C-275/96

OPINION OF MR JACOBS — CASE C-275/96

OPINION OF ADVOCATE GENERAL JACOBS delivered on 16 December 1997 *

1. This case, referred by the Kammarrätt Tor the purpose of this Regulation: (Administrative Court of Appeal), Sundsvall, Sweden, concerns the interpretation of cer­ tain provisions of Regulation No 1408/71 ('the Regulation') 1in the context of a recipi­ ent of Swedish parental benefit who claims to be entitled under the Regulation to con­ (a) employed person and self-employed per- tinue to receive that benefit after moving to son mean respectively: Finland. The Court has been asked in par­ ticular for guidance as to whether the appli­ cant is within the personal scope of the Regulation and whether a provision in the Swedish legislation requiring recipients of parental benefit to be resident in Sweden is compatible with the Regulation.

Relevant Community provisions

(ii) any person who is compulsorily insured for one or more of the con­ tingencies covered by the branches of social security dealt with in this Regulation, under a social security scheme for all residents or for the whole working population, if such person: 2. Article 1, in so far as is relevant to the present case, provides:

* Original language: English. 1 — Council Regulation (EEC) No 1408/71 of 14 June 1971 on — can be identified as an employed the application of social security schemes to employed per- sons, to self-employed persons and to members of their or self-employed person by families moving within the Community. The text of the Regulation as at the end of 1995 may be found in Part I of virtue of the manner in which Annex A to Council Regulation (EC) No 118/97 of 2 such scheme is administered or December 1996 amending and updating Regulation (EEC) No 1408/71, OJ 1997 L 28, p. 1. financed ...'.

(a) sickness and maternity benefits;

7. Article 14c contains special rules appli­ cable to persons who are simultaneously employed in the territory of one Member State and self-employed in the territory of

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another Member State, which are not 11. Article 13(2)(f), inserted into Regulation relevant to the present case. No 1408/71 with effect from 29 July 1991 by Regulation No 2195/91, provides that:

'a person to whom the legislation of a Mem­ 8. Article 13(2) lays down a series of rules ber State ceases to be applicable, without the for determining which legislation applies in legislation of another Member State becom­ particular circumstances. The rules are ing applicable to him in accordance with one expressed to be subject to Articles 14 to 17, of the rules laid down in the aforegoing sub­ constituting the remainder of Title II, which paragraphs or in accordance with one of the contain various special rules none of which is exceptions or special provisions laid down in applicable in this case. Articles 14 to 17 shall be subject to the legis­ lation of the Member State in whose terri­ tory he resides in accordance with the provi­ sions of that legislation alone'.

2 — Council Regulation (EEC) No 2195/91 of 25 June 1991 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, self- employed persons and members of their families moving within the Community and Regulation (EEC) No 574/72 10. Articles 13(2)(b) to (e) concern respec­ laying down the procedure for implementing Regulation (EEC) No 1408/71, OJ 1991 L 206, p. 2. tively self-employed persons, persons 3 — Council Regulation (EEC) No 574/72 of 21 March 1972 lay- employed on vessels flying the flag of a ing down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to Member State, civil servants and persons employed persons, to self employed persons and to their called up for service in the armed forces or families moving within the Community; for the latest con- solidated version see Part II of Annex A to Regulation for civilian service. No 118/97, cited in note 1.

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The institution designated by the competent shall be entitled: authority of the Member State whose legisla­ tion becomes applicable to this person shall apply to the institution designated by the competent authority of the former Member State with a request to specify this date.'

(ii) to cash benefits provided by the competent institution in accordance 13. Article 22 of Regulation No 1408/71, with the provisions of the legislation which applies to sickness and maternity ben­ which it administers. ... efits, provides, in so far as is relevant:

14. Article 94 of the Regulation, so far as is Economic Area. Thus at the time of the relevant, provides: facts giving rise to the main proceedings, the Regulation was not in force as a Community instrument. Neither the national court nor any of the parties who have submitted obser­ vations to the Court has, however, raised that issue. In those circumstances, I assume that the national court considers that a pre­ '1 . No right shall be acquired under this liminary ruling by the Court is necessary to Regulation in respect of a period prior ... to enable it to give judgment on the basis that the date of its application in the territory of the applicant's entitlement to Swedish paren­ the Member State concerned ... tal benefit, if recognised, could continue beyond 1 January 1995 so that the matter falls within the jurisdiction of this Court.

2. All periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State ... before the date of its application in the territory of that Member State ... shall be taken into consideration for the determination of rights acquired under the provisions of this Regulation. The national legislation

3. Subject to the provisions of paragraph 1, a right shall be acquired under this Regulation even though it relates to a contingency which materialised prior ... to the date of its application in the territory of the Member State concerned ...' 16. The Law on social insurance 5 ('the Law') provides that Swedish nationals and residents shall be insured by law. An insured person who leaves Sweden continues to be regarded as resident in Sweden if the stay abroad is intended to be for a maximum 6 period of one year. 15. Both Sweden and Finland acceded to the European Communities on 1 January 1995. Regulation No 1408/71 and Regulation No 574/72 became applicable in both those 4 — OJ 1994 L 1, p. 3; see in particular Article 29, Protocol 1 and Annex VI. countries, however, on 1 January 1994, by 5 — Lagen (1962: 381) om allmän försäkring. virtue of the Agreement on the European 6 — Chapter 1, paragraph 3.

17. The Law provides for registration with 19. Chapter 4 of the Law lays down rules on the social insurance office of all insured per­ the right to parental benefit ('föräldrapen­ sons of 16 years or more, provided they are ning'). According to those provisions, an 7 resident in Sweden. Registration is gov­ insured parent who is registered with the erned by provisions published by the Riks­ social insurance office has a right to parental försäkringsverket (National Social Insurance benefit as a result of the birth of a child for a 8 maximum of 450 days. For the first 360 days, Board) which provide, inter alia, as follows. the amount of the benefit depends on the parent's previous income, subject to a gua­ ranteed minimum; for the last 90 days, the amount is the guaranteed minimum. The right to receive the benefit at an amount higher than the guaranteed minimum for the first 180 days depends on fulfilment of cer­ tain conditions relating to affiliation to the social security scheme before the birth of the child; otherwise, the benefit is payable 18. A person is regarded as resident in Swe­ regardless of when the applicant became resi­ den if he has his actual place of residence dent in Sweden provided that the child is less there or if he goes to Sweden with the inten­ than eight years old. Even though the Law tion of either permanently residing there or does not contain any provisions directly staying there for more than one year to work defining how long a benefit can be paid to an 9 or study. A person who has a right to ben­ insured person who resides abroad, accord­ efits under Swedish legislation on the basis ing to the national court it follows from the of Regulation No 1408/71 is regarded as requirement of registration that a person resident in Sweden for so long as he has a ceases to be insured and to have the right to right to such benefits even if he does not ful­ receive, inter alia, parental benefit if the stay fil those conditions for residence. If an abroad is intended to be for longer that one insured person goes abroad intending to stay year, or, if appropriate, the earlier time when for more than one year, he shall, if he moves he becomes covered by the legislation of to a Nordic country, be removed from the another Member State. Parental benefits are social insurance register with effect from the non-contributory. day on which he is removed from the national population register (Folkbokförin­ 10 gen) in Sweden. However, where a person covered by Regulation No 1408/71 moves from Sweden to another Member State, he shall be removed from the social insurance register as soon as he is covered, according to the Regulation, by that State's legislation, even if he intends to stay there for less than one year.

Since, however, the issue of the correct clas­ 22. Anne Kuusijärvi's application to con­ sification of the benefit has not been raised tinue to draw Swedish parental benefit after by the national court, and since it appears moving to Finland was rejected by the social from the Swedish Government's written insurance office for Norrbotten County. The observations that, at the time of the entry Länsrätt (Administrative Court), Norrbot­ into force of the Agreement on the European ten, dismissed her appeal, ruling that the rel­ Economic Area, when Regulation No evant provisions in Regulation No 1408/71 1408/71 entered into force for Sweden, the and Regulation No 574/72 meant that she parental benefit was notified in accordance had a right to Swedish benefits under Regu­ with Articles 5 and 97 as a maternity benefit lation No 1408/71 so long as the conditions and there is no suggestion that that notifica­ for payment were fulfilled under the Swedish tion has been superseded, I will assume for rules; in the light of, inter alia, the rules on the purposes of this Opinion that the paren­ removal from the Swedish social insurance tal benefit is a maternity benefit for the pur­ register, she had upon leaving Sweden no poses of Regulation No 1408/71. right to continued payment of parental ben­ efit after 1 July 1994. She appealed to the Kammarrätt in Sundsvall, which referred the following questions to this Court:

The facts and the main proceedings

If that question is answered in the affirma­ tive, the following questions also need to be answered:

23. Written observations have been submit­ ted by the Riksförsäkringsverket, the Com­ mission and the Finnish, Netherlands, Nor­ wegian and Swedish Governments. With the exception of the Norwegian Government, 2. Is Article 13(2)(f) of Regulation No those parties were represented at the hearing. 1408/71, in conjunction with Article 10(b) of Regulation No 574/72, to be understood as meaning that a Member State is not pre­ cluded from introducing a condition of resi­ dence in its territory in order for a person who has ceased working there to remain The first question covered by that country's legislation as regards cash maternity benefits?

24. The first question asks whether the Regulation applies to a person who was not 3. Is Article 22 of Regulation No 1408/71 to employed in Sweden when the Regulation be understood as meaning that, if a person entered into force there but was staying begins to draw cash maternity benefits in a there as an unemployed person with a right, competent state, that person retains entitle­ based on previous employment there, to ment, on the conditions applying according draw unemployment benefit. It appears from to that article, to those cash benefits when the order for reference that the question was moving to another Member State only on put because of doubts whether in those cir­ condition that the person concerned fulfils cumstances the applicant fell within the defi­ all the provisions of the legislation applied nition of 'employed person' in Articles 1(a)

12 — Case 182/78 Algemeen Ziekenfonds Drenthe-Platteland v 11 — Case 75/63 Hoekstra v Bedrijfsvereniging Detailhandel Pierik [1979] ECR 1977 and Case C-215/90 Twomey [1992] [1964] ECR 177.

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determination of rights acquired under it and Article 1(a) and to Pierik 4 and notes that, that rights shall be acquired even though since she received unemployment benefit and relating to a contingency which materialised parental benefit in Sweden, she must have prior to that date. been covered against relevant risks in accord­ ance with Article 1(a).

13 — Pierik, cited in note 12, paragraph 4 of the judgment. 14 — Cited in note 12.

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Court, was defined by Article 1(a) as 'any The second question person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered' by a social security scheme referred to in Article 1(a)(i), (ii) or (iii). That definition is almost identical to the definition of 'employed person' in Article 1(a) of the current version of the 36. By its second question, the national Regulation. The Court stated: court asks whether Article 13(2)(f) means that a Member State is not precluded from requiring a person who has ceased working in that State to reside there in order to remain covered by its social security legisla­ tion. Article 13(2)(f), it will be recalled, pro­ vides that a person to whom the legislation of a Member State ceases to be applicable without the legislation of another Member 'Laid down "for the purpose of this regu­ State becoming applicable pursuant to Title lation", such a definition has a general scope, II of the Regulation shall be subject to the and in the light of that consideration covers legislation of the Member State where he any person who has the capacity of a person resides. insured under the social security legislation of one or more Member States, whether or not he pursues a professional or trade activ­ ity. It follows that, even if they do not pur­ sue a professional or trade activity, pension­ ers entitled to draw pensions under the legislation of one or more Member States Arguments of the parties come within the provisions of the regulation concerning "workers" by virtue of their insurance under a social security scheme, unless they are subject to special provisions 16 laid down regarding them.'

mean that as an unemployed person she an activity in a Member State and transferred would lose her right to parental benefit his residence to another Member State with­ immediately on moving to Finland without out working there continued to be subject to being covered by Finnish social security leg­ the legislation of the Member State in which islation on the basis of the Regulation. he was last employed, regardless of the length of time which had elapsed since the termination of the activity. Subsequently in 19 Twomey the Court ruled that only work­ ers who had definitively ceased all profes­ sional or trade activity fell outside the scope of Article 13(2)(a). The Swedish Government considers that Article 13(2)(f) was intended to cover that latter situation; it does not 38. The Riksförsäkringsverket refers to the apply to persons who have provisionally wording of Article 10b of Regulation ceased to carry on a professional activity, for No 574/72, to the effect that the date and example because of temporary health rea­ conditions on which the legislation of a sons. For such a person, the applicable legis­ Member State ceases to be applicable to a lation is determined on the basis of the gen­ person referred to in Article 13(2)(f) shall be eral rule, namely Article 13(2)(a), provided determined in accordance with that legisla­ no specific circumstance militates in favour tion. The Swedish rules provide that an of applying another rule of Title II. The insured person who moves to another Nor­ Swedish Government concludes that a per­ dic State ceases to be covered from the date son in the applicant's situation is covered by of the move. The Riksförsäkringsverket con­ the legislation of the State where she was siders that that is a valid condition given that most recently employed, and hence by the it applies to nationals of all Member States. legislation of Sweden. That legislation makes entitlement to parental benefit subject to a residence condition. The Government accepts that that condition cannot be relied on where, as in its view in this case, Article 20 13(2)(a) applies.

of the Court that the objective of the free for workers who move to other Member movement of workers would be frustrated if States. a migrant worker were to lose benefits granted under the legislation of a Member State as a consequence of such movement. The effect of Ten Holder is that Article 13(2)(a) applies, and the applicant continues to be covered by Swedish legislation until her entitlement to benefits ceases for reasons other than the change of residence, since a residence condition cannot be relied on 41. The Commission considers that Article against a worker within the scope of Article 21 13(2)(f) has not made Ten Holder otiose: on 13(2)(a). The Norwegian Government the contrary, that supplementary provision considers that the legislative history of applies only as from the date when the right Article 13(2)(f) shows that it is secondary to to a benefit from the other State expires and all other provisions of Title II and applies determines the legislation which applies only after the period for payment of benefits thereafter. It is otherwise where the person from the last State of employment has concerned has ceased all professional activity expired. If a Member State were free to 1Z 23 (see Noij, Daalmeijer and Commission v determine that its legislation ceased to apply 24 NetherUnds ), but that is not the case here: to a worker who moved from that State it cannot be concluded that the applicant has while entitled to social security benefits there definitively ceased all professional activity but before acquiring entitlement to such simply because she is temporarily devoting benefits in the State to which he moved, the herself to bringing up her child. first State could terminate social entitlements which Community law sought to protect and apply the provisions of the Regulation only in so far as the conditions for cover and for payment of benefits were fulfilled under national rules, which would be contrary to the whole scheme of the Regulation. Finally, the Norwegian Government considers that Article 10b of Regulation No 574/72 is an administrative implementing rule and cannot 42. The Finnish Government notes that in be invoked as an independent legal provision Ten Holder the Court broadened the scope with direct and detrimental consequences for of Article 13(2)(a) to a worker who had the person concerned: in particular, it cannot ceased work, however long had elapsed since permit a Member State to lay down different employment; subsequent cases, however, conditions for recipients of benefits who restricted its scope so that it did not apply to continue to reside in the competent State and a person who had definitively ceased 25 work. In the latter case, the question of the applicable legislation is governed by

Article 13(2)(f). The Finnish Government another. It is not however limited to old-age considers that Article 13(2)(f) is not limited pensioners, but should cover anyone who to cases where there is a permanent cessation definitively terminates his gainful employ­ of work and suggests that it applies in a situ­ ment in one particular State. The work link ation where it can be concluded on the basis is then broken and it is open to the State — of objective considerations that the worker as shown by Article 10b — to determine has definitively stopped working in one State whether and on what conditions such per­ sons remain insured under their social secu­ and moved to another; that may be for rea­ rity legislation. The Netherlands Govern­ sons other than retirement. It cannot how­ ment considers that, for the purposes of ever be interpreted so as to permit a Member determining the applicable legislation, those State to decide freely at what point its legis­ conditions may include a residence con­ lation ceases to be applicable for the pur­ dition, so that Swedish legislation no longer poses of that provision; the question of the applies to the applicant since her move to applicable legislation must always be settled Finland. The Netherlands Government con­ by reference to the rules of Title II. How­ siders, however, that its conclusion as to the ever, whether Article 13(2)(f) applies is not applicable legislation does not mean that the decisive in this case; what is decisive is that applicant's entitlement to parental benefit Sweden was the competent State at the point ceased when she returned to Finland: that when the benefit at issue was granted so that, issue is governed by Article 22, which it con­ whichever legislation is applicable, Article 22 siders in the context of the third question. precludes Sweden from invoking the resi­ dence condition to defeat the applicant's entitlement to that benefit: that point is dealt with in the Finnish Government's observa­ tions on the third question.

'Whereas it has proved necessary, following the judgment delivered by the Court of Jus­ tice in Case 302/84 (Ten Holder) on 12 June 1986, to insert a new subparagraph (f) in 48. CoppoL· concerned the legislation appli­ Article 13(2) of Regulation (EEC) cable to a worker who had been employed in No 1408/71 in order to determine what leg­ the United Kingdom and then Italy before islation is applicable to persons to whom one falling ill. The Court ruled that, although Member State's legislation ceases to be appli­ Article 13(2)(a) did not expressly mention cable without the legislation of another the case of a worker who was not employed Member State becoming applicable to them, when he sought sickness benefit, it was in accordance with one of the rules laid appropriate to interpret it as referring, where down in the previous subparagraphs of the necessary, to the legislation of the State in same Article 13(2) or one of the exceptions whose territory the worker was last 30 provided for in Articles 14 to 17 ...' employed.

46. Guidance as to the scope and purpose of 49. Ten Holder concerned a Netherlands Article 13(2)(f) may accordingly be sought in national who was employed in Germany 28 the judgment of the Court in Ten Holder. when she became incapacitated for work and Since however Ten Holder applied a prin­ entitled to sickness benefits. She returned to live in the Netherlands; subsequently the German sickness benefits were discontinued

26 — See most recently Case C-131/95 Huijbrechts v Commissie voor de Behandeling van Administratieve Geschillen [1997] ECR I-1409, paragraph 17 of the judgment. 27 — Cited in note 2. 29 — Case 150/82 Coppola v Insurance Officer [1983] ECR 43. 28 — Cited in note 17. 30 — Paragraph 11 of the judgment.

38 51. Finally, Twomey concerned a United Kingdom national who worked and resided for a time in the United Kingdom, termi­ nated her employment and moved to Ireland where she did not work. Some months after 50. The application of that apparently very moving to Ireland, she was certified as unfit broad proposition was restricted in a trio of for work and sought United Kingdom sick­ 32 subsequent cases. In Noij, the Court ruled ness benefit. At that time, she was 20 years that neither Article 13(2)(a) nor any other old. Article 13 was not mentioned in the provision of Title II applied to a worker who question referred, but the German Govern­ had taken early retirement and hence had ment argued at the hearing that Article definitively ceased to be employed. 13(2)(a) did not apply to a person in Mrs Article 13(2)(a) in particular was designed to Twomey's position since she was no longer resolve conflicts of legislation which may employed in the United Kingdom. It argued arise where, during a single period, the place that she was accordingly subject to the legis­ of residence and the place of employment are lation of the State of residence. The Court not situated in the same Member State: such rejected that argument, reiterating the prin­ conflicts could no longer arise in the case of ciple laid down in Ten Holder that a worker workers who had definitively ceased all pro­ who had ceased to carry on an activity in the 33 fessional or trade activity. That principle territory of a Member State continued to be 34 was upheld in Daalmeijer, where the subject to the legislation of that State if he Court ruled that Article 13(2)(d), which had not taken up employment in another states that civil servants are to be subject to Member State, and that laid down in Noij

55. That view finds support, moreover, in the preamble to Regulation No 2195/91, which suggests that Article 13(2)(f) was 54. To my mind, there is nothing in the intended to cover precisely the type of wording of Article 13(2)(f) to suggest that it situation at issue in Ten Holder, namely the was intended to be restricted to workers transfer of residence by a person in receipt who have definitively ceased all occupational of a benefit such as sickness benefit which activity. On the contrary, its wording and is likely to prove temporary, thus in effect reversing the judgment. The preamble states: 'Whereas it has proved necessary, fol­ 39 — See the Explanatory Memorandum on the Commission's lowing the judgment ... to insert a new sub­ 40 proposal for a Council Regulation (EEC) amending Regu- paragraph (f)'. ation (EEC) No 1408/71 on the application of social secu- rity schemes to employed persons, to self-employed per- sons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71, OJ 1990 C 221, p. 3; COM(90) 335 final. 40 — Third recital.

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56. Further guidance as to the Commission's unlikely that the Commission intended to intentions may be found in the explanatory cater solely for a category of persons whose memorandum on the proposal, which exclusion from Regulation No 1408/71 had states as follows: not yet been established.

There is nothing in that explanation, or else­ where in the Explanatory Memorandum, to suggest that Article 13(2)(f) was intended to be restricted to persons who have defini­ tively ceased work. 59. Finally, I would allay the concerns expressed by the Norwegian Government to the effect that, if Article 13(2)(f) were to apply in the circumstances under consider­ ation, the scheme of the Regulation, and in particular its aim of promoting free move­ ment of workers, would be frustrated. The 57. It is also relevant to note that, at the time Norwegian Government fears that a conse­ the Commission submitted its proposal for quence of ruling that in circumstances such Regulation No 2195/91 the Court had not as those of the present case the applicable yet delivered its judgments in Noij and legislation is that of the State of residence Daalmeijer; accordingly it may be thought would be that persons in the applicant's situ­ ation would lose entitlement to benefits which existed at the time of the transfer of 41 — Cited in note 39. residence. That consequence however will

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with which the person concerned is insured 65. Article 22(1 )(b) by its terms applies at the time of the application for benefit' where a person entitled to sickness or mater­ and 'the institution from which the person nity benefits returns to the Member State concerned is entitled or would be entitled to where he resides or transfers his residence to benefits if he ... were resident in the territory another Member State and ensures that in of the Member State in which the institution such circumstances the recipient retains his 45 is situated'. entitlement to the benefits in question. It is evident that if that entitlement could be defeated by a national residence requirement the provision would be entirely devoid of purpose, which can scarcely have been intended. Article 22 is moreover one of a series of provisions of the Regulation which seek to ensure that Member States may not in general refuse payment of social security benefits within the Regulation solely because 63. Article 22 thus applies in the present case the putative recipient resides in another regardless of the applicable legislation, since Member State: see, for example, Articles 10 even if the effect of Article 13(2)(f) is that (invalidity, old-age or survivors' cash ben­ Finnish legislation became applicable to the efits, pensions for accidents at work or occu­ exclusion of Swedish legislation at the time pational diseases and death grants), 52 and 55 the applicant moved to Finland, Sweden (accidents at work and occupational dis­ remains the competent State for the purposes eases), 69 to 71 (unemployment benfits), and of Article 22 in relation to the maternity 73 (family benefits). I accordingly conclude benefit in question. that the right to continued payments of ben­ efits conferred by Article 22 cannot be defeated by a residence requirement imposed by national legislation as a condition of entitlement to such benefits.

has left Sweden to stay for more than one to restrict entitlement to the benefit by year in Finland. By contrast the applicant, imposing a residence condition would be the Swedish, Finnish, Netherlands and Nor­ contrary to the meaning and aim of Article wegian Governments and the Commission 22. all concur in the view that Article 22 entitles a recipient to continue receipt of the benefit after transferring her residence to another Member State provided that the conditions of entitlement laid down by national legisla­ 67. Those submissions are plainly well tion, other than any residence condition, are founded and I accordingly conclude that a satisfied. The Commission and the Nether­ person in receipt of cash maternity benefits lands Government note in addition that in a Member State retains entitlement to authorisation for a transfer of residence may those benefits after moving to another Mem­ be refused only if it is established that move­ ber State provided that she fulfils all the con­ ment of the person concerned would be ditions of the national legislation of the first prejudicial to their state of health, which Member State apart from any residence does not seem to be the case, and submit that requirement.

Conclusion

68. Accordingly I am of the opinion that the questions referred by the Kammarrätt , Sundsvall, should be answered as follows:

(1) Council Regulation ( EEC ) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons , to self-employed persons and to members of their families moving within the Community applies to a person who was insured in a Member State within the meaning of Article 1(a) and subject to the legislation of that State at the time the Regulation became appli­ cable there even though at that point that person was neither employed nor in receipt of unemployment benefit in that State.