C-194/96

C — Facts and national proceedings I - 901

III — Observations I - 904

A — Question 1(a) I - 904

B — Question 1(b) I-905

C — Question 2 I-905

IV — Analysis I - 906

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I — Introduction II —Legal and factual context

A — Provisions of Community law

1. This reference for a preliminary ruling from the Bundessozialgericht (Federal Social 2. Article 1(a)(i) and (ii) of the Regulation Court) in Germany raises the question provides as follows: whether a retired German civil servant who has never worked outside Germany is entitled, as a matter of Community law, to a German family allowance in respect of his French-resident daughter by his deceased French former wife, where the allowance in question is normally provided only in 'For the purpose of this Regulation: respect of children resident in Germany. The questions referred relate expressly to Articles 2(3) and 73 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 (a) "employed person" and "self-employed and to members of their families moving person" mean respectively: within the Community, as modified and con- solidated by Council Regulation (EEC) N o 2001/83 of 2 June 1983 » and as further modified by Council Regulation (EEC) N o 3427/89 of 30 October 1989 2 (hereinaf- (i) any person who is insured, compul- ter 'the Regulation'). 3 The case also raises sorily or on an optional continued questions regarding the interpretation of basis, for one or more of the contin- Articles 1(a)(i) and (ii), (g) and (j), 2(1), 4(4), gencies covered by the branches of a 76 and 77(1) and (2)(a), and Annex I, point I, social security scheme for employed C to the Regulation. or self-employed persons;

'This Regulation shall apply to all legislation concerning the following branches of social 3. Article 2(1) and (3) of the Regulation pro- security: vides as follows:

(a) sickness and maternity benefits; '(1) This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or (b) invalidity benefits, including those who are stateless persons or refugees intended for the maintenance or residing within the territory of one of improvement of earning capacity;

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(c) old-age benefits; special schemes for civil servants and persons treated as such.'

(d) survivor's benefits; 6. The terms of Article 73 of the Regulation are as follows:

KULZER v FREISTAAT BAYERN

8. Annex I, point I, C, (a) to the Regulation is entided to Kindergeld (dependent child states the following: allowance) in respect of children who are similarly domiciled or resident. 5 Under Paragraph 2(5), children not so domiciled or resident are not to be taken into account for children's allowance purposes. However, Paragraph 42(2) states that the BKGG does not affect Community-law provisions. Thus, Articles 73 and 77 of the Regulation may 'If the competent institution for granting apply. Kindergeld is granted until the child family benefits in accordance with Chapter 7 reaches the age of 18; however, it can be of Title III of the regulation is a German extended to the age of 21 if the child is institution, then within the meaning of unemployed, or until the age of 27, if the Article 1(a)(ii) of the Regulation: child is pursuing further education. 6

(a) "employed person" means any person compulsorily insured against unemploy- ment or any person who, as a result of C — Facts and national proceedings such insurance, obtains cash benefits under sickness insurance or comparable benefits ....'

11. Mr Kulzer applied to Freistaat Bayern in October 1988 for Kindergeld in respect of Stefanie under the BKGG. His request was 14. The national court found that the rejected on 27 July 1989, as was his com- decision of the Landessozialgericht was con- plaint, on 5 December 1989, and his appeal. sistent with the BKGG. It doubts whether He appealed against the latter decision to the Mr Kulzer can benefit from the Regulation, Landessozialgericht (Higher Social Court). as he has never exercised his right, as a worker, to freedom of movement within the Community. The Regulation does not apply in cases where all the facts are confined to the territory of a single Member State and there is no connection with any of the situa- tions envisaged by Community law. 7 Although the title of the Regulation refers to 12. The Landessozialgericht considered that, employed persons, self-employed persons despite the residence declaration and Ste- and members of their families moving within fanie's occasional visits, she did not reside the Community, the fact that it was adopted with Mr Kulzer in the sense provided for in on the basis of Article 51 of the Treaty estab- Article 2(5), first sentence, of the BKGG, lishing the European Community (hereinaf- and in Article 30(3) of the First Book of the ter 'the Treaty'), which only concerns Sozialgesetzbuch (Code of Social Law). The migrant workers and their dependants, Landessozialgericht also took the view that requires that the Regulation be interpreted, if Mr Kulzer, as a retired person, could not it is to be valid, so as not to apply where avail of the provisions of Article 73 of the only a family member, and not the worker Regulation, as he was neither a worker himself, has moved within the Community. within the meaning of Article 1 of the Regu- lation, nor a civil servant within the meaning of Article 2(3). Furthermore, the Landesso- 7 — The national court cites Case 147/87 Zoom v CRAMIF zialgericht ruled that Article 77(1) of the [1987] ECR 5511, p. 5528 of the judgment; Joined Cases 35/82 and 36/82 Morson and jhanjan v State of the Nether- Regulation was not applicable, as the provi- lands [1982] ECR 3723, p. 3736; Case C-206/91 Koua Poir- sion of Kindergeld under the BKGG was in rez v CAF [1992] ECR I-6685, p. I-6707; and Case C-153/91 Petit v Office National des Pensions [1992] ECR I-4973, no way dependent on receipt of a pension. p. I-4995.

18. The national court therefore suspended 16. The national court did not think that the proceedings before it and referred the Mr Kulzer came within the definition of an following questions for a preliminary ruling employed or self-employed person in pursuant to Article 177 of the Treaty: Article 1(a) of the Regulation. Children's allowances under the BKGG are not linked to compulsory or optional insurance pursu- ant to a social security scheme, referred to in Article l(a)(i) of the Regulation, and the manner in which the German scheme is '1. (a) Does Regulation (EEC) N o 1408/71, administered and financed does not permit in particular Article 73 thereof, apply beneficiaries to be identified as employed or if the child in respect of whom family self-employed persons, as envisaged in benefits are sought, but not the per- Article l(a)(ii), first indent, of the Regu- son entitled to benefits him or herself lation. Thus, the national court considered it (in particular an employed or self- necessary, pursuant to Article l(a)(ii), second employed person), has exercised the indent, of the Regulation, to consult right to freedom of movement within Annex I, point I, C, whose conditions were the European Community? not satisfied by Mr Kulzer either.

9 — Case 182/78 Algemem Ziekenfonds Drenthe-Platteland v 8 — Cue C-117/89 [1990] ECR I-2781. Pierii [1979] ECR 1977.

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(b) Is it relevant in that respect whether order to be represented at the oral hearing, the other parent moved with the but this was rejected by order of the Court child to another Member State and on 15 September 1997. The Commission pursued an activity there as an submitted oral observations at the oral hear- employed or self-employed person ing held on 16 September 1997. The Com- until his or her death? mission's observations may be summarised question by question.

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KULZER v FREISTAAT BAYERN

elsewhere, 12 as well as to someone who lived claimed French allowances equivalent to the and worked in his own Member State, but German allowances sought by Mr Kulzer. whose children lived with their mother who The Court did not take into account in that exercised an economic activity in another case the text of Article 76 of the Regulation Member State, of which she was a as modified by Regulation N o 3427/89, national. 13 The Commission also points out which was not applicable during the material that Article 22 of the Regulation permits an period, but the Commission doubts the rel- employed person who has not moved within evance in the present proceedings of the pro- the Community to claim certain entitlements vision in either version. Stefanie's mother from his own Member State in respect of was not in fact entitled to any equivalent medical treatment in another Member French allowance, and Mr Kulzer did not State. 14 Only where all the elements of a seek the German allowance until after her case are confined to one Member State death, thus precluding the accumulation of should the Regulation be deemed inappli- benefits which Article 76 is designed to pre- cable. 15 vent.

21. The Commission argues that the inter- pretation it contends for would not exceed 23. The Commission concludes that the fact the legislative competence of the Council, as that Mr Kulzer's divorced wife might have the Regulation was adopted on the basis of exercised an economic activity in France Article 235 as well as of Article 51 of the before her death does not prevent Mr Kulzer Treaty. from availing of a German children's allow- ance after her death.

Article 8a of the Treaty, the Commission 27. The Commission concludes that a retired argues that the extremely limited definition policeman remains a civil servant within the given in Annex I, point I, C to the Regu- meaning of Article 2(3) of the Regulation, lation of persons who may benefit from the for the purposes of claiming family allow- German regime of family allowances should ances pursuant to Article 77. In response to a be revised, in order that it apply to a civil question at the oral hearing, the agent for the servant who seeks to avail of benefits pro- Commission stated that Mr Kulzer's entitle- vided under a scheme other than a special ment under Article 77 of the Regulation scheme for civil servants. should not be affected by Article 4(4), as the former provision does not directly concern his special civil service pension, but relates, rather, to entitlement to a family allowance generally available to persons resident in Germany.

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KULZER v FREISTAAT BAYERN

(ii) If the first question is answered in the adopted to implement the Treaty provisions affirmative, is a person in Mr Kulzer's on free movement of workers do not apply position covered by the Regulation, in cases where all the facts are confined to pursuant to Article 2 (and, in particular, the territory of a single Member State or paragraph (3)) thereof? where there is no connection with any of the situations envisaged by Community law. 18 Furthermore, the Court has stated in a num- ber of these cases that this reasoning excludes from the benefit of the Regulation workers who have never exercised their right of free movement and who have always (iii) If the second question is answered in worked and resided in their own Member the affirmative, does a person in State, 19 which is also the position of Mr Kulzer's position comply with the Mr Kulzer. However, the latter, apparently requirements for the award of family categorical, statements have all been made in benefit or dependent child benefit under circumstances where the family member who the Regulation and, in particular, under sought benefits or social advantages was a Chapters 7 and 8 of Title III thereof? 17 third-country national who had no material connection with any other Member State.

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of the Regulation refers to the application of who have had employment in several Mem- social security schemes to employed persons ber States or who are, or have been, and to members of their families moving employed in one State whilst residing or within the Community, so that residence in a having resided in another'. 22 The case con- different Member State by a member of a cerned the right to a German orphan's pen- worker's family should, in principle, render sion of minors of German nationality, who the provisions of the Regulation applicable, lived in Belgium with their mother and Bel- at the very least, to claims for benefits by or gian stepfather, in respect of their deceased in respect of that family member. Further- German father. Neither the deceased father more, Article 2(1) of the Regulation states nor the stepfather had ever worked other that the Regulation shall apply to employed than in their respective Member States, while persons who are or have been subject to the the mother 'had never been employed and legislation of one or more Member States, as plainly did not intend to pursue a profes- well as to members of their families and their sional or trade activity in Belgium, [having] survivors. While it has been argued in the moved to Belgium, after her remarriage, to past that the application of the Regulation to the home of her second husband'. 23 The persons insured in only one Member State Court concluded that 'the Regulation also was designed simply to provide for migrant applies when the residence in another Mem- workers who spend all their working lives in ber State was not that of the worker himself a Member State other than their own, 20 the but of a survivor of his'. 24 The survivors in Court has favoured a broader interpreta- this case were the minors. tion. 21

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an orphan's pension thereunder by virtue of nothing to the claim of the father, who also a deceased parent's professional or trade worked exclusively in his own Member activity pursued exclusively in his own State, to be eligible under the Regulation for Member State. By the same token, a living benefits in respect of his children. As in Lau- parent who, like Mr Kulzer, works or has mann, the connecting factor must be the worked exclusively in his own Member State residence of the children in a Member State and who satisfies the detailed provisions of other than that of the non-migrant working the Regulation governing family and depen- parent who was claiming family benefits dent child benefits (Articles 73, 74 and 77) from his own Member State. Furthermore, should be able to claim such benefits in that constitutes a connecting factor with a respect of offspring who reside in another situation envisaged by Community law Member State. However, if the worker's sole which is directly relevant to the benefits connection with a situation envisaged by claimed. Community law is the residence of his chil- dren in another Member State, this fact can- not, in my view, constitute a sufficient basis for the application of the Regulation in respect of benefits other than family, depen- dent child and orphan benefits.

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out of his employment. It is instructive to 36. In the circumstances, there is no need to quote at length from the Court's judgment: address the argument submitted by the Commission that, irrespective of the inter- pretation of Article 51, the application of the Regulation to a person in Mr Kulzer's pos- ition would be saved by reliance upon Article 235. It is unclear, in any event, 'Article 51 is included in the Chapter entitled whether that argument could apply in the "Workers" and situated in Title III ("Free present case, as Article 235 was added as a movement of persons, services and capital") legal basis to the Regulation only when its in Part Two of the Treaty ("Foundations of personal scope was extended to self- the Community"). The establishment of as employed persons by Council Regulation complete freedom of movement for workers N o 1390/81 of 12 May 1981, 32 and was pre- as possible, which thus forms part of the sumably not intended to affect pre-existing "foundations" of the Community, therefore aspects of the Regulation. 33 constitutes the ultimate objective of Article 51 and thereby conditions the exer- cise of the power which it confers upon the Council. It would not be in conformity with that spirit to limit the concept of "worker" solely to migrant workers stricto sensu or solely to workers required to move for the purposes of their employment. Nothing in Article 51 imposes such distinctions, which would in any case tend to make the applica- tion of the rules in question impracticable.' 30

B — Is a person in Mr Kulzer's position cov- Regulation governs the award of pensions ered by the Regulation, pursuant to Article 2 for old age and death, in the case of persons thereof? who have been subject to the legislation of two or more Member States. Articles 27 to 33 and 77 of the Regulation set out various rights of pensioners in respect of sickness and family benefits. Moreover, in Pierik, the Court interpreted the term 'worker' then used in Articles 1(a) and 22 (regarding sick- 38. Thus, Mr Kulzer is not barred in limine ness benefits for workers) of the Regulation from claiming family benefit in Germany in as covering any person who is insured under respect of a child who resides in another the social security legislation of a Member Member State. This does not, however, State, whether or not he pursues a trade relieve him of the need to demonstrate that activity. Thus, 'even if they do not pursue a he comes within the specific personal scope professional or trade activity, pensioners of the Regulation, as defined in its Article 2. entitled to draw pensions under the legisla- Mr Kulzer is a retired civil servant, and the tion of one or more Member States come national court has expressly asked whether within the provisions of the Regulation con- he is a civil servant within the meaning of cerning "workers" by virtue of their insur- Article 2(3) of the Regulation. To this end, ance under a social security scheme, unless the Commission has taken pains in its obser- they are subject to special provisions laid vations to establish that Mr Kulzer is a civil down regarding them'. 34 servant or a person who, in accordance with the legislation applicable, is treated as such, by reference to the provisions of a number of German laws on the civil service. I do not think that it is either appropriate or neces- sary to deal with these issues in a reference for a preliminary ruling. The national court has indicated that Mr Kulzer had the status of a civil servant when he served as a police- 40. As a matter of principle, I think it is man. If the reference to civil servants in clear that the Regulation must include retired Article 2(3) of the Regulation can be under- persons within its personal scope, provided stood — as I think it can — as referring, that they comply with the specific require- implicitly, to retired civil servants, it is ments of Article 2. Just as the term immaterial whether Mr Kulzer also retains 'employed persons ... who are or have been that status, as a matter of German law. subject to the legislation of one or more Member States', in Article 2(1), clearly extends to retired persons, the same must be true of the reference in Article 2(3) to 'civil servants ... where they are or have been sub- ject to the legislation of a Member State to which this Regulation is applicable'. The 39. Firstly, specific reference is made in three Court made clear in Van Poucke that of the recitals in the preamble to the Regu- Article 2(3) of the Regulation is not to be lation to the position of pensioners and pen- sion claimants, to the award of old-age ben- efits, and to the calculation of pensions. 34 — Case 182/78 Algemem Ziekenfonds Drenthe-Plattelad v Secondly, Chapter 3 of Title III of the Pierik, cited above, paragraph 4 of the judgment.

42. I wish, before concluding this section, to raise briefly the possibility that Mr Kulzer could also be a person covered by the Regu- lation if he were considered to be a survivor 41. The fact that civil servants and persons of his late divorced wife. Article 2(1) of the treated as such may be subject, in differing Regulation includes among the persons cov- degrees in different Member States, to special ered thereby the survivors of employed or schemes for civil servants, which are self-employed persons who were subject to excluded from the material scope of the the legislation of one or more Member States Regulation by Article 4(4), does not alter the and who were nationals of one of the Mem- conclusion that Article 2(3) is a general ber States. It appears from the answer by provision on the personal scope of the Mr Kulzer's counsel to a written question from the Court that Mrs Kulzer worked in Germany and France between 1979 and her 35 — Case C-71/93 [1994] ECR I-1101, paragraphs 9, 13 and 14 death in 1987. If this is confirmed by the of the judgment. The Court thereby rejected implicitly the national court, and if she was insured in such statement by Advocate General Capotorti in Case 129/78 Sociale Verzekeringsbank Amsterdam v Lohmann [1979] a fashion as to come within the terms of ECR 853, page 865 of the Opinion, that Article 2(3) of the Regulation 'is in the nature of an exceptional provision'. Article 1(a) of the Regulation, Mr Kulzer 36 — Schemes or legislation are described as 'general' in the dis- would be deemed to be her survivor for the cussion which follows where they are applicable to a class of persons wider than that of current and retired civil ser- vants, and where they comply with Article 4(1) and (2) of the Regulation. The term does not imply either that the scheme is applicable to the population as a whole, or that the scheme in question provides against all social security 38 — Case C-443/93 Vougioukas v IKA [1995] ECR I-4033, para- risks to which the Regulation applies. 'Special schemes' graph 20 of the judgment. refers only to special schemes for civil servants and persons 39 — Advocate General Capotorti's statement to the contrary in treated as such within the meaning of Article 4(4) of the Sociale Verzekeringsbank Amsterdam v Lohmann, cited Regulation (and not, for example, to special schemes above, page 866 of the Opinion, can also be taken to have referred to in Article 4(2)). been implicitly rejected by the Court's decision in Van 37 — Paragraph 25 of the judgment. Poucke, cited above.

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regulations and other provisions ... relating är(e)'), is not inappropriate. 43 While this lin- to the branches and schemes of social secu- guistic distinction does not exist in all lan- rity covered by Article 4(1) and (2)'. guages, 44 its use in the German amplifies the condition imposed by Article 77(2)(a), in all language versions, that the pension be drawn under the 'legislation' of a Member State, as that term is defined for the purposes of the Regulation.

50. However, subparagraph (a) of Annex I, point I, C to the Regulation (hereinafter, including point I, C, (b), 'the Annex') sets out a restrictive definition of 'employed 48. This interpretation, which is, in my view, correct, effectively excludes reliance by Mr Kulzer on Article 77 of the Regulation. Furthermore, it indicates that the use in the 43 — Article 77(2)(a) of the Regulation provides, in the German version: 'Der Rentner, der nach den Rechtsvorschriften nur German version of Article 77 of the terms eines Mitgliedstaats Rente bezieht, erhält die Leistungen 'Rentner' and 'Rente', which exclude persons nach den Rechtsvorschriften des für die Rente zuständigen Staates'. The French version provides: '[Les prestations sont in receipt of civil service pensions ('Pension- accordées ...: ] au titulaire d'une pension ou d'une rente due au titre de la législation d'un seul État membre, conformé- ment à la législation de l'État membre compétent pour la pension ou la rente'. 44 — For example, the term 'pension' is equally applicable in 40 — Sociale Verzekeringsbank Amsterdam v Lohmann, cited English to both types of old-age provision. In French, above while the term 'renters)' cannot be applied to a civil service pension, the term 'pension(s)' can apply to either a civil ser- 41 — Paragraph 3 of the judgment. vice pension or to a pension under a more general scheme. 42 — Paragraph 6 and operative part of the judgment. This inter- Thus, the reference in the French version of Article 77(2)(a) pretation was described by Advocate General Lenz as being to a 'titulaire d'une pension ou d'une rente' neither pre- obvious in Case C-227/94 Olivieri-Coenen v Bestuur van judges nor contradicts the condition that the benefit in de Nieuwe Bedrijfsvereniging [1995] ECR I-3301, para- question be due 'au titre de la législation d'un seul État graph 14 of his Opinion. membre'.

person' for the purposes of Article 1(a)(ii), who are governed by Article 2(1), which, in applicable in cases where the competent turn, refers implicitly back to the definition institution for granting family benefits in in Article 1(a) and thus, it can be said, where accordance with Chapter 7 of Title III is Chapter 7 of Title III is at issue, to the German. The Court has recently decided, in Annex. It might, therefore, be argued that Merino Garcia v Bundesanstalt für Arbeit, civil servants escape the strictures of the that only workers compulsorily insured in Annex, and can benefit normally under, inter accordance with the terms of the Annex are alia, Article 73 of the Regulation. entitled to German family benefits in accord- ance with that Chapter. 45 If a worker were allowed to rely on one of the other defini- tions of employed persons set out in Article 1(a) in order to qualify for German family benefits, that would be tantamount to depriving the provision in the Annex of all effectiveness. 46 The national court has indi- cated in its order for reference that Mr Kulzer does not comply with the condi- tions set out in the Annex. 47 52. However, a number of points can be made which, in my view, fatally undermine this argument.

Such regarding the application of the similarly structured assimilation is, however, contingent on Annex I, point I, C, (b) regarding self-employed persons. 47 — The national court has also stated that Mr Kulzer did not comply, in any event, with the conditions mentioned in Article 1(a)(i) and (ii). I should say, however, that I do not share the apparent point of view of the national court that the BKGG is the only relevant national social security 48 — Cited above, paragraph 19 and operative part of the judg- measure simply because it is the one Mr Kulzer seeks to ment, rely upon.

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compliance with the definition of an Article 1 (a)(ii) and point I, C, (b) of employed person in the Annex for the Annex I*. 50 purposes of, inter alia, Article 73.

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State, that person's spouse is entitled, under were deemed to comply with the Annex at Article 73 of Regulation 1408/71, to receive a the time of her death, Mr Kulzer, if he has benefit such as a child-raising allowance in the status of her survivor, could claim Kin- the State of employment'. 53 dergeld in respect of Stefanie under Article 73. While I am not in a position to reach a conclusion on this possible ground of entitlement, I hope that these speculations can serve as a highly contingent response to the national court's question about the sig- nificance of the employment history of Ste- fanie's late mother.

53 — Paragraph 38 and operative part of the judgment. 58. The Commission has argued that the 54 — Case 302/84 [1986] ECR 1821. Annex should be held to be invalid in the 55 — Article 13(2)(f) was inserted in the Regulation in order to reverse the decision in Ten Holder v Nieuwe Algemene light of the provisions of the Treaty in so far Bedrijfsvereniging by Council Regulation (EEC) N o 2195/91 of 25 June 1991 amending Regulation (EEC) as it excludes a person in Mr Kulzer's pos- N o 1408/71 and Regulation (EEC) N o 574/72, OJ 1991 ition from the benefit of Article 73 of the L 206, p. 2, with effect from 29 July 1991. Thus, it docs not affect the material law in 1987 when Stefanie's mother died. Regulation. However, the Court pointed out The position would be different, however, if she were deemed to have definitively ceased all professional activity in Merino Garcia that Article 73 of the upon moving to France: see Case C-140/88 Noij [1991] Regulation does not in itself confer any ECR I-387 and Case C-245/88 Daalmeijer [1991] ECR I-555. entitlement to family benefits, which are

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60. In Merino Garcia, the Court proceeded to examine whether Article 48(2) of the Treaty precluded the application of national legislation which, in certain circumstances (relating to periods of unpaid leave during a 59. The Court concluded, therefore, that no continuing employment relationship), factor could be identified such as to affect resulted in an employed person whose chil- the validity of the Annex. 58 Furthermore, as dren were domiciled in another Member regards any possible argument about the State being refused Kindergeld where validity of the restriction in Article 77 of the employed persons whose children were Regulation on the rights of recipients of spe- domiciled in the State concerned were cial civil service pensions, the Court, in Vou- entided to Kindergeld. The Court found that gioukas v IKA, 59 stated that Article 4(4) of the residence requirement in Paragraph 2(5) the Regulation leaves a considerable lacuna of the BKGG constituted covert discrimi- in the Community coordination of social nation, in so far as the problem of family security schemes, and that, by not introduc- members residing outside the Member State ing any measure for coordination in that sec- responsible for paying benefits arises essen- tor following the end of the transitional tially for migrant workers, and that the case- period for the free movement of workers, the file contained no material capable of provid- Council had failed fully to discharge its

60 — Paragraphs 31 and 34 of the judgment. The Court referred, 56 — Cited above, paragraph 29 of the judgment. in paragraph 33, to the Commission proposal for a regu- lation amending the Regulation, designed inter alia to bring 57 — Paragraph 30 of the judgment. special civil servant schemes within its material scope, 58 — Paragraph 31 of the judgment. OJ 1992 C 46, p. 1. 59 — Cited above. 61 — Paragraph 35 of the judgment.

63 — This is, essentially, the view of Advocate General La Per- 62. There remains the possibility that gola, expressed at paragraph 51 of his Opinion in Stöber and Piosa Pereira, cited above. This question may be distin- Mr Kulzer could rely, by virtue of his daugh- guished from that addressed by the same Advocate General ter's situation, upon the terms of the right of in his Opinion of 1 July 1997 in Case C-85/96 Martinez Sala v Freistaat Bayern, in which he concluded that a citi- every citizen of the Union 'to move and zen of the Union residing in a Member State other than her own was, by virtue of Article 8a, in a situation within the reside freely within the territory of the scope of application of the Treaty, and thus entitled to ben- Member States' set out in Article 8a of the efit from the directly effective prohibition of discrimination on grounds of nationality in Article 6. See also the Opinion Treaty, in order to defeat the residence of Advocate General Léger in Case C-214/94 Boukhalfa v Bundesrepublik Deutschland [1996] ECR I-2253, para- requirement of Paragraph 2(5) of the BKGG. graph 63. The Court has not, to date, interpreted Article 8a of the Treaty. 64 — See, in respect of persons not covered by Tide III of the Treaty, Directive 90/365 of 28 June 1990 on the right of residence for employees and self-employed persons who 62 — Paragraphs 33, 35 and 36 of the judgment. Regarding the have ceased their occupational activity, OJ 1990 L 180, particular position of migrant workers and their families, p. 28; Directive 90/364 of 28 June 1990 on the right of resi- the Court cited its judgment in Case 41/84 Pinna v Caisse dence, OJ 1990 L 180, p. 26; and Directive 93/96 of d'Allocations Familiales de la Savoie [1986] ECR 1, para- 29 October 1993 on the right' of residence for students, graph 24. OJ 1993 L 317, p. 59.

(2) Where a retired civil servant is or has been subject to legislation of a Member State to which Regulation N o 1408/71 applies, in respect of any of the branches of social security mentioned in Article 4(1), he is a person covered by the Regulation even if he is in receipt of a pension under a special civil service scheme.

(3) A retired civil servant who is a person covered by Regulation N o 1408/71 within the meaning of Article 2(3) is not entitled to family benefits in respect of members of his family who are residing in another Member State where he does not fulfil the requirements of Annex I, point I, C, (a).

(4) N o factor can be identified such as to affect the validity of Annex I, point I, C, (a) to Regulation N o 1408/71.

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