C-211/97

The relevant Community legislation '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 who are stateless persons or refugees residing within 2. Article l ( u ) ( i ) of Regulation the territory of one of the Member States, No 1408/71 in the version in force at as well as to the members of their families and their survivors.' * Original language: English. 1 — Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed 2 — Article l(u)(i) was amended by Council Regulation (EC) persons to self-employed persons and to members of their No 3096/95 of 22 December 1995 so as to assimilate families moving within the Community. For the most recent adoption allowances to childbirth allowances, OJ 1995 version see the amended and updated version established by L 335, p. 10. Council Regulation (EC) No 118/97 of 2 December 1996, 3 — There is no such allowance mentioned in Annex II in respect OJ 1997 L 28, p. 1. of Germany.

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4. Article 3(1) provides: 6. Under Title II, headed 'Determination of the legislation applicable', Article 13(1) provides:

'Subject to Article 14(c), persons to whom 'Subject to the special provisions of this this Regulation applies shall be subject to Regulation, persons resident in the territory the legislation of a single Member State of one of the Member States to whom this only. That legislation shall be determined in Regulation applies shall be subject to the accordance with the provisions of this title.' same obligations and enjoy the same ben- efits under the legislation of any Member State as the nationals of that State.'

GÓMEZ RIVERO

private domestic staff of agents of such 11. Mrs Gomez Rivero's husband has missions or posts. opted to be subject to the Spanish social security legislation pursuant to Arti- cle 16(2) of Regulation No 1408/71. Mrs Gomez Rivero has not exercised, or pur- ported to exercise, any such option.

(2) However, employed persons covered by paragraph 1 who are nationals of the Member State which is the accrediting or sending State may opt to be subject to the 12. In the present proceedings Mrs Gomez legislation of that State. Such right of Rivero contests the decision taken by the option may be renewed at the end of each Bundesanstalt für Arbeit (Federal Labour calendar year and shall not have retro- Office), Nuremberg, the defendant in the spective effect.' main proceedings, to withdraw, with effect from 1 February 1995, the family benefits which had previously been paid in respect of her two sons. 4The decision was based on the option exercised by her husband.

The facts and questions 13. Under the Spanish social security scheme Mrs Gomez Rivero does not fulfil the conditions of entitlement to family 9. Mrs Gomez Ri vero, the plaintiff in the benefits because her family income exceeds main proceedings, and her husband are the limit below which such benefits are Spanish nationals residing in Germany, Mrs payable. Gomez Rivero since 1968, her husband since 1966. They have two children born in 1977 and 1982.

issue is whether German law on child 16. Against that background the referring allowance is applicable to Mrs Gomez court has referred the following questions Rivero. The referring court has concluded to this Court: that the benefit in question is a family benefit within the material scope of Reg- ulation No 1408/71 and that Mrs Gomez Rivero is within the personal scope of that regulation. However, it questions whether the option exercised by her husband to be subject to Spanish social security legislation '(a) Does the option by a person employed has the effect of making her also subject to in a consular post under the first Spanish social security legislation so that sentence of Article 16(2) of Regulation she would not be entitled to social security No 1408/71 to be subject to the legis- benefits under the German scheme. In lation of the sending Member State of particular the referring court questions which he is a national also have effect whether the option could have such legal for his spouse, not employed by the effect for the spouse of an employed person consular service, who is also a national where that spouse, as in the case of Mrs of the sending Member State, Gomez Rivero, has neither consented to the exercise of the option, nor sought to exercise the option herself.

or

Observations 19. The Finnish Government submits that whenever a person could be subject to the social security legislation of more than one Member State the provisions of Title II of Regulation No 1408/71 determine which legislation is applicable. By virtue of Arti- cle 2 of the regulation it also applies to 17. Written observations have been sub- members of the worker's family. The Fin- mitted by Mrs Gomez Rivero, the Finnish nish Government observes that the provi- Government and the Commission. sions under Title II do not include distinct rules to be applied to the members of the worker's family when determining which legislation they are subject to. It considers that under the system of the regulation the legislation applicable to the members of a worker's family is determined by reference 18. Mrs Gomez Ri vero disputes the rele- to the legislation applicable to the worker vance of Regulation No 1408/71 to the himself. That will also be the case where determination of her entitlement to the the worker has exercised the option under family benefit in question. She submits Article 16(2); in such a case the members that, whether or not she is bound by the of the worker's family do not have an decision of her husband, the option exer- autonomous right to determine which leg- cised by her husband to be subject to islation they are subject to. The Finnish Spanish social security legislation cannot Government concludes that the decision of have the effect of disentitling her, or her the worker to opt for the application of the husband, to German family benefits. She social security legislation of one Member submits that the provisions of Title II of the State takes effect for the members of his regulation, headed 'Determination of the family. Furthermore, the text of the provi- legislation applicable', under which the sion does not allow for the interpretation right of a person working in a consular that such a conclusion depends on the prior post to opt to be subject to the social consent to the option being given by those security legislation of the sending State family members. falls, are concerned only with determining the legislation applicable in cases where a worker could be subject to a number of different national social security schemes, and do not affect the law relating to the grant of benefits. Since the regulation simply coordinates the social security rules 20. The Commission's analysis accords of the Member States, it cannot operate so with that of the referring court that if Mrs as to exclude national provisions which are Gomez Rivero is bound by the option more generous than those of Community exercised by her husband to be subject to law. Mrs Gomez Rivero also argues that the the social security scheme of Spain, then the regulation does not apply in the absence of decision to cease paying family benefit to an extraneous element, and that in her case her with effect from 1 February 1995 is all decisive elements, namely her residence, correct. If, however, the exercise of the that of her husband, and of her children, option is not binding on her then in are situated in Germany. accordance with Article 13(2)(a) of the

21. The Commission considers that the questions must be answered in the light of the judgments of this Court in the cases of Cabanis-Issarte and Hoever and Zachow. 5 The Commission submits that the provi­ sions must be interpreted, in accordance 23. In order to facilitate the free movement with that jurisprudence, according to whe­ of workers, Article 51 of the Treaty, pur­ ther they confer personal rights on the suant to which Regulation No 1408/71 members of the worker's family or whether was enacted, provides the legal basis for they must be interpreted as applying only Community legislation in the field of social to the worker himself. The Commission is security to ensure that migrant workers and of the view that Article 16(2) of Regulation their dependants should not lose benefits No 1408/71 is a provision which can apply acquired in one Member State upon exer­ only to the worker himself. It considers that cising their right to free movement. The an employee of a consulate has a right of regulation has as its aim the coordination option under that provision which is of the Member States' provisions in the granted to him by his status as such. The field of social security to secure the objec­ Commission concludes that the family tives set out in Article 51. Those objectives members of such a worker, not having such are, first, to ensure that claimants' contri­ status, do not enjoy the right of option. butions in the different Member States are Further, the Commission concludes that the aggregated; and, secondly, to ensure that exercise of that option by the worker persons entitled to benefits may collect cannot have legal repercussions for the them wherever they are resident in the members of his family, who, in this case, Community. The system is designed to are therefore subject to German social abolish as far as possible territorial limita­ security legislation. tions in the application of different social security schemes within the Community. 6

24. Regulation No 1408/71 serves to coor- 27. Article 13(2)(a), on which the Commis- dinate the provisions of national social sion relies, refers to the employed person, security schemes inter alia by determining not to the spouse. Moreover under the which social security scheme applies in the scheme of the regulation it is clear that, in case of a worker and his dependants who the absence of specific provisions to the have exercised their right 'to free move- contrary, the members of a worker's family

The Court has ruled on a number of own right. occasions that the provisions of Title II constitute a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the Community shall be subject to the social security scheme of only one Member State, in order to prevent the system of legislation 28. Nor do I accept the Commission's of more than one Member State from being suggestion that the principles developed applicable and to avoid the complications by the Court on the distinction between which may result from that situation. 7 It rights in person and derived rights are should be noted, however, that the regula- relevant for determining the applicable tion goes no further than coordinating legislation. It seems to me that the Com-

26. I am unable to accept the Commission's worker who had spent part of his career in suggestion that the spouse of an employed the Netherlands. The applicable legislation person could, although not independently was the Netherlands' legislation and the insured, be subject, by virtue of the provi- question was whether Mrs Cabanis-lssarte sions of Regulation No 1408/71, to the could claim rights in person under that social security scheme of a Member State legislation, a question to which the Court different from that to which the employed gave an affirmative reply. Hoever and

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29. It is true that in the present case the effect of the regulation is such that Mrs 32. In my view, there is nothing in the Gomez Rivero is not entitled to the benefits wording of Article 16(2) of the regulation in issue, whereas she would have been entitled to them in the absence of the regulation. That result however is the 10 — See Case 302/84 Ten Holder ν Nieuwe Algemene Bed­ rijfsvereniging [1986] ECR 1821, paragraph 22 of the consequence of the function of Title II of judgment.

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33. Finally I should note that the Commis- sion addressed argument to the pos- 35. It seems to me, however, inappropriate sible application of Regulation (EEC) to examine the potential application of No 1612/68. 11Article7 of that regulation Regulation No 1612/68, for the following provides: reasons. The questions referred to the Court do not mention that regulation, nor does the order for reference. As a result the parties to the main proceedings and the Member States have not had the opportu- nity to discuss before the Court the scope of the regulation. Perhaps those objections could be set aside in a case where the regulation was plainly relevant and was '(1) A worker who is a national of a inadvertently overlooked. However, that is Member State may not, in the territory of not the case here. It is not at all clear in the another Member State, be treated differ- present case whether Mrs Gomez Rivero is ently from national workers by reason of a worker under the regulation, or whether his nationality in respect of any conditions the non-discrimination rule of the regula- of employment and work...

12 — As regards the definition of a worker within the meaning 11 — Council Regulation (EEC) No 1612/68 of 15 October of Regulation No 1612/68 see, for example, Case 139/85 1968 on freedom of movement for workers within the Kempf ν Staatssecretaris van Justitie [1986] ECR 1741; Community, OJ, English Special Edition 1968 (II), p. 465. Case C-27/91 Le Manoir [1991] ECR I-5531.

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tion has the effect of overriding the provi- security legislation. Those are important sions of Regulation No 1408/71 on the issues which cannot be addressed in the determination of the applicable social absence of express argument.