61989J0099

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Social security for migrant workers - Family benefits - Worker subject to the legislation of one Member State - Family members residing in another Member State - Transitional arrangements introduced by Article 60 of the Act of Accession of Spain pending the entry into force of the uniform solution for all the Member States referred to in Article 99 of Regulation No 1408/71 - Application by analogy of Article 73(2 ) of Regulation No 1408/71 - Article 73(2 ) declared by the Court to be invalid - Effects - Generalization of the arrangements established by Article 73(1 ) bringing about the entry into force of the uniform solution - Date of application of Article 73(1 ) to Spanish workers

( EEC Treaty, Art . 51; Act of Accession of 1985, Art . 60; Council Regulation No 1408/71, Arts 73(1 ) and ( 2 ) and 99 )

The uniform solution for all the Member States provided for in Article 99 of Regulation No 1408/71, in the version enacted in Regulation No 2001/83, entered into force on 15 January 1986 following the judgment of the Court of the same date in which Article 73(2 ) of that regulation was declared to be void ab initio; that declaration of invalidity entailed that, in the absence of new rules in conformity with Article 51 of the Treaty, the system for the payment of family benefits laid down in Article 73(1 ) was of general application .

The entry into force of that uniform solution meant that, under Article 60 of the Act of Accession of Spain, the application of Article 73(1 ) of Regulation No 1408/71 could, with effect from 15 January 1986, be relied on by Spanish workers employed in a Member State other than Spain the members of whose families reside in Spain .

In Case C-99/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Sozialgericht ( Social Court ) Frankfurt am Main ( Federal Republic of Germany ) for a preliminary ruling in the proceedings pending before that court between

Francisco Yáñez-Campoy

and

Bundesanstalt fuer Arbeit,

on the interpretation of 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, in its amended version contained in Council Regulation ( EEC ) No 2001/83 of 2 June 1983 ( Official Journal 1983 L 230, p . 6 ),

THE COURT ( Sixth Chamber ),

composed of : G . F . Mancini, President of Chamber, T . F . O' Higgins, M . Díez de Velasco, C . N . Kakouris and P . J . G . Kapteyn, Judges,

Advocate General : C . O . Lenz

Registrar : D . Louterman, Principal Administrator,

after considering the observations submitted on behalf of

Mr Yáñez-Campoy, by Ángel González Maeztu, of the Social Affairs Division of the Spanish Consulate in Frankfurt,

the Government of the Federal Republic of Germany, by Helmut Kaupper, Ministerialrat in the Federal Ministry of Labour and Social Security, acting as Agent,

the Government of the Kingdom of Spain, by Javier Conde de Saro, Director-General for the Legal and Institutional Coordination of Community Affairs, and by Rosario Silva de Lapuerta, abogado del Estado, acting as Agents,

the Government of the Portuguese Republic, by Luís Inês Fernandes, Director of Legal Affairs in the Directorate-General for the European Communities, and Sebasti o Pizarro, Deputy Director of the Department for International Relations and Social Security Conventions, acting as Agents,

the Government of the French Republic, by Edwige Belliard, acting as Agent, and by Claude Chavance, acting as Deputy Agent,

the Commission of the European Communities, by its Legal Adviser, Dimitrios Gouloussis, and by Juergen Grunwald, a member of its Legal Department, acting as Agents,

having regard to the Report for the Hearing,

after hearing oral argument by Mr Yáñez-Campoy, the French Government, represented by P . Pouzoulet, the Portuguese and Spanish Governments, and the Commission, at the hearing on 3 May 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 6 June 1990,

gives the following

Judgment

1 By an order of 13 March 1989, which was received at the Court on 24 March 1989, the Sozialgericht ( Social Court ) Frankfurt am Main referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 73(1 ) and Article 99 of Council Regulation ( EEC ) No 1408/71 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, in its amended version contained in Council Regulation ( EEC ) No 2001/83 of 2 June 1983 ( Official Journal 1983 L 230, p . 6 ).

2 That question arose in proceedings challenging the decision of the Bundesanstalt fuer Arbeit to grant to Mr Yáñez-Campoy family allowances in accordance with Article 40 of the German-Spanish Convention on Social Security of 4 December 1973 rather than under Article 10 of the German law on family benefits, which provides for considerably greater allowances .

3 Article 73(1 ) and ( 2 ) of Regulation No 1408/71, prior to its amendment by Council Regulation ( EEC ) No 3427/89 of 30 October 1989 ( Official Journal 1989 L 331, p . 1 ), provided :

"( 1 ) A worker subject to the legislation of a Member State other than France shall be entitled to the family benefits provided for by the legislation of the first Member State for members of his family residing in the territory of another Member State, as though they were residing in the territory of the first State .

( 2 ) A worker subject to French legislation shall be entitled, in respect of his family residing in the territory of a Member State other than France, to the family allowances provided for by the legislation of such Member State; the worker must satisfy the conditions regarding employment on which French legislation bases entitlement to such benefits ."

4 Article 99 of Regulation No 1408/71, repealed by Article 1(4 ) of Regulation No 3427/89, provided :

"Before 1 January 1973 the Council shall, on a proposal from the Commission, re-examine the whole problem of payment of family benefits to members of families who are not residing in the territory of the competent State, in order to reach a uniform solution for all Member States ."

5 In its judgment of 15 January 1986 in Case 41/84 Pinna v Caisse d' allocations familiales de la Savoie [1986] ECR 1, the Court gave the following preliminary ruling on a question referred to it by the French Court of Cassation :

"( 1 ) Article 73(2 ) of Regulation No 1408/71 is invalid in so far as it precludes the award to employed persons subject to French legislation of French family benefits for members of their family residing in the territory of another Member State .

( 2 ) Except as regards employed persons who have already brought legal proceedings or made an equivalent claim prior to the date of this judgment, the aforesaid invalidity of Article 73(2 ) of Regulation No 1408/71 cannot be relied on in order to support claims for benefits prior to that date ."

6 Following that judgment, and in connection with the same appeal, the Court of Cassation once again stayed the proceedings and referred to the Court questions on the consequences of that judgment . Ruling on that reference, the Court, in its judgment in Pinna II ( Case 359/87 [1989] ECR 585 ), held as follows :

"Until such time as the Council adopts new rules which are in conformity with Article 51 of the Treaty, the fact that Article 73(2 ) of Regulation No 1408/71 has been declared invalid means that the system for the payment of family benefits laid down in Article 73(1 ) of that regulation is of general application ."

7 On 30 October 1989, after the closure of the written procedure in the present case, the Council adopted Regulation No 3427/89, mentioned above . Under the terms of Article 1(1 ) of that regulation, Article 73 of Regulation No 1408/71 was replaced by the following provision :

"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 provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI ."

8 In accordance with Article 3 of Regulation No 3427/89, the regulation entered into force on the day of its publication in the Official Journal of the European Communities, namely on 16 November 1989, and has been applicable since 15 January 1986 .

9 Article 60 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, annexed to the Treaty of 12 June 1985 concerning the accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community ( hereinafter referred to as "the Act of Accession "), provides as follows :

"( 1 ) Until the entry into force of the uniform solution for all the Member States referred to in Article 99 of 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, and until 31 December 1988 at the latest, Articles 73(1 ) and ( 3 ), 74(1 ) and 75(1 ) of Regulation ( EEC ) No 1408/71, and Articles 86 and 88 of Regulation ( EEC ) No 574/72 laying down the procedure for implementing Regulation ( EEC ) No 1408/71 shall not apply to Spanish workers who are employed in a Member State other than Spain, and the members of whose families are resident in Spain .

Article 73(2 ), 74(2 ), 75(2 ) and 94(9 ) of Regulation ( EEC ) No 1408/71, and Articles 87, 89, 98 and 120 of Regulation ( EEC ) No 574/72 shall apply by analogy to these workers .

However, the foregoing is without prejudice to legislative provisions of a Member State whereby family benefits are to be payable in respect of members of the family, whatever their country of residence .

( 2 ) Notwithstanding Article 6 of Regulation ( EEC ) No 1408/71, the following provisions of social security conventions shall continue to apply to Spanish workers during the period referred to in paragraph 1 :

( a ) ...

( b ) Spain-Germany

Points 1 to 4 of Article 40(1 ) of the Convention of 4 December 1973, as amended by Article 2 of the modifying arrangement of 17 December 1975;

..."

10 Mr Yáñez-Campoy, the plaintiff in the main proceedings, is a Spanish national . He resides and is employed in the Federal Republic of Germany . His two children live in Spain .

11 He brought proceedings before the Sozialgericht Frankfurt am Main against the abovementioned decision of the Bundesanstalt fuer Arbeit, arguing that he ought to have received the family allowances provided for in Article 10 of the Federal Law on Family Benefits, instead of the family allowances paid in accordance with Article 40 of the German-Spanish Social Security Convention . The applicant considered that, in accordance with Article 60 of the Act of Accession, and following the judgment of the Court of 15 January 1986 in Pinna, Article 73(1 ) of Regulation No 1408/71 must be applied in favour of Spanish workers with effect from January 1986 .

12 The Sozialgericht Frankfurt am Main decided to request the Court to give a preliminary ruling on the following question :

"Did the uniform solution for all the Member States referred to in Article 99 of Regulation ( EEC ) No 1408/71 enter into force in January 1986 and is Article 73(1 ) of Regulation ( EEC ) No 1408/71 consequently applicable from January 1986 to the children resident in Spain of Spanish workers employed in the Federal Republic of Germany?"

13 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

14 In its question, the national court is asking whether the uniform solution for all the Member States provided for in Article 99 of Regulation No 1408/71 entered into force on 15 January 1986 and whether, consequently, Article 73(1 ) of that regulation is applicable in accordance with Article 60 of the Act of Accession with effect from that date to Spanish workers employed in a Member State other than Spain whose families live in Spain .

15 It should be noted at the outset that Article 60 of the Act of Accession introduced transitional arrangements concerning family allowances for Spanish workers employed in a Member State other than Spain whose families live in Spain . Under those transitional arrangements, Article 73(2 ) of Regulation No 1408/71 is applicable by analogy to such workers .

16 Article 60 provides for two alternative possibilities for bringing an end to those transitional arrangements and for making Article 73(1 ) of Regulation No 1408/71 applicable to Spanish workers and the relevant members of their families, namely the entry into force of the uniform solution provided for in Article 99 of Regulation No 1408/71 or, failing that, the expiry of the transitional period on 31 December 1988 .

17 The present case concerns the period from 1 January 1986, the date of accession by the Kingdom of Spain to the European Communities, to 31 December 1988, the date on which the transitional period ended, and raises the question whether, during that period, the first condition mentioned in Article 60 of the Act of Accession was complied with, that is to say whether the uniform solution provided for in Article 99 of Regulation No 1408/71 did enter into force .

18 Following the judgment of the Court of 15 January 1986, Article 73(2 ) of Regulation No 1408/71 is invalid ab initio . However, the Court limited the temporal effects of that judgment and held that the declared invalidity of Article 73(2 ) of Regulation No 1408/71 could not be relied on to support claims relating to benefits in respect of periods prior to the date of the judgment, except as regards workers who had prior to that date brought legal proceedings or made an equivalent claim .

19 Subsequently the Court held in its judgment of 2 March 1989 that, failing the adoption by the Council of new rules in compliance with Article 51 of the EEC Treaty, the fact that Article 73(2 ) of Regulation No 1408/71 had been declared invalid meant that the system for the payment of family benefits laid down in Article 73(1 ) of that regulation was of general application .

20 In view of that finding, and having regard to the limitation placed by the Court on the temporal effects of its judgment of 15 January 1986, it must be held that the uniform solution for all the Member States provided for in Article 99 of Regulation No 1408/71 entered into force following the judgment of 15 January 1986 .

21 Accordingly, the application of Article 73(1 ) of Regulation No 1408/71 may, with effect from the date of delivery of that judgment and in accordance with Article 60 of the Act of Accession, be relied on by Spanish workers employed in a Member State other than Spain whose families live in Spain .

22 The reply to the question referred to the Court must therefore be that the uniform solution for all the Member States provided for in Article 99 of Regulation No 1408/71 entered into force on 15 January 1986 and that consequently Article 73(1 ) of Regulation No 1408/71 is applicable with effect from that date, in pursuance of the terms of Article 60 of the Act of Accession, to Spanish workers employed in a Member State other than Spain the members of whose families live in Spain .

Costs

23 The costs incurred by the German, Spanish, Portuguese and French Governments and by the Commission of the European Communities, which submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( Sixth Chamber ),

in answer to the question referred to it by the Sozialgericht, Frankfurt am Main, by order of 13 March 1989, hereby rules :

The uniform solution for all the Member States, provided for in Article 99 of Council Regulation ( EEC ) No 1408/71 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, as enacted in Council Regulation ( EEC ) No 2001/83 of 2 June 1983, entered into force on 15 January 1986, and consequently Article 73(1 ) of Regulation ( EEC ) No 1408/71 is applicable with effect from that date, in pursuance of the terms of Article 60 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic, to Spanish workers employed in a Member State other than Spain the members of whose families reside in Spain .