C-85/96

OPINION OF MR LA PERGOLA — CASE C-85/96

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 1 July 1997

I — Introduction with various interruptions, and again from 12 September until 24 October 1989, Mrs Martinez Sala pursued an activity in Germany as an employed person. Since that time she has been in receipt of social assis­ 1. In this case, the Court of Justice is pri­ tance from the City of Nuremberg and the marily asked to define the concept of Landratsamt Nürnberger Land (Nuremberg worker, within the meaning of Community Rural District Authority). law, in relation to both freedom of move­ ment and social security. The Court is also asked to decide whether the child-raising allowance provided for under German law constitutes a family benefit within the mean­ 3. The plaintiff also received residence per­ ing of Regulation (EEC) No 1408/71 or a mits without substantial interruptions until social advantage within the meaning of 19 May 1984. Thereafter she was merely Regulation (EEC) No 1612/68. A further given certificates stating that extension of a question concerns the compatibility with residence permit had been applied for. On 19 Community law of national legislation April 1994, she was again issued by the com­ which makes the grant of German child- petent German authorities with a residence raising allowance subject to possession of a permit valid for one year, which was subse­ residence permit even though the person quently extended for a further year. concerned is a national of another Member State authorised to reside in Germany.

5. Mrs Martínez Sala appealed against that decision, but her appeal was also rejected by 2. Is child-raising allowance granted under the defendant on 23 June 1993. She then the Gesetz über die Gewährung von Erzie­ brought an action challenging that decision hungsgeld und Erziehungsurlaub (Law on before the Sozialgericht (Social Court) the Grant of Child-raising Allowance and Nuremberg. Her application was again Parental Leave (BErzGG)) a family benefit rejected, once more on the ground that she within the meaning of Article 4(1)(h) of was not in possession of the appropriate resi­ Regulation (EEC) No 1408/71, to which dence authorisation. According to the Sozial­ Spanish nationals living in Germany are gericht, its finding was not affected by the entitled in the same way as German nationals Community legislation applicable to the under Article 3(1) of Regulation (EEC) No case. Mrs Martínez Sala therefore lodged an 1408/71? appeal against the judgment of the Sozialger­ icht before the Landessozialgericht (Higher Social Court) Bavaria.

6. In the light of the issues of Community 3. Is child-raising allowance payable under law raised by the dispute, the Landessozial­ the BErzGG a social advantage within the gericht considered it necessary to refer the meaning of Article 7(2) of Regulation (EEC) following questions to the Court of Justice No 1612/68? for a preliminary ruling:

'1 . Was a Spanish national living in Germany who, with various interruptions, was 4. Is it compatible with the law of the Euro­ employed until 1986 and, apart from a short pean Union for the BErzGG to require pos­ period of employment in 1989, later received session of a formal residence permit for the social assistance under the Bundessozialhil­ grant of child-raising allowance to nationals fegesetz (Federal Social Welfare Law of a Member State, even though they arc per­ (BSHG)) still, in 1993, a worker within mitted to reside in Germany?'

1 — OJ 1983 L 230, p. 6. 2 — OJ, English Special Edition 1968 (II), p. 475.

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IV — The relevant German legislation The Bundessozialgericht has consistently held that a person is 'in possession' of a resi­ dence entitlement or residence permit only if at the start of the benefit period formal determination of his right of residence or other form of residence authorisation granted for humanitarian or political reasons 9. German child-raising allowance is a non- by the authority dealing with foreigners has contributory benefit forming part of a set of already occurred. Mere confirmation that an family-policy measures. It is granted pursu­ application for a residence permit has been ant to the Bundeserziehungsgeldgesetz of 6 made and the person concerned is therefore December 1986 (Law on the Grant of Child- 'entitled' to stay is not sufficient to meet that raising Allowance and Parental Leave; BGBl requirement. I, p. 2154, hereinafter 'the BErzGG').

V — Analysis of the dispute

the relevant implementing provisions, laid opposite view here. That assessment must, in down by Regulation No 1612/68. The con­ any event, be made with reference to the rel­ cept of worker is defined in the case-law. evant criteria laid down by the Court. I According to the Court, a worker is a person shall mention only one of the relevant crite­ who 'for a certain period of time ... performs ria: there must continue to be an actual link services for and under the direction of between the earlier activity and subsequent another person in return for which he situation of the worker concerned. If, in this 3 receives remuneration'. case, the national court were able to consider the plaintiff to be a worker within the mean­ ing of Regulation No 1612/68, the practical result would indeed be clear. This would entitle her to rely on the principle that there should be no discrimination on grounds of nationality with regard to the conditions laid down for entitlement to the family benefit It is therefore clear from the Treaty and from she has applied for. I shall consider later (at secondary legislation that a person's status of point 22 below), in relation to another aspect Community 'worker' is not perceived as of the case, whether those conditions laid being permanent. In theory, an individual down by the national legislation constitute loses the status of worker once the condi­ unjustified unequal treatment. tions required for its acquisition cease to be fulfilled. Community law provides otherwise only in specific circumstances and only with regard to certain effects. The Court has in fact had to consider a range of such cases, 4 some of them quite representative. In the instant case, however, there does not appear to be any actual link, or at any rate any link relevant for the purposes of this case, 12. Similar problems arise with regard to the between Mrs Martinez Sala's previous occu­ question whether Mrs Martinez Sala may be pational activity — which was not, in fact, accorded the status of worker under the very recent — and her situation during the other Community regulation, No 1408/71, period for which she has applied for the ben­ which is referred to in the order for refer­ efit at issue. Furthermore, the order for ref­ ence, though, here again, the order provides erence provides no facts or evidence on the little useful background. The national court basis of which Mrs Martinez Sala could be does not tell us whether Mrs Martinez Sala is accorded the status of Community worker actually insured under a social security under Regulation No 1612/68. In particular, scheme. Nor are we even told whether she is the fact that she has in the past been granted able to claim some link with her family of a social benefit is not a sufficient argument in origin, which is also resident in German ter­ this respect. It is, of course, for the national ritory, for, if such a link existed, she would court to ascertain whether there are other be included among the family members and factual grounds that may justify taking the dependants of an insured worker and cov­ ered by the regulation in question. That said,

the fact remains that, although she was not determine the conditions to be met before employed during the period at issue, the the persons concerned can be entitled to plaintiff was in receipt of social assistance social welfare benefits. In the field reserved benefits. The Commission does not exclude for the German legislature, there would then the possibility that the plaintiff and her chil be just one point relevant here, concerning dren may have been insured by operation of the position of Mrs Martinez Sala, which the law against the risk of sickness. That is a would be whether the social assistance ben possibility relevant to the determination of efits accorded to her entailed, under national the case and one which ought, therefore, to legislation, that she was automatically be taken into consideration. If and in so far insured against the risk of sickness.

ness. Any person who is automatically insured under national legislation against Here again, it is for the national court to that risk, because he is in a state of dire need, determine whether the national legislation of whatever nature, is also deemed to be a provides that kind of insurance as a result of worker, even if he is not in gainful employ the drawing of social assistance benefits. The ment. This is the rationale of the system: German legal system could in fact have made anyone who is protected in the same way as such provision, and this point must be clari a worker would be under the relevant insur fied in any event, even if account is taken of ance rules is deemed to be a worker. If, in

The ensu Court found those limitations to be com ing advantage for Mrs Martinez Sala is the pletely legitimate. It ruled that Regulation same as that I explained earlier in relation to No 1408/71 merely coordinates national the other regulation. Her status of worker social security schemes, so that the legisla would mean that she would be entitled to ture in each Member State is at liberty to rely on the principle prohibiting discrimi nation on grounds of nationality and conse quently be entitled to claim German child- raising allowance without having to be in 6 — Joined Cases C-4/95 and C-5/95 Sröber and Piosa-Pereira v possession of the requisite residence permit. Bundesanstalt für Arbeit [1997] ECR I-511.

14. Should it prove that Mrs Martinez Sala is not a worker under either of the two Com­ munity regulations, it will be necessary to consider what reply should be given to the fourth question submitted to the Court. The problem, as it has been framed, concerns After this reference for a preliminary ruling specifically and directly the provision of had been submitted, the Court, in its judg­ German law that makes the grant of child- 7 ment in Hoever and Zachów, answered in raising allowance to nationals of other Mem­ the affirmative the second question submit­ ber States subject to the issue of a permit, ted by the national court and specifically that is to say a special residence authorisa­ ruled that German child-raising allowance is tion, which even persons otherwise autho- a family benefit within the meaning of Regu­ rised to reside in Germany have to possess. lation No 1408/71. As far as the third ques­ That provision derogates from the general tion is concerned, I consider it very unlikely rule under that same legislation whereby the that Mrs Martinez Sala has the status of benefit in question may be awarded to any worker under Regulation No 1612/68. Were person who is permanently or ordinarily the national court to conclude differently, it resident in the Federal Republic (and also is, however, my view, and here I concur fulfils other conditions, on which the Court 8 with Advocate General Jacobs in his Opin­ does not have to rule here, namely that they ion in the abovementioned Hoever and must have a dependent child and must not be Zachów case and with the observations sub­ in employment). The German legislation mitted by the Commission in that same thus provides for different treatment depend­ case, that the benefit in question also consti­ ing on the nationality of the possible recipi­ tutes a social advantage within the meaning ents of the benefit in question. The national court is asking whether these rules are com­ patible with Community law. In its analysis the Court can therefore only refer to the 7 Joined Cases C-245/94 and C-312/94 Ingrid Hoever må Ms Zachów v Land Nordrhein-Westfalen [1996] ECR 1-4895. principle of non-discrimination laid down in 8 — Opinion of 2 May 1996 in Joined Cases C-245/94 and the Treaty. Assuming that the plaintiff is not C-312/94, cited above in footnote 7, points 87 to 90.

a worker, the question remains: what other allowance on the same conditions as German status is afforded by the legal order of the nationals. In answer to the Commission's Union for preventing a Community citizen argument, the German Government con resident in Germany from being discrimi tends that Article 8a recognises the right to nated against in relation to German nationals freedom of movement and residence in the circumstances and for the purposes of expressly within the limits deriving from the this case? Treaty and from secondary legislation: the case of Mrs Martínez Sala is covered by the provisions of Directive 90/364/EEC (OJ 1990 L 180, p. 26); she does not meet the conditions laid down there (full sickness insurance and sufficient resources to avoid becoming a burden on the social assistance system of the host State) and may not there fore claim any right of residence under

The German Govern zen of the Union shall have the right to ment concludes that in this case the situation move and reside freely within the territory of a resident who is a national of another of the Member States, subject to the limita Member State is not regulated by Commu tions and conditions laid down in this Treaty nity law, and that the contention that the and by the measures adopted to give it residence permit requirement infringes a effect'. Article 8a(2) adds that the Council principle established by the Treaty, namely may, in accordance with the procedures laid the prohibition of discrimination based on down therein, adopt provisions with a view nationality, is therefore unfounded.

the citizen. What, then, is the consequence individual categories of persons concerned for the outcome of the present case? By and welds them together in a single provi moving to and residing in Germany, sion of primary law — like the fragments of Mrs Martinez Sala has exercised a freedom a mosaic, as the French Government put it at guaranteed to her by the Treaty. If and so the hearing — but leaves untouched the limi long as the host State docs not exercise the tations to which those rights are subject, right to apply to her the limitations which, depending on the circumstances, under either under Article 8a, circumscribe the actual the Treaty or secondary legislation.

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OPINION OF MR LA PERGOLA — CASE C-85/96

One prelimi entitled in Community law to reside in Ger nary point must be made here: now that many but, more specifically, whether while Article 8 a of the Treaty has entered into residing in that country she is entitled to force, the right of residence can no longer be German child-raising allowance on the same considered to have been created by the direc conditions as German nationals. I therefore tive; it is, so to speak, 'granted' by the Mem consider that the case is to be analysed with ber States to the nationals concerned of the reference to Article 8a specifically in the other Member States in accordance with the light of the answer to be given to the latter provisions laid down there. That legislation question. was adopted by the Council to cover situa tions in which citizens did not enjoy a right of residence under other provisions of Com munity law. Now, however, we have Article 8a of the Treaty. The right to move and reside freely throughout the whole of the Union is enshrined in an act of primary law and does not exist or cease to exist depend ing on whether or not it has been made sub

many. Nor do we know whether this special movement laid down in the Treaty. That residence permit — which, after all, is the point has been argued by the Commission only one relevant in this case — may be, on the — in my view — incontrovertible and is in fact, issued to Community citizens, basis of the system of freedom of movement who according to the Erziehungsgeldgesetz already established by the Treaty. Let us are included in the category of foreigners, examine the context in which the right even if the requirements laid down in Direc enshrined in Article 8a was framed by the tive 90/364 regarding the 'residence permit' Maastricht agreements. The novelty of the and the related right of residence are not ful provision does not lie in its having embodied

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19. Let us now consider more closely how the foregoing considerations can help to 9 — Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement resolve the problem presented by this case. and residence of foreign nationals which arc justified on grounds of public policy, public security or public health Directive 90/364 seeks to accord the right of (OJ, English Special Edition 1963-1964, p. 117).

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That individual status will always and in any cir- cumstances be retained by the nationals of any Member State: consequently, in this case, it does not matter whether leave to reside in the host State was derived from the directive or from the domestic law of the Member 20. The prohibition of discrimination on 10 State concerned. grounds of nationality is laid down in the Treaty and interpreted by the Court as a general principle. It is a principle which, potentially, applies throughout the area of application of the Treaty, although it applies 'without prejudice to' and therefore through particular provisions laid down for putting it into effect in one or other sector of the Community legal order: for example, the 21. As Community law now stands, the sta free movement of workers and the freedom tus of citizen of the Union therefore derives to provide services or the right of establish once and for all from the Treaty. It is, of ment.

ited. Secondly, Article 8a of the Treaty 10 — Community law, as interpreted by the Court, recognises attaches to the legal status of Union citizen the relevance — in the field of social security, for example — of international agreements which confer on citizens of a the right to move to and reside in any Mem Member State more extensive rights than those deriving ber State. If we were to follow the reasoning from Community provisions, such as those contained, for example, in Regulation (EEC) No 1408/71.

The same applies in this case to the European Convention on the present case, however, it is not necessary Social and Medical Assistance, signed in Paris on 11 to examine the foundation of that view. If — December 1953, of which Germany is a signatory. The right not to be expelled, as laid down therein, of necessity entails as in this case — a Community citizen is in the right to reside in the host State. That therefore consti tutes a legal ground justifying the presence of the plaintiff any event granted the right to reside in a in Germany, even for Community law purposes.

relation to citizens of other Member States. nationals, without there being any rational Citizenship of the Union falls within the and objective justification for this discrimi scope of application of the Treaty and is cov natory criterion in domestic law. The less ered by the general prohibition of all dis restrictive conditions which the German leg criminatory treatment on grounds of nation islature requires its own nationals to fulfil ality, but only where it does not assume before they receive the benefit in question undue precedence over the status of national could in fact be properly extended to Com

It tion of the Treaty. Indeed, the special provi is an endorsement which, as the Commission sions on the prohibition of discrimination has made clear, is declaratory only and not which the Treaty has laid down in relation to constitutive of rights. Entitlement to the the right of Union citizens to vote and stand allowance therefore arises from the Member for election in elections to the European Par State's authorising or allowing a Community liament and municipal elections explicitly citizen to stay or reside in its own territory derogate from provisions which are clearly a and not from the issue of the residence per matter for the legal systems and, presumably, mit required under the German legislation the Constitutions of the individual Member for its grant; there is no justification for States. making the enjoyment of that right, as gov erned by domestic law, subject in this case to a requirement, and thus to a limitation, not provided for in relation to the host State's own nationals. The conclusion is self- evident: the host State cannot discriminate between a Union citizen who is one of its own nationals and a Union citizen who is a

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The discrimina equality of treatment lies rather, as I have tory requirement here is the residence permit explained, in the legal status of a citizen of which is not required of residents who are the Union, in the guarantee afforded by the German nationals but is required of a Com status of the individual, as it is now governed munity citizen who has moved to Germany by Article 8 of the Treaty, which is enjoyed (and stayed there for a long time), so that by a national of any Member State and in from various viewpoints such a citizen must any Member State. In other words, the in that country be in the position of a recipi Union, as conceived in the Maastricht Treaty, ent of services, as it is termed in the case-law. requires that the principle of prohibiting dis The Cowan case concerned compensation crimination should embrace the domain of for physical assault, which is to be accorded the new legal status of common citizenship. without discrimination to any person, This case is therefore a test case for a range whether resident in the Member State or not. of problems which could be referred to the Here, the payment in issue is, admittedly, of Court in future. I would, however, point out a different kind, but the different require that the solution I propose represents a logi ments imposed on nationals and on resident cal development of the case-law, which has Community citizens applying for it still con already interpreted the prohibition of dis stitute discriminatory treatment prohibited crimination broadly and progressively. In the under Community law.

12 — Case 186/87 Cowan v Trésor Public [1989] ECR 195.

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VI — Conclusion

I therefore propose that the Court should give the following answers to the national court's questions:

(1) A Spanish citizen residing in Germany who is in the same situation as the plaintiff in the main proceedings may be considered to be a worker, within the meaning of Regulation (EEC) No 1612/68, if there is a direct link between her previous employment and her situation during the period in issue. That same plaintiff may be considered to be a worker, within the meaning of Regulation (EEC) No 1408/71, if the social assistance which that person is accorded by the competent authorities includes compulsory insurance against the risk of sickness or if she is insured, through her family of origin or on a comparable basis, under Regulation No 1408/71.