61995J0077

Social policy ° Equal treatment for men and women in matters of social security ° Persons covered by Directive 79/7 ° Working population within the meaning of Article 2 of the directive ° Person who undertakes, as an unremunerated activity, the care of his or her handicapped spouse but has not abandoned an occupational activity or interrupted efforts to find employment ° Excluded

(Council Directive 79/7, Art. 2)

Article 2 of Directive 79/7 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, which defines the persons to whom it applies by reference to the working population, must be interpreted as not covering a person who undertakes, as an unremunerated activity, the care of his or her handicapped spouse, regardless of the extent of that activity and the competence required to carry it out, where the person in question did not, in order to do so, abandon an occupational activity or interrupt efforts to find employment.

An interpretation purporting to include within the concept of working population a member of a family who, without payment, undertakes an activity for the benefit of another member of the family on the ground that such activity calls for a degree of competence, is of a particular nature or scope or would have to be provided by an outsider in return for remuneration if the member of the family in question did not provide it would have the effect of infinitely extending the scope of the directive, whereas the purpose of Article 2 of the directive is precisely to delimit that scope.

In Case C-77/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Hanseatisches Oberlandesgericht, Bremen, Germany, for a preliminary ruling in the proceedings pending before that court between

Bruna-Alessandra Zuechner

and

Handelskrankenkasse (Ersatzkasse) Bremen

on the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24), and of the principles of Community law governing the liability of public authorities,

THE COURT (Fifth Chamber),

composed of: L. Sevón, President of Chamber, acting for the President of the Fifth Chamber (Rapporteur), C. Gulmann, D.A.O. Edward, J.-P. Puissochet and P. Jann, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Mrs Zuechner, by Gerhard Zuechner, her husband,

° Handelskrankenkasse (Ersatzkasse) Bremen, by Werner Schmalenberg, Rechtsanwalt, Bremen,

° the German Government, by Ernst Roeder, Ministerialrat in the Federal Ministry of Economic Affairs, and Bernd Kloke, Oberregierungsrat in the same ministry, acting as Agents,

° the United Kingdom Government, by Lindsey Nicoll, of the Treasury Solicitor' s Department, acting as Agent, and Dinah Rose, Barrister,

° the Commission of the European Communities, by Marie Wolfcarius, of its Legal Service, and Horstpeter Kreppel, a national civil servant seconded to the Commission, acting as Agents, assisted by Klaus Bertelsmann, Rechtsanwalt, Hamburg,

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Zuechner, represented by Gerhard Zuechner, the Handelskrankenkasse (Ersatzkasse) Bremen, represented by Wolfgang Liening, Rechtsanwalt, Bremen, the German Government, represented by Bernd Kloke, the United Kingdom Government, represented by Dinah Rose, and the Commission, represented by Marie Wolfcarius and Peter Hillenkamp, Legal Adviser, acting as Agents, assisted by Professor Ursula Rust, of the University of Bremen, at the hearing on 4 July 1996,

after hearing the Opinion of the Advocate General at the sitting on 11 July 1996,

gives the following

Judgment

1 By order of 14 February 1995, received at the Court on 15 March 1995, the Hanseatisches Oberlandesgericht (Higher Regional Court), Bremen, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty five questions on the interpretation of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24, hereinafter "the directive"), and of the principles of Community law governing the liability of public authorities.

2 Those questions were raised in proceedings relating to an application for legal aid brought by Mrs Zuechner to enable her to challenge the refusal by her husband' s sickness insurance fund to grant her any payment in respect of the therapeutic treatment provided by her for her husband.

3 According to the documents before the Court, Mr Zuechner, who had previously been engaged in an occupational activity, became paraplegic following an accident. As a result of his condition, he requires assistance from another person in the form both of therapeutic treatment and of general care and home nursing, as defined by the Sozialgesetzbuch V (SGB V ° Social Welfare Code, Book V). His wife provides that care in its entirety.

4 Mr Zuechner' s sickness insurance fund provides financial assistance for the general care and home nursing. However, as far as the therapeutic treatment is concerned, it relies on Paragraph 37(3) of the Sozialgesetzbuch V, according to which "entitlement to home nursing shall arise only where there is no person living in the household who can assist and care for the patient to the extent necessary".

5 Mrs Zuechner considers that provision to be contrary to the directive. Owing to her lack of means, she applied to the Landgericht (Regional Court) Bremen for legal aid to enable her to bring an action for damages against the sickness insurance fund. Her application was rejected by decision of 20 January 1994, whereupon she appealed to the Oberlandesgericht, Bremen. By a first order of 30 June 1994, the Oberlandesgericht, without ruling whether or not Mrs Zuechner belonged to "the working population" within the meaning of the directive, took the view that the legal provision at issue was not discriminatory. Since Mrs Zuechner' s intended action did not appear sufficiently likely to succeed, one of the conditions for the grant of legal aid was not met and the Oberlandesgericht therefore dismissed her appeal.

6 In response to an objection, the Oberlandesgericht withdrew its order of 30 June 1994 and, by a further order dated 14 February 1995, referred the following questions to the Court of Justice, to enable it to decide whether the action contemplated by Mrs Zuechner was sufficiently likely to succeed:

1. Does the plaintiff, as the wife of an insured person who is in need of care, belong to the working population within the meaning of Article 2 of the Directive?

2. Although Paragraph 37(3) of the SGB, Book V, is formulated in neutral terms with regard to sex, does it discriminate, within the meaning of the Directive, against the plaintiff as a woman?

3. Does the plaintiff, who is not insured by the defendant, have direct entitlement, or does her husband, as the insured person, alone have direct entitlement?

4. Is the defendant itself liable, as an organ of the State (substitute sickness insurance fund)? If not, who is liable in its stead?

5. Does a claim for breach of official duty, irrespective of fault, exist under the law of the European Communities, or can a claim for breach of official duty arise only from Paragraph 839 of the Buergerliches Gesetzbuch (Civil Code) in conjunction with Article 34 of the Grundgesetz (Basic Law)?

7 By its first question, the Oberlandesgericht asks whether the term "working population" in Article 2 of the directive must be interpreted as covering a person such as the plaintiff in the main proceedings in her capacity as the spouse of an insured person who is in need of care. Putting its question in context, the national court expresses the view that Mrs Zuechner is not a member of the working population within the meaning of Article 2 of the directive but that a broader interpretation might be envisaged since she provides her disabled husband with care extending far beyond that normally provided in the context of marriage.

8 According to Article 2, the directive applies to the "working population ° including self-employed persons, workers and self-employed persons whose activity is interrupted by illness, accident or involuntary unemployment and persons seeking employment ° and to retired or invalided workers and self-employed persons".

9 Neither in her written observations nor at the hearing did the plaintiff in the main proceedings deny that she was not engaged in an occupational activity when her husband suffered his accident. She contends, however, that she forms part of the working population within the meaning of Article 2 of the directive since she provides care for which she had to undergo training and which, by virtue of its nature and scope, can be assimilated to an occupational activity. If she did not provide such care, it would have to be provided by someone else against payment or in a hospital. The Commission endorses that argument.

10 The defendant in the main proceedings and the German and United Kingdom Governments consider, on the other hand, that Mrs Zuechner is not a member of the working population within the meaning of the directive since she was not engaged in an occupational activity before she started looking after her husband. Moreover, according to the United Kingdom Government, a carer cannot be regarded as a member of the working population within the meaning of the directive merely because of the extent of the care provided.

11 The concept of working population in Article 2 of the directive is very wide and includes people who are working, those who are seeking employment and those whose work or efforts to find work have been interrupted by materialization of any of the risks mentioned in Article 3 of the directive. The Court has further held that a person is still a member of the working population even if it is in relation to an ascendant that one of the risks mentioned in Article 3 materializes, forcing him or her to interrupt his or her occupational activity (Case 150/85 Drake v Chief Adjudication Officer [1986] ECR 1995), or where the risk materializes while the person concerned is seeking employment immediately after a period without occupational activity (Case C-31/90 Johnson v Chief Adjudication Officer [1991] ECR I-3723), or where the employment in question is regarded as minor since it consists of less than 15 hours' work a week and attracts remuneration of less than one-seventh of the average monthly salary (Case C-317/93 Nolte v Landesversicherungsanstalt Hannover [1995] ECR I-4625 and Case C-444/93 Megner and Sheffel v Innungskrankenkasse Rheinhessen-Pfalz [1995] ECR I-4741).

12 On the other hand, the directive does not apply to people who are not working and are not seeking work or to persons whose occupation or efforts to find work were not interrupted by one of the risks referred to in Article 3 of the directive (Joined Cases 48/88, 106/88 and 107/88 Achterberg-te Riele and Others v Sociale Verzekeringsbank, Amsterdam [1989] ECR 1963, paragraph 13, and Johnson, paragraph 20). The Court has also held that a person who has given up his or her occupational activity in order to attend to the upbringing of his or her children does not fall within the scope of the directive (Johnson, paragraph 19).

13 It follows that the term "activity" referred to in relation to the expression "working population" in Article 2 of the directive can be construed only as referring at the very least to an economic activity, that is to say an activity undertaken in return for remuneration in the broad sense.

14 It must be recognized that a person may be obliged to have recourse to the services of another when he is unable, or no longer able, to perform a particular activity himself, whether it be the education of children, housework, management of private property or mere incidents of daily life. In the main, such activities call for a degree of competence, are of a certain scope and must be provided by an outsider in return for remuneration if there is no-one else, whether or not a member of the family, who will do so without payment.

15 It follows that an interpretation purporting to include within the concept of working population a member of a family who, without payment, undertakes an activity for the benefit of another member of the family on the ground that such activity calls for a degree of competence, is of a particular nature or scope or would have to be provided by an outsider in return for remuneration if the member of the family in question did not provide it would have the effect of infinitely extending the scope of the directive, whereas the purpose of Article 2 of the directive is precisely to delimit that scope.

16 The answer to the first question must therefore be that Article 2 of the directive must be interpreted as not covering a person who undertakes, as an unremunerated activity, the care of his or her handicapped spouse, regardless of the extent of that activity and the competence required to carry it out, where the person in question did not, in order to do so, abandon an occupational activity or interrupt efforts to find employment.

17 In view of the answer given to the first question, it is unnecessary to answer the other questions submitted by the national court.

Costs

18 The costs incurred by the German and United Kingdom Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the first question referred to it by the Hanseatisches Oberlandesgericht, Bremen, by order of 14 February 1995, hereby rules:

Article 2 of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security must be interpreted as not covering a person who undertakes, as an unremunerated activity, the care of his or her handicapped spouse, whatever the extent of that activity and the competence required in order to perform it, where the person in question did not, in order to do so, abandon an occupational activity or interrupt efforts to find employment.