C-471/99
ECLI:EU:C:2002:80
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MARTÍNEZ DOMÍNGUEZ AND OTHERS
OPINION OF ADVOCATE GENERAL TIZZANO delivered on 7 February 2002 1
1. By an order lodged with die Court Legal framework Registry on 9 December 1999 the Sozial- gericht Nürnberg (Social Court, Nur- emberg) (Germany) referred two questions to the Court of Justice for under Article 234 EC a preliminary ruling on the interpre- tation of Articles 77(2)(b) and 78(2)(b) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social Community legislation security schemes to employed persons and their families moving within the Commu- nity (hereinafter: 'the Regulation').2 More particularly, this reference was made in four cases joined by the referring court 2. Article 77 of the Regulation (as amended concerning decisions by the Bundesanstalt and updated by Council Regulation (EEC) für Arbeit, Kindergeldkasse (Federal Office No 2001/83 of 2 June 1983), 3 in the for Employment, child-benefit fund, here- matter of benefits for dependent children inafter 'the BAK') dismissing applications of pensioners, provides: for family allowances made to it under various provisions by Spanish citizens.
'1. The term "benefits", for the purposes of this Article, shall mean family allowances for persons receiving pensions for old age, invalidity or an accident at work or occu- pational disease, and increases or supple- ments to such pensions in respect of the children of such pensioners, with the exception of supplements granted under insurance schemes for accidents at work and occupational diseases.
1 — Original language: Italian. 2 — OJ, English Special Edition 1971 (II), p. 416. 3 — OJ 1983 L 230, p. 6.
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2. Benefits shall be granted in accordance completed the longest insurance with the following rules, irrespective of the period, provided that, taking into Member State in whose territory the pen- account where a p p r o p r i a t e sioner or the children are residing; Article 79(1)(a), a right to one of the benefits referred to in para- graph (i) is acquired under such legislation; if no right to benefit is acquired under such legislation, the conditions for the acquisition of (a) to a pensioner who draws a pension such right under the legislations of under the legislation of one Member the other States concerned shall be State only, in accordance with the examined in decreasing order of legislation of the Member State respon- the length of insurance periods sible for the pension; completed under the legislation of those States.'
(b) to a pensioner who draws pensions under the legislation of more than one Member State: 3. Similarly, Article 78 of the Regulation, which deals with benefits for orphans, provides:
(i) in accordance with the legislation of whichever of these States he resides in provided that, taking into account where appropriate Article 79(1)(a), a right to one of '1. The term "benefits", for the purposes of the benefits referred to in para- this Article, means family allowances and, graph 1 is acquired under the where appropriate, supplementary or legislation of that State, special allowances for orphans and orphans' pensions except those granted under insurance schemes for accidents at work and occupational diseases.
or
2. Orphans' benefits shall be granted in accordance with the following rules, irre- (ii) in other cases, in accordance with spective of the Member State in whose that legislation under which he has territory the orphan or the natural or legal
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person actually maintaining him is resident ance period provided that, taking or situated; into account where appropriate Article 79(1 )(a), the right to one of the benefits referred to in para- graph 1 is acquired under the legislation of that State; if no right is acquired under that legislation, the conditions for the acquisition (a) for the orphan of a deceased worker of such right under the legislations who was subject to the legislation of of the other States in question shall one Member State only in accordance be examined in decreasing order of with the legislation of that State; the length of insurance periods completed under the legislation of these States.
(b) for the orphan of a deceased worker who was subject to the legislation of However, the legislation of the Member several Member States: State applicable in respect of provision of the benefits referred to in Article 77 for a pensioner's children shall remain applicable after the death of the said pensioner in respect of the provision of the benefits to his orphans.'
(i) in accordance with the legislation of the Member State in whose territory the orphan resides pro- vided that, taking into account where appropriate Article 79(1 )(a), a right to one of the benefits 4. With reference to both provisions cited referred to in paragraph 1 is above, Article 79(1) further provides, acquired under the legislation of 'Benefits, within the meaning of that State, or Articles 77 and 78, shall be provided in accordance with the legislation determined by applying the provisions of those Articles by the institution responsible for administering such legislation and at its expense as if the pensioner or the deceased worker had been subject only to the legis- lation of the competent State.' However, (ii) in other cases, in accordance with Article 79(1 )(a) states, 'if that legislation the legislation of the Member State provides that the acquisition, retention or under which the deceased worker recovery of the right to benefits shall be had completed the longest insur- dependent on the length of periods of
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insurance or employment, such lengths more than one child, on condition that a shall be determined taking account where certain level of income was not exceeded, necessary of Article 45 (on overlapping from 1996 the age-limit was raised to 18 periods of insurance) or Article 72 (on the years and the income ceilings were aggregation of periods of employment) as removed; there is, furthermore, provision appropriate.' for family allowances until the age of 27 where the children are undergoing occupa- tional training and until the age of 21 if they are unemployed. In the case of children who are unable to support them- selves because of incapacity, the BKGG provides for the payment of an allowance without age-limit. National legislation
5. In Spain, Royal Legislative Decree 1/1994 providing generally for social secur- ity provides for the payment to pensioners Facts and questions submitted for a pre- of an allowance for each dependent child liminary ruling up to the age of 18 years provided that the family income does not exceed a specified ceiling. However, for handicapped children with an invalidity rating of over 65% that decree provides for payment of the allow- ance without limit as to age or income; 7. As stated, this reference for a prelimi- payment of that allowance for children nary ruling is made in four cases joined by over the age of 18 is, however, incom- the referring court which have in common patible with the special benefit provided for the fact that they concern, in various under Law No 13/1982 on the social respects, Spanish nationals who worked in integration of handicapped persons, which Germany as migrant workers for a certain means that in such circumstances, the period of time. person concerned must opt for one or other of the benefits.
8. The first case was brought by Mr Martínez Domínguez, a Spanish national 6. Under German law, the Bundeskinder- resident in Spain, who drew a pension in geldgesetz (Federal law on child benefit; both Spain and Germany (where he had hereinafter the 'BKGG'), in the version in worked for a period of time). Although he force until the end of 1995, entitled pen- received family allowances in Spain for his sioners to claim family allowances for dependent daughter under 18 years of age, dependent children until the children he was not entitled to those allowances reached the age of 16 and, if there was between April 1991 and October 1996 and
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between April and October 1997 since he dent in Spain in receipt of pensions both in exceeded the income threshold under Span- Spain and Germany (where he had also ish law. In order to obtain family benefit, worked for a period of time). He received Mr Martínez Domínguez therefore applied family allowance in Spain for his three in January 1996 to the appropriate auth- dependent children until attainment by ority in Germany where, as stated, there them of the age of majority. Since his had since 1996 been no income limit on the entitlement to family allowances under issue of family allowances. His application Spanish law had ceased, he applied in was, however, rejected by the BAK, as was November 1997 for equivalent benefits in his subsequent objection; the final decision Germany, claiming that his children were to dismiss his application was therefore pursuing their studies and that, under contested before the referring court. German legislation, benefit should continue to be paid until the age of 27. In his case also, the application and resultant objec- tion were dismissed by the BAK whose definitive decision to reject the application was challenged before the referring court.
9. The second case was brought by Mr Benítez Urbano, also a Spanish national resident in Spain in receipt of pensions in both Spain and Germany (where he had also worked for a period of time). In August 1996 he applied for a family allow- ance in Germany for his handicapped adult daughter who, in Spain, received the special benefit under Law No 13/1982 on the social integration of handicapped persons, 11. However, the fourth case was brought for which reason she was not entitled to by Mrs Calvo Fernández, the widow of a family allowance in Spain (where for that Spanish national who had worked for a reason, they had not been applied for). His period of time in Germany where, before application together with the resultant his death (in 1985), he had acquired objection were rejected by the BAK, whose entitlement to a pension but not to family definitive decision to reject the application benefit. Already in receipt of family allow- was challenged before the referring court. ances in Spain for her three dependent children (all resident in Spain and drawing orphans' pension in Spain and Germany), Mrs Calvo Fernández applied in June 1992 for family allowances in Germany as well; it is not clear, however, whether by that application she sought to obtain full bene- fits in Germany as well or merely to supplement the benefits awarded in Spain, the benefit provided for under German 10. The third case was brought by Mr legislation being greater. As with the other Mateos Cruz, also a Spanish national resi- cases, the BAK rejected the application and
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the subsequent objection; an appeal was also applicable in the present case after the therefore brought before the referring court accession by Spain to the Community; against the definitive decision to reject the hereinafter 'the convention'). application. The BAK later also dismissed a further application made by Mrs Calvo Fernández for family benefit for her children who were pursuing their studies after the age of 18 years; the dismissal of the objection to that decision was chal- lenged before the referring court. More- over, it is not stated in the order for reference whether, in the case of Mrs Calvo Fernandez, the main proceedings concern both appeals or only one of them. 13. In light of the intricate problems of Community law raised by the cases before it, the Nuremberg Social Court considered it necessary to refer the following questions to the Court of Justice for a preliminary ruling:
'1. Is Article 77(2)(b) in conjunction with Article 79(1) of Regulation (EEC) 12. For the purposes of this case it is No 1408/71 to be interpreted as mean- important to emphasise that the order for ing that family allowances for the reference makes clear that in none of the dependent children of pensioners who four cases described above was entitlement acquired entitlement to a pension in a to pensions in Germany acquired solely Member State not solely under the under German social security legislation, legislation of the Member State but since in none of those cases had the under the coordinating provisions of minimum contributions required for a European social law, must be paid as a pension been paid. The rights in question full benefit where the pension entitle- were recognised in Germany only because ment from the state of non-residence other contributions paid in Spain had been subsists in respect of periods or only as taken into account: in the first three cases from a period in respect of which there under the provisions of Regulation is no (or no longer any) entitlement to No 1408/71 on aggregation of contribu- family benefit provided for under the tions paid in different Member States; and legislation of the state of residence in the fourth case, under the bilateral owing either to the fact that an age Convention between Germany and Spain limit or an income limit has been on social security (drawn up in 1973 and exceeded or it was not applied for.
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2. Is Article 78(2)(b) in conjunction with Legal analysis Article 79(1) of Regulation (EEC) No 1408/71 to be interpreted as mean- ing that family allowances for orphans of a deceased employee or self-em- ployed person, to whom the legislation of several Member States applied, must be paid as a full benefit, where there is no entitlement to an orphan's pension in a Member State whose legislation applied, either solely under the legis- lation of the Member State or under the coordinating legislation of Euro- Preliminary remarks pean social law, and entitlement to the orphan's pension from the state of non-residence subsists in respect of periods or only as from a period in respect of which there is no (or no longer any) entitlement to family bene- fit provided for under the legislation of the state of residence owing either to the fact that an age limit or an income 15. It is clear from the text of Articles 77 limit was exceeded or it was not and 78 of the Regulation that the same applied for.' rationale applies to both benefits for dependent children of pensioners and to benefits for orphans. They provide in par- ticular that where pensioners (in the former case) or deceased workers (in the latter) have been subject to the legislation of more than one Member State, as in this case, the benefits provided for are in principle awarded by the recipient's State of resi- dence (paragraph 2(b)(i)). If, however, entitlement to the benefits in question is not acquired under the legislation of that State (also taking account, for that purpose, of those provisions of the regulation on 14. The German and Spanish Governments overlapping insurance periods and the and the Commission, as well as the appli- aggregation of periods of employment cants in the main proceedings, submitted under Article 79), the benefits are issued observations in the proceedings before the by the State whose legislation has applied Court. In order to ascertain the relevant longest to the pensioner or deceased worker national legislation and rules under the (provided, of course, that entitlement is agreement, the Court, by letter of 24 July acquired under the legislation of that State, 2001, requested the intervening govern- and taking into account, in that case as ments to provide clarification on certain well, the rules on overlapping insurance points; those explanations were provided periods and the aggregation of periods of by letters lodged on 2 and 30 August 2001. employment) (paragraph 2(b)(ii)).
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16. In the cases giving rise to this reference 17. Since the pensioners (in the cases of for preliminary ruling, as has been seen, the Martínez Domínguez, Mateos Cruz and recipients of benefits for dependent Benítez Urbano) and the deceased worker children or orphans resided in Spain, (in the case of Calvo Fernández) had, for a where, in principle, those benefits were period of time, been subject to German payable. However, under Spanish legis- legislation, the referring court in its two lation, entitlement to the benefits in ques- questions is seeking to ascertain in practice tion: whether, under Articles 77, 78 and 79 of the Regulation, the German authorities are obliged to pay the benefits not paid in Spain for the reasons mentioned (or to supplement those benefits) in so far as those benefits would have been paid if German legislation had applied. — had ceased to subsist during certain periods because the income ceiling under Spanish legislation had been exceeded (case of Martínez Dom- ínguez); or
18. In order to reply to those questions, which should be examined together, I shall begin with some general observations on — had lapsed owing to the age attained by the interpretation of the relevant provisions the dependent children (case of Mateos of the Regulation in light of Community Cruz and Calvo Fernández); or case-law and then go on to evaluate more specifically the solution to the questions with reference to the various facts in the main proceedings.
— could not be exercised owing to the fact that the person in question had opted for other benefits incompatible with the benefits in question (case of Benítez Urbano); or
General observations
— finally (as may be inferred from the information concerning the case of Calvo Fernández) involved the pay- 19. As has been seen, Articles 77 and 78 of ment of amounts less than those the Regulation lay down the criteria for already paid in the State other than determining the Member State responsible the State of residence. for awarding benefits for dependent
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children or for orphans, where the pen- 21. Thus, in order to avoid any incon- sioners (in the first case) or deceased sistency, the Court has stated on a number workers (in the second case) have been of occasions that 'the provisions of the subject to the legislation of more than one regulation [No 1408/71] cannot apply if Member State. The Member State deter- their effect is to diminish the benefits which mined under those criteria is required to the person concerned may claim by virtue pay the benefits in question even if entitle- of the laws of a single Member State on the ment thereto has not been acquired in that basis solely of the insurance periods com- State on the sole basis of its national pleted under those laws.' 5As regards the legislation, but under the provisions of the problem now before the Court it has been Regulation on overlapping insurance held that Articles 77 and 78 of the regu- periods and the aggregation of employment lation must be interpreted 'as meaning that periods. entitlement to family benefits from the State in whose territory a recipient of a retirement or invalidity pension or an orphan resides does not take away the right to higher benefits awarded previously by another Member State. In those circum- stances, a supplement equal to the differ- ence between the two amounts is payable by the latter Member State.' 6
20. As a rule, and in accordance with the principle that the legislation of a single Member State is applicable enunciated in Article 13(1) of the Regulation, 4 that Member State has sole competence to award the benefits in question, in accord- ance with its applicable legislation and within the limits defined by it. It is possible, however, that under that principle, the persons concerned may be deprived of 22. It is important to emphasise, however, entitlement to more favourable benefits that the case-law referred to applies only to acquired in other Member States on the cases where the persons concerned have basis of national legislation alone; that acquired entitlement to social security in a would run counter to the principle, which Member State other than their State of has been repeatedly reaffirmed in Commu- residence under the legislation of that state nity case-law, under which 'the objective of alone (and not under the provisions of the Articles 48 to 51 of the Treaty would not regulation on overlapping insurance be achieved if, as a consequence of the periods and the aggregation of employment exercise of their right to freedom of move- ment, workers were to lose social security advantages guaranteed to them in any event 5 —Case C-59/95 Bastas Monana and Others [1997] ECU by the laws of a single Member State.' I-1071, paragraph 17, where reference is made in particular to Case 24/75 Petrom |1975| ECR 1149, paragraphs 13 and 16. 6 — Bastos Monana, cited above, paragraph 16, where reference is made in particular to Case 733/79 Laterza [1980] 4 — See, on this point. Case C-113/96 Gómez Rodriguez 11998] ECR 1915; and Case 807/79 Granna and Others 1980] ECU 1-2461, paragraph 27. ECR 2205.
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periods), since only in those cases might the 24. Similarly, in the subsequent judgment application of the regulation deprive them in Gómez Rodríguez, the Court ruled that of the more favourable benefits to which 'where entitlement to benefits which arose they would otherwise be entitled. in the State of residence is lost because an age-limit has been reached, the competent institution of another Member State is not required to grant benefits to the persons concerned, unless they have acquired their entitlement there solely on the basis of the periods of insurance completed in that State.' 10 The Court therefore concluded that, 'Article 78(2)(b)(ii) does not become applicable in circumstances where a right to an orphans' pension, which initially arose under Article 78(2)(b)(i) in the 23. Those limits to the case-law in question Member State in which the recipient are clearly apparent in Bastos Moriana and resides, has been lost by reason of the Others in which it was held that, attainment of an age-limit, while in another 'Articles 77(2)(b)(i) and 78(2)(b)(i) of the .Member State, whose legislation was also regulation must be interpreted as meaning applicable to the insured person, a right to that the competent institution of a Member orphans' pension would run beyond that State is not bound to grant supplementary date on application of the rule on aggre- family benefits to pensioners or orphans gation laid down in Article 79 of the residing in another Member State 7 where Regulation.' 11 the amount of the family benefits paid by the Member State of residence is lower than that of the benefits provided for by the laws of the first Member State if entitlement to the pension, or to the orphan's pension, has not been acquired solely by virtue of insur- ance periods completed in that State.' 8 The reason is, as I stated earlier, that 'where the entitlement of the pensioner or orphan exists only by virtue of the application of the aggregation rules provided for by the Analysis of the cases at issue regulation..., the application of Articles 77 and 78 does not deprive the persons con- cerned of the benefits granted under the laws of another Member State alone.' 9
7 — For clarification of what is meant by 'supplementary family benefits' see paragraph 5 of Bastos Monana which states: 25. Those matters having been stated in The plaintiffs applied to the Bundesanstalt für Arbeit for general terms, it is my view that the German dependent child allowances in respect of their children, inasmuch as those allowances are granted for questions formulated by the Nuremberg longer periods, or in a higher sum, than those granted by their State of residence. Tne plaintiffs are therefore seeking Social Court by reference to the various an additional amount ("benefit supplement"} equal to the difference between the German allowance and that of their State of residence.' 8 — Bastos Moriana, paragraph 23. 10 — Cited above, paragraph 32. 9 — Paragraph 19. 11 — Paragraph 33.
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factual situations in the main proceeding; the same solution must, I consider, also be may readily be resolved in the light of the applied in the case of Benítez Urbano, since Community case-law cited above, in par- the person concerned was in principle ticular Bastos Mariana and Gómez Rodrí- entitled to the benefits at issue in his State guez. In fact, like the Commission and the of residence and non-payment of those German Government, I am of the opinion benefits was attributable solely to his that in the cases before the Court, entitle- opting for other benefits incompatible with ment to social-security benefit was the benefits at issue. acquired in the State of residence, with the consequence that, under the case-law in question, the other benefits applied for in another Member State were not payable unless entitlement to them was acquired solely under the legislation of that State.
27. Given that, in all the cases, entitlement to benefits for dependent children or orphans was acquired in the State of residence, the benefits applied for in another Member State are payable under the decisions in Bastos Mariana and Gómez Rodríguez only if entitlement thereto was acquired solely under the 26. In fact, there is in my view no ground legislation of that State. It is not, however, for asserting, as the applicants in the main for the Court to assess whether in the proceedings and the Spanish Government various cases before it, those conditions are appear to do, that in the four cases in or are not satisfied (a matter dwelt on by question, entitlement to benefits for some of the applicants in the main proceed- dependent children or orphans was not ings), since that plainly is a question of acquired in the country of residence. There national law which must be resolved by the is certainly no room for doubt in that national court. connection in the cases of Mateos Cruz and Calvo Fernández, since, as in Bastos Mor- iam and Gómez Rodríguez, the benefits were actually paid in the State of residence, albeit for shorter periods and in smaller amounts than provided for under the legis- lation of the other Member State to whose legislation the insured persons had also been subject. The same solution must be 28. I would merely point out at this adopted in the case of Martínez Dom- juncture that a particular difficulty arises ínguez, since in that case as well the in this connection with regard to the Calvo benefits had actually been paid in the State Fernández case. The order for reference of residence, albeit with certain inter- states that in this case entitlement to ruptions owing to the fact that income orphans' pensions was acquired in Ger- ceilings under Spanish legislation had from many under the 1973 agreement between time to time been exceeded. None the less, Germany and Spain. According to the
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information provided by the German Gov- now under consideration, rights acquired in ernment in response to a specific question a Member State under a bilateral conven- put to it by the Court, the agreement tion with another Member State must continued to apply to such cases even after simply be assimilated to those arising under Spain's accession to the Community and the social security legislation of the first the consequent entry into force in Spain of State. The Court has already had occasion the Regulation; this was so because the to state, in fact, that its case-law on benefits under the agreement were higher additional benefits must be interpreted as for the persons concerned than under the meaning that: '"benefits awarded by virtue regulation. I might add in that connection of the legislation of a single Member State" that application of the agreement appears refers not only to the benefits provided to be warranted in this case since the under national legislation alone, as formu- deceased worker acquired the rights under lated by national legislatures, but also the it before Spain acceded to the Community, benefits available under international social with the result, in accordance with the security conventions in force between two case-law of the Court, that the rights (and or more Member States and incorporated those at issue here) could not be lost by the in national law, which place the worker entry into force of the Regulation.12 concerned in a more favourable position than under Community provisions.'13 It is clear, furthermore, that if such were not the case, there would be a breach of the principle enunciated several times, accord- ing to which application of the Regulation must not deprive migrant workers of more favourable benefits to which they would be entitled.
29. Having said that, I consider that for the purposes of applying the principle laid down in Bastos Moriana and Others and Gómez Rodriguez, that in the specific case
30. On the basis of the foregoing, it follows 12 — See, on this point, Case C-227/89 Rönfeldt [1991] ECR that, in the case of Calvo Fernández, the I-323 in which the Court ruled that, 'Articles 48(2) and 51 of the EEC Treaty must be interpreted as precluding the loss of social security advantages for the workers con- benefits acquired in Germany under the cerned which would result from the inapplicability, bilateral convention must be assimilated to following the entry into force of Council Regulation (EEC) No 1408/71, of conventions operating between two or those acquired under German social-secur- more Member States and incorporated in their national law' (paragraph 29). The scope of that case-law was later ity legislation. It is then, naturally, for the set out in Case C-47S/93 Thévenon [1995] ECR 1-3813 national court to establish whether the which makes clear that the principle enshrined in it applied only where the right to freedom of movement was family allowances at issue in this case are exercised before entry into force of the Regulation. In actually payable in Germany under the Gómez Rodríguez, cited a number of times, it is also stated that the principle in Rönfeldt is applied in cases such as the convention. one in question where the deceased worker completed his periods of insurance in Germany and Spain before the accession of Spain to the Community (paragraph 41). For subsequent confirmation see, lastly, Case C-277/99 Kaske [2002] ECR I-1261. 13 — Rönfeldt, cited above, paragraph 27.
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31. In light of the foregoing, I therefore acquired in the recipient's State of resi- consider that the reply to the Nuremberg dence, further benefits applied for in a Social Court must be that Articles 77(2)(b) different Member State must be paid only if and 78(2)(b) of the Regulation, in con- entitlement to them was acquired in that junction with Article 79(1), are to be State solely by virtue of its national legis- interpreted as meaning that where entitle- lation or a convention between it and ment to benefits for dependent children or another Member State still applicable fol- orphans mentioned in those articles is lowing entry into force of the Regulation.
Conclusion
32. In light of the foregoing, I propose that the Court reply as follows to the questions submitted by the Nuremberg Social Court for a preliminary ruling:
Articles 77(2)(b) and 78(2)(b) of Council Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community in conjunction with Article 79(1) thereof are to be interpreted as meaning that where entitlement to allowances for dependent children or orphans as mentioned in those articles is acquired in the recipient's State of residence, additional benefits applied for in a different Member State must be paid only if entitlement thereto was acquired in the latter State solely under its national legislation or under a convention between it and another Member State still applicable after entry into force of Regulation No 1408/71.
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