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Document 62002CC0302

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Opinion of Advocate General Kokott delivered on 25 May 2004.
Nils Laurin Effing.
Reference for a preliminary ruling: Oberster Gerichtshof - Austria.
Family benefits - Grant by a Member State of advances on maintenance payments for minor children - Child of a prisoner - Conditions of granting the maintenance payment - Prisoner transferred to another Member State to serve his sentence - Article 12 EC - Articles 3 and 13 of Regulation (EEC) No 1408/71.
Case C-302/02.

European Court Reports 2005 I-00553

ECLI identifier: ECLI:EU:C:2004:315

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Conclusions

OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 25 May 2004(1)

Case C-302/02

Nils Laurin Effing

(Reference for a preliminary ruling from the Oberster Gerichtshof (Austria))

(Family benefits – Grant of advances on maintenance payments for minor children – Child of a prisoner – Residence requirement – Custodial sentence served in another Member State)

I – Introduction

1. By this reference for a preliminary ruling, the Oberster Gerichtshof, Austria, raises the question whether it is compatible with the prohibitions against discrimination on grounds of nationality laid down in Article 12 EC and Article 3 of Council Regulation (EEC) No 1408/71 (2) for a distinction to be drawn, in the context of granting benefits for the children of prisoners, according to whether the custodial sentence is being served in the Member State of origin or in another Member State. Under Austrian law, a child is granted an advance on maintenance payments if the parent liable to provide maintenance is serving a custodial sentence in Austria, but not if that parent is transferred to another Member State to serve his sentence.

II – Legislative framework

A – Community law

2. Under Article 2(1) of Regulation No 1408/71, that regulation is to apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States, as well as to the members of their families and their survivors.

3. Article 1(a)(i) of Regulation No 1408/71 defines an employed person as any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed persons.

4. The legislation applicable in each case is determined in this instance in accordance with Article 13(2):

‘Subject to Articles 14 to 17:

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State, …;

…

(f) a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.’

5. Article 3(1) of Regulation No 1408/71 governs the principle of equal treatment in the application of the regulation. Special rules in respect of family benefits are to be found in particular in Articles 73 and 74.

6. Article 7(2) of Council Regulation (EEC) No 1612/68 (3) provides that a worker who is a national of a Member State is to enjoy, in the territory of the other Member States, the same social and tax advantages as national workers.

7. Under Article 12 of Regulation No 1612/68, the children of a national of a Member State who is or has been employed in the territory of another Member State are to be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory.

B – The Convention on the Transfer of Sentenced Persons

8. Under the Convention on the Transfer of Sentenced Persons, (4) a sentenced person may, with his consent, be transferred to his State of origin in order to serve a sentence imposed on him under a judgment delivered in another State. In that context, the sentence imposed by the sentencing State may be converted into a sentence under the law of the administering State.

9. Since the Convention entered into force with respect to Ireland on 1 November 1995, it has been effective as between all the Member States. It entered into force on 1 January 1987 in respect of Austria, and on 1 January 1992 in respect of Germany. Since then, the new Member States have also ratified the Convention.

C – National law

10. The Austrian Unterhaltsvorschussgesetz (Law on the grant of advances on maintenance payments) provides that advances on maintenance payments are to be granted to minor children if the parent liable to provide maintenance fails to meet his maintenance obligations. Under Paragraph 4(3) of that law, this applies inter alia where the person liable to provide maintenance is deprived of his liberty for longer than one month in Austria pursuant to an order made in criminal proceedings and as a result is unable to meet his maintenance obligation.

11. Under Paragraph 29(1) of the Unterhaltsvorschussgesetz, the maintenance debtor must repay the advances granted under Paragraph 4(3) in so far as this seems appropriate for reasons of equity, taking into account his income and assets and having regard to his care obligations and the purpose of enforcement of the sentence, and does not adversely affect his financial ability to make good the loss caused by him.

12. Germany too has an Unterhaltsvorschussgesetz. (5) Benefits are payable for a maximum of 72 months up until the child concerned reaches the age of 12. There are no special rules for prisoners.

13. Prisoners in both Austria and Germany are under an obligation to work.

III – Facts and question referred

14. Nils Laurin Effing (hereinafter ‘the son’) was born on 22 April 1992 and is the illegitimate son of Ingo Effing (hereinafter ‘the father’), who is a German national. The son is an Austrian national and lives with his mother, who has custody, in Vienna. Although the referring court proceeds on the premiss that the father was an employed person, the Austrian Government has informed the Court that, until 30 June 2001, he was insured for social security purposes as an independent trader. On 7 June 2000, he was detained pending trial in Austria and was subsequently sentenced to a term of imprisonment. As a result, the son was awarded a monthly advance on maintenance payments under Paragraph 4(3) of the Unterhaltsvorschussgesetz, with effect from 1 June 2000.

15. Initially, the father served his custodial sentence in Austria. According to information from the Austrian Government, he was during that time insured against unemployment. On 19 December 2001, he was transferred to Germany to serve the remainder of his sentence.

16. According to information from the German Government, his sentence was converted into a sentence under German law, in accordance with Article 9(1)(b) of the Convention. The German Government has stated that, during his imprisonment, he was gainfully employed from February to July 2002 and from September 2002 to March 2003. Contributions to unemployment insurance, initially, and subsequently to sickness insurance as well, were paid on his behalf. On 3 April 2003, he was released from prison. Information on his employment since then is unavailable.

17. The competent Austrian authorities discontinued the advance on maintenance payments from the end of December 2001. According to the settled case-law of the Austrian courts, advances for prisoners liable to provide maintenance are to be paid only where the sentence is served in Austria.

18. The Austrian Oberster Gerichtshof considers it possible, however, that applying the rules governing advances on prisoners’ maintenance payments in this way may give rise to indirect discrimination on grounds of nationality. In its view, because of the Convention on the Transfer of Sentenced Persons, nationals of other Member States will generally serve any custodial sentences imposed on them in another Member State. Consequently, nationality (of another country) regularly determines whether a person liable to provide maintenance who has been sentenced in Austria will serve his custodial sentence in his State of origin, that is to say outside Austria. However, as a result, it also indirectly determines whether the maintenance-entitled child of a sentenced person can bring a claim for an advance under Paragraph 4(3) of the Unterhaltsvorschussgesetz. The Oberster Gerichtshof has therefore referred the following question to the Court of Justice for a preliminary ruling:

‘Is Article 12 EC, in conjunction with Article 3 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, to be interpreted as precluding a national rule that discriminates against a Community citizen in receipt of advances on maintenance payments, where the father liable for maintaining that citizen is serving a criminal sentence in his Member State of origin (ie not in Austria); and, where the child of a German national is resident in Austria, does denying that child entitlement to maintenance payments because his father is serving a criminal sentence, which was handed down in Austria, in his Member State of origin (and not in Austria) constitute discrimination against that child?’

IV – Legal assessment

A – Regulation No 1408/71

1. Submissions of the parties to the proceedings

19. The parties to the proceedings work on the assumption, based on the judgments in Offermanns (6) and Humer , (7) that advances on maintenance payments are family benefits within the meaning of Article 4(h) of Regulation No 1408/71.

20. In the view of the Austrian Government, however, Regulation No 1408/71 is not applicable ratione personae , since prisoners are not employed persons. If the Court does not share that view, it is, in any event, not Austria which is competent to grant family benefits but Germany. Under Article 13(2)(a) of Regulation No 1408/71, such competence is to be determined by the place of employment. In the alternative, Article 13(2)(f) of Regulation No 1408/71 provides that the provisions of the State of residence are to be applicable. Moreover, it follows from Articles 73 and 74 of Regulation No 1408/71 that entitlement to family benefits for members of the families of employed persons is to be based not on the law of the place of residence but on that of the place where the employed person is employed.

21. In the opinion of the German Government, after being transferred to Germany, the father was an employed person within the meaning of Regulation No 1408/71, since prisoners are insured against unemployment provided that they comply with their obligation to work in prison. There is evidence that he was an employed person during the period of his imprisonment in Austria also, since Austrian law on the enforcement of criminal penalties likewise requires that prisoners must be insured whenever possible.

22. It submits that Article 3(1) of Regulation No 1408/71 in conjunction with Article 12 EC provide for a prohibition against discrimination on grounds of nationality. That prohibition is applicable in this case, since a cross-border relationship is involved. The criterion relating to the place of imprisonment gives rise to indirect discrimination, since the possibility of transfer is regularly taken up by nationals of other Member States. Moreover, this discrimination is not justified by objective considerations independent of nationality. The fiction that the work performed by the prisoner constitutes consideration is not applicable here, since, in other circumstances, the advance on maintenance payments is granted in the interests of the person entitled to maintenance, whether there is any consideration or not. The judgment in Mora Romero (8) likewise precludes such justification, the Court having held there that periods of military service completed in another Member State must be taken into account for the purposes of granting an orphan’s benefit. By extension of the idea that the place of residence of the person entitled to claim should be of no consequence when it comes to granting family benefits, the German Government takes the view that, in the case of continued detention, the place of imprisonment must likewise be insignificant. After all, in accordance with the judgment in Humer , the son can rely on the prohibition of discrimination directly, independently of his father.

23. The Commission too takes the view that the application of Regulation No 1408/71 in this case gives rise to entitlement to advances on maintenance payments. It submits in particular in this respect that, since the father was insured against unemployment during the period of his imprisonment in Germany, he must be regarded as an employed person and the son must accordingly be recognised as being a member of an employed person’s family. As regards the applicable law, regard must be had to the circumstances of the son, since the provisions of the Austrian Unterhaltsvorschussgesetz work to discriminate against him. That discrimination is based directly on nationality, since foreign nationals are usually transferred to other Member States in order to serve their sentences, in which case their children no longer receive advances on maintenance payments. Nor is this precluded by the fact that the son may at the same time have an entitlement against Germany. For, in that event, Regulation No 1408/71 contains rules to prevent overlapping entitlement to benefits, in particular Article 76, which has the effect of suspending the German entitlement.

2. Observations

24. Application of the prohibition of unequal treatment on grounds of nationality laid down in Article 3(1) of Regulation No 1408/71 requires first of all that the person in question should fall within the scope ratione personae of the regulation and that Austrian law should be applicable.

a) The scope ratione personae of Regulation No 1408/71

25. In accordance with Article 2, Regulation No 1408/71 is applicable ratione materiae if the son can be regarded as a member of the family of an employed or self-employed person. (9) Nothing is known about the situation of the mother in this case. It must therefore be examined whether the father can be regarded as an employed person.

26. The meaning of employed person for the purposes of Regulation No 1408/71 is not identical to that of worker for the purposes of Regulation No 1612/68 and Article 39 EC. (10) In the context of Article 39 EC, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. (11) Article 1(a)(i) of Regulation No 1408/71, on the other hand, defines an employed person as any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed persons.

27. The German Government and the Commission rightly regard the father as an employed person, since, according to information from the German Government, he was insured against unemployment for most of his term of imprisonment in Germany. It is true that the Austrian Government questions whether prisoners can constitute employed persons within the meaning of Regulation No 1408/71. However, that view is at odds with the clear definition contained in Article 1(a)(i) of Regulation No 1408/71. Moreover, the reference to insurance status contained in that provision is justified, since Regulation No 1408/71 is primarily concerned with coordination of the social security schemes of the Member States. A consistent system of coordination must also cover periods of insurance completed during the serving of custodial sentences.

28. Nor is the application of Regulation No 1408/71 precluded by the fact that the father cannot, as a prisoner, exercise his freedom of movement. According to settled case-law, Regulation No 1408/71 is applicable to any worker, within the meaning of Article 1 thereof, who has the nationality of a Member State and finds himself in one of the situations involving international elements as provided for in the said regulation, as well as to members of his family. (12) In this case, the cross-border relationship required follows from the very fact that father and son are in different Member States. (13)

29. The father was therefore during his imprisonment an employed person within the meaning of Regulation No 1408/71, since he was affiliated to the unemployment insurance scheme. Any short-term interruptions in the period of insurance, for example in the months of January and August 2002, are not capable of calling into question his status as an employed person, since they are qualitatively comparable to periods of leave or sickness.

b) Applicable law

30. It is doubtful, however, whether the Austrian Unterhaltsvorschussgesetz is applicable to the son of a worker employed in Germany or whether the German Unterhaltsvorschussgesetz would be applicable instead. The applicable law is determined in accordance with the conflict rules in Article 13 et seq. of Regulation No 1408/71. If the law applicable to the son followed from his own situation, then – as the Commission submits – Austrian law would be applicable to him, in accordance with Article 13(2)(f), since he lives in Austria and none of the other conflict provisions is applicable to him. If, however – as the Austrian Government submits –, the applicable law were to be determined by reference to the father’s situation, then German law would be applicable, since the father was employed in Germany from February 2002 and was at least living in Germany in January 2002.

31. There is case-law evidence that the applicable law follows from the father’s situation. In the judgment in Humer , (14) the Court held that Regulation No 1408/71 enables a daughter living in France to claim advances under the Austrian Unterhaltsvorschussgesetz on the basis of her entitlement to maintenance from a father who works and is later unemployed in Austria. If the person of the daughter had been decisive, French law would have been applicable. In the judgment in Hoever and Zachow , (15) the Court held that spouses living in the Netherlands of employed persons working in Germany were entitled to German family benefits. This would not have been possible if Netherlands law had been applicable.

32. Determining the applicable law by reference to the compulsorily insured worker is also, in principle, objectively justified. After all, the vast majority of the social benefits covered are based on insurance schemes.

33. It must therefore be assumed in the considerations that follow that the applicable law is in principle that of the Member State in which the employed or self-employed person on account of whom Regulation No 1408/71 is applicable works. Determining the applicable law in any way by reference to the place of residence of the son would therefore, in this case, have the effect of rendering the legislation of two Member States applicable – not only that of the State where the father is employed but also that of the State where the son resides.

34. Determining entitlement by reference to the law of two Member States is, however, precluded by the basic rule laid down in Article 13(1) of Regulation No 1408/71 to the effect that every person is to be subject to the legislation of a single Member State. The Court has in settled case-law taken the view in this respect that the provisions of Title II of Regulation No 1408/71, of which Article 13 forms part, constitute a complete and uniform system of conflict rules. Those provisions are intended, inter alia, to prevent the concurrent application of a number of national legislative systems and the complications which might ensue. (16) Consequently, to have reference to two systems of legislation in this way would be incompatible with the objectives of Article 13 of Regulation No 1408/71. It is therefore important, when determining the rights of family members, to apply only the law to which the person primarily entitled – in this case the father – is subject.

35. None the less, the Commission suggests that both Austrian law and German law should be applicable in this case. It refers in this respect to Article 76 of Regulation No 1408/71, which governs overlapping entitlement to family benefits. That provision would be redundant if, on the basis of the conflict rules, there were only ever one system of law applicable.

36. The judgment in McMenamin (17) seems to corroborate the argument as to the applicability of two legal systems, at least with respect to family benefits. That case concerned family benefits due to an employed person who worked in Northern Ireland and lived in the Republic of Ireland. She already received benefits from Ireland and claimed additional benefits under United Kingdom law. Under Article 13(2)(a) of Regulation No 1408/71, United Kingdom law alone would have been applicable in that case. The Court held, however, that the rule that a person is subject only to the legislation of the Member State of employment laid down by Article 13 of Regulation No 1408/71 does not preclude certain benefits being governed by the more specific rules of that regulation. It concluded from this that the rules against the overlapping of benefits laid down in Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72 were applicable. (18)

37. In McMenamin , therefore, determination of entitlement by reference to a particular system of legislation, pursuant to the conflict provisions in Regulation No 1408/71, did not have the effect of precluding the application of rules from another system of legislation. This does not mean that the conflict provisions have been abolished, but merely that the Court recognised that the State of residence can grant benefits irrespective of Regulation No 1408/71 where these are to be taken into account in the context of the provisions against overlapping. On the other hand, the rules against overlapping and the judgment in McMenamin are of no legal consequence as regards the law applicable under the conflict provisions of Regulation No 1408/71. It is therefore sufficient to have reference exclusively to German law.

38. The Commission’s view that regard must be had to the person of the son, since the rules of the Austrian Unterhaltsvorschussgesetz indirectly work to discriminate against him, is likewise erroneous. The applicable law cannot be determined on the basis of any legal consequences that ensue in a particular case, since legal consequences presuppose that the rules in question are applicable in the first place. This is apparent in particular in connection with the prohibition of discrimination. Discrimination is possible only where a State treats two identical situations differently or treats different situations in the same way. If, however, Austria is not competent to apply its social law to the son, the son is not discriminated against by Austria.

39. It is not therefore Austrian law but German law which is applicable where family benefits accruing by virtue of the father are claimed under Regulation No 1408/71. (19)

c) Interim conclusion

40. In so far as the reference for a preliminary ruling relates to Regulation No 1408/71, the answer to the question raised must be that Article 3 does not preclude a national rule which prevents Community citizens entitled to maintenance from receiving an advance on maintenance payments where the father liable to provide maintenance is serving a custodial sentence not in the State in which he was employed prior to his imprisonment but in his State of origin.

B – Regulation No 1612/68

1. Article 7(2) of Regulation No 1612/68

a) Commission’s submissions

41. The Commission proposes that the question referred should be reformulated so as to make it possible to examine whether there has been an infringement of the prohibition of discrimination laid down in Article 39 EC in conjunction with Article 7 of Regulation No 1612/68.

42. It relies on the judgment in Nazli (20) to argue that temporary imprisonment does not cause the father to lose his status as a worker within the meaning of Article 39 EC and Article 7(2) of Regulation No 1612/68. The son too, it contends, can rely on Article 7(2) of Regulation No 1612/68. The advance on maintenance payments is a social advantage within the meaning of that provision. Since transfer is possible only in the case of prisoners who do not have Austrian nationality, there is indirect discrimination. The idea that the working prisoner provides consideration is a purely fiscal device which is not capable of justifying the discrimination.

43. The other parties to the proceedings have not commented on Regulation No 1612/68.

b) Observations

44. It is true that the order for reference does not mention Regulation No 1612/68. However, as the Court endeavours to provide the national court with all the guidance necessary to enable it to give a decision in the main proceedings which is in conformity with Community law, (21) the Commission’s suggestion merits closer consideration.

45. Under Article 7(2) of Regulation No 1612/68, a worker who is a national of a Member State is to enjoy in the territory of the other Member States the same social and tax advantages as national workers. That principle of equal treatment prohibits any overt or covert discrimination on grounds of nationality in the grant of the aforementioned advantages.

46. The application of that prohibition on discrimination presupposes that a worker is working in another Member State. To that extent, the father alone is relevant. However, at the material time, the father was no longer in the host State, Austria, but in his State of origin, Germany.

47. Moreover, it is doubtful whether the father, as a prisoner, was a worker. For the purposes of Regulation No 1612/68 – unlike Regulation No 1408/71 –, the general definition of worker contained in Article 39, which is not based on insurance status, is applicable. Under that article, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker. (22)

48. Inmates in German prisons do in principle perform services under direction in return for which they receive a modest remuneration. However, the status of prisoner is incompatible with the concept of freedom of movement for workers. Freedom of movement gives expression to the freedom of the individual to pursue an activity of his choice in a place of his choice. Prisoners are restricted at least as regards the place of their activity and usually, in practice, as regards the type of activity as well. What’s more, the Court has already held that, so far as concerns activities in the context of employment created to maintain, re-establish or develop the capacity for work of persons who, by reason of circumstances relating to their situation, have long been unable to pursue an activity under normal circumstances, the persons in question do not have the status of worker. (23) The decisive factor for the Court in reaching that finding was that the activities could not be regarded as effective and genuine economic activities, since they constituted merely a means of rehabilitating or reintegrating the persons concerned into working life. The employment of prisoners has a similar resocialising function. (24) Consequently, the father could not, during his imprisonment, be regarded as a worker within the meaning of Regulation No 1612/68.

49. Since the direct application of Article 7(2) of Regulation No 1612/68 has been ruled out, a connecting factor warranting the application of that prohibition on discrimination would exist only if the father had the status of worker beforehand.

50. According to settled case-law, although the person concerned does as a rule lose his status of worker once the employment relationship has ended, that status may none the less produce certain effects after the relationship has ended. (25) These are largely set out in the judgment in Lair . (26) They have to do with the conditions under which a person may remain in the host State after his employment relationship has ended by reason of his age, his incapacity for work or in the event of his employment in another Member State. (27) Also, in the event of unemployment, workers continue to benefit from a right of residence (28) and a prohibition against discrimination in relation to national workers so far as concerns reinstatement or re-employment (29) and access to training in vocational schools and retraining centres. (30) Moreover, in the judgment in Lair , the Court extended the prohibition of discrimination in relation to general social advantages to the continuous pursuit of an occupational activity through university study. (31)

51. However, none of those examples of effects resulting from the status of worker concerns advances on maintenance payments for members of the families of prisoners. This case does not involve retirement, the right of residence or reinstatement. Moreover, unlike in Lair , a prisoner’s situation is usually (32) characterised not by a continuation of his previous employment relationship but by the termination of it.

52. The Commission points to another kind of effect resulting from a previous employment relationship. By analogy with the judgment in Nazli , (33) imprisonment is to be regarded merely as a temporary break in an activity pursued by a migrant worker which does not constitute grounds for suspending the rights of the migrant worker and the members of his family. That case concerned the right of Turkish workers, after a certain period of employment, to enjoy free access to any paid employment, and also, in this respect, to acquire a secure right of residence. In accordance with Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association between the Community and Turkey, that right is subject to the condition that the worker should be registered as duly belonging to the labour force of the host Member State. In that case, the Court proceeded on the premiss that a worker is no longer available for work while he is temporarily detained pending trial. It none the less held this to be immaterial where such a state of affairs is only temporary. (34)

53. However, that decision is hardly comparable with the situation in this case. Nazli concerned not the social rights of workers but the right of residence and access to the labour market. Moreover, Mr Nazli was not in prison but in detention pending trial. From the point of view of the presumption of innocence alone, detention pending trial must be regarded as a temporary break in occupational activity. Imprisonment, on the other hand, has a much more drastic effect, at least where it is for a term so long as to preclude the continued existence of an employment relationship.

54. It must therefore be concluded that, as far as the father is concerned, there is no present or previous employment relationship in Austria which gives rise to the application of Regulation No 1612/68.

2. Article 12 of Regulation No 1612/68

55. The prohibition on discrimination under Article 7(2) of Regulation No 1612/68 could, however, be applicable on the ground that the son is presumably engaged in some form of education, a fact which neither the Oberster Gerichtshof nor the parties to the proceedings have taken into account. Under Article 12 of Regulation No 1612/68, children of a national of a Member State who is or has been employed in the territory of another Member State are to be admitted to the State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Although that provision appears at first sight to concern only access to education, the Court has developed it into a personal right of children of migrant workers, while receiving education in the host State, to be afforded the same treatment in the context of recourse to social advantages as the children of nationals of that State. Moreover, because this is a right personal to the child rather than a right enjoyed by the worker for the benefit of the child, there is no conflict with the principle underpinning the conflict provisions in Article 13 et seq. of Regulation No 1408/71, which states that, as a rule, the provisions of a single State are to be applicable.

56. The Court bases its case-law on Article 12 of Regulation No 1612/68 on the consideration that the aim of Regulation No 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker’s family in the society of the host Member State. (35) The substance of Article 12 of Regulation No 1612/68 is not therefore strictly confined to educational access per se, but extends to all measures intended to facilitate educational attendance, including, inter alia, those aimed at the provision of maintenance. (36) In the judgment in Baumbast , the Court even inferred rights of residence for parents from the rights of the children to be admitted to educational courses. (37)

57. Of greater interest for the purposes of this case is the fact that, in the judgment in Echternach and Others , the Court extended the application of the prohibition on discrimination under Article 7(2) of Regulation No 1612/68 to the children of migrant workers where they are admitted to educational courses in the host State under that article, since, if interpreted in any other way, that provision would often have no practical effect. (38) Consequently, those children enjoy in their own right the same social and tax advantages in the host State as the children of national workers.

58. For the purposes of applying the foregoing to this case, it would be necessary first of all to examine whether the son can be regarded as the child of a migrant worker within the meaning of Article 12 of Regulation No 1612/68. Since Article 12 of Regulation No 1612/68 also benefits the children of former migrant workers, it does not matter whether the migrant worker is still in the host State or is still a worker at the time when the child seeks to rely on that article. (39) Nor is it necessary that the conditions laid down in Article 10 should continue to be fulfilled. That provision defines which persons may live with the worker in the host State as members of his family. It requires in particular that the worker must provide for the maintenance of the persons concerned. The rights under Article 12 of Regulation No 1612/68, however, are subject only to the condition that such a situation existed at some stage in the past. They are not dependent on the existence of that situation in the present. (40) It is therefore sufficient that the child should have lived with his parents or either one of them in a Member State whilst at least one of his parents resided there as a worker. (41) These findings, however, must be made by the national court, since the Court does not have sufficient information on whether the son has ever lived with the father or whether the father previously had the status of worker in Austria. (42)

59. On the other hand, what the Court can do in this case is examine whether the advance on maintenance payments constitutes a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 and, if so, whether a refusal to grant it is compatible with that provision.

60. The definition of social advantages is extremely broad. According to the judgment in Lair , it includes all advantages by means of which the migrant worker is guaranteed, in the words of the third recital in the preamble to the regulation, the possibility of improving his living and working conditions and promoting his social advancement. (43) These include all advantages which, whether or not linked to a contract of employment, are granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community. (44)

61. The Court inferred from this that a benefit guaranteeing a minimum means of subsistence, (45) special assistance to students for maintenance, (46) and the German child-raising allowance, (47) which is a family benefit under Regulation No 1408/71, (48) are to be regarded as social advantages.

62. The advance on maintenance payments is without doubt of benefit to the person entitled to maintenance, since he receives maintenance even though the maintenance debtor fails to fulfil his obligations. There is also a functional equivalence between it and the benefits to cover subsistence and maintenance already recognised by the Court. As the Commission rightly submits, the advance on maintenance payments must therefore also be regarded as a social advantage.

63. Consequently, it must be examined whether the distinction drawn according to the place where the maintenance debtor is imprisoned is compatible with the prohibition on discrimination in Article 7(2) of Regulation No 1612/68. That distinction is not directly linked to nationality. However, the principle of equal treatment laid down in Article 7(2) of Regulation No 1612/68 covers not only overt discrimination against persons entitled to benefits by virtue of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result. (49)

64. The Court defined indirect discrimination as follows in the judgment in O’Flynn :

‘Conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers … or the great majority of those affected are migrant workers … or where there is a risk that they may operate to the particular detriment of migrant workers. … It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by the national law … ’ 50 –Cited in footnote 49, paragraph 18 et seq.

65. The decisive factor in the refusal to grant the advance on maintenance payments derives in this case from the nationality of the father. For only sentenced persons of non-Austrian nationality can serve outside Austria a sentence imposed in Austria. Conversely, Austrian nationals who have been sentenced in another Member State can be transferred to Austria under the Convention. In that event, their children are eligible for the advance on maintenance payments. The refusal to grant the advance on maintenance payments in cases where a custodial sentence is being served outside Austria therefore operates to the particular detriment of the members of the families of nationals of other Member States.

66. Such unequal treatment cannot be justified by the fiction of a relationship of supply, in the form of the work performed by the prisoner, and consideration, in the form of the advance on maintenance payments. The German Government rightly refers in this respect to the judgment in Mora Romero , where the Court rejected a similar argument. That case concerned orphan’s benefits, payment of which was extended for the period of any military service completed in the Member State paying the benefit, but not for periods of military service completed in other Member States. The Court regarded this distinction as unlawful discrimination on grounds of nationality which could not be justified by any compensatory function which extension of the benefit might have. (51)

67. In this case, the supply relationship between the performance of work and the advance on maintenance payments is even weaker. The advance on maintenance payments is intended first and foremost to support the family and, in particular, the child. The primary consideration is the right of the Austrian State to obtain repayment of the advance from the maintenance debtor under Paragraph 29 of the Unterhaltsvorschussgesetz. The value of the work performed by the prisoner, on the other hand, is likely to be fully offset if only by the costs of imprisonment (52) which the Austrian treasury no longer has to bear if the sentence is served outside Austria.

68. There would, however, seem to be objective grounds, in the context of the grant of advances on maintenance payments, for any similar benefits which the son receives from Germany under Regulation No 1408/71 by virtue of his father’s employment to be taken into account. To that extent, the provisions to prevent overlapping entitlement contained in Article 76 of Regulation No 1408/71 or in Article 10(1)(a)(i) of Regulation No 574/72 (53) would have to be applied as appropriate. These, depending on the other circumstances involved, would assign primary responsibility for the payment of benefits to either Germany or Austria, the other State being required to pay additional benefits if the amount of its benefits exceeded that of the benefits paid by the State with primary responsibility. (54)

69. To sum up, it must be concluded that Article 12 in conjunction with Article 7(2) of Regulation No 1612/68 preclude a rule which prevents the child of a migrant worker liable to provide maintenance from receiving an advance on maintenance payments where the migrant worker is serving a custodial sentence not in the State granting that benefit but in his State of origin, provided that:

–: that child is engaged in general education or is undertaking an apprenticeship or vocational training course in the State granting that benefit; and

–: that child lived with his parents or either one of them in the Member State granting that benefit whilst at least one of his parents resided there as a worker.

C – Article 12 EC

70. Article 12 EC prohibits discrimination on grounds of nationality only without prejudice to any special provisions contained in the Treaty. The reservation in favour of special provisions, which includes inter alia the implementation of special prohibitions on discrimination contained in the Treaty by provisions of derived legislation, (55) gives expression to the principle of speciality . The questions in this case can be answered solely on the basis of Article 12 and Article 7(2) of Regulation No 1612/68. There is therefore no need for regard be had to Article 12 EC as well.

D – Fair hearing for the parties to the proceedings

71. Finally, it must be pointed out that the foregoing observations on Article 12 in conjunction with Article 7(2) of Regulation No 1612/68 could be regarded as an argument which has not been debated between the parties to the proceedings. It must therefore be examined whether the principle of adversarial procedure requires a reopening of the oral procedure under Article 61 of the Rules of Procedure.

72. The purpose of adversarial procedure, as the Court has described it, is to prevent the Court from being influenced in its decision by an argument which the parties have been unable to discuss. (56) It therefore serves to prevent a decision which the parties had no reason to expect.

73. Although none of the parties to the proceedings has as yet identified the possible applicability of Article 12 in conjunction with Article 7(2) of Regulation No 1612/68, it was not impossible for them to express their views on that solution. After all, it is a solution which follows from the provisions of a regulation – heavily relied by the Commission, moreover – and from settled case-law. No new elements of law have been introduced. The parties to the proceedings were therefore in a position to recognise and express their views on the relevance to this case of Article 12 in conjunction with Article 7(2) of Regulation No 1612/68. For that reason, it is arguable that the oral procedure need not be reopened.

V – Conclusion

74. I therefore propose that the Court’s answer to the reference for a preliminary ruling should be as follows:

(1): Article 3 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community does not preclude a rule which prevents Community citizens entitled to maintenance payments from receiving an advance on such payments where the father liable to provide maintenance is serving a custodial sentence not in the State in which he was employed prior to his imprisonment but in his State of origin.

(2): Article 12 in conjunction with Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community preclude a rule which prevents the child of a migrant worker liable to provide maintenance from receiving an advance on maintenance payments where the migrant worker is serving a custodial sentence not in the State granting that benefit but in his State of origin, provided that:

–: that child is engaged in general education or is undertaking an apprenticeship or vocational training course in the State granting that benefit; and

–: that child lived with his parents or either one of them in the Member State granting that benefit whilst at least one of his parents resided there as a worker.

1 –: Original language: German.

2 –: Regulation 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 (OJ, English Special Edition 1971 (II), p. 416), as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001 (OJ 2001 L 187, p. 1) – hereinafter ‘Regulation No 1408/71’.

3 –: Regulation of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), as amended by Council Regulation (EEC) No 2434/92 of 27 July 1992 (OJ 1992 L 245, p. 1) – hereinafter ‘Regulation No 1612/68’.

4 –: Strasbourg, 21 March 1983, ETS No. 112.

5 –: Amended by Notice of 2 January 2002, BGBl. 2002/615.

6 –: Case C-85/99 [2001] ECR I-2261.

7 –: Case C-255/99 [2002] ECR I-1205.

8 –: Case C-131/96 [1997] ECR I-3659.

9 –: . Humer (cited in footnote 7, paragraph 35).

10 –: Case C-85/96 Martínez Sala [1998] ECR I-2691, paragraph 31.

11 –: . Martínez Sala (cited in footnote 10, paragraph 32).

12 –: Joined Cases C-95/99 to C-98/99 and C-180/99 Khalil and Others [2001] ECR I-7413, paragraph 55. See also, on the earlier Regulation No 3, Case 27/69 Compagnie belge d’assurances générales sur la vie et contre les accidents [1969] ECR 405, paragraph 4.

13 –: Similarly, the situation in Case 115/77 Laumann [1978] ECR 805, paragraph 5, Case C-194/96 Kulzer [1998] ECR I-895, paragraph 30, and Humer (cited in footnote 7, paragraph 48).

14 –: Cited in footnote 7.

15 –: Case C-245/94 and C-312/94 [1996] ECR I-4895.

16 –: This view is expressed inter alia in Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 28.

17 –: Case C-119/91 [1992] ECR I-6393.

18 –: . McMenamin (cited in footnote 17, paragraph 14 et seq.).

19 –: If it is considered necessary to examine entitlement under the German Unterhaltsvorschussgesetz, it should be pointed out that the judgments in Offermans (cited in footnote 6) and Humer (cited in footnote 7) seem to be transposable to the benefit at issue here.

20 –: Case C-340/97 [2000] ECR I-957.

21 –: The Court examined Regulation No 1612/68 in Case 94/84 Deak [1985] ECR 1873, paragraph 18 et seq., for example; Regulation No 1408/71, despite not having been referred to in the order for reference, was examined in Mora Romero (cited in footnote 8, paragraph 21 et seq.).

22 –: . Martínez Sala (cited in footnote 10, paragraph 32).

23 –: Case 344/87 Bettray [1989] ECR 1621, paragraph 17 et seq.

24 –: See the German Bundesverfassungsgericht (Constitutional Court), 2 BvR 441/90 of 1 July 1998, paragraph 137 et seq.

25 –: . Martínez Sala (cited in footnote 10, paragraph 32).

26 –: Case 39/86 [1988] ECR 3161, paragraph 31 et seq.; see also the judgments in Case C-35/97 Commission v France [1998] ECR I-5325, paragraph 41, and Case C-413/01 Ninni-Orasche [2003] ECR I-0000, paragraph 34.

27 –: Article 39(3)(b) EC and Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition 1970 (II), p. 402).

28 –: Article 7 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition 1968 (II), p. 485).

29 –: Article 7(1) of Regulation No 1612/68.

30 –: Article 7(3) of Regulation No 1612/68.

31 –: Cited in footnote 26, paragraph 37 et seq..

32 –: None the less, continuation of the employment relationship seems, exceptionally, not to be precluded where the prisoner pursues his previous occupation under market conditions in prison, for example by way of self-employment in accordance with Paragraph 39(1) of the German Strafvollzugsgesetz (Law on the enforcement of criminal penalties).

33 –: Cited in footnote 20.

34 –: . Nazli (cited in footnote 20, paragraph 41 et seq.)

35 –: See, for example, Case C-413/99 Baumbast [2002] ECR I-7091, paragraph 50, and Case 9/74 Casagrande [1974] ECR 773, paragraph 3 et seq.

36 –: See, for example, Joined Cases 389/87 and 390/87 Echternach and Others [1989] ECR 723, paragraph 32 et seq., and Casagrande (cited in footnote 35, paragraph 3).

37 –: Cited in footnote 35, paragraph 68 et seq.

38 –: . Echternach and Others (cited in footnote 36, paragraph 34), Case C-308/89 di Leo [1990] ECR I-4185, paragraph 14 et seq., and Case C-7/94 Gaal [1995] ECR I-1031, paragraph 30.

39 –: . Echternach and Others (cited in footnote 36, paragraph 36 et seq.).

40 –: . Gaal (cited in footnote 38, paragraph 20 et seq.).

41 –: Case 197/86 Brown [1988] ECR 3205, paragraph 30, and Gaal (cited in footnote 38, paragraph 27).

42 –: If the father had never been a worker in Austria, as might be indicated by his insurance as an independent trader, it would have to be examined whether the freedom of establishment or the general prohibition on discrimination confers directly on the children of self-employed persons rights comparable with those enjoyed by the children of migrant workers under Regulation No 1612/68.

43 –: Cited in footnote 26, paragraph 20.

44 –: Case 249/83 Hoeckx [1985] ECR 973, paragraph 20, and Martínez Sala (cited in footnote 10, paragraph 25).

45 –: . Hoeckx (cited in footnote 44, paragraph 22).

46 –: . Lair (cited in footnote 26, paragraph 23), Echternach and Others (cited in footnote 36, paragraph 34), di Leo (cited in footnote 38, paragraph 14 et seq.) and Gaal (cited in footnote 38, paragraph 30).

47 –: . Martínez Sala (cited in footnote 10, paragraph 26).

48 –: . Hoever and Zachow (cited in footnote 15, paragraph 16 et seq.).

49 –: Case C-237/94 O’Flynn [1996] ECR I-2617, paragraph 17 with further references.

50 –: Cited in footnote 49, paragraph 18 et seq.

51 –: . Mora Romero (cited in footnote 8, paragraph 35).

52 –: According to Susanne Meyer, in ‘Die Tageshaftkosten der deutschen Strafvollzugsanstalten: Ein Überblick’, Darmstadt Discussion Papers in Economics/Arbeitspapiere des Instituts für Volkswirtschaftslehre , number 121 (2003), per diem imprisonment costs in Germany range from €61.09 in Bayern to €91.40 in Hamburg. The figures are likely to be the same for Austria.

53 –: Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71, as amended and updated by Regulation (EC) No 1386/2001 of the European Parliament and the Council of 5 June 2001 (OJ 2001 L 187, p. 1).

54 –: . McMenamin (cited in footnote 17).

55 –: . Mora Romero (cited in footnote 8, paragraph 11).

56 –: Order in Case C-17/98 Emesa Sugar [2000] ECR I-665, paragraph 18.

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