C-185/96

1 — Regulation (EEC) No 1612/68 of the Council of 15 October — declare that, by precluding, by regulation 1968 on freedom of movement for workers within the Com- munity (OJ, English Special Edition 1968 (II), p. 475). or administrative practice, on the grounds 2 — Regulation (EEC) No 1251/70 of the Commission of 29 June of their nationality, Community workers, 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, whether employees or self-employed, and English Special Edition 1970 (II), p. 402). the members of their families, from being 3 — Directive 75/34/EEC of the Council of 17 December 1974 concerning the right of nationals of a Member State to remain attributed large-family status for the pur­ in the territory of another Member State after having pursued therein an activity in a self-employed capacity (OJ 1975 pose of the award of the benefits provided L 14, p. 10). 4 — Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed per- sons, to self-employed persons and to members of their fami- lies moving within the Community (Consolidated version, * Original language: German. OJ 1997 L 28, p. 4).

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— dismiss the action; tion announced that the law was to be amended. The Commission expressed its views on that amendment on 13 October 1995. 12 By letter of 19 December 1995, the Perma­ nent Representation forwarded a proposal for — order the Commission to pay the costs. a law. The Commission responded to that by 13 letter of 24 April 1996. The timing and extent of the proposed amendment of the law appeared unsatisfactory to the Commission, with the result that, on 2 May 1996, it brought B — Facts an action which was received at the Court on 31 May 1996 and served on the Greek Gov­ ernment on 11 July 1996.

Article 1 lays down the substantive condi­ 5 — Reference No 3411, see Annex I to the application. tions governing entitlement to large-family 6 — Reference No 9495, see Annex I to the application. 7 — Reference No AM 3082/A/5458, sec Annex II to the applica- tion. 8 — Reference No SG (93) D/12255, see Annex IV to the applica- tion. 11 — Reference No 1423, see Annex B to the defence. 9 — Reference No SG (95) D/6528 = E (95) 0578, see Annex V to 12 — Reference No 3082.5/A/6433, see Annex VI to the applica- the application; the letter bears the date of 18 May 1995 tion. whereas the reasoned opinion is dated 22 May 1995. In the 13 — Reference No 0685, see Annex VII to the application, cor- application itself, 14 June 1995 is stated as the date of dispatch responds to Annex A to the defence. of the reasoned opinion. 14 — Published in Part A of Official Gazette No 17 of 18 Feb- 10 — Reference No 3082.5/A/4348, see Annex A to the defence. ruary 1997.

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status, while Article 2 sets out extensive and Finally, paragraph 4 provides for a pension detailed procedural requirements for the rec­ for life for the mother. ognition of that status. Articles 3 to 12 pro­ vide for a series of social advantages of varying current relevance.

4. Ministerial Order No CIa/440 of 7/21 Feb­ ruary 1991

2. Decree-Law 1153/1972

3. Law 1892/1990 7. The Commission is of the view that all the benefits based on the abovementioned provi­ 17 sions are linked to Greek nationality, which constitutes discrimination on grounds of nationality contrary to Community law. It Article 63(1) and (2) of this Law of 31 July claims that such unequal treatment is based 1990 provide for a monthly benefit of either directly on the legislative provisions or, GRD 34 000, payable for three years or until in any event, on discriminatory administra­ the child attains the age of three, for mothers tive practice such as, for example, in the who have given birth to a third child. Under application of Law 1910/1944. According to paragraph 3 of the provision, a mother rec­ the Commission, the unequal treatment is in ognised as a parent of a large family within breach of the prohibition of discrimination the meaning of Law 1910/1944 is granted a monthly allowance until her youngest unmar­ ried child attains the age of 25. 16 — See, for example, Article 13(2)(d) and Article 14(1)(c) of the Ministerial Order. 17 — This refers to Greek nationality or origin. When the term 'nationality' is mentioned below, it should be construed in 15 — Sec Articles 3, 4 and 7 of the Decree-Law. the broad sense.

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9. It maintains that the benefits have in common the fact that they are all allowances of a social nature, some of which are means- 11. In so far as the Greek Government pleads tested and others are not. Viewed from a that some of the benefits are granted for purely abstract standpoint, some of the ben­ demographic reasons, the Commission points efits may fall within the scope of both Regu­ 25 out that, according to the Court's case-law, lation No 1408/71 and Regulation No 1612/68. demographic considerations cannot justify It is the circumstances of each individual case which are the decisive factor. The Commis­ discrimination. Finally, the Commission notes sion points out that the Court has held that a that the submission of a draft law amending benefit may, purely hypothetically, fall within the legislative provisions objected to must, at the scope of both regulations. 23 least in part, be regarded as an admission of the need to amend the provisions in question. The employment legislation referred to by the Greek Government is not part of the 18 — Although in its application the Commission bases its view on Article 7 of the Treaty, the general principle of the pro- subject-matter of the proceedings. hibition of discrimination now appears in Article 6 by virtue of the Maastricht Treaty. 19 — Cited in footnote 1. 20 — Cited in footnote 2. 21 — Cited in footnote 3. 22 — Cited in footnote 4. 24 — Article 1(u). 23 — Judgment in Case C-111/91 Commission v Luxembourg 25 — Judgment in Case 65/81 Reina v Landeskreditbank Baden- [1993] ECR I-817, at paragraph 21. Württemberg [1982] ECR 33, at paragraph 15.

16. According to the Greek Government, the 29 benefits under Article 63 of Law 1892/1990 are granted in pursuit of demographic objec­ tives. They are in the nature of an award in 14. According to the Greek Government, the recognition of the special contribution which benefits paid to members of large families a mother of a large family makes to society. have in common an historical and sociological In particular, the pension for life is granted basis. Protection of the family has constitu­ 'as an honour'. That pension in particular tional rank. In view of the increasing per­ cannot be classified as falling under Regula­ centage of old people in the Greek popula­ tion No 1408/71 or under Regulation No tion, a number of the benefits are based on 1612/68. In so far as demographic reasons demographic reasons. Some of the provisions alone are not sufficient to justify the grant of referred to by the Commission are outdated. benefits to persons of Greek origin, moral Articles 3, 4, 5, 6, 9 and 12 of Law 1910/1944 recognition of a contribution to society is a are now, for various reasons, nugatory or further factor which must be taken into 26 irrelevant to these proceedings.

above.. 27 — See point 6(2) above

Law,, which provides for an exemption 26 — See Article 5 of the Law 291,, p. 99 28 — See OJ 1979 L 291 99,, 101 101.. service.. from military service above.. 29 — See point 6(3) above

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account. In that respect, the Greek Govern­ procedure, the question arises, at least in part, ment refers to the Court's Judgments in the as to whether there is a legal interest in Even and de Vos cases. Moreover, it points bringing these proceedings. out that the legislation is being amended with regard to the other benefits referred to in Article 63 of Law 1892/1990. Greek employ­ ment legislation is in any case undergoing a review for the purpose of adapting it to the requirements of Community law.

18. In view of the change in the law which 34 — It is settled case-law that the purpose of the pre-litigation has taken place in the course of the written procedure is also to give the Member State concerned an opportunity to comply with its obligations under Commu- nity law. See the judgments in Case C-207/96 Commission v Italy [1997] ECR I-6869, at paragraph 17, and Case C-96/95 Commission v Germany [1997] ECR I-1653, at paragraph 22. 30 — See judgments in Case 207/78 Even [1979] ECR 2019 and Case C-315/94 de Vos [1996] ECR I-1417. 35 — See the judgments in Case C-361/95 Commission v Spain [1997] ECR I-7351, at paragraphs 13 and 14, Case C-61/94 31 — Official Gazette No 17 of 18 February 1997, part A. Commission v Germany [1996] ECR I-3989, at paragraph 32 — See Article 39(5) of Law No 2459/97. 42, and Case C-123/94 Commission v Greece [1995] ECR 33 — See Article 39(6) of Law No 2459/97. I-1457, at paragraph 7.

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20. It is undisputed that the legislative provi­ employment and work, in particular as sions objected to by the Commission were regards remuneration, dismissal, and fully in force at the time of expiry of the should he become unemployed, reinstate­ period laid down in the reasoned opinion. In ment or re-employment; principle, therefore, it can be assumed without further examination that there is a legal interest in bringing the proceedings.

(2) He shall enjoy the same social and tax advantages as national workers.' b — Substance

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Finally, Article 7 of Directive 75/34, con­ The scope ratione materiae of Regulation cerning the right of nationals of a Member No 1408/71 is defined in Article 4 as follows: State to remain in the territory of another Member State after having pursued therein an activity in a self-employed capacity, provides as follows: 'Member States shall apply to per­ sons having the right to remain in their ter­ ritory the right of equality of treatment rec­ ognised by the Council Directives on the '1 . This Regulation shall apply to all legisla­ abolition of restrictions on freedom of estab­ tion concerning the following branches of lishment pursuant to Title III of the General social security: Programme which provides for such aboli­ tion.'

(h) family benefits 23. In summary, it can be concluded that the principle under Community law of equal treatment for employed persons and self- employed persons is applicable during their working life and beyond in so far as they exercise their right to remain. According to the scope ratione personae of the relevant » provisions, the principle of equal treatment also applies to the members of the families of the persons concerned.

25. The Court has consistently held that a benefit may be regarded as a social security benefit 'in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position, and provided that it concerns one of the risks expressly listed in 24. All the benefits provided for by the Greek Article 4(1) of Regulation No 1408/71.' 36

27. As the Commission rightly states, it is in fact necessary to examine the specific situa­ tion of the person entitled in order to deter­ 29. Even if, as the Greek Government argues, mine conclusively which of the abovemen- Articles 3, 4, 5, 6, 9 and 12 of Law 1910/1944 tioned Community legislative provisions are obsolete, Articles 7, 8, 10 and 11 are still should be applied. However, such an exami­ of relevance, as the Commission also expressly nation is not possible at the abstract level of pointed out during the oral procedure. They Treaty infringement proceedings. Neverthe­ deal with social advantages, for the grant of less, that does not, in principle, preclude a which recognition as a large family, within finding of a breach, contrary to Community the meaning of Articles 1 and 2, is an indis­ law, of the principle of equal treatment since pensable condition. Article 7 of the Law, for all the abovementioned legislative provisions example, provides for costs incurred in legal are an expression of the prohibition, in Com­ proceedings to be reduced by half. Article 8 munity law, of discrimination on grounds of deals with certain tax reliefs and tax exemp­ nationality. tions. As well as certain public service advan-

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OPINION OF MR ALBER — CASE C-185/96

tages, Article 10 concerns fare reductions for is incompatible with the Treaty. The provi­ public transport. Article 11 deals with welfare sions concerned must be unambiguously payments intended to assist, for example, with adapted to the requirements of Community the care of under-age or sick children or con­ law. tribute towards the financing of daughters' dowries.

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ance for the purpose of Regulation No that the pension provided for by Article 63(4) 1408/71. A worker's spouse also is entitled, of the Law must be granted to Community within the scope of Regulation No 1408/71, nationals who are mothers of several children to rely on the principle of equal treatment under the same conditions as it is granted to 39 under Article 3 of the Regulation. Greek women.

39 — Judgment of 30 April 1996 in Case C-308/93 Cabanis-Issarte [1996] ECR I-2097, at paragraph 44. 40 — Judgment in Case C-57/96 Meints [1997] ECR 1-6689, at paragraph 39. 42 — See the Even case, cited in footnote 30, at paragraph 23. 41 — Judgment in the Cabanis-Issarte case, at paragraph 38. 43 — See the de Vos case, cited in footnote 30, at paragraph 21.

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OPINION OF MR ALBER — CASE C-185/96

44 45 the Romero judgment in which periods of sideration Law No 2459/97, the Hellenic training interrupted by compulsory military Republic should be found to have failed to service, including in another Member State, fulfil its obligations under the Treaty. How­ were held to be reckonable periods for the ever, that Law is not a decisive factor since purposes of granting orphan's benefit. the legal situation at the time of the expiry of the period laid down in the reasoned opinion clearly constitutes a Treaty infringement. The form of order sought by the Commission should therefore be granted in full. 35. Finally, it is necessary to examine Article 39 of Law No 2459/97. The Commission is right in maintaining that this Law has only partially remedied the situation incompatible with the Treaty. The ambiguity in Decree-Law Costs No 1153/1972 continues to exist. The ben­ efits under Article 63 of Law 1892/1990 have been rendered only partly accessible to Com­ munity nationals. To compound matters, Law No 1892/1990 in conjunction with Ministe­ rial Order No CIa/440 of 7/21 February 1991, In accordance with the first paragraph of was not enacted until well after the accession Article 69(2) of the Rules of Procedure, the of the Hellenic Republic to the European unsuccessful party is to be ordered to pay the Community. With regard to the benefits under costs if they have been applied for in the Article 63(4) of Law No 1892/1990, the Greek unsuccessful party's pleadings. Since, Government persists in its view that discrimi­ according to the solution proposed above, the nation can be justified on demographic defendant would be the unsuccessful party, it grounds. Consequently, even taking into con­ should be ordered to pay the costs.

and the members of their families, from being attributed large-family status for the purpose of the award of the benefits provided for members of large families and from being awarded family supplements, the Hellenic Republic has failed to fulfil its obligations under Community law, in particular Articles 48 and 52 of the EC Treaty, Article 7 of Regulation (EEC) No 1251/70, Article 7 of Directive 75/34/EEC and Article 3 of Regulation (EEC) No 1408/71;

(2) order the Hellenic Republic to pay the costs.

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