C-255/99

OPINION OF MR ALBER — CASE C-255/99

OPINION OF ADVOCATE GENERAL ALBER delivered on 8 February 2001 1

A — Introduction 3. Initially both parents continued to live in Austria. In 1992 the mother moved to France with the child where both have been ordinarily resident ever since. The father remains ordinarily resident in Austria as 1. This reference for a preliminary ruling before. made by the Oberster Gerichtshof (Su- preme Court) of the Republic of Austria again 2 concerns the compatibility with Community law of a provision of the Unterhaltsvorschussgesetz 3 (Law on Advances on Maintenance Payments — the UVG), on this occasion with regard to the requirement to be permanently resident 4. On 2 November 1993, the father agreed in Austria in order to qualify for advances in a court settlement to pay monthly main- on maintenance payments. tenance payments of ATS 4 800 for his daughter. He was at that time employed in a commercial capacity and continued in that occupation until at least 31 January 1998. Thereafter he was unemployed.

I I — Facts and procedure

6. On 24 July 1998, the applicant made an 8. The applicant, the German, Austrian application to Austria for advances on and Swedish Governments and the Com- maintenance payments in the monthly mission have submitted written observa- tions to the Court. In addition, the Danish amount of ATS 4 800 from 1 July 1998 Government presented observations at the for a period of three years. She claimed that hearing. her father had for many months been in arrears with the maintenance payments despite repeated 'enforcement measures' and that current maintenance was also not being paid.

I I I— The reference for a preliminary ruling

judgment in Laumann, 5which related to maintenance and the child entitled to main- the grant of an orphans' pension to children tenance do not live in the same household. living with their mother in a Member State other than that of their deceased father, the national court finds that the regulation also applies when it is not the worker himself but survivors of his who reside in another Member State. The national court states 11. However, the rules might deter the that this principle can also be extended to parent caring for the child from accepting a the grant of family benefits to children of a job in another Member State of the Euro- living worker under Article 73 of Regu- pean Union: 'If the advances are refused, lation No 1408/71, because no essential and the parent who is liable for mainten- difference is to be discerned in that regard ance and does not have care of the child is between Article 73 of the regulation and unwilling to pay, the entire burden for Article 78, which relates to orphans. maintenance shifts to the parent who does have care of the child. If that parent, in order to take up an occupational activity, has to move abroad, he or she would have to be prepared to forgo the contribution towards expenses which, under Austrian law, would be financed from advances on maintenance.'

12. Furthermore, the national court spe- cifically expresses its uncertainty as to whether the rules at issue can be objectively justified.

10. With regard to the recurring theme in Community law of avoiding rules which might deter a migrant worker from exercis- 13. The national court has referred the ing his right to freedom of movement, the following questions to the Court of Justice national court concedes that the require- for a preliminary ruling: ment that the child be ordinarily resident in Austria is not such as to deter Austrian workers liable for maintenance from mov- ing abroad to be with their family, or moving abroad with their family, since an entitlement to advances on maintenance I. (a) Do advances on maintenance pay- arises only where the person liable for ments to the minor children of working persons, or unemployed persons drawing unemployment 5 — See Case 115/77 [1978] ECR 805. benefit under Austrian legislation,

(b) Does the fact that the child has to be resident in Austria in order to be awarded advances on maintenance payments constitute a prohibited limiting provision under the second indent of Article 3(1) of Regu- lation (EEC) No 1612/68 in the light of the right to freedom of movement for workers enshrined (b) Do Articles 73 and 74 of Regu- in Article 48 of the EC Treaty? lation No 1408/71 entitle a child of a marriage who is resident with his or her mother in a Member State other than Austria and whose father is resident in Austria and is working there, or unemployed and drawing unemployment benefit under Austrian legislation, to the (c) Do the provisions of Regulation award of an advance on mainten- No 1612/68 give rise to an entitle- ance payments under the Unter- ment, in the person of the child of a haltsvorschussgesetz referred to in worker, to the award of advances paragraph (a) above? on maintenance payments?

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IV — Legal background as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Articles 22(1)(a) and 31, by the legislation of the A — Community law Member State in whose territory such person resides; ...

14. The following provisions of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security- schemes to employed persons, to self-em- ployed persons and to members of their families moving within the Community, as (ii) ... amended and updated by Council Regu- lation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) and amended by Council Regulation (EC) No 307/1999 of 8 February 1999 (OJ 1999 L 38, p. 1), are relevant to the present case. Regulation No 1408/71, as amended and updated by Regulation No 118/97, provides as fol- lows:

Article 2 same obligations and enjoy the same bene- fits under the legislation of any Member State as the nationals of that State. Persons covered

2. ... 1. 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 3. ... the territory of one of the Member States, as well as to the members of their families and their survivors.

2. ... Article 4

Matters covered 3. ...

1. This Regulation shall apply to all legis- lation concerning the following branches of Article 3 social security:

Equality of treatment

17. Council Regulation (EC) No 307/1999 of 8 February 1999 amending Regulation (EEC) No 1408/71 on the application of 'Employed or self-employed persons the social security schemes to employed per- members of whose families reside in a sons, to self-employed persons and to Member State other than the competent members of their families moving within State the Community and Regulation (EEC) No 574/72 laying down the procedure for i m p l e m e n t i n g R e g u l a t i o n (EEC) No 1408/71 with a view to extending them to cover students6 provides, in so far as An employed or self-employed person sub- relevant to the present case: ject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits pro- vided for by the legislation of the former 'Article 1 State, as if they were residing in that State, subject to the provisions of Annex VI.' Regulation (EEC) No 1408/71 is hereby amended as follows:

16. Article 74 of Regulation No 1408/71 1. Article 1 is hereby amended as follows: provides:

(a) the following point shall be added after point (c): 'Unemployed persons the members of whose families reside in a Member State other than the competent State

"(ca) 'student' means any per- son other than an em- ployed or self-employed An unemployed person who was formerly person or a member of employed or self-employed and who draws unemployment benefits under the legis- lation of a Member State shall be entitled, 6 —OJ 1999 L 38, p. 1.

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Article 2

TITLE II

Article 3 Employment and equality of treatment

1. Under this Regulation, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply: Article 7

B — Austrian law person in default of payment of main- tenance clearly has no income or other form of regular remuneration, execu- tion ... has not covered in full, over the 19. Article 2(1) of the Austrian Federal six months immediately prior to the Law on the Grant of Advances for the submission of that application for the Maintenance of Children (Unterhaltsvor- schussgesetz 1985 — UVG — BGBl., grant of an advance, even one of the p. 451) provides: maintenance payments due. In that respect, maintenance arrears when recovered shall be set off against the current maintenance debt.'

'Minor children who are ordinarily resident in Austria and are either Austrian nationals or stateless shall be entitled to advances. For the purposes of implementing this federal law, where the person with whom the child lives in the same household is resident abroad in pursuance of an obli- V — The first question gation to serve an Austrian body governed by public law, the child shall be deemed to be ordinarily resident in the area of the court having jurisdiction in respect of his guardianship or custody.' Submissions of the parties

20. Article 3 of the UVG provides: 21. The applicant claims that the payments made by way of advances on maintenance constitute family benefits within the mean- ing of Article 4(1)(h) of Regulation 'Advances shall be granted where: No 1408/71.

1. a writ of execution enforceable in Austria exists in respect of the legal 22. The right to advances on maintenance right to maintenance payments and payments was established in Austria in order to make the appropriate financial resources available to children entitled to maintenance in the event that the parent liable for maintenance is defaulting on 2. execution in respect of current main- payments or, in specific cases, incapable tenance payments ... or, where the of making payment. The child entitled to

24. The State benefits are in the nature of State payments which are retained perma- nently by the child entitled to maintenance. 27. The Austrian Government also con- Therefore, they constitute family benefits siders with regard to the first question that within the meaning of the abovementioned advances on maintenance payments under regulation. the UVG do not constitute family benefits within the meaning of Article 4(1)(h) of Regulation No 1408/71, and that therefore Article 3 thereof is not applicable.

25. The German Government contends that the Austrian advances on maintenance payments do not constitute 'family benefits' within the meaning of Article 4(1)(h) of 28. Advances on maintenance are based on Regulation No 1408/71. the child's substantive claim against the

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32. The advance on maintenance payments provided for in Austrian law is granted only in cases in which the parents and the children do not live together as a family. In fact it was conceived of with precisely 30. In the present case the question arises this situation in mind. However, circum- as to whether the requirements under stances then exist which are the complete Article 4(1)(h), in which the term 'family opposite of those intended by the term benefits' is used, have been satisfied. Unlike 'family benefits'.

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33. In addition, the advance on mainten- the meaning of Article 4(1)(h) of Regu- ance payments provided for in Austrian law lation No 1408/71. It therefore concludes can be regarded as a family benefit within that Articles 73 and 74 of Regulation the meaning of Regulation No 1408/71 No 1408/71 are not applicable. only if it comes under the definition set out in Article 1(u)(i).

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decision, which focuses on the different and including April 1999 the child could purposes of various payments, is applied to also be covered by virtue of the status of the present case, it can be seen that the her father. According to the information advances under the UVG pursue an aim provided by the national court, at that time other than that of meeting family her father satisfied the requirements for expenses — the typical aim of family bene- entitlement to unemployment benefit under fits. Austrian law. Unemployment benefits under Austrian law must be regarded as insurance payments which form part of the social security system established for employed persons. Therefore, the scope ratione personae of R e g u l a t i o n No 1408/71 extends to the child in the 39. As regards the scope rattorte personae relevant period and does so on account of of Regulation No 1408/71, the Commis- the legal status of the father. sion points out that claims to advances on maintenance payments under the UVG have the distinguishing feature that it is not the father or mother of the child but rather the child himself who has such claims. Thus, it is necessary to consider whether or not the child is to be regarded as a member of the family within the meaning of Article l (f)(i) of Regulation No 1408/71 and whether the child is covered by the Appraisal scope ratione personae of the regulation under Article 2(1) where his father or mother is an employed person, a self-em- ployed person or a student. On the basis of the facts set out in the order for reference, the application for an advance on mainten- (a) Scope ratione materiae of Regulation ance payments has been valid since 1 July No 1408/71 1998 and it is the activity of the parents since that time that is relevant.

45. The benefit also relates, in terms of its purpose and the conditions for its grant, to the 'risks' 10 of 'family benefits' within the meaning of Article 4(1)(h) of Regulation 43. The Court has consistently stated that No 1408/71. the distinction between benefits which are excluded from the scope of Regulation No 1408/71 and benefits which come within it rests fundamentally on the factors relating to the relevant benefit, in particular its purpose and the conditions for its grant, and not on whether the national legislation describes the benefit as a social security benefit or not. 8 A benefit may be regarded as a social security benefit in so far as it is granted, without any individual and dis- 46. In conceptual terms, and when viewed cretionary assessment of personal needs, to in economic terms, 'family expenses' recipients on the basis of a legally defined encompass child maintenance. The position and provided that it concerns one material maintenance of a child is to be of the risks expressly listed in Article 4(1) regarded as an original family expense. A of Regulation No 1408/71. 9 right to maintenance alone is incapable of actually safeguarding maintenance. There- fore, an advance on maintenance financed by the State where the parent liable for 8 — See Case 249/83 Hoeckx [1985] ECR 973, paragraph 11; Case 122/84 Scrivner [1985] ECR 1027, paragraph 18; Case maintenance fails to make maintenance C-78/91 Hughes [1992] ECR I-4839, paragraph 14; Joined payments is capable of meeting family Cases C-245/94 and C-312/94 Hoever and Zachow [1996] ECR I-4895, paragraph 17; and Case C-160/96 Molenaar expenses. [1998] ECR I-843, paragraph 19. 9 — See Hughes, cited in footnote 8, paragraph 15; Hoever and Zachow, cited in footnote 8, paragraph 18; Molenaar, cited in footnote 8, paragraph 20; and Case C-275/96 Kuusuärvi [1998] ECR I-3419, paragraph 57. 10 — See the case-law cited in footnote 9.

48. On the other hand, there is also a not 50. Whereas the grant of child maintenance insignificant economic aspect inherent in falls within original family expenses, the the advance payments on maintenance. The recovery of outstanding maintenance is not payment of advances has the effect of necessarily a typical family expense but making financial resources available at the rather a burden typical of the special family time at which they are needed. Moreover, situation of parents living apart. As a result the State bears the risk of insolvency. In of the intervention of the provisions on view of the fact that only around one third advances on maintenance, the State, and of the maintenance payments to which the therefore society, contribute towards the State is subrogated can be recovered, it expenses, firstly through the procedural would be a simplification to regard the recovery of maintenance payments and legislation on advances on maintenance as secondly through guaranteeing the grant merely procedural assistance or to focus on of maintenance. Public resources are used the provisional nature of the benefit as the for both aspects and therefore it is entirely advance financing of outstanding mainten- possible to conclude that society con- ance payments. The maintenance costs tributes to the expenses arising from the which have to be met by the parent with specific family situation. Consequently, the sole custody — with whom the child lives spirit and purpose of the rules on advances in the same household — are increased on maintenance payments is to meet family considerably where the parent liable for expenses. maintenance fails to make payments. The advance payments alleviate and offset this part at the time and at the place at which 11 — Kromhout, cited in footnote 7, paragraph 14.

51. This view is underpinned by the fact tion between personal rights and derived that the advances on maintenance pay- rights did not in principle apply to family ments are financed out of the Familienlas- benefits. 14 tenausgleichsfonds (Family Support Fund). Although, in order to undermine this argument, reference was made to the judg- ment in Hughes, which contains the follow- ing passage: '[t]he method by which a benefit is financed is immaterial for the purposes of its classification as a social security benefit', 12 the Court of Justice advanced this argument to counter the objection in that case that the benefit at issue therein 13 was not a social security benefit because it was not subject to a contribution requirement. Accordingly, the judgment in Hughes cannot prevent the conclusion that the financing of the benefit by the Familienlastenausgleichsfonds can at least be regarded as an indication that advances on maintenance payments con- stitute family benefits. 53. Nor does the fact that the original entitlement to maintenance is a civil-law entitlement preclude the benefit from being classified as a family benefit. The child's original claim for maintenance against his parents is — even if it has to be ascribed to civil law — a claim under family law. Mere classification of this claim as a claim under civil law would constitute an excess- ively formal limitation which would not do justice to its significance in terms of family law — and, consequently, to the nature of the maintenance payments as a payment intended to meet family expenses, which, 52. The fact that the child entitled to although within the family, still operates in maintenance and not a parent has the right a classic manner. Therefore, even if the to advances on maintenance payments does claim for maintenance must be assigned to not preclude the benefit from being classi- civil law, the child entitled to maintenance fied as a family benefit. The advances are has a personal claim against the State by paid to the household in which the child virtue of the rules contained in the UVG in lives and can therefore be regarded indi- the event that the claim to maintenance is rectly as also a benefit paid to the parent not met. As a consequence of the grant of having custody. Moreover, in Hoever and the advances on maintenance payments, the Zachow, the Court ruled that the distinc- child's original right against the defaulting

58. However, the distinction established in Kermaschek 17 and initially consistently

55. Article l(f)(i) defines 'member of the 15 — Case 40/76 |1976| ECR 1669. family' as any person defined or recognised 16 — Kermaschek, cited in footnote 15, paragraph 7. as a member of the family or designated as 17 — Cited in footnote 15.

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maintained in case-law 18was, in Cabanis- 60. In order for a child entitled to main- Issarte, 19 specifically limited 20 to the cir- tenance to fall within the scope ratione cumstances underlying Kermaschek. 21 The personae of Regulation No 1408/71, it is distinction between rights in person and thus merely necessary to determine that he derived rights 'may undermine the funda- can derive his status from one or other mental Community law requirement that parent. its rules should be applied uniformly, by making their applicability to individuals depend on whether the national law relat- ing to the benefits in question treats the rights concerned as rights in person or as derived rights, in the light of specific features of the domestic social security scheme.' 22

61. In the present case the applicant's father, who was liable for maintenance, was, according to the case-file, unemployed at the material time. It can probably be assumed that he was drawing unemploy- ment benefit. Therefore, it is possible to infer that he was at least insured against the risk of unemployment and thus falls within the scope ratione personae of Regulation No 1408/71. Consequently, he confers on his daughter the status of a member of the family within the meaning of Regulation No 1408/71.

63. It is true that discrimination against a to students and members of their families Member State's own nationals has hitherto only since 1 May 1999. 26Since that time been allowed under Community law. The she has certainly fallen within the scope of question whether or not citizenship of the the regulation, but in view of the fact that Union has fundamentally altered this has the application for the advance on main- not yet formed the subject-matter of a tenance was made on 24 July 1998 this decision of the Court of Justice. However, may no longer have any relevance. where a situation arises to which Commu- nity law is relevant, it has been clear even in the past 25 that a Member State's own nationals may rely on Community law, and therefore the applicant's reliance on Community law raises no concerns. 66. However, the status of an employed person which the applicant's mother had in Austria might, perhaps, have continued, if a certain continuity can be established between the activity engaged in and the studies taken up. 27 There are many indi- 64. Furthermore, in so far as the daughter's cations that such continuity is maintained father merely confers on her the legal status in the present case. Thus, the applicant's of a member of the family within the mother could, as a person falling within the meaning of Community law and she claims scope ratione personae of Regulation a right as a right of her own, no problem is No 1408/71, confer upon the applicant posed by the fact that the advance on the status of a member of the family. maintenance payments does not benefit the father but only the daughter.

68. On the basis of the premiss that advances on maintenance payments must be regarded as family benefits within the 70. However, the special rules in Chapter 7 meaning of Regulation No 1408/71, the of Title III, entitled 'Family benefits', must question arises as to what consequences be applied. They contain provisions which this has in respect of the applicant's benefit preclude any condition that the members of entitlement. Article 3 of Regulation the family entitled to benefit must be No 1408/71 lays down the principle of resident in national territory. Both equality of treatment within the framework Article 73, which applies to employed of the regulation. Under Article 3(1), per- persons and self-employed persons sons resident in the territory of one of the members of whose families reside in a Member States to whom the regulation Member State other than the competent applies are to be subject to the same State, and Article 74, which applies to obligations and enjoy the same benefits unemployed persons members of whose under the legislation of any Member State families reside in a Member State other as the nationals of that State. Therefore, the than the competent State, provide that provision requires equality of treatment in family benefits may be claimed 'as if [the the State of residence. In the present case, members of the family] were residing in however, the applicant is not claiming that State'. social security benefits in her State of residence, that is to say France, but a benefit of her State of origin. Therefore, what is concerned in practical terms is the entitlement to the benefit abroad.

fact that the applicant is resident abroad 74. The German Government contends cannot be relied on against her to prevent that is not possible to apply Regulation entitlement. Irrespective of whether or not No 1612/68 to the grant of advances on the father liable for maintenance is gain- maintenance. The application of Regu- fully employed or unemployed, the appli- lation No 1612/68 presupposes firstly that cant may rely on Article 73 or Article 74 of a worker has exercised his right to freedom Regulation No 1408/71 in her capacity as a of movement. This is not so in the present member of the family. case since the father liable for maintenance lives in his home country of Austria. Moreover, a social advantage under Article 7(2) of Regulation No 1612/68 can relate only to benefits in the country in which the migrant worker is employed. Regulation No 1612/68 makes no provi- sion at all for the export of social advan- VI — The second question tages for members of a migrant worker's family who live abroad.

72. If the Court concurs with the approach set out above in response to the first question, there is no need to answer the second question. Observations are made below on the second question referred by the national court only in the event that the Court does not agree with the proposed solution.

76. As regards the applicability of Regu- cerned. The advance on maintenance is a lation No 1612/68, the Austrian Govern- payment solely for the benefit of the child ment makes the following submissions. and not for the benefit of any worker. Any claim based on this regulation pre- Consequently, there is no natural link supposes the status of a worker. On the between the payment and a migrant basis of the facts set out in the order for worker, as required by Regulation reference, the Austrian Government No 1612/68, or a connection with the assumes that the applicant's mother is not objective underlying this regulation, a worker and therefore Regulation namely promoting the free movement of No 1612/68 cannot apply. Even if the workers. regulation were applicable, the payments made under the UVG should not be regarded as 'social advantages' within the meaning of Article 7(2) of the regulation. Advances on maintenance are not granted on account of a person's objective status as 78. The Commission states that the a worker or of the worker's residence in national court is seeking, by its second Austria. The aim is to ensure that a child question, to establish: receives maintenance in full even where the parent liable for maintenance is in default of payment. However, there is no link with a person's status as a worker. Therefore, there is no 'social advantage' within the meaning of the provision. 1. whether advances on maintenance are social advantages within the meaning of Article 7(2) of R e g u l a t i o n No 1612/68,

79. In a preliminary remark the Commis- of Regulation No 1612/68. Nor can such a sion points out that the situation in the connection be established through the present case does not correspond to one mother who does not satisfy the criteria governed by Regulation No 1612/68. It for the term 'worker' within the meaning of therefore proposes that the second question Regulation No 1612/68. In that respect the referred for a preliminary ruling should be Commission takes as a basis the facts as rejected. It makes the following observa- established by the national court. tions only in the event that the Court should nevertheless wish to set out its position thereon. The question as to whether or not there is a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 must be answered in the affirmative. The term 'social advan- tage' must be interpreted very broadly. According to the case-law of the Court, it covers a number of benefits which may normally be claimed directly as a con- sequence simply of a change in place of 81. At the hearing, the Commission con- employment or residence without any ceded that, on the basis of the additional requirement — as, for example, in the case facts which had been furnished, the appli- of benefits referred to in Regulation cant's mother must indeed be considered to No 1408/71 — for periods of residence, possess the status of a worker within the employment or insurance in order to estab- meaning of Regulation No 1612/68. As lish entitlement. Accordingly, it is beyond regards Article 39 EC, the right to freedom dispute that the advances on maintenance of movement of a parent having custody must be regarded as a social advantage may be impaired. That parent could be within the meaning of Article 7(2) of deterred from accepting a job offer in Regulation No 1612/68. Even if the another Member State if the child accom- advances pursue an aim other than meeting panying him or her were to lose his family expenses, they serve to satisfy in full entitlement to advances on maintenance and timeously the maintenance entitlement by residing in that Member State. of minor children. By intervening in the place of the defaulting parent through the payment of advances, the State assumes the risk that it will not be possible to obtain maintenance payments which are owed or not paid. Thus, in a certain way the State helps to recover the debt from the default- ing parent liable for maintenance.

85. It can probably automatically be Appraisal assumed that the advance on maintenance per se constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, since the Court, in its settled case-law, places a very broad interpretation 84. It must in fact be stated with regard to on the term. According to that case-law, the applicability of Regulation No 1612/68 the term 'social advantage' encompasses all that the situation in the present case does advantages 'which, whether or not linked not correspond to the normal situation to a contract of employment, are generally contemplated by the regulation. The granted to national workers primarily requirements for equality of treatment because of their objective status as workers linked specifically to access to employ- or by virtue of the mere fact of their ment 31 and an employment relationship 32 residence on the national territory and the do not assist the applicant. Even if the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility 29 — Case C-120/95 Decker [1998] ECR I-1831, paragraph 39, and Case C-158/96 Kohll [1998] ECR I-1931, paragraph within the Community.' 33 41. 30 — Case 313/86 Lenoir [1988] ECR 5391. 31 — See Article 3 of the regulation. 32 — See Article 7(1), (3) and (4). 33 — See Case 207/78 Even [1979] ECR 2019, paragraph 22.

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88. Therefore, the question arises as to whether it is possible to rely directly on Article 39 EC or on citizenship of the Union enshrined in Articles 17 EC and 34 — See Case C-57/96 Meints [1997] ECR I-6689. 18 EC.

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Submissions of the parties on grounds of nationality within the scope ratione materiae of the Treaty. According to the Court, it follows that a citizen of the European Union lawfully resident in the territory of the host Member State can rely on Article 12 EC in all situations which fall within the scope ratione materiae of Com- 89. The Commission has made extensive munity law. comments on this aspect, contending that the applicant's entitlement could possibly be derived from Articles 12 EC, 17 EC, 18 EC, 39 EC and 43 EC. Although the national court did not address this aspect in the questions which it referred for a preliminary ruling, it did incorporate the relevant submissions of the applicant in the grounds of its order. The Commission sets out its view since the application of the abovementioned provision might objec- tively help to decide the main action.

93. The Court also confirmed this principle 95. There may perhaps be an objective in Scholz, 36 which states that any Com- justification if it is assumed that the munity national who, irrespective of his advance on maintenance, on which the place of residence and his nationality, has national court must rule, is to be regarded exercised the right to freedom of movement as a benefit closely linked with the social for workers and who has been employed in environment and can therefore be made another Member State, falls within the contingent upon the person having a claim scope of the aforesaid provisions. It is true being ordinarily resident in national terri- that the applicant in the main proceedings tory. However, the national court has is not a worker, but Articles 12 EC, 17 EC, noted that it is uncertain as to whether 18 EC and 43 EC do not take a person's the condition of ordinary residence is status as a worker as a basis but rather objectively justified. citizenship of the Union or nationality of a Member State.

Appraisal

100. Therefore, the question arises as to whether the applicant can be released from the requirement that she be resident in Austria on the basis of her citizenship of the 98. The question of the direct applicability Union. The question whether and to what of Article 39 EC is relevant in view of the extent citizenship of the Union helps in the legal status which the applicant may derive acquisition of rights which are not dealt from her mother. Since the advance on with elsewhere in the Treaty or in second- maintenance for minor children which is at ary law is still largely virgin territory in the issue necessarily involves financial case-law of the Court. 38 resources which are regularly paid to the parent having custody, and with whom the minor child or children live in the same household, as the legal representative of the children, or at any rate to the household in which the children live, the possible loss of the support payment may form an import- ant element in the decision-making process of the parent having custody. 101. Since a solution has already been proposed above which, by interpretation and application of secondary Community law in the form of Regulation No 1408/71, results in the residence requirement being inapplicable or being deemed to be fulfil- led, the question as to the effects of 99. However, Article 39(2), which lays citizenship of the Union need not be pur- down a specific prohibition on discrimi- sued at this juncture especially since it nation, is aimed primarily at equal treat- would be purely hypothetical in the light of ment in the State of employment. The the solution proposed. present case does not concern such a problem. Nor, strictly speaking, does it concern a case of discrimination against a 38 — Case C-85/96 Martinez Sala [1998] ECR I-2691.