Keywords
Summary

Keywords

1 Social security for migrant workers - Community rules - Scope ratione materiae - Benefits included and benefits excluded - Distinguishing criteria - Benefits under a national social security scheme covering the risk of reliance on care - Included as a sickness benefit

(Council Regulation No 1408/71, Art. 4(1)(a))

2 Social security for migrant workers - Sickness insurance - Benefits in kind - Definition - National social security scheme covering the risk of reliance on care - Care allowance in the form of financial aid enabling the standard of living of persons requiring care to be improved as a whole - Included

(Council Regulation No 1408/71, Arts 19(1), 25(1) and 28(1))

3 Social security for migrant workers - Sickness insurance - Worker resident in a Member State other than the competent State - National social security scheme covering the risk of reliance on care - Sickness benefits in kind - Condition that the insured person reside in the territory of the Member State where he is insured - Not permissible

(EC Treaty, Arts 6 and 48(2); Council Regulation No 1408/71, Arts 19(1), 25(1) and 28(1))

Summary

4 A benefit may be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. As regards the first of those two conditions, it is common ground that the provisions concerning the grant of care insurance benefits confer on recipients a legally defined right. With regard to the second condition, care insurance benefits are designed to develop the independence of persons reliant on care, in particular from the financial point of view. The system introduced is aimed at encouraging prevention and rehabilitation in preference to care and at promoting home care in preference to care provided in hospital. Benefits of that type are essentially intended to supplement sickness insurance benefits to which they are, moreover, linked at the organisational level, in order to improve the state of health and the quality of life of persons reliant on care. In those circumstances, even if they have their own characteristics, such benefits must be regarded as `sickness benefits' within the meaning of Article 4(1)(a) of Regulation No 1408/71.

5 A benefit such as the care allowance must therefore be regarded as a sickness insurance `cash benefit', as referred to in Articles 19(1)(b), 25(1)(b) and 28(1)(b) of Regulation No 1408/71. First, payment of the allowance is periodical and is not subject either to certain expenditure, such as care expenditure, having already been incurred, or a fortiori to the production of receipts for the expenditure incurred. Secondly, the amount of the allowance is fixed and independent of the costs actually incurred by the recipient in meeting his daily requirements. Thirdly, recipients are to a large extent unfettered in their use of the sums thus allocated to them. In particular, the care allowance may be used by recipients to remunerate a member of their family or entourage who is assisting them on a voluntary basis. The care allowance thus takes the form of financial aid which enables the standard of living of persons requiring care to be improved as a whole, so as to compensate for the additional expense brought about by their condition.

6 Articles 6 and 48(2) of the Treaty do not preclude a Member State from requiring persons working in its territory but residing in another Member State to contribute to a social security scheme covering the risk of reliance on care, although Articles 19(1), 25(1) and 28(1) of Regulation No 1408/71 do prevent entitlement to an allowance such as the care allowance, which constitutes a sickness benefit in cash, from being subject to the condition that the insured person resides in the territory of the Member State where he is insured.

First, an employed person residing in a Member State other than that in which he is employed is to receive, in the Member State in which he resides, benefits such as care insurance benefits in kind in so far as the legislation of that State, whatever the more specific name given to the social protection scheme of which it forms part, provides for the payment of benefits in kind designed to cover the same risks as those covered by care insurance in the Member State of employment. Secondly, a worker is to receive cash benefits such as the care allowance in the Member State in which he resides even if the legislation of that State does not provide for benefits of that type. The same is true with regard to unemployed persons and pensioners covered by the legislation of a Member State other than that in which they reside.