C-131/96

JUDGMENT OF 25. 6. 1997 — CASE C-131/96

J U D G M E N T O F T H E C O U R T (Sixth Chamber) 25 June 1997*

In Case C-131/96,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Bundes- sozialgericht for a preliminary ruling in the proceedings pending before that court between

Carlos Mora Romero

and

MORA ROMERO v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

Advocate General: D. Ruiz-Jarabo Colomer, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Carlos Mora Romero, by Antonio Pérez Garrido, Head of the Social Depart- ment in the Spanish Consulate General, Düsseldorf, acting as Agent,

— the Spanish Government, by José Navarro Gonzalez, Director,General for Community Legal and Institutional Coordination, assisted by Luis Pérez de Ayala Becerril, Abogado del Estado, State Legal Service, acting as Agents,

— the French Government, by Claude Chavance, Secretary for Foreign Affairs, Direction des Affaires Juridiques, Ministry of Foreign Affairs, and Marc de Brichambaut, Director for Legal Affairs in the same Ministry, acting as Agents,

gives the following

Judgment

1 By order of 8 February 1996, received at the Court Registry on 24 April 1996, the Bundessozialgericht (Federal Social Court) referred to the Court of Justice for a preliminary ruling under Article 177 of the E C Treaty a question on the interpre- tation of Articles 6, 48 and 51 of the E C Treaty and Article 7 of Regulation (EEC) N o 1612/68 of the Council of 15 October 1968 1612/68 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p . 475).

2 That question was raised in proceedings brought by Carlos Mora Romero against the Landesversicherungsanstalt (Regional Social Security Office) Rheinprovinz concerning the grant of orphan's benefit under the Reichsversicherungsordnung (National Social Insurance Code, hereinafter 'the RVO').

3 The second and third sentences of Paragraph 1267(1) of the RVO provide:

O r p h a n ' s benefit shall be paid in respect of a child engaged in full-time education or vocational training until his twenty-fifth birthday at the latest ...

7 His application was rejected on 18 March 1993 by the Sozialgericht Düsseldorf, whereupon Mr Mora appealed to the Landessozialgericht Nordrhein-Westfalen which, by judgment of 17 May 1995, set aside the judgment given at first instance and order the Landesversicherungsanstalt Rheinprovinz to pay him orphan's ben- efit for a further year. In its judgment the Landessozialgericht held that the third sentence of Paragraph 1267(1) of the RVO was to be interpreted in the light of the prohibition of discrimination laid down in Article 7 of the EEC Treaty — now Article 6 of the EC Treaty —with the result that military service in another Mem- ber State should be assimilated to compulsory service under the Wehrpflichtgesetz (Law on Military Service).

s In its application for review before the Bundessozialgericht the Landesver- sicherungsanstalt Rheinprovinz takes exception to the assimilation of military ser- vice in other Member States to national military service.

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JUDGMENT OF 25. 6. 1997 — CASE C-131/96

9 Considering that the decision to be given in the case before it depended on an interpretation of Community law, the Bundessozialgericht stayed proceedings pending a preliminary ruling from the Court of Justice on the following question:

'Are Articles 6, 48 and 51 of the Treaty establishing the European Community and Article 7 of Council Regulation (EEC) N o 1612/68 on freedom of movement for workers within the Community to be interpreted as permitting the legislature of a Member State to extend the period for drawing orphan's benefit beyond the age of 25 years only in respect of those persons whose education and training has been prolonged beyond the age of 25 years through fulfilment of the duty of military service in accordance with the laws of that State?'

1 3 It is therefore appropriate first to consider the the national court's question in the light of Articles 48 and 51 of the Treaty and, more particularly, of Regulations N o s 1612/68 and 1408/71.

The applicability of Regulation N o 1612/68

M Under Article 48(2) of the Treaty freedom of movement for workers entails the abolition of any discrimination based on nationality between workers of the Mem- ber States as regards employment, remuneration and other conditions of work and employment.

is Under Article 7(1) of Regulation N o 1612/68 a worker who is a national of a Member State may not, in the territory of another Member State, be treated dif- ferently from national workers by reason of his nationality in respect of any con- ditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment. Article 7(2) provides that he is to enjoy the same social and tax advantages as national workers.

u It is settled case-law that the members of a worker's family within the meaning of Article 10 of Regulation N o 1612/68 qualify only indirectly for the equal treatment accorded to the worker himself by Article 7 of that regulation (Case 316/85 Centre Public d'Aide Sociale de Courcelles v Lebon [1987] ECR 2836, paragraph 12).

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2i Pursuant to Article 2(2) of Regulation N o 1408/71, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, here- inafter 'Regulation N o 1408/71'), that regulation is to apply to the survivors of employed or self-employed persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such employed or self-employed persons, where their survivors are nationals of one of the Member States or Stateless persons or refugees residing within the territory of one of the Member States.

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MORA ROMERO v LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

22 Furthermore, pursuant to Article 1(g) of Regulation N o 1408/71, 'survivor' means any person defined or recognized as such by the legislation under which the ben- efits are granted.

23 It follows that a person in the circumstances such as those described by the national court is one of the persons covered by Regulation N o 1408/71.

24 As regards the matters covered by that regulation, Article 4(l)(d) provides that it is to apply to survivor's benefits. In that regard, it is to be noted that, according t o the declaration made by the Federal Republic of Germany under Article 5 of Regulation N o 1408/71 (OJ 1980 C 139, p. 1), as later amended (OJ 1983 C 351, p. 1), orphan's pensions or benefits under the RVO are benefits covered b y Article 78 of Regulation N o 1408/71 concerning orphan's benefits.

28 Article 3(1) of Regulation N o 1408/71 provides that persons resident in the terri- tory of one of the Member States to whom the regulation applies are to be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that Member State.

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29 The object of that provision is to ensure, in conformity with Article 48 of the Treaty, equal treatment in matters of social security, without distinction based on nationality, for the persons to whom the regulation applies by abolishing all dis- crimination in that regard deriving from the national legislation of the Member States.

so It is clear from the order for reference that orphan's benefit, such as that received by the respondent in the main proceedings, is granted to the recipient until the age of 25 if he is at school or undergoing vocational training. However, payment thereof is suspended for the period for which the recipient is called up for military service. For the purposes of such suspension, military service in another Member State is assimilated to military service in the German armed forces. If the education

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MORA ROMERO y LANDESVERSICHERUNGSANSTALT RHEINPROVINZ

34 In its order for reference the national court indicated that orphan's benefit paid beyond the age-limit, although forming part of the German social security system, is paid by the State to its own nationals by way of compensation for the disadvan- tages they suffer as a result of their military service.

35 In that regard, it need merely be stated, as the Advocate General observed in para- graph 34 of his Opinion, that even if payment of orphan's benefit beyond the age- limit were to represent compensation to some extent, it would nevertheless con- stitute deferred payment of a benefit which, as the national court moreover emphasized, forms part of the German social security scheme and the payment of which would for that reason not be excluded from the matters covered by Regu- lation N o 1408/71.

36 The answer to the question must therefore be that Article 3(1) of Regulation N o 1408/71 must be interpreted as meaning that where the legislation of a Member State provides for extension of the right to orphan's benefit beyond the age of 25 for recipients of benefits whose training has been interrupted by their military ser- vice, that State is required to assimilate the military service in another Member State to military service under its own legislation.

Costs

37 The costs incurred by the Spanish and French Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main pro- ceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Mancini Murray Kapteyn

Hirsch Ragnemalm

Delivered in open court in Luxembourg on 25 June 1997.

R. Grass G. F. Mancini

Registrar President of the Sixth Chamber

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