C-131/96

MORA ROMERO v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

O P I N I O N O F ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 13 March 1997 *

1. The question which has been referred to that the plaintiff, who was born on 16 Feb- the Court by the German Bundessozialger- ruary 1965, is a Spanish national residing in icht (Federal Social Court) in this case may Spain. His father died in 1969 as the result of be summarized as follows: is the orphan of a an accident at work while employed in Ger- Spanish worker who died in Germany in many and, as a consequence, the plaintiff 1969 as the result of an accident at work received orphan's benefit from the defendant entitled to an extension of the period for until he was called up for military service on drawing an orphan's benefit beyond the age 30 November 1987. of 25 years for a period equal to the period for which he did not receive it by reason of military service in his country of origin, under the same conditions as those under which such entitlement is granted by the Member State providing the benefit to per- sons who have completed military service under German law?

He did not receive orphan's benefit during his one-year period of service in the Spanish army. Payment was resumed on 1 December 1988 because he was again in education and training. By decision of 6 March 1990 the 2. This question has arisen in proceedings defendant notified the plaintiff that his before the Bundessozialgericht brought by entitlement to benefit had definitively ended Mr Mora Romero, plaintiff and respondent on 1 March 1990 because he had reached the on appeal ('the plaintiff'), against the Landes- age of 25 years. versicherungsanstalt (Regional Insurance Office) Rheinprovinz, the defendant social security institution and appellant ('the defen- dant').

5. The order for reference adds that for orphans already aged 18 years or over when called up for military service, the orphan's benefit is initially discontinued since there is no education or training taking place but, as a quid pro quo, in the event of continued education or training, payment of the benefit goes on after the age of 25 for a period equal to that of military service. This provision has always been interpreted by the national court as applying to military service only in 7. The defendant appealed on a point of law the German army. against that judgment on the ground that, under the case-law of the Bundessozialger- icht, foreign military service could be treated as German military service only where the former was performed in lieu of the latter. The abovementioned provision granted com- pensation from the State to persons who ful- filled the duty of military service imposed by the State and it would be difficult to establish what could be regarded as equivalent service 6. The plaintiff's administrative complaint in other States because the duration of com- against the defendant's decision of 6 March pulsory military service differs in each Mem- 1990 was followed by an action before the ber State. For those reasons it could not be Sozialgericht (Social Court) Düsseldorf, regarded as an infringement of Article 6 of which was unsuccessful. O n the plaintiff's the E C Treaty if different conditions, appeal, the Landessozialgericht (Regional depending on whether the claimant had per- Social Court) Nordrhein-Westfalen ordered formed military service in Spain or Germany, the defendant to pay the plaintiff orphan's were laid down for the continued payment benefit for the period from 1 March 1990 to of orphan's benefit.

11. Article 51 of the EC Treaty, which gives the Council the task of adopting the neces- sary measures in the field of social security to provide freedom of movement for work- ers, is worded as follows: 'Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimi- nation on the grounds of nationality shall be prohibited.' 2

'The Council shall, acting unanimously on a proposal from the Commission, adopt such 1 — Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Commu- measures in the field of social security as are nity (OJ, English Special Edition 1968 (II), p. 475). necessary to provide freedom of movement 2 — This formed Article 7 of the EEC Treaty before the entry into force of the Treaty on European Union. for workers; to this end, it shall make

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arrangements to secure for migrant workers 13. Article 2 of Council Regulation (EEC) and their dependants: N o 1408/71 of 14 June 1971 on the applica- tion of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by (a) aggregation, for the purpose of acquiring Council Regulation (EEC) N o 2001/83 of 2 and retaining the right to benefit and of June 1983 3 ('Regulation N o 1408/71*), pro- calculating the amount of benefit, of all vides as follows with regard to the persons periods taken into account under the covered by the Regulation: laws of several countries;

M O R A R O M E R O v LANDESVERSICHERUNGSANSTALT R H E I N P R O V I N Z

14. Under Article 3 of the same Regulation: 16. Under Article 5 of Regulation N o 1408/71, which provides that the Member States are to specify the legislation and schemes referred to in Article 4(1) and (2), in declarations to be notified to the President of '1. Subject to the special provisions of this the Council and published in the Official Regulation, persons resident in the territory Journal of the European Communities, the of one of the Member States to whom this Federal Republic of Germany lodged a dec- Regulation applies shall be subject to the laration indicating that the benefits granted same obligations and enjoy the same benefits under the RVO constitute orphan's allow- under the legislation of any Member State as ances or pensions within the meaning of the nationals of that State. Article 78 of the Regulation, which regulates orphans' benefits. 4

2. [...]'

17. In examining the question, the national court states that the problem of interpreta- 15. The matters covered by Regulation N o tion which arises is essentially concerned 1408/71 are set out in Article 4, which pro- with the inferences to be drawn from the vides as follows: prohibition of discrimination in Article 6 of the EC Treaty. The national court observes that there is much to be said for the defen- dant's view that the principle of freedom of movement does not require an extension of ' 1 . This Regulation shall apply to all legisla- the third sentence of Paragraph 1267(1) of tion concerning the following branches of the RVO to cover military service in the social security: armies of other Member States.

He proposes that the question from the Furthermore, according to the national court, the German social security system is Bundessozialgericht should be answered in not merely a contributory system, based on the negative. mutuality, to cover the risks of working life since it is also used as a means of compensat- ing for periods of sacrifice. In a system of that kind, therefore, it appears justifiable to regard orphan's benefit, when it is extended beyond the age of 25 years for persons who 20. The French Government considers that perform military service, not as a social secu- most of the Community-law provisions rity benefit, but as a compensatory payment which the Court is asked to interpret are not which is intended by the German legislature directly applicable to the facts set out in the to make up for the adverse effects suffered order for reference, and it suggests that the by conscripts as a result of having to fulfil Court should confine its examination to the their statutory obligation of military service question whether the German authorities' or equivalent social service and which is refusal to continue paying the orphan's ben- merely provided through the social security efit to the plaintiff from March 1990 to Feb- system. ruary 1991 amounts to discrimination on grounds of nationality, contrary to Article 3(1) of Regulation N o 1408/71.

The French Government draws attention to 18. The plaintiff, the French Government, the paradox inherent in the fact that the the Kingdom of Spain and the Commission defendant treats military service in the army submitted written observations within the of another Member State as equivalent to time-limit laid down by Article 20 of the EC military service in Germany in order to sus- Statute of the Court of Justice, and also oral pend the orphan's benefit temporarily, but observations at the hearing. refuses to do so for the purpose of prolong-

ing the benefit beyond the age of 25 years It considers that any attempt to describe the for a period equal to the duration of the sus- extended payment of orphan's benefit as pension. As German nationals alone are sub- financial compensation for military service ject to the national service obligations laid must be rejected, since the legislator's inten- down by German law, that refusal consti- tion was to give those who perform military tutes discrimination on grounds of national- service access to education and training for ity. the same period as those who do not have an obligation of military service. From that point of view, an orphan who does military service in Germany suffers the same adverse effects as one who performs it in another Member State because the education or training of both is deferred by reason of con- scription. The Kingdom of Spain adds that if the benefit were in the nature of compensa- tion, as stated by the national court, it would It adds that, as the provisions of Regulation be granted to all persons performing military N o 1408/71 are applicable to the facts service in Germany and not only to orphans, described by the national court and enable a who represent only a small proportion. reply to be given to its question, it is unnec- essary to examine Regulation N o 1612/68 in order to reach the same conclusion. It pro- poses that the reply to the question submit- ted should be that the prohibition of dis- crimination laid down in Regulation N o 1408/71 with regard to the right to social security benefits requires the legislature of a Member State to continue to pay the For those reasons the Kingdom of Spain orphan's benefit to persons above the age of concludes that orphan's benefit is a social 25 years who have had to continue their edu- security benefit which, if granted only to cation and training beyond that age as a persons conscripted in Germany, would con- result of being called up for military service stitute discrimination on grounds of nation- in the Member State of which they are ality against nationals of other Member nationals. States who are subject to the German social security system, and it proposes that the question from the national court should be answered in the negative.

presumed to have been a Spanish national, of conscription, are normally orphans of died in 1969, long before Spain acceded to German nationality. The provision in ques- the Community, and the Act of Accession of tion merely provides for extending, beyond Spain 5 contains no provision treating the the age of 25, the entitlement to orphan's employment of a Spaniard before his coun- benefit for the period during which payment try's accession to the Community as was suspended: it does not constitute a new employment of a national of a Member State right, but merely defers an existing right. in accordance with the Community law o n Moreover, when suspending the payment of freedom of movement for workers. For all orphan's benefit by reason of conscription, those reasons the Commission concludes the German institution makes no distinction that Regulation N o 1612/68 is not applicable according to whether military service is per- to this case. formed under national law or the law of another Member State, whereas a distinction is made when extending the benefit beyond the age limit.

In the Commission's view, the question from the national court must be answered in the light of the provisions of Regulation No 1408/71 which, under Article 94 thereof, are applicable even though the contingency giv- ing rise to the right materialized prior to the date when the freedom of movement took effect. Furthermore, the plaintiff is one of the persons covered by the Regulation because The Commission also proposes that the he is the survivor of an employed person and question be answered in the negative. the orphan's benefit he received in Germany must be regarded as a benefit within the scope ratione materiae of the Regulation.

In the present case, therefore, it is unneces- sary to refer to Article 6 of the Treaty. For those reasons he cannot claim the rights conferred on workers and members of their families by Article 48 of the Treaty and Regulation N o 1612/68.

25. With regard to Article 48 of the Treaty and Article 7 of Regulation N o 1612/68, I conclude from the account of the facts in the order from the national court that the plain- tiff does not fulfil the requirements for being considered a 'worker' within the meaning of 26. However, the plaintiff receives orphan's Community law since he is a Spanish benefit from Germany because his father, who was a Spanish national, was insured under the social security scheme of that 6 — Sec Case C-419/92 Scholz [1994] ECR 1-505, parigraph 6, and Case C-193/94 Slamavi and Others [1996] ECR 1-929, paragraph 20. 7 — Sec Case 1/78 Kenny [1978] ECR 1489, paragraphs 9 to 11. 8 — Case C-171/91 [1993] ECR 1-2925.

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28. Under Article 3(1), subject to the special provisions of the Regulation, persons who reside in the territory of one of the Member Finally, there is no doubt that the orphan's States and are covered by the Regulation are benefit which he receives in Germany falls subject to the same obligations and enjoy the within the scope ratione materiae of the Regulation. Survivors' benefits appear on the list in Article 4(1). Furthermore, in the dec- laration referred to in Article 5, Germany 9 — Sec Case 237/78 Tom [1979] ECR 2645, paragraph 8, and Case C-251/89 Atbanasopoulos and Others [1991] ECR stated that the orphan's pensions and allow- 1-2797, paragraph 28.

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MORA ROMERO v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

31. There are three situations where Para- 29. I note that in the Regulation or, to be graph 1267(1)(2) and (3) of the RVO apply, precise, Chapter 8 — which regulates ben- depending on whether the recipient of ben- efits for dependent children of pensioners efits has to perform military service and on and for orphans — of Title III, which con- the State which imposes that obligation, tains the special provisions relating to the namely: various categories of benefits, there is noth- ing which would exclude the application of Article 3(1) as regards requirements for the grant and payment of an orphan's benefit. I conclude from this that Mr Mora Romero may claim the right to have the benefit paid by the German social security institution which grants it to him, under the same con- — Orphan's benefit is granted to the recipi- ditions as those for payment to orphans of ent up to the age of 25 years if he is in German nationality. education or training, without distinction on grounds of nationality. That will be the case with regard to orphans who are 10 — Sec Case C-308/93 Cabanis-1ssarte [1996] ECR 1-2097, not subject to or are exempt from com- paragraph 26. pulsory military service.

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— If the orphan has to interrupt his educa- education or training as a result of misfor- tion or training because of compulsory tune, health limitations, coercive measures or military service, the defendant German other obligations, and that any payment institution suspends the payment of beyond the age limit is attributable only to orphan's benefit while he is in the army. compulsory military service. For that purpose, service in another Member State is treated as service in the German army.

The issue at all times is the right to receive orphan's benefit, which is part of the Ger- man social security system. It does not cease to be orphan's benefit because payment is suspended while the recipient performs his military service, because it is resumed on completion of his service, or because entitle- ment to the benefit is extended beyond the age of 25 for an equivalent period if the 32. The Bundessozialgericht makes certain recipient continues his education or training. observations in its order concerning the pur- I consider it to be a deferred payment of the pose of the abovementioned provision and same benefit and not a new benefit in the considers that Paragraph 1267(1)(3) of the nature of compensation. RVO forms part of a system of compensa- tion intended by the German legislature to make up for the disadvantages which con- scripts suffer as a result of the obligation to perform military service under German law. The national court is of the opinion that the age limit for orphan's benefit applies both to those who, by their own decision, do not 34. Moreover, pursuant to Article 4(4) of pursue their education or training with suffi- Regulation N o 1408/71, the only areas to cient promptitude and to those who are pre- which the Regulation does not apply are vented from commencing or continuing social and medical assistance, benefit schemes

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MORA ROMERO v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

for victims of war or its consequences, and unavoidable obligation such as, in certain special schemes for civil servants and persons Member States, military service, the payment treated as such. of orphan's benefit is suspended because they are no longer undergoing training and it is then resumed, if they continue their train- ing, beyond the age of 25 for a period equal to the duration of the suspension.

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lation N o 1408/71, where a German social was employed in another Member State was security institution treats military service in a entitled to have payment of the employer's Member State as equivalent to military ser- contributions to the supplementary old-age vice in Germany for the purpose of suspend- and survivors' pension scheme for workers ing, for the entire duration of such service, in the public service continued, at the same the payment of orphan's benefit to recipients level as would have been payable if the undergoing education or training and denies employment relationship had not been sus- such equivalence for the purpose of extend- pended because of his call-up for military ing the payment of the same benefit beyond service, where nationals of that State the age of 25 years for an equivalent period, employed in the public service are so entitled where the recipient whose education or by law when performing military service in training has been interrupted or deferred has that State. The reply was in the negative. fulfilled his military service obligations in another Member State.

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MORA ROMERO v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

ted by the national court in that case, both consequences of the obligation of military the Court in its judgment and I myself took service which it imposed on them. the view that the right which he claimed did not form part of the conditions of employ- ment and work within the meaning of Article 7(1) of Regulation N o 1612/68, nor was it a social advantage within the meaning 40. It necessarily followed that Community of Article 7(2), since it was not granted to law, as it stood at that time, could not the recipient because of his objective status require that right, which was granted by as a worker or because he resided in Ger- German law to certain categories of national many, but it had to be classified as an advan- workers, to be extended under the same con- tage which the German State granted to con- ditions to workers from other Member scripts as partial compensation for the States.

Conclusion

41. In view of the foregoing considerations, I propose that the Court reply as fol- lows to the question from the Bundessozialgericht:

Article 3(1) 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 per- sons and to members of their families moving within the Community, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983, must be interpreted as precluding a Member State, which treats military service in the army of another Member State as equivalent to military service in its own army for the purpose of suspending, for the entire duration of such service, the payment of orphan's benefit to recipients undergoing education or training, from denying such equivalence for the purpose of extending the payment of the same benefit beyond the age limit of 25 years, for an equivalent period, where the recipient whose edu- cation or training has been interrupted or deferred has performed his military ser- vice in another Member State.