C-333/00

OPINION OF MR JACOBS — CASE C-333/00

OPINION OF ADVOCATE GENERAL JACOBS delivered on 7 March 2002 1

1. In this case, the Tarkastuslautakunta The relevant legislative provisions (Social Security Review Tribunal, Finland) asks questions about the interpretation of, in particular, Articles 4(1)(h) and 73 of Regulation No 1408/71. 2

Community provisions

3. The material scope of Regulation No 1408/71 is defined in Article 4. Accord- ing to Article 4(1)(h), the Regulation applies to 'all legislation concerning... family benefits'. Article 4(4) provides that the Regulation does not apply to 'social and medical assistance'.

2. The essential issue is whether a home child-care allowance (lasten kotihoidon tuki) which parents may, under provisions of national law, claim where they choose not to take up a guaranteed place in a public day-care institution is to be regarded 4. According to the definition in as a family benefit within the meaning of Article 1(u)(i): the Regulation.

5. Article 14(1)(a) provides: to in Article 73, by the competent institu- tion of the State to the legislation of which the employed or self-employed person is subject in accordance with the provisions administered by that institution, whether or not the natural or legal person to whom such benefits are payable is residing or 'A person employed in the territory of a staying in the territory of the competent Member State by an undertaking to which State or in that of another Member State. he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be sub- ject to the legislation of the first Member State, provided that the anticipated dur- ation of that work does not exceed 12 months and that he is not sent to replace another person who has completed his term of posting.' 8. According to Article 4(2a), the Regu- lation applies 'to special non-contributory benefits which are provided under legis- lation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are 6. Article 73 provides: intended... to provide supplementary, sub- stitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1(a) to (h)'.

'An employed or self-employed person subject 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 State, as if they were residing in that State, 9. Article 10a(1) provides, however, so fai- subject to the provisions of Annex VI.' as is relevant for the present case that 'persons to whom this Regulation applies shall be granted the special non-contribu- tory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that 7. According to Article 75(1), family bene- State, provided that such benefits are listed fits are to be provided, in the cases referred in Annex IIa'.

11. According to Article 1, the Law on home child-care allowance regulates the award of financial support aimed at enabling parents, as an alternative to day- care places arranged by the local auth- orities, to organise day-care for their

13. Under Article 20 of the Law, the local 3 — Article 11(1) and Article 11a(1). authorities may, moreover, grant a supple- 4 — That law replaced, with effect from August 1997, the Laki lasten kotihoidon tuesta (Law on home child-care allow- mentary amount (kunnallinen lisä) in addi- ance) of 1993. tion to care money and care supplement.

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14. Under Article 3(1) of the Law, appli- The facts and the questions referred cable to home child-care allowance and private child-care allowance: 'It is a con- dition of receiving the allowance referred to in this law that the child's parents or other persons having custody do not choose a day-care place in accordance with Article lla(l) of the Laki lasten päivähoi- dosta [Law on day care of children] and 17. The facts, as set out in the order for that the child actually lives in Finland.' reference, may be summarised as follows.

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20. The applicant appealed against that scope of Regulation No 1408/71, and that decision to the Etelä-Suomen Sosiaaliva- the allowance may therefore be paid under kuutuslautakunta (Social Insurance Tribu- the Law on home child-care allowance only nal), which dismissed her appeal by for a child actually living in Finland. decision of 1 March 1999. On 31 March 1999 the applicant appealed against that decision to the Tarkastuslautakunta, asking for the decision of the Social Insurance Tribunal to be set aside and for the Social Insurance Institution to be ordered to continue to pay the allowance.

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(2) If so, does Article 73 in conjunction The first question with Article 75 of Regulation No 1408/71, having regard also to Article 10a and to the fact that the Laki lasten kotihoidon ja yksityisen hoidon tuesta (Law on home child-care allowance and private child-care allow- ance) is not mentioned in Annex IIa of the Regulation, impose an obligation to 25. By its first question, concerning the pay home child-care allowance in material scope of Regulation No 1408/71, respect of the child of a worker posted the national court essentially seeks to temporarily to another Member State, ascertain whether a home child-care allow- where the residence requirement which ance such as that provided for by the Law applies under the national legislation is on home child-care allowance is to be not satisfied and the choice — also regarded as a family benefit within the referred to in the national legis- meaning of Article 4(1)(h) of the Regu- lation — between a day-care place lation. organised by the local authorities and home child-care allowance cannot therefore be made or has not in fact been made?

26. The Court has repeatedly held that the distinction between benefits falling within the scope of Regulation No 1408/71 and those falling outside its scope is based essentially on the constituent elements of (3) If not, do other provisions of Commu- each particular benefit, in particular its nity law impose an obligation to pay purposes and the conditions on which it is home child-care allowance in the situ- granted, and not on whether a benefit is ation described in question 2?' classified as a social security benefit by national legislation. 5In that regard, it is settled case-law that a benefit can be regarded as a social security benefit only if, first, it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and, second, it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. 6

28. In the present case, it not disputed that the provisions relating to the grant of home child-care allowance confer a legally defined right, and that the allowance is 30. In that regard it stresses, first, that the granted automatically to persons who fulfil allowance is part of a general system laid certain objective criteria, without any indi- down by Finnish law which offers parents a vidual and discretionary assessment of choice between a place in a public day-care personal needs. That applies, in particular, institution — which is a social service — to care money (hoitoraha) and care supple- and the payment of home child-care allow- ance. That system is aimed at organising the day care of children in Finland and 7 —Joined Cases C-245/94 and C-312/94 [1996) ECR 1-4895. offering parents a real choice as to how 8 — See also Case C-85/96 Martinez Sala [1998] ECR 1-2691, they wish to care for their children. The paragraphs 22 to 24 of the judgment, and Case C-275/96 Kuusijärvi [1998] ECR 1-3419, paragraph 60. system is not, like the German allowance at

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31. The Finnish Government also points out that it is the local authority in whose area the family is resident which must provide public day-care places and which carries the cost of home child-care allow- ance paid to parents. Given the close connection between the provision of public day care and the award of home child-care allowance within the Finnish legislation, 34. Article 1 of the Law on home child- the two must be considered as a whole for care allowance states that the Law regu- the purposes of categorisation under Regu- lates the award of financial support aimed lation No 1408/71, and the conditions on at enabling parents to organise day-care for which the two are granted must be ident- their children. It appears from that formu- ical. Thus, since the right to a place in a lation that the Law is intended to meet — public day-care institution is subject to a and it certainly has the effect of meeting — residence requirement, the award of the the cost of third-party child-care (in a allowance must also be subject to that private crèche or by a child-minder) and, condition. as the case may be, to mitigate the financial disadvantages suffered by a parent who gives up income from full-time employment to care for a child with a view to giving the parents economic freedom to choose the type of day care which they consider most appropriate for their children.

9 — Cited in note 5. 10 — Paragraph 41 of the judgment. See also Case C-255/99 Humer, judgment of 5 February 2002, ECR I-1205, para- graph 31. 32. I am not convinced by those arguments. 11 — Paragraph 40 of the judgment.

36. Moreover, family benefits within the meaning of Article 4(l)(h) of the Regu- lation may have more than one purpose. To fall within Article 4(l)(h) it is sufficient that one of the purposes of a benefit provided for by national law is to meet 38. As to the second argument put forward family expenses. Thus in Hughes 12 the by the Finnish Government, it may be Court found that family credit in Northern acknowledged that there is a connection Ireland performed a dual function: between the provision of public day care, which — as appears to be common ground — is a social service, and the con- ditions on which home child-care allow- ance is awarded under Finnish law. It is however clear from that legislation that parents can choose freely between a place in a public day care institution and the allowance at issue. Indeed, it appears from the explanations given at the hearing that 'first,... it encourages workers who are parents are free to alternate between public poorly paid to continue working; and day-care and home child-care allowance secondly, it is intended to meet family during the period of entitlement. Entitle- expenses, as is clear in particular from the ment to home child-care allowance is fact that it is paid only where the claimant's thus — as the Commission points out — family includes one or more children and not in any way subsidiary to, or dependent from the fact that the amount of the benefit upon prior application for, a place in public varies according to the age of the children. day-care. It is a right which exists under It is by virtue of that second function that a

14— See Case 101/83 Brusse[1984] ECR 2223, paragraph 30 of the judgment; Kuusijärvi, cited in note 8, paragraph 68. 40. By its second question, the national 15—Ibid. Sec also Case 321/93 Imbernon-Martinez [1995] court essentially seeks to ascertain whether ECR 1-2821, paragraph 22 of the judgment. 16 — See Kuusijärvi, cited in note 8, paragraph 69 of the the provisions of Regulation No 1408/71 judgment, and the case-law cited there.

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43. To my mind there is no doubt that that whether or not the natural or legal person case-law should be applied to the situation to whom such benefits are payable is of a posted worker who lives with his residing or staying in the territory of the family for a limited period of time in a competent State or in that of another Member State other than the one in which Member State. he and his family normally reside and w h o — in accordance with Article 14(1)(a) of the Regulation — remains subject to the social security legis- lation of the latter State.

46. It may be added that the Law on home child-care allowance is not mentioned in Annex IIa of the Regulation. The rules laid down in Articles 4(2a) and 10a(1) 18 of the Regulation are therefore in any event irrele- 44. That interpretation is, as the Commis- vant for the present case. sion points out, consistent with the word- ing of Article 73 and with its purpose, which is, as the Court has stated, 'to prevent Member States from making entitlement to, and the amount of, family benefits dependent on residence of the members of the worker's family in the Member State providing the benefits, so that Community workers are not deterred from exercising their right to freedom of The third question movement'. 17

(1) An allowance, such as the home child-care allowance provided for by the Finnish Laki lasten kotihoidon ja yksityisen hoidon tuesta (Law on home child-care allowance and private child-care allowance), which is auto- matically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which is intended to meet the costs of child care, must be treated as a family benefit within the meaning of Article 4(1 )(h) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.

(2) Where an employed person is subject to the legislation of a Member State on the basis of Article 14(l)(a) of Regulation No 1408/71 as a posted worker and lives with his family in another Member State by reason of his posting, his spouse is entitled in accordance with Article 73 of the Regulation to receive family benefit such as the home child-care allowance provided for by the legislation of the first Member State.

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