C-95/99

OPINION OF MR JACOBS — JOINED CASES C-95/99 TO C-98/99 AND C-180/99

OPINION OF ADVOCATE GENERAL JACOBS delivered on 30 November 2000 1

1. The basic Community regulation on Regulation No 1408/71 and its legal basis social security, Regulation No 1408/71, 2 is expressed to apply not only to Commu- nity nationals but also to stateless persons and refugees. These cases raise two princi- pal questions concerning the validity and interpretation of the Regulation: first, was 2. Article 51 of the EC Treaty (now, after the Council competent to include stateless amendment, Article 42 EC) provided: persons and refugees in its personal scope and secondly, if so, does it apply to such persons who have travelled directly to a Member State from a non-member country and have not moved within the Community where there is no other Community cross- border element. Additionally the Court is 'The Council shall, acting unanimously on asked whether, in the event of affirmative a proposal from the Commission, adopt answers to the two principal questions, such measures in the field of social security certain family benefits are payable by virtue as are necessary to provide freedom of of the Regulation. movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:

'This Regulation shall apply to workers 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 'If action by the Community should prove or refugees residing within the territory of necessary to attain, in the course of the one of the Member States, as also to operation of the common market, one of members of their families and their survi- the objectives of the Community and this vors.' Treaty has not provided the necessary powers, the Council shall, acting unani- mously on a proposal from the Commis- sion and after consulting the European Parliament, take the appropriate measures.' 6. In 1981 Regulation No 1408/71 was extended to self-employed persons and members of their families by Regulation No 1390/81. 7Regulation No 1390/81 is based in particular on Articles 2, 7, 51 and 235 of the Treaty. 8 Curiously, Regulation No 1390/81 makes no amendment to the preamble to Regulation No 1408/71 to explain that extension; that was apparently 4. Regulation No 1408/71 (successor to not done until 1997, when Council Reg- Regulation No 3 of 1958, 3of which more ulation (EC) No 118/97 of 2 December below) in its original version covered 1996 9replaced the title, preamble, table employed persons only: it was entitled of contents and provisions of Regulation 'Regulation (EEC) No 1408/71 of the No 1408/71 with a new updated text Council of 14 June 1971 on the application reflecting numerous amendments which of social security schemes to employed had been made since the 1983 updating persons and their families moving within (which did not refer to the preamble). 10 the Community'. 4That original version The preamble as updated in 1997 refers by was based in particular on Articles 2, 7 5 and 51 of the EC Treaty 6(Articles 2 and 7 are now, after amendment, Articles 2 and 7 —Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their 12 EC). families Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, OJ 1981 L 143, p. 1. 8 — First citation in the preamble. 3 — Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers, JO 1958, 9 — Cited in note 2; entered into force on 1 February 1997. p. 561. 10 —Council Regulation (EEC) No 2001/83 of 2 June 1983 4 — OJ1971 L 149, p. 2. amending and updating Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 laying down the proce- 5 — Renumbered as Article 6 by the Treaty on European Union. dure for implementing Regulation (EEC) No 1408/71, 6 — First citation in the preamble. OJ 1983 L 230, p. 6.

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The facts and the main proceedings recognition as a refugee; her husband was however recognised in January 1994 as a refugee and has subsequently 12 become a German national. He was employed during the period in issue.

11. Cases C-95/99 Khalil, C-97/99 Osseili and C-98/99 Nasser each concern a hus- band and wife who are Lebanese Palesti- nians and who entered Germany from the Lebanon in the 1980s as civil-war refugees. They have lived in Germany continuously since then and have there been refused 14. The first four cases (Khalil, Chaaban, recognition as political refugees. During the Osseili and Nasser) all concern entitlement period in issue, the family in Khalil sur- to child benefit (Kindergeld) while Addon vived on unemployment benefit paid to the concerns entitlement to child-raising allow- applicant's husband and on supplementary ance (Erziehungsgeld). From 1 January social assistance, while in Osseili and 1994 the national legislation governing Nasser the applicant husband was earning. those benefits 13 was amended 14 so as to make entitlement of non-nationals condi- tional on possession of a residence entitle- ment (Aufenthaltsberechtigung) or a resi- dence permit (Aufenthaltserlaubnis); pos- session of a residence authorisation (Aufen- thaltsbefugnis) had previously been but was no longer sufficient. 12. Case C-96/99 Chaaban concerns a husband and wife who are Kurds from the Lebanon and who entered Germany from the Lebanon in 1985 as civil-war refugees. They have lived in Germany continuously since then and have there been refused recognition as political refu- gees. The applicant husband was employed 15. The Bundessozialgericht (Federal Social during the period in issue. Court) explains in the orders for reference that the intention of the legislature in introducing the new rule was to restrict entitlement to child benefit or child-raising

allowance to such foreigners as would benefits within the scope of the Regulation, normally be expected to remain in Ger- as Germans and other citizens of the many permanently; the legislature made Member States of the European Union, this assumption solely in the case of those with the result that possession of specific with residence entitlement or holding a residence documents was immaterial. In residence permit. As a residence document, Addou the Landessozialgericht (Higher residence authorisation occupies, under the Social Court) ruled that the applicant, as scheme of the Ausländergesetz (Law on a member of the family of a recognised Aliens), a lower rank than residence enti- refugee, had to be treated in the same way tlement or a residence permit. That cate- as citizens of the Union. gory was created in particular for de facto refugees, namely foreigners whose resi- dence on Federal territory is permitted solely on humanitarian grounds, for exam- ple because of civil war in their homeland.

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one spouse is a refugee and an employed movement for workers, including aggrega- person and the other is not a national of a tion and export of benefits. Member State or an employed person or a recognised refugee (in Addon).

21. The Regulation applies in terms to stateless persons and refugees, 1 8who as such — not being Community nation- als — have no right of free movement under the EC Treaty. The issue therefore Analysis of the first question is whether the Council was competent, when adopting the Regulation, to include such persons in its personal scope.

19. Article 48 of the EC Treaty (now, after amendment, Article 39 EC), the first article in Chapter 1 of Title III (Free movement of 22. It might be thought unnecessary to persons, services and capital) of the Treaty, answer the first question, since the answer provided for the freedom of movement of which I consider must be given to the workers within the Community. Despite second question is, as will be seen, suffi- some early suggestions that Article 48 did cient to enable the referring court to give not require that a worker be a national of a judgment in the cases before it. None the Member State in order to benefit from the less, the first question raises an important right of free movement, 15 it is settled law and novel issue of principle on which the that that provision guarantees free move- Court should in my view rule. ment only to Community nationals (now citizens of the Union). 16

The historical context of Article 51 and the Regulation 20. Article 51, set out above, 17 also con- tained in Chapter 1 of Title III, requires the Council to adopt such social security mea- sures as are necessary to provide freedom of 23. It is helpful in my view to start by considering the issue in its historical con- 15 — See e.g. Richard Plender, 'An Incipient Form of European text. Citizenship', in European Law and the Individual ( 1976). 16 — Case 238/83 Caisse d'Allocations Familiales v Couple Meade[1984] ECR 2631, paragraph 7 or the judgment. 17 — See paragraph 2. 18 — See Article 2(1) and 2(2), set out in paragraph 7 above.

25. The original six Member States of the (b) social security (legal provisions in European Communities were signatories to respect of employment injury, occupa- both conventions. tional diseases, maternity, sickness, dis- ability, old age, death, unemployment, family responsibilities and any other 19 — United Nations Treaty Series, vol. 189, p. 150, No 2545 contingency which, according to (1954). 20 — United Nations Treaty Series, vol. 360, p. 130, No 5158 (1960). 21 — See A Peter Mutharika, The Regulation of Statelessness under International and National Law (1989), pp. 28 to 22 — Third recital in the preamble. 34. 23 — First recital in the preamble.

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national laws or regulations, is covered schemes relating to old age, invalidity and by a social security scheme)...' survivors 26 and the European interim agreement on social security other than schemes for old age, invalidity and survi- vors. 27

26 — European Treaty Series, Volume 1, No 12. 24 — First recital in the preamble. 27 — European Treaty Series, Volume 1, No 13. 25 — Fourth recital in the preamble. 28 — Article 1 of each Protocol.

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the employment in the coal and steel application of national social security leg- industries of workers who are nationals of islation. 29 'Refugee' is defined in accor- Member States and have recognised quali- dance with the Geneva convention; 30 fications in a coalmining or steelmaking 'stateless person' is not defined. occupation, subject to the limitations imposed by the basic requirements of health and public policy.

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workers. That regulation was based on Whereas an essential element in the estab- Articles 51 and 227(2) of the Treaty. 35 lishment of the free movement of labour is a system securing for migrant workers and their dependants, firstly the aggregation of all periods reckoned, under the national legislation of the several countries, for the purposes of opening and maintaining rights to benefit and for calculating the same and 35. The first six recitals in the preamble to secondly the payment of benefits to persons Regulation No 3 state: resident in the territories of the Member States,

'Whereas a European Convention on social security for migrant workers, prepared Whereas the abovementioned Convention with the assistance of the International meets the objectives of Article 51 of the Labour Office, was signed at Rome on Treaty and its provisions can accordingly 9th December, 1957, by the Governments be embodied, with the necessary adapta- of the Member States of the European Coal tions, in a Regulation adopted in the and Steel Community, manner laid down in the said Article 51,

Whereas that Convention was signed Whereas the High Authority of the Eur- before the Treaty setting up the European opean Coal and Steel Community has Economic Community came into force, declared that the system laid down by the following Regulation can replace the arrangements laid down in Article 69(4) of the Treaty setting up the European Steel and Coal Community...'

Whereas the institutions of the Community are required under the said Treaty to take measures for the progressive establishment of the free movement of labour, 36. Regulation No 3 indeed replicates 35 — Article 227(2) (now, after amendment. Article 299(2)) almost verbatim the European convention: contained provisions governing the application or Com- munity legislation to Algeria and the French overseas in the words of Advocate General Lagrange departments. in 1964, 'as its preamble states, Regulation

39. The inclusion of refugees and stateless persons in the personal scope of Regulation No 3 of 1958 and subsequently of Regula- tion No 1408/71 thus — as the Commis- 37. To conclude this survey of the historical sion observes — simply reflected interna- context of the legislation at issue, I would tional obligations already undertaken (both note that Article 2(1) of Regulation at the level of the United Nations and No 1408/71 is in substantially identical within the Council of Europe) by the six terms, subject to the words 'wage-earners original Member States. As a result of those or assimilated workers' having been obligations, national law already assimi- replaced by 'workers' in the original ver- lated refugees and stateless persons to sion and subsequently by 'employed or self- nationals for social security purposes, employed persons' in the 1981 amendment. whereas the treatment of foreign nationals depended upon reciprocity or bilateral or multilateral arrangements. In the Europe of the 1950s, grappling with the aftermath of the Second World War, it was undoubtedly felt that it would be politically and morally unacceptable for one of the very first regulations adopted by the fledgling Eur- 38. The historical nexus is explicitly con- opean Economic Community to exclude a firmed in the preamble to Regulation category of persons who had been expressly included in and protected by the earlier agreements and conventions binding on the 36 — Case 75/63 Hoekstra v Bedrijfsvereniging Detailhandel [1964] ECR 177. original Member States.

44. While the statements of the Court in 41. The principal case is Rzepa, 37 in which those cases were not made in the context of the Court ruled on the entitlement under challenges to the lawfulness of including Regulation No 3 of a refugee (and former refugees and stateless persons in the perso- worker) to an invalidity benefit without nal scope of Regulations No 3 of 1958 and questioning the validity of that regulation. No 1408/71, they none the less demon- The Court may therefore be considered to strate that the Court, when called upon to have implicitly recognised the need to analyse the provisions referring to refugees coordinate national social security legisla- and stateless persons in proceedings raising tion with regard to stateless persons and questions of interpretation of the regula- refugees. tions, has not baulked at their inclusion in the regulations' personal scope. Those statements accordingly provide some sup- port for the view that the inclusion of refugees and stateless persons is not prima facie unlawful.

42. There are in addition a number of cases in which the Court has explicitly referred to 38 — See Case 40/76 Kermaschek v Bundesanstalt für Arbeit [1976] ECR 1669, paragraph 7 of the judgment and the the inclusion of refugees and stateless Opinion of Advocate General Reischl, p. 1682; Meade, cited in note 16, paragraph 3 of the Opinion of Advocate persons in the personal scope of Regulation General Mancini; Case C-308/93 Bestuur van de Sociale Verzekeringsbank v Cabanis-Issarte [1996] ECR I-2097, No 1408/71 without questioning the law- paragraph 21 of the judgment; and Case C-131/96 Mora Romero v Landesversicherungsanstalt Rheinprovinz [1997] ECR I-3659, paragraph 21 of the judgment. 39 — Case 147/87 Zaoui v Cram// [1987] ECR 5511, paragraph 37 — Case 35/74 Mutualités Chrétiennes v Rzepa [1974] ECR 10 of the judgment and paragraph 40 of the Opinion of 1241. Advocate General da Cruz Vilaça.

45. The Bundessozialgericht in its order for reference states its view that the Council is, under the Treaty, in principle not entitled to extend the scope ratione personae of the regulations which it adopts beyond the group of persons determined and defined in accordance with the legal basis underlying 47. The first indication is perhaps to be the regulation in question. Under the first found in the Court's suggestions at an early paragraph of Article 51, the Council is stage that the objectives of Article 51 are required to 'adopt such measures in the not limited to the two specific aims there field of social security as are necessary to expressed (namely (a) aggregation of peri- provide freedom of movement for work- ods of insurance and employment and (b) ers'. According to its wording, therefore, export of benefits). Thus in Hoekstra 41 — the Council is limited to adopting coordi- the first case on Regulation No 3 — nation rules for Union citizens having the Advocate General Lagrange pointed out status of migrant workers, since they alone that the provisions contained in Arti- enjoy the right of free movement. cle 51(a) and (b) were not exclusive, being preceded by the word 'notamment', 42 and the Court referred to the 'principal' objec- tive of Article 51. 4 3 Similarly in Singer 44 the Court referred to the 'objectives' of Article 51. That may be seen to imply that other objectives may also be attained on the basis of Article 51 and in the context of Regulation No 1408/71. It is striking that Article 51 in the first four official lan- 46. That view is to my mind difficult to guages of the Community — namely reconcile with this Court's approach to the French, German, Italian and Dutch — uses regulations. Although it is of course true a term meaning 'in particular', 45 which that Regulation No 3 of 1958 and Regula- clearly supports that view. tion No 1408/71 were both based princi- pally on Article 51 of the EC Treaty, the Court in interpreting those regulations has 40 — Case C-85/96 Martinez Saia v Freistaat Bayern [1998] consistently given a broad construction to ECR 1-2691, paragraph 31 of the judgment. that article and hence to the personal scope 41 — Cited in note 36. of the regulations based thereon. Thus, as 42 — P. 193. 43 — P. 184. the Swedish Government observes, it is 44 — Case 44/65 Hessische Knappschaft v Singer [196J] ECR now settled law that the definition of 965, at p. 971. worker used in the context of that article 45 — bisbesondere (German), in particolare (Italian) and met name (Dutch).

49. As the Court's case-law developed, it became increasingly clear that Arti- cle 51 — and hence the personal scope of the regulations made under it — was to be construed more widely than Article 48. In Singer, the Court refused to rule that Article 52 of Regulation No 3, 4 8 which 50. The Court continued to give a broad had been interpreted by the Court as interpretation of Article 51 and the scope applying to a former non-migrant worker of the regulations in the 1960s and 1970s. not currently employed but paying volun- Thus in Vaassen53 the Court ruled that tary insurance contributions in the expec- Regulation No 3 applied to the widow of a tation of resumption of work, 49 to a non- non-migrant worker where the only inter- migrant worker who suffered an accident national element was that the widow, who on His route to work which took him across was not a worker, had changed her resi- the territory of another Member State 50 dence; and in De Cicco54 the Court and to a frontier worker who had suffered assimilated a craftsman to a wage-earner, an accident unconnected with his employ- thus widening the personal scope of Reg- ment, 51 was unlawful because the Council ulation No 3. The Court in De Cicco stated in adopting it acted ultra vires and excee- that Article 4 of Regulation No 3, which ded the powers which it derived from set out its personal scope, 'is based on a Article 51 of the Treaty. Advocate General wide conception of the persons to whom it Gand, in an Opinion which was followed applies... In this respect Article 4 follows a general tendency of the social law of Member States to extend the benefits of 46 — P p . 184 .nul 185. 47 — P. 977. 48 — Which governed the situation where a recipient of henerits from one Memher State was injured m another Memher 52 — Case 27/69 l.ntr'anle Medicale v Assurances Générales State. [1969] I X R 4 0 5 , at p. 415. 49 — Hoekstra, cited in note 36. 53 — Case 61/65 Vaassen v lìeambtenfomls Mųnbedruf [1966] 50 — Case 31/64 Sociale Voorzorg v Berthold [1965] LCR 81. HCR 261. 51 — Case 33/64 lielricbskrankenkasse ¡leseper Torfwerk v 54 — Case 19/68 De Cicco v l.andcsverstchcritnņsaiistalt Schiva- Koster [1965] ECU 97. hen [1968] ECR 473, at p. 480.

53. In Inzirillo, 59 the Court ruled that a handicapped minor remained within the scope of the Regulation even on attaining majority, although he could not work, thus continuing the pattern of giving a wide construction to Regulation No 1408/71 52. In Mr and Mrs F the Court ruled that and hence to Article 51. That trend con- the combined effect of Articles 2(1) and tinues: in recent years the Court has ruled 3(1) of Regulation No 1408/71 was that that the coordinating rules in the Regula- the members of an employed person's tion apply also to persons who have not family who were not and had never been moved within the Community provided workers within the meaning of the Regula- that their situation involves a cross-border element necessitating a coordination of

55 — Case 23/71 Janssen v Mutualités Chrétiennes [1971] ECR 859, paragraphs 6 and 8 of the judgment. 58 — Case 7/75 Mr and Mrs F v Belgian State [1975] ECR 679, 56 — Case 17/76 Brack v Insurance Officer [1976] ECR 1429, at p. 697. paragraph 20 of the judgment. 59 — Case 63/76 Inzirillo v Caisse Allocations Familiales Lyon 57 — P. 1462. [1976] ECR 2057.

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social security legislation 60 and has con- 56. It is thus to my mind abundantly clear firmed that the definition of worker used in that Article 51 has a considerably wider the context of Article 51 and Regulation scope that Article 48. The scope of regula- No 1408/71 does not necessarily coincide tions made under Article 51 may thus be with that used in Article 48. 61 wider than the scope of Article 48: that is amply demonstrated by the Court's consis- tent approach to the interpretation of both Article 51 and the regulations made there- under.

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international conventions and by Council mission, parallel systems would inevitably of Europe agreements to accord refugees be administratively complex and give rise and stateless persons the same treatment as to practical problems which could easily be their nationals. As the Commission avoided by the simple expedient of includ- observes, it is clear from the protocols to ing refugees and stateless persons in the the Council of Europe agreements that personal scope of the Community regula- refugees were covered only to the extent tions. that nationals of the contracting parties benefited from rights under the agreements and that they could enjoy those rights only in the context of cross-border relations between contracting parties, but not within their host country since the agreements did not apply to purely internal relations between a contracting party and its own nationals working within the country. The European Convention and subsequently 60. In the light of the above, the inclusion Regulations No 3 and No 1408/71 in effect of refugees and stateless persons in the reflected that approach. personal scope of Regulation No 1408/71 may be regarded as ancillary to the princi- pal objectives of Article 51 and the regula- tions made under it and hence as lawful. That inclusion was necessary in order for there to be effective coordination, but since its scope and effect are extremely limited, it can properly be regarded as ancillary to the objective of coordination.

62. Recourse to Article 235 is not neces- 64. It will be recalled that in all the cases sary, and will in any event not assist in the applicant and his or her spouse entered legalising the inclusion of refugees and Germany from a third country. In no case stateless persons in the personal scope of has the applicant or his or her spouse or Regulation No 1408/71. That article was children moved from Germany into one of the express legal bases of Regulation another Member State. During the period No 1390/81, 65 which extended the perso- in issue, Mr Khalil was in receipt of nal scope of Regulation No 1408/71 to unemployment benefit paid in Germany, self-employed persons and members of while Mr Osseili, Mr Nasser, Mr Chaaban their families. It cannot be regarded as a and Mr Addou were employed in Germany. legal basis for other aspects of Regulation No 1408/71 which both pre-date and go beyond the scope of that extension. 66

'In Entr'aide Médicale v Assurances Gén- érales, the Court articulated a test in respect of Regulation No 3 which, with 66. At the hearing, the representative of the minor amendments, still determines the Spanish Government submitted that a personal scope of the Regulation: it was cross-border nexus was no longer required "applicable to any wage-earner or assimi- following the Court's decision in Kulzer.70 lated worker who finds himself in one of In my view, that is an incorrect reading of the situations involving international ele- the case. Mr Kulzer was a German national ments as provided for in the said regula- residing in Germany; he had worked in tion, as well as to his survivors". 72 ' Germany all his working life and was in receipt of a German pension. His daughter had moved from Germany to France where she lived with her mother, from whom Mr Kulzer was divorced. Mr Kulzer's applica- tion for child allowance in respect of his daughter was refused on the basis that she 68. He concluded that 'a person claiming was not resident in Germany. The Court, social security benefits can, in principle, noting in particular the fifth recital in the come within the personal scope of applica- preamble to Regulation No 1408/71, tion of the Regulation, even if he has never which states that the Regulation also lived nor worked in a Member State other applies to circumstances where members than his own, where all the material facts of the worker's family move within the are not confined to the territory of that Community, ruled that Mr Kulzer was Member State, as, for example, when a family member in respect of whom benefits are claimed resides in another Member State.' 73 68 — Joined Cases 35/82 and 36/82 Morsoli and Jhanjan v State of the Netherlands [1982] ECR 3723, paragraph 16 of the judgment. 69 — See Morsoti and ]hanjan, cited in note 68, and Joined Cases C-64/96 and C-65/96 Vecket and ¡acquêt [1997] 71 — See paragraphs 30 and 31 of the judgment. ECR 1-3171. 72 — Case 27/69, cited in note 52, paragraph 4 of the judgment. 70 — Cited in note 60. 73 — Paragraphs 35 and 37 of the Opinion.

71. Those questions arise only if the answer 74 — Signed at Rahat on 27 April 1976 and approved in the name of the Community by Council Regulation (HEC) to the second question is affirmative. Since No 2211/78 of 26 September 1978, OJ 1978 L 264, p. 1.

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75. The Bundessozialgericht considers, however, that the Agreement cannot apply 77. I am inclined to agree with the Com- mission, since I do not share the Bundesso- 75 —Case C-18/90 Kziber [1991] ECR I-199, Case C-58/93 zialgericht's confidence that the matter is Yousfi [1994] ECR I-1353 and Case C-126/95 Hallouzi- acte clair. Since however that court decided Choho v Bestuur van de Sociale Verzekeringsbank [1996] ECR I-4807. not to ask for a ruling from the Court on 76 — See Hoever and Zachow, cited in note 11, on a claim to the issue, I do not consider that the Court child-raising allowance under Article 73 of Regulation No 1408/71. can answer it.

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Conclusion

78. Accordingly in my opinion the first and second questions referred by the Bundessozialgericht should be answered as follows:

(1) Council Regulation (EEC) No 1408/71 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 refugees and stateless persons residing within the territory of one of the Member States and to members of their families who are nationals of a non-member State even though such persons have no right of free movement under the Treaty.