C-451/93

JUDGMENT OF 8. 6. 1995 — CASE C-451/93

J U D G M E N T O F THE C O U R T (Sixth Chamber) 8 June 1995 *

In Case C-451/93,

R E F E R E N C E to the Court under Article 177 of the EEC Treaty by the Landes- sozialgericht für das Saarland for a preliminary ruling in the proceedings pending before that court between

Claudine Délavant

and

DELAVANT

T H E C O U R T (Sixth Chamber),

composed of: F. A. Schockweiler, President of the Chamber, G. E Mancini, C. N . Kakouris (Rapporteur), J. L. Murray and G. Hirsch, Judges,

Advocate General: F. G. Jacobs, Registrar: H . A. Rühi, Principal Administrator,

after considering the written observations submitted on behalf of:

— Claudine, Valérie and Stéphanie Délavant, by Gerhard Schmidt-Delavant,

— the Commission of the European Communities, by Christopher Docksey, of the Legal Service, acting as Agent, assisted by Bernd Schulte, Rechtsanwalt at the Max Planck Institut für ausländisches und internationales Sozialrecht, Munich,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 9 February 1995,

gives the following

Judgment

1 By order of 15 October 1993, received at the Court on 25 November 1993, the Landessozialgericht für das Saarland (Higher Social Court, Saarland) submitted for a preliminary ruling under Article 177 of the E E C Treaty a question on the inter- pretation of Articles 1(f), 2(1), 3(1), 19(1 )(a) and (2), and 20 of Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as codified by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) ('the regulation').

(a) benefits in kind provided on behalf of the competent institution by the insti- tution of the place of residence in accordance with the provisions of the leg- islation administered by that institution as though he were insured with it;

2. The provisions of paragraph 1 shall apply by analogy to members of the family who reside in the territory of a Member State other than the competent State in so far as they are not entitled to such benefits under the legislation of the State in whose territory they reside.

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5 Various terms used in Article 19 are defined in Article 1 of the regulation:

— 'member of the family' means any person 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 (Article 1(f));

DELAVANT

7 As the basis for that refusal, the A O K relied on Paragraph 10(3) of the Sozial- gesetzbuch, Gesetzliche Krankenversicherung (Social Security Code — Statutory Sickness Insurance) ('SGB V ) , which, in its opinion, was applicable to the case by virtue of Articles 19 and 1(f) of the regulation. Paragraph 10(3) of the SGB V pro- vides that children of affiliated persons are not insured where the spouse of the affiliated person, being related to the children of the affiliated person, is not affili- ated to a statutory sickness fund and his total monthly income normally exceeds one twelfth of the annual income limit and is in general higher than the total income of the person affiliated. In this case, Mrs Delavant's husband is covered b y private health insurance since his income normally exceeds the limit laid down in the legislation in question and is normally higher than that of his wife.

8 Following the dismissal by the Sozialgericht für das Saarland (Social Court, Saar- land) of her action challenging that decision, Mrs Délavant appealed to the Landes- sozialgericht für das Saarland. She has based her appeal in particular on Article 19(2) of the regulation, which in her view also entitles her children to benefits in kind provided by the A O K on behalf of the French institution without the pro- visions of domestic German law restricting that entitlement by reference to the level of their parents' income. She also states that the French institution has for years been reimbursing the cost of benefits received in Germany without being interested in her husband's income.

'whether Articles l(f)(i), 2(1), 3(1), 19(l)(a) and (2), and 20 of Regulation (EEC) N o 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Com- munity contain a principle of law that prohibits Member States from making affil- iation 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 them- selves.'

1 2 It appears from this question that the national court is proceeding on the assump- tion that, pursuant to Article 19 of the regulation, the applicable legislation for replying to the question whether members of the worker's family are entitled to benefits in kind is that of the family's State of residence and not that of the State in which the person works and in which the institution with which that person is insured is situated. Before addressing the question submitted, it is therefore neces- sary to examine whether that assumption is correct.

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DELAVANT

i3 It should be recalled at the outset that, by virtue of Article 13(2)(a) of the regu- lation, a person employed in the territory of one Member State is in principle sub- ject to the legislation of that State even if he resides in the territory of another Member State.

H So far as health insurance is concerned, that principle is implemented by Article 19 of the regulation. It follows from Article 19(1) that a worker residing in the ter- ritory of a Member State other than the State in which he works is subject to the legislation of the latter State so far as conditions for entitlement to benefits are concerned. Once that entitlement has been recognized, the worker will be entitled to receive, in the State in which he is resident and at the expense of the State in which he works, benefits in kind provided by the institution of his place of resi- dence within the limits and in accordance with the provisions of the legislation administered by that institution as if he were insured with it.

i7 According to the interpretation of Article 19(2) proposed by the referring court and advocated by the Belgian, German, Netherlands and French Governments, as well as by the Commission, Article 19(2) refers back to Article 19(1) as regards the persons already recognized as members of the worker's family. The question whether a person is to be recognized as such is, they argue, governed, pursuant to Article 1(f) of the regulation, by the legislation under which the benefits are pro- vided, that is to say, the legislation of the State of residence. Consequently, accord- ing to this interpretation, the only persons entitled to rely on Article 19(2) are those w h o would be regarded as members of the family of the worker by the leg- islation of the State of residence if the worker was affiliated to the statutory health- insurance fund of that State.

is That interpretation cannot be accepted. Article 1(f) of the regulation does not deal with the conditions of affiliation or of entitlement to social-security benefits for members of the family of a worker, but merely refers to the legislation under which benefits are provided for determining the persons considered to be family members.

i9 In the light of the foregoing, the answer to the question submitted by the national court must be that Article 19(2) of the regulation is to be understood as meaning that when a worker resides with the members of his family in the territory of a Member State other than the Member State in which he works, under whose leg- islation he is insured by virtue of the regulation, the conditions for entitlement to

T H E C O U R T (Sixth Chamber),

in answer to the question referred to it by the Landessozialgericht für das Saar- land, by order of 15 October 1993, hereby rules:

Article 19(2) of Council Regulation (EEC) N o 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as codified by Council Regulation (EEC) N o 2001/83 of 2 June 1983, is to be understood as meaning that when a worker resides with the members of his family in the territory of a Member State other than the Member State in which he works, under whose legislation he is insured by virtue of the regu-

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lation, the conditions for entitlement to sickness benefits in kind for members of that person's family are also governed by the legislation of the State in which that person works in so far as the members of his family are not entitled to those benefits under the legislation of their State of residence.