question produces reason­ able results in the present case. There is how­ 16. The authors of the regulation recog­ ever no guarantee that it would always pro­ nized, however, that there are circumstances duce reasonable results (especially if it is borne in mind that the expression is used in many other provisions of Regulation 2 — See Article l(o) and (g) of Regulation No 1408/71. N o 1408/71) and there is in any event the 3 — See Article l(o) of Regulation No 1408/71.

in which a person whose State of residence Member State other than the competent and State of insurance do not coincide might State. Although the concept of application require medical treatment in the former, by analogy is not always helpful, it seems since people are as likely to fall ill in the reasonably clear in the context that what is place where they live as in the place where meant is that members of the family of the they work. Article 19(l)(a) therefore requires insured person are entitled to receive at the the institution of the worker's place of resi- place of residence the benefits in kind which dence to provide him with benefits in kind they would be entitled to receive under the 'on behalf of the competent institution'. It is legislation administered by the institution of important to emphasize that the cost of such the place of residence if the insured person benefits is borne in full by the institution were insured with that institution. Applied with which the worker is insured, as pro- to the present case, that means that Dr Dela- vided in Article 36(1) of the regulation. It vant's children are entitled to receive in Ger- might therefore have been thought logical t o many the benefits in kind which they would require the institution of the place of resi- be entitled to receive if Dr Délavant were dence to provide benefits in accordance with herself insured in Germany. And, as we have the legislation administered by the compe- seen, if Dr Délavant were affiliated to the tent institution, which will after all have to Allgemeine Ortskrankenkasse für das Saar- meet the cost. Such a solution would not, land, her children would not be entitled, as a however, be practical, since it would require result of Paragraph 10(3) SGB V, to receive an institution to apply the legislation of benefits in kind from that institution because another Member State. That doubtless her husband is not himself affiliated to a stat- explains why the authors of the regulation utory sickness fund and his income exceeds decided instead that benefits in kind should the ceiling fixed by German law and is gen- be provided by the institution of the place of erally higher than her income. residence in accordance with the provisions of the legisUtion administered by that institu- tion as though the person concerned were insured with it. The obvious practical advan- tage of that solution is that the institution which provides benefits in kind does so in accordance with the only legislation that it can be expected to be familiar with, namely its own legislation.

graph 10(3) SGB V would undoubtedly be Paragraph 10(3) SGB V in the present case applicable and her children would not be would be compatible with Community law. entitled to sickness insurance in Germany by In particular, the referring court cites the virtue of their mother's affiliation to the Petroni4 judgment, in which the Court of defendant institution. There is no compelling Justice held that the Community legislation reason why they should become entitled to on social security cannot have the effect of sickness insurance in Germany (paid for by depriving workers of advantages guaranteed the French institution to which Dr Délavant to them by the laws of a single State. The belongs) simply because Dr Délavant works referring court observes that Paragraph 10(3) in France rather than Germany. That would SGB V may have the effect of requiring be contrary to the basic principle contained Dr Délavant or her husband, in order to in Article 19, namely the principle that, ensure that their children are covered b y where a worker resides in a country other statutory sickness insurance in Germany, to than the country in which he is insured, he is make a further contribution, even though entitled to be treated, in the country of resi- under French law family members are nor- dence, as though he were insured there. mally covered by insurance irrespective of When that principle is applied to members of their parents' income if they do not them- the worker's family, it can only mean that selves have any income. The referring court they are entitled to receive, in the country of considers that the application of Para- residence, the treatment that would be graph 10(3) SGB V could also lead to a accorded to them if the worker were insured breach of the principle of equal treatment: in that country. Here it must be remembered the level of contributions which a frontier that the rights of the worker's family are worker pays in France takes into account the derivative rights, i. e. rights which arise as a risk that members of his family may claim result of the family member's relationship to benefits in kind, and yet Article 20 prevents an insured person as opposed to rights which the family members from receiving benefits a family member acquires in his own name. in kind, except in urgent cases, unless the Dr Delavant's argument amounts to saying two institutions concerned enter into an that family members who live in a country agreement or the competent institution other than the country in which the worker grants prior authorization; as a result a fron- is insured must automatically be given the tier worker ultimately has to pay more in full status of insured persons in their own order to obtain insurance cover for members right. Such an argument is untenable because of his family than a person with comparable it disregards the derivative nature of the income from work which does not require rights enjoyed by members of the worker's cross-frontier commuting. The referring family. court also mentions the uncertainty that might arise owing to fluctuations in the

20. I do not think that any of those consid­ erations can affect the answer to the question referred. The relevant provisions of Regu­ lation N o 1408/71 do not deprive D r Dela- vant or her children of any advantage which they would enjoy under German law alone. N o r is there anything inherently wrong in the idea that persons whose income exceeds a certain level must pay additional contribu­ 22. The question referred mentions Arti­ tions in order to obtain sickness insurance cle 3(1) of Regulation N o 1408/71, which for their children. The fact that matters are lays down a principle of 'national treatment' arranged differently in another Member State for persons who are covered by the regu­ is not relevant, since Regulation lation and reside in a Member State. That N o 1408/71 does not attempt to harmonize principle is clearly not infringed by Para­ social security law but merely coordinates graph 10(3) SGB V, which does not discrim­ the social security systems of the Member inate, overtly or otherwise, on the basis of States. nationality. It is sufficient to note that Dr Délavant is being treated in exactly the same way as a German national in the same situation.

21. As regards fluctuations in the exchange rate, it is true that the entitlement of D r Delavanťs children to benefits in kind in Germany might vary periodically as a result of monetary factors, since her income might sometimes exceed the income of her hus­ 23. It is however true that Article 20 of the band. That uncertainty is not however differ­ regulation appears at first sight to be capable ent in nature from that which is caused by of infringing the principle recognized in other factors which affect the relative income Petroni if it prevents D r Delavanťs children levels of a married couple, such as promotion from receiving benefits in kind in France or overtime. It should also be noted that which they would otherwise be entitled to

I-1555