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1. Social security for migrant workers ° Community rules ° Scope ratione materiae ° Benefits covered and benefits excluded ° Criteria for distinguishing ° Benefit intended to meet the claimant' s family expenses and granted on the basis of objective, legally-defined criteria ° Included ° Non-contributory benefit ° No effect
(Council Regulation No 1408/71, Art. 4(1)(h))
2. Social security for migrant workers ° Family benefits ° Employed person subject to the legislation of one Member State but resident with his family in another Member State ° Derived right of spouse to the family benefits provided for by the legislation to which the worker is subject ° Conditions
(Council Regulation No 1408/71, Art. 73)
1. The distinction between benefits excluded from the scope of Regulation No 1408/71 and those which fall within its scope is based essentially on the constituent elements of the particular benefit, in particular its purposes and the conditions on which it is granted, and not on whether a benefit is classified as a social security benefit by national legislation.
A benefit intended to meet family expenses which is granted or refused on the basis of objective, legally-defined criteria, namely the claimant' s assets, income, and the number and age of his dependent children, without any individual and discretionary assessment of personal needs, must be considered a family benefit for the purposes of Article 4(1)(h) of Regulation No 1408/71.
The fact that the grant of the benefit is not subject to any contribution requirement is immaterial, since classification of a benefit as a social security benefit covered by Regulation No 1408/71 does not depend on the method by which it is financed.
2. Where an employed person is subject to the legislation of a Member State and lives with his family in another Member State, his spouse who has never been resident or employed in the State in which the worker is employed may rely on Article 73 of Regulation No 1408/71 in order to claim a derived right to receive family benefits for the members of the worker' s family from the competent institution of that State, provided that the worker fulfils the conditions laid down in Article 73 and provided also that under national legislation the family benefits concerned are provided for family members.