C-194/96

KULZER vFREISTAAT BAYERN

J U D G M E N T O F T H E C O U R T (Fifth Chamber) 5 March 1998 *

In Case C-194/96,

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

Hilmar Kulzer

and

composed of: C. Gulmann, President of the Chamber, J. C. Moitinho de Almeida, D . A. O . Edward (Rapporteur), J.-P. Puissochet and P. Jann, Judges,

Advocate General: N . Fennelly, Registrar: H . A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

— Mr Kulzer, by Michael Kaplitz, Rechtsanwalt, Schwandorf,

— the Commission of the European Communities, by Peter Hillenkamp, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

KULZER v FREISTAAT BAYERN

Articles 2(3), 73 and 77 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 and to members of their families moving within the Commu- nity, as amended and updated by Council Regulation (EEC) N o 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended by Council Regulation (EEC) N o 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1), then by Council Regulation (EEC) N o 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1) (hereinafter 'the Regulation').

2 Those questions were raised in proceedings between Mr Kulzer and Freistaat Bay- ern (Free State of Bavaria) concerning the grant of an allowance in respect of his dependent child.

C o m m u n i t y law

3 The fourth and fifth recitals in the preamble to Regulation N o 1408/71 in its origi- nal form (OJ, English Special Edition, 1971 (II), p. 416) are worded as follows:

'... the considerable differences existing between national legislations as regards the persons to whom they apply make it preferable to establish the principle that the Regulation applies to all nationals of Member States insured under social security schemes for employed persons;

(ii) any person who is compulsorily insured for one or more of the contin- gencies covered by the branches of social security dealt with in this Regu- lation, under a social security scheme for all residents or for the whole working population, if such person:

— can be identified as an employed or self-employed person by virtue of the manner in which such scheme is administered or financed, or,

— failing such criteria, is insured for some other contingency specified in Annex I under a scheme for employed or self-employed persons, or under a scheme referred to in (iii), either compulsorily or on an optional continued basis, or, where no such scheme exists in the Mem- ber State concerned, complies with the definition given in Annex I;

(iii) any person who is compulsorily insured for several of the contingencies covered by the branches dealt with in this Regulation, under a standard social security scheme for the whole rural population in accordance with the criteria laid down in Annex I;

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3. This Regulation shall apply to civil servants and to persons who, in accordance with the legislation applicable, are treated as such, where they are or have been subject to the legislation of a Member State to which this Regulation applies.'

7 Article 4(4) provides:

'4. This Regulation shall not apply to social and medical assistance, to benefit schemes for victims of war or its consequences, or to special schemes for civil ser- vants and persons treated as such.'

8 Article 73 provides that an employed or self-employed person subject to the leg- islation of a Member State is, in principle, to be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits pro- vided for in the legislation of the former State, as if they were residing in that State.

'If the competent institution for granting family benefits in accordance with Chap- ter 7 of Title III of the Regulation is a German institution, then within the mean- ing of Article 1 (a)(ii) of the Regulation:

(a) "employed person" means any person compulsorily insured against unemploy- ment or any person who, as a result of such insurance, obtains cash benefits under sickness insurance or comparable benefits;

(b) "self-employed person" means any person pursuing self-employment who is bound:

— to join, or pay contributions in respect of, an old-age insurance within a scheme for self-employed persons, or

— to join a scheme within the framework of compulsory pension insurance.'

German legislation

13 Mr Kulzer is a German national residing in Germany who receives, as a retired police officer, a pension from Freistaat Bayern. H e is the father of Stefanie who was born in 1974 and who from 1983 lived in France with her mother, a French national, from whom Mr Kulzer was divorced. After the death of her mother in 1987, Stefanie continued to live in France with her French grandparents. She went to school there and, during the school holidays, regularly visited her father, who continued to meet the costs of her education and subsistence. Mr Kulzer made a declaration of second residence to the German authorities on behalf of his daugh- ter. The French authorities never paid him any child allowance.

14 In October 1988 Mr Kulzer applied to Freistaat Bayern for child allowance in respect of his daughter Stefanie under the BKGG. That application and his subse- quent objection were rejected on 27 July 1989 and 5 December 1989 respectively.

15 After bringing an unsuccessful action against those decisions Mr Kulzer appealed to the Landessozialgericht (Higher Social Court), which upheld the judgment at first instance on the ground that his daughter was living in France. It held that neither the declaration of second residence made by Mr Kulzer nor his daughter's regular visits during the school holidays could be considered to satisfy the

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residence condition laid down by the BKGG. N o r could M r Kulzer rely on Article 73 of the Regulation because, being retired, he was neither an employed or self-employed person within the meaning of Article 1 thereof nor a civil servant within the meaning of Article 2(3). Furthermore, Article 77(2) of the Regulation could not apply because payment of child allowance under the BKGG was not linked in any way to receipt of a pension.

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18 It is apparent from the order for reference that this case raises two questions, one relating to Article 73 of the Regulation and the other to Article 77.

The question relating to Article 73 of the Regulation

19 First, the national court essentially asks whether Article 73 of the Regulation, read in conjunction with Point I. C of Annex I thereto, is to be interpreted, for the purpose of the payment of child allowance under German legislation, as applying to a national of that Member State who under its legislation receives an old-age benefit as a retired civil servant, where that person has worked only in the Member State of which he is a national and his dependent child has moved within the Com- munity with his former spouse.

20 Subsidiarily, the national court asks the Court whether in such a case it is relevant that the former spouse of the person concerned pursued, in the Member State to which the former spouse moved, an activity as an employed or self-employed per- son within the meaning of Article 1 (a) of the Regulation.

21 In order to answer those questions it is necessary first to examine whether a per- son, such as the plaintiff in the main proceedings, who is a retired civil servant and has worked only in the State of which he is a national, is covered by the Regu- lation where his dependent child has moved within the Community with his former spouse.

26 For the same reasons which led the Court to hold in Algemeen Ziekenfonds Drenthe-Plattenland v Pierik that the term 'worker' also covered retired workers, the term 'civil servant', which appears in a provision of general scope defining the persons falling within the Regulation, must be construed as covering retired civil servants who no longer pursue a professional or trade activity where they are, or have been, subject to the legislation of a Member State to which the Regulation applies.

27 As regards the fact that the person to whom the national court's question refers never himself moved within the Community, it should first be noted that the fourth recital in the preamble to the Regulation in its original form states that 'the

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considerable differences existing between national legislations as regards the per- sons to w h o m they apply make it preferable to establish the principle that the Regulation applies to all nationals of Member States insured under social security schemes for employed persons'.

28 Furthermore, according to Article 1(a) of the Regulation the terms 'employed per- son' and 'self-employed person' refer to 'any person', without qualification, who is insured under one of the social security schemes referred to in that article for the contingencies and on the conditions mentioned in that provision (see, to that effect, Case C-2/89 Bestuur van de Sociale Verzekeringsbank v Kits van Heijnin- gen [1990] E C R I-1755, paragraph 9). Likewise, under Article 2(1) and (3) the Regulation applies to employed or self-employed persons and to civil servants who are or have been subject to the legislation of one Member State only.

32 It is thus unnecessary to consider whether it is relevant that the former spouse of the plaintiff in the main proceedings pursued an activity as an employed or self- employed person after she moved within the Community.

33 The next question is therefore whether a person such as the plaintiff in the main proceedings may rely on Article 73 of the Regulation in order to receive child allowance provided for by German law.

34 Although Article 73 does not expressly refer to civil servants, the situation of such a person must in principle be treated in the same way as that of an employed per- son to whom Article 1(a) of the Regulation applies since, as is apparent from para- graph 25 of this judgment, civil servants are regarded, under the scheme of the Treaty, as employed persons.

35 The term 'employed person', which appears in Article 73 of the Regulation, is defined in Article 1(a). However, that definition is displaced by the definition in Point I. C of Annex I to the Regulation when the competent institution for grant- ing family benefits is, in accordance with Chapter 7 of Title III of the Regulation, a German institution.

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40 The Court held in Case 129/78 Sociale Verzekeringsbank Amsterdam v Lohmann [1979] ECR 853 that the term 'legislation' used in Article 77(2)(a) of the Regu- lation has the meaning stated in Article 1(j) thereof. That provision therefore does not cover the statutes, regulations or other provisions or measures relating to the categories of benefits referred to in Article 4(4) of the Regulation which include, in particular, special schemes for civil servants and persons treated as such.

41 That conclusion does not, however, preclude a person drawing a pension under a special scheme for civil servants and persons treated as such from relying on Article 77(2)(a) of the Regulation if he also receives another old-age benefit cov- ered by that provision. However, the documents before the Court do not disclose whether that is so in the case of the plaintiff in the main proceedings.

42 The answer to the question relating to Article 77(2) (a) of the Regulation must therefore be that that provision is to be interpreted as not covering the situation of a person who draws a pension only under a special scheme for civil servants and persons treated as such.

Costs

1. Article 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 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, as amended by Council Regulation (EEC) N o 3427/89 of 30 October 1989, then by Council Regulation (EEC) N o 1247/92 of 30 April 1992, read in conjunction with Point I. C of Annex I to the same regulation, is to be interpreted, for the purpose of payment of child allowance under German legislation, as not applying to a national of that Member State who receives, under its legislation, an old-age benefit as a retired civil servant, where that person has worked only in the Member State of which he is a national and his dependent child has moved within the Community with his former spouse.

2. Article 77(2)(a) of Regulation N o 1408/71, as amended, is to be interpreted as not covering the situation of a person who draws a pension only under a special scheme for civil servants and persons treated as such.

Gulmann Moitinho de Almeida Edward

Puissochet Jann

Delivered in open court in Luxembourg on 5 March 1998.

R. Grass C. Gulmann