OPINION OF ADVOCATE GENERAL
TIZZANO
delivered on 2 December 2003(1)

Silke Gaumain-Cerri
v
Kaufmännische Krankenkasse - Pflegekasse

(Reference for a preliminary ruling from the Sozialgericht Hannover (Germany))

(Freedom of movement of workers – Social security – Regulation (EEC) No 1408/71 – Care insurance – Definition of worker – Third parties caring for persons reliant on care – Pension contributions – Discrimination on the basis of place of residence)(Freedom of movement of workers – Social security – Regulation (EEC) No 1408/71 – Care insurance – Definition of worker – Third parties caring for persons reliant on care – Pension contributions – Discrimination on the basis of place of residence)

I – Introduction

1. In the present cases the Court is called upon to answer similar questions raised by the Sozialgericht (Social Court) Hannover (Germany) (hereinafter the ‘Sozialgericht Hannover’) and the Sozialgericht Aachen (Germany) (hereinafter the ‘Sozialgericht Aachen’).

2. The courts of reference ask the Court essentially whether the Community rules on the freedom of movement for persons and social security for migrant workers preclude the refusal of some German social security institutions to pay certain social security contributions to persons living in a Member State other than Germany who provide non-professional care to persons living in Germany who are not self-sufficient or are affiliated to the German care insurance system.

II – Legal background

A – The relevant provisions of Community law

3. As is well known, ‘freedom of movement for workers shall be secured within the Community’ by Article 39 EC and ‘shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment’.

4. Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (hereinafter ‘Regulation No 1612/68’) (2) was adopted to give concrete implementation to the freedom of movement and the prohibition of discrimination between workers of the Member States.

5. Article 7 of that regulation states that:

‘1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment;

2. He shall enjoy the same social and tax advantages as national workers.’

6. Regulation (EEC) No 1408/71 of the Council 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 (hereinafter ‘Regulation No 1408/71’) (3) introduced rules for coordinating national provisions on social security.

7. Article 1 provides that, for the purpose of the regulation,

‘(a): “employed person” and “self-employed person” mean respectively:

(i): 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 or self‑employed persons or by a special scheme for civil servants;

...

(b): “frontier worker” means any employed or self-employed person who pursues his occupation in the territory of a Member State and resides in the territory of another Member State to which he returns as a rule daily or at least once a week; ...

...

(j): “legislation” means in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4(1) and (2) ...

The term excludes provisions of existing or future industrial agreements, whether or not they have been the subject of a decision by the authorities rendering them compulsory or extending their scope. However, in so far as such provisions:

(i): serve to put into effect compulsory insurance imposed by the laws and regulations referred to in the preceding subparagraph;

(ii): ...

the limitation on the term may at any time be lifted by a declaration of the Member State concerned specifying the schemes of such a kind to which this Regulation applies. ...

...

(t): “benefits” and “pensions” mean all benefits and pensions, including all elements thereof payable out of public funds, revalorisation increases and supplementary allowances, subject to the provisions of Title III, as also lump-sum benefits which may be paid in lieu of pensions, and payments made by way of reimbursement of contributions;

...’

8. As regards the persons covered, Article 2(1) provides that the regulation applies to ‘employed or self-employed persons and to students 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’.

9. With regard to the scope ratione materiae, under Article 4 the regulation applies, in so far as it is of interest in the present case,

‘1. ... to all legislation concerning the following branches of social security:

(a) sickness and maternity benefits;

...

2. ... to all general and special social security schemes, whether contributory or non-contributory, and to schemes concerning the liability of an employer or shipowner in respect of the benefits referred to in paragraph 1.

...’

10. Article 3(1) of the same regulation enshrines the principle of equal treatment, stipulating that:

‘Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of the State.’

11. For its part, Article 13 of the regulation lays down the criteria for determining the law applicable to the branches of social security falling within the scope of the regulation. In so far as concerns us here, it provides the following:

‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

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 even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

(b): a person who is self-employed in the territory of one Member State shall be subjected to the legislation of that State even if he resides in the territory of another Member State;

...’

12. Title III of the regulation lays down ‘special provisions relating to the various categories of benefits’.

13. In particular, Articles 18 et seq. contain provisions on sickness and maternity benefits.

14. For the purposes of the present case, it is appropriate to mention here Article 19, under which:

‘1. An employed or self-employed person residing in the territory of a Member State other than the competent State, who satisfies the conditions of the legislation of the competent State for entitlement to benefits ... shall receive in the State in which he is resident:

(a): benefits in kind provided on behalf of the competent institution by the institution of the place of residence in accordance with the provisions of the legislation administered by that institution as though he were insured with it;

(b): cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State.

2. The provisions of paragraph 1 shall apply by analogy to members of the family who reside in the territory of a Member State other than the competent State in so far as they are not entitled to such benefits under the legislation of the State in whose territory they reside.

...’

15. Lastly, Article 20 of the regulation lays down special provisions for frontier workers and members of their families, stipulating that:

‘A frontier worker may also obtain benefits in the territory of the competent State. Such benefits shall be provided by the competent institution in accordance with the provisions of the legislation of that State, as though the person concerned were resident in that State.

Members of his family may receive benefits under the same conditions; however, receipt of such benefits shall, except in urgent cases, be conditional upon an agreement between the States concerned or between the competent authorities of those States or, in its absence, on prior authorisation by the competent institution.’

B – The national legislation

16. Book XI of the Sozialgesetzbuch (Social Law Code) (hereinafter ‘SGB XI’) regulates the Soziale Pflegeversicherung (social care insurance, hereinafter also referred to as ‘care insurance’).

17. Under those provisions any person belonging to the statutory sickness insurance scheme is required to pay contributions for social care insurance (Paragraph 20 of SGB XI).

18. Moreover, pursuant to Paragraph 23 of SGB XI, persons who do not belong to the statutory sickness insurance scheme but are covered by a private sickness insurance policy or by the special social security scheme for public employees are required to top up their social security insurance by taking out a compulsory supplementary care insurance policy with an institution of their choice. As regards membership and benefits, the supplementary insurance is subject by law to conditions similar to those applicable to the social care insurance scheme (Paragraph 110 of SGB XI).

19. Social security insurance pays to the insured, his spouse and children who are ‘persons reliant on care’ (4) a monthly benefit to cover the cost of home care provided by third parties (care allowance) as well as other social security benefits.

20. One of the latter that is relevant for the purposes of this case is the payment of the pension contributions of the third party caring for the insured, as provided for by Paragraph 44(1) of SGB XI, pursuant to which:

‘To improve the social security of carers within the meaning of Paragraph 19 [of SGB XI], the care insurance institutions and private insurance undertakings with which private care insurance is taken out ... shall pay contributions to the relevant statutory pension insurer. ... More detailed rules are contained in Paragraph 3 ... of Book VI [of the Sozialgesetzbuch] ...’

21. As can be seen from the provision cited above and as explained in the orders for reference, contributions are paid only if two conditions are met. First, the activities of the carer must meet the requirements set out in Paragraph 19 of SGB XI, and secondly they must be activities for which membership of a pension scheme is compulsory pursuant to Paragraph 3 of Book VI of the SGB (‘Gesetzliche Rentenversicherung’) (5) (hereinafter ‘SGB VI’).

22. As to the first condition, it has to be stated that ‘carers’ within the meaning of Paragraph 19 of SGB XI are persons providing care on a non-professional basis for at least 14 hours a week to a person in need of care in that person’s home.

23. As regards the second condition, Paragraph 3(1)(1)(a) of SGB VI requires a compulsory contribution to cover old-age and invalidity pensions and death to be paid by persons providing home-based non-professional care for at least 14 hours a week to a person in need of care if that person is entitled to benefits under the care insurance.

24. Furthermore, with regard to the second condition, it must also be recalled that, pursuant to Paragraph 3 of Book IV of the SGB (‘Gemeinsame Vorschriften für die Sozialversicherung’) (6) (hereinafter ‘SGB IV’),

‘The provisions on the insurance obligation and insurance entitlement shall apply:

1. to the extent that they require employment or a self-employed activity, to all persons who are employed or actively self-employed within the area of application of this statutory code;

2. to the extent that they do not require employment or a self-employed activity, to all persons who have their permanent or usual residence within the area of application of the SGB.’

III – Facts and procedure

The procedure before the national courts

Case C‑502/01 Gaumain-Cerri

25. Mrs Gaumain-Cerri, a German national, lives in France with her husband, a French national. Both spouses work part-time for an undertaking in Germany so that during the rest of the day they can devote themselves to the care and attendance of their disabled younger son. By virtue of their employment in Germany, they are members of the German sickness and social security system via the social security institution Kaufmännische Krankenkasse-Pflegekasse – KKH (hereinafter ‘the KKH’). Since 1997 their son has received monthly care allowance from the KKH.

26. In 2000 the couple asked the KKH to pay to the competent social security institution on their behalf the compulsory pension contributions for voluntary carers, pursuant to Paragraph 44 of SGB XI. By a decision of 16 May 2000, the KKH refused the application on the basis of the fact that the Gaumain-Cerris live abroad and are therefore not subject to the insurance obligation under Paragraph 3(2) of SGB IV. The applicants’ objection was in turn dismissed by the KKH by a decision of 17 July 2000.

27. Considering that the contested decision discriminates against her and her husband as frontier workers, Mrs Gaumain-Cerri brought an action before the Sozialgericht Hannover on 26 July 2000, seeking annulment of the decision of the KKH and an order requiring the latter to pay the pension contributions.

28. The court hearing the action stayed the proceedings and submitted the following questions to the Court for a preliminary ruling:

‘(a): Can the expressions “sickness benefit” and “old-age benefit” within the meaning of Article 1 of Regulation No 1408/71 cover benefits paid by one insurer to another if the insured derives only an abstract and indirect advantage therefrom (payment of pension insurance contributions by the care insurance fund on behalf of a voluntary carer)? If they can, under what circumstances can they do so?

(b): Is there a prohibition of discrimination under primary or secondary Community law from which it follows that a benefit as described in (a) above is to be granted irrespective of whether the activity conferring the entitlement to benefit is carried on in Germany or in another EU Member State, and irrespective of where the insured or the immediate beneficiary has his residence?’

Case C‑31/02 Barth

29. Case C‑31/02 relates to the non-payment by certain German institutions of pension contributions for the care activities performed in Germany by a German national resident in another Member State, Belgium.

30. The case revolves around the question whether Mrs Barth – who cares for a retired public servant for a total of 18 hours a week for a monthly wage of around EUR 400 – is entitled to have her compulsory pension contributions paid by the insurance institutions with which the patient has taken out care insurance.

31. The institutions in question are the Landesamt für Besoldung und Versorgung Nordrhein-Westfalen (hereinafter the ‘Landesamt’), the insurance institution competent for the social security of German civil servants, and a private insurance company (PAX Familienfürsorge Krankenversicherung, hereinafter ‘PAX’) with which the patient has taken out a compulsory supplementary care insurance policy pursuant to Paragraph 23 of SGB XI in combination with Paragraph 110 of SGB XI (see paragraph 18 above).

32. The institutions in question initially arranged to pay, on Mrs Barth’s behalf, the pension contributions laid down in Paragraph 44 of SGB XI to the Landesversicherungsanstalt Rheinprovinz (hereinafter the ‘LVR’), the institution to which Mrs Barth is affiliated. Subsequently, however, the LVR issued a decision in which it claimed that Mrs Barth was not subject to compulsory contributions as she was resident abroad, so that both the Landesamt and PAX discontinued payment of the said contributions.

33. Mrs Barth brought an action against the decision of the LVR before the Sozialgericht Aachen, in which she required the Landesamt and PAX to appear as co-defendants.

34. The court hearing the dispute stayed proceedings in order to submit the following questions to the Court for a preliminary ruling:

‘1): Are the provisions 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 also applicable to the German care insurance regime if the insurance cover under Paragraph 23 of SGB XI, in conjunction with Paragraph 110 of SGB XI, ... is based in whole or in part on a private care insurance policy?

2): Do the contributions payable by care insurance institutions on behalf of carers not acting in the course of employment pursuant to Paragraph 44 of SGB XI, in conjunction with Paragraph 3(1)(1) of SGB VI, ... constitute “sickness benefits” within the meaning of Article 4(1)(a) of Regulation ... No 1408/71? If so, may such benefits be payable on behalf of carers who provide care in the country of the competent institution but live in a different Member State?

3): Are carers within the meaning of Paragraph 19 of SGB XI workers within the meaning of Article 39 EC? If so, does that preclude denying them benefits consisting in the “payment of old-age pension insurance contributions” in that they do not have their residence or habitual place of stay in the competent country?’

Proceedings before the Court

35. By order of the President of the Court of 21 July 2003, it was decided to join the two cases on account of the connection between them.

36. The KKH and the Commission submitted observations in Case C‑502/01, while in Case C‑31/02 the German and Greek Governments also presented observations.

37. In the course of the proceedings the Court submitted a written question to the German Government, in which it was asked to state whether agreements under Article 20 of Regulation No 1408/71 (7) existed between the Federal Republic of Germany and the French Republic. In reply, the German Government stated that no such agreements exist, either in the care insurance sector or in that of sickness insurance.

IV – Legal assessment

Introduction

38. In both of the cases pending before the national courts it is essentially a question of establishing whether Community law prevents a Member State from applying rules that make residence in that state a condition for the payment of social security contributions on behalf of persons providing care on a non-professional basis to persons who are not self-sufficient and who are members of the national care insurance scheme.

39. I am bound to note, however, that the questions submitted to the Court by the courts of reference are not identically worded, nor asked in the same order. The decision to join the cases therefore makes it necessary to rearrange them and, to some degree, reword them so that they can be dealt with in as uniform a manner as possible.

40. It is therefore appropriate, in my opinion, to ascertain first whether the payment of the pension contributions in question falls within the scope of Regulation No 1408/71. For that purpose, it is necessary to ask whether the applicants in the main proceedings are ‘workers’ within the meaning of the regulation and then to establish whether the payment of contributions on behalf of the carer can be described, in the light of the circumstances of the present cases, as an ‘old-age benefit’ or a ‘sickness benefit’, again within the meaning of the said regulation (first question in Case C‑502/01 and the first part of the second question in Case C‑31/02).

41. Having thus ascertained the scope of Regulation No 1408/71, it is then necessary to establish whether its provisions preclude the application of national regulations such as those at issue in the main proceedings, which make the payment of the said pension contributions subject to a residence requirement (part of the second question in Case C‑502/01 and the second part of the second question in Case C‑31/02).

42. Only at that point will it be possible usefully to deal with the first question in Case C‑31/02 and ask whether the provisions of the regulation are also applicable where care insurance is provided only in part by a public institution within the framework of social security insurance where the remaining part is covered by compulsory supplementary insurance with a private insurer on terms broadly equivalent to those applying to social security insurance.

43. Finally, we shall ask whether Article 39 EC or other Treaty provisions relating to the freedom of movement of persons and the prohibition of discrimination based on nationality preclude the application of national rules of the kind involved in the main proceedings (part of the second question in Case C‑502/01 and third question in Case C‑31/02).

The admissibility of the reference for a preliminary ruling in Case C‑31/02 Barth

44. Before examining the questions, as reworded, it is necessary to deal with the objection from the German Government, in which it essentially disputes the admissibility of the entire reference for a preliminary ruling in Case C‑31/02.

45. In the opinion of that government, the questions submitted by the Sozialgericht Aachen are not necessary for resolving the dispute because, in contrast to the view apparently held by that court, it is sufficient to apply correctly the relevant provisions of the Sozialgesetzbuch to justify acceptance of Mrs Barth’s application and recognise her right to payment of the pension contributions mentioned in Paragraph 44 of SGB XI.

46. The interpretation of national law proposed by the German Government may well be the more correct one; it remains a fact, however, that in the case in point the court of reference made a different assessment, on the basis of which it deemed it necessary to submit the present questions to the Court for a preliminary ruling.

47. It is well-known and settled case-law that ‘it is not for the Court of Justice to rule on the interpretation of provisions of national law but that it must take account, under the division of jurisdiction between the Community courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the question put to it is set’. (8)

48. In my view, there are therefore no grounds for accepting the objection of inadmissibility raised by the German Government.

The scope of Regulation No 1408/71

49. Turning now to the questions from the national courts, arranged in the manner I have described above, the first matter to be dealt with concerns the scope of Regulation No 1408/71. It is necessary, in particular, to ascertain first whether it applies ratione personae to persons in the situation of the applicants and, secondly, whether the contested pension benefits fall within its scope ratione materiae (first question in Case C‑502/01 and first part of the second question in Case C‑31/02).

50. For clarity of exposition, these points will be examined separately, in the order set out above.

The scope ratione personae

51. I wish to point out first of all that under Article 2, Regulation No 1408/71 applies ‘to employed or self‑employed persons’. It is therefore necessary to ask whether a carer within the meaning of Paragraph 19 of SGB XI is a ‘worker’ as defined in the regulation.

52. The Greek Government and the KKH propose, albeit in rather apodictic terms, that the reply to this question should be in the negative. The sole argument put forward by the KKH in support of that conclusion is the claim that in German law the care activities mentioned in Paragraph 19 of SGB XI can be described neither as employment nor as self-employment.

53. The Commission, for its part, emphasises that the concept of ‘worker’ is clearly defined in Article 1(a) of the regulation and includes any person covered by one of the social security schemes contemplated by the regulation. In its view, that requirement is undoubtedly met in the case of carers within the meaning of Paragraph 19 of SGB XI, so that it must be concluded that the applicants are workers within the meaning of Regulation No 1408/71.

54. For myself, I have no hesitation in sharing the position of the Commission.

55. Indeed, it has long been a clear tenet of Community case-law that the concept of ‘worker’ contained in Regulation No 1408/71 is a Community concept (9) and means ‘any person who is insured under one of the social security schemes referred to in Article 1(a) for the contingencies and on the conditions mentioned in that provision’. (10)

56. The Court has already stated in the past that care insurance does, in fact, come under one of the abovementioned schemes (11) in that it is ‘essentially intended to supplement sickness insurance benefits’. (12)

57. It can therefore be held firmly that an insured person with care insurance, as are Mrs Gaumain-Cerri and her son in Case C‑502/01, is a ‘worker’ within the meaning of Regulation No 1408/71 because that person is insured under one of the social security schemes mentioned in Article 1(a) of the regulation.

58. That being so, I further note that the concept of ‘worker’ accepted for the present purposes in the abovementioned case-law of the Court (see paragraph 55 above) necessarily implies that it also encompasses persons providing care to the insured, which is precisely the situation of Mrs Barth in Case C‑31/02, regardless of whether or not a payment is made for her activities and the scale of any remuneration.

59. Indeed, in the German social security system persons performing care activities on a non-professional basis for at least 14 hours a week are obliged – if one disregards the residence requirement – to join a scheme providing old-age and invalidity pensions and death benefit, under Paragraph 3(1)(1)(a) of SGB VI.

60. As is well known, Regulation No 1408/71 applies, in accordance with Article 4 of that regulation, to old-age benefits, invalidity benefits and death grants.

61. Hence, persons providing care in circumstances such as those in the case in point are also ‘workers’ within the meaning of Article 1(a) of Regulation No 1408/71 because they are insured under one of the schemes considered by the regulation.

62. I therefore suggest that the Court reply to the courts of reference that a person covered by the care insurance scheme of Book XI of the SGB accords with the concept of ‘worker’ within the meaning of Article 1 of Regulation No 1408/71; a person providing care within the meaning of Paragraph 19 of SGB XI also accords with that concept and for that reason is insured under one of the social security schemes mentioned in Article 1(a) of Regulation No 1408/71.

The scope ratione materiae

63. That being so, it is now necessary to establish whether the payment of pension contributions by the care insurance institution on behalf of the carer under Paragraph 44 of SGB XI falls within the scope ratione materiae of the regulation, as defined in Article 4 thereof (see paragraph 9 above).

64. According to the KKH, the reply must be in the negative, because the payment of the contested contributions constitutes neither a sickness benefit nor an old-age benefit under Article 4 of the regulation.

65. In the view of the KKH, it is not, in fact, a question of ‘benefits’ but of contributions that the carer is required to pay to a sickness or old-age pension scheme in order to acquire entitlement to the benefits of those social security schemes.

66. The fact that such contributions are borne by the insurance institution of the person for whom care is provided is not sufficient, according to the KKH, to transform them into social security benefits in favour of that other person. The benefit that the person receiving care derives from that payment would be too indirect.

67. Nor is it possible, the KKH continues, to justify the opposite stance by citing the case-law of the Court regarding care insurance.

68. The KKH concedes that in the Molenaar judgment (13) the Court recognised care insurance allowances as sickness benefits, but maintains that it did so only because they are paid direct to the care recipient in order to supplement sickness insurance benefits.

69. In the case in point, by contrast, the contributions are paid not to the care recipient but to the pension institution to which the carer is affiliated. The KKH asserts that that payment is thus in no way a supplement to sickness insurance benefits and can therefore not be classified as a sickness benefit within the meaning of Article 4 of the regulation.

70. For my part, I have to say at once that I do not share this view.

71. I would point out first that, according to consistent case-law, 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’. (14)

72. The KKH does not dispute the fact that the care insurance benefits – including the payment of the contributions mentioned in Paragraph 44 of SGB XI – are granted to recipients without any administrative discretion being exercised, on the basis of an objective and legally defined position.

73. Moreover, nobody disputes the fact that, as the Court made clear in the Molenaar judgment, (15) the care insurance benefits as a whole can be categorised as a ‘sickness benefit’ (and in particular as a sickness insurance cash benefit) within the meaning of Article 4(1)(a) of Regulation No 1408/71.

74. The point of contention is, in reality, whether the payment of the contributions in question has characteristics which differ to such an extent from those of other care insurance benefits that it must be classified differently.

75. It seems to me, as it does to the Greek Government and the Commission, that in the present case there are no grounds for excluding the payment of the contributions in question from the list of ‘sickness benefits’ in favour of the insured, as mentioned in the Molenaar judgment, cited above.

76. I agree in particular with the Commission when it maintains that in that judgment the Court, while referring directly to the care allowance alone, in reality enunciated a general principle, namely the principle that, in the context of a scheme such as the care insurance scheme, all benefits that take 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’ are ‘sickness insurance cash benefits’. (16)

77. The payment of the contributions involved in the present case makes it possible, first and foremost, to improve the standard of living of the person in need of care, because it permits that person – as the facts of Case C-502/01 demonstrate – to remain in his home environment by receiving free of charge the care he needs from a family member who, despite for this reason reducing the external work and the income of the family unit, should not forgo the accrual of pension entitlements.

78. Moreover, as the Sozialgericht Aachen also observes in the order for reference, the payment of the abovementioned contributions clearly constitutes a financial subsidy to the person in need of care because it permits him to receive care from a non-professional carer without having to pay, directly or indirectly, the compulsory pension contributions.

79. As far as concerns us here, therefore, the payment of the contributions for the old-age pension of the carer can be considered a sickness insurance cash benefit in favour of the person in need of care, in the light of the criteria expounded by the Court in the Molenaar judgment, cited above.

80. Nor is there any merit in raising as a counter-argument the fact that the contributions in question are paid neither to the dependent person nor to the third person who cares for him but direct to the pension institution with which the third person is insured for the old-age pension.

81. As the Greek Government and the Commission rightly point out, according to the case-law of the Court payments by means of which an institution acting under a particular social security scheme directly bears the contributions payable by the worker to another institution under a different social security scheme can be considered as benefits paid by the first institution in favour of the worker for the purposes of Regulation No 1408/71, (17) despite the fact that the payment of those contributions is made directly from the first social security institution to the second.

82. From this I therefore conclude that the payment of the pension contributions for the benefit of the carer by the care insurance institution under Paragraph 44 of SGB XI constitutes a sickness insurance cash benefit within the meaning of Article 4(1) of Regulation No 1408/71 in favour of the person covered by the care insurance.

The second question in Case C‑502/01 and the second part of the second question in Case C‑31/02

83. In the second question in Case C‑502/01 and the second part of the second question in Case C‑31/02 the national courts ask essentially whether Regulation No 1408/71 precludes the application of a rule such as Paragraph 3(2) of SGB IV that prevents persons resident abroad from benefiting from payment of the pension contributions specified in Paragraph 44 of SGB XI.

Arguments of the parties

84. With reference to Case C‑502/01, the KKH points out that both the carer (the applicant) and the person in need of care (her son) live in France, and hence in a Member State other than that in which the institution competent to pay the contested benefits has its place of business (Germany). The defendant in the main proceedings goes on to maintain that the applicant and her son are treated in the same way as any other person providing or receiving voluntary care in France and living in that country.

85. According to the KKH, the fact that they are not granted entitlement to the contested benefits in Germany on account of their residence abroad does not therefore give rise to discrimination nor does it conflict in other ways with the harmonised system established by Regulation No 1408/71.

86. The KKH maintains that, by contrast, there is no merit in citing the fact that the applicant in the main proceedings is both a carer and an insured worker, entitled to care insurance benefits in the state of the competent institution. Such a combination is entirely fortuitous, according to the KKH, and can therefore have no effect on the legal position of the applicant as carer.

87. In the opinion of the KKH, in essence, the two distinct legal positions of insured worker and carer have to be assessed separately in the light of Regulation No 1408/71. Hence, a person entitled under the regulation to sickness insurance cash benefits as an insured worker, irrespective of any residence requirement, cannot rely on that status to obtain different benefits to which that person may have a right in the different status of carer.

88. The Commission, for its part, notes first that, under Article 13(2)(a) and (b) of the regulation, the pension scheme of an employed or self-employed person in a Member State is governed by the legislation of the state of employment unless the regulation itself provides otherwise. Hence, both in Case C‑502/01 and in Case C-31/02, German law is applicable as the law of the state of employment of the person belonging to the care insurance scheme.

89. On that premiss, the Commission points out that the regulation contains not only provisions coordinating the applicable law but also specific rules for harmonising the substantive rules.

90. These include, in particular, Article 19, under which an employed or self-employed person residing in a Member State other than the competent State is entitled to the sickness insurance cash benefits provided by the institutions of that state in accordance with the legislation which they administer.

91. As the Court has already made clear in the Molenaar judgment, a provision which prohibits the cash payment of care insurance benefits in the Member State in which the migrant worker resides conflicts with Article 19 of the regulation. (18)

92. As the payment of the contributions at issue in the case is itself a care insurance cash benefit, it must therefore be held that Article 19 of Regulation No 1408/71 precludes the application of a provision such as Paragraph 3(2) of SGB IV that prevents persons resident abroad from benefiting from payment of the pension contributions specified in Paragraph 44 of SGB XI.

93. The foregoing, the Commission continues, is certainly true of Case C‑502/01, and an identical conclusion must also be reached in Case C‑31/02, as the particular facts of that case cannot justify a different reply.

94. Indeed, according to the Commission it is certainly true that the benefit at issue in that case falls within the scope of the regulation in so far as it is paid in favour of the care recipient, while Article 19 is then invoked to prohibit discrimination to the detriment of the carer.

95. The Commission points out that here we have a ‘substitution of persons’ that is entirely admissible in this context; on a previous occasion, in fact, the Court has, according to the Commission, applied Regulation No 1408/71 to a case in which the worker and the recipient of the benefit were not the same person. (19)

96. Hence, in Case C 31/02 as well it could be asserted, according to the Commission, that Article 19 of Regulation No 1408/71 precludes the application of a residence requirement in circumstances such as those of the case in question.

97. But there is more. According to the Commission, the application of such a requirement is also contrary to the principle of equal treatment enunciated in Article 3(1) of the regulation.

98. Indeed, the Court has stated clearly that ‘the equal treatment rule laid down in Article 3(1) of Regulation No 1408/71 prohibits not only overt discrimination based on the nationality of the beneficiaries of social security schemes but also all covert forms of discrimination which, through the application of other distinguishing criteria, lead in fact to the same result’. (20)

99. In order to eliminate any form of discrimination and ensure the complete equality of treatment required by Article 3, the Commission continues, the Member States are required to ‘equate’ certain situations arising in another Member State to the equivalent national situation. In the present case, Article 3 of Regulation No 1408/71 requires the actual foreign residence of the carer to be ‘equated’ to fictitious German residence and hence to consider the residence requirement laid down in Paragraph 3 of SGB IV to have been met.

Assessment

100. For my part, I consider that this question cannot be resolved in a uniform way in the cases in the main proceedings because I believe that significant differences between the two situations in question call for them to be assessed separately.

– Case C-502/01

101. I note first that the benefits involved in the present case fall within the scope ratione materiae of the regulation, being sickness benefits in favour of the worker affiliated to the care insurance scheme (see paragraph 79 above).

102. Consequently, it is precisely in her status as a worker affiliated to the care insurance scheme that the applicant in Case C‑502/01 can rely on the provisions of the regulation to challenge the refusal of the defendant to pay the contested benefits.

103. On that premiss, I have to agree with the Commission when it observes that essentially this question has already been tackled and resolved by the Court in the Molenaar judgment.

104. On that occasion the Court made clear that a national provision ‘which prohibits “cash” payment of care insurance benefits in the Member State in which the migrant worker resides’ conflicts with Article 19 of the regulation.

105. Since the payment of the contributions involved in the case is a care insurance cash benefit in favour of the applicant in the main proceedings, it follows that the application of the residence requirement under Paragraph 3 of SGB IV, in the circumstances of this particular case, is incompatible with Article 19 of the regulation.

106. I therefore conclude that, with regard to Case C‑502/01 and in the circumstances of that case, Article 19 of Regulation No 1408/71 prohibits the refusal of the competent social security institution to pay a benefit such as that described in Paragraph 44 of SGB XI by reason of the foreign residence of the applicant.

– Case C-31/02

107. In my opinion, a different assessment must be made in Case C‑31/02.

108. In contrast to the view held by the Commission, I consider that in the case under discussion the regulation does not preclude the application of the national regulations in question because I do not believe that the payment of the contributions in question can be categorised as ‘sickness benefits’ in favour of the applicant, within the meaning of the regulation, and in particular Article 19 thereof.

109. As the Court has had occasion to point out in the past, a distinction must be drawn between a contribution to the payment of insurance premiums on the one hand and social security benefits in the proper sense on the other, because a contribution to the payment of insurance premiums is not granted after the risk insured against has materialised, but rather helps create an entitlement to social security benefits when that risk materialises. (21)

110. There is no doubt that the payment of the contested contributions in favour of Mrs Barth does not take place after one of the risks covered by the applicant’s sickness or old-age pension insurance has materialised. It merely helps create a future entitlement to the payment of social security benefits, but cannot be described as a ‘sickness insurance cash benefit’ or an ‘old-age cash benefit’ in favour of the applicant, to which the latter is entitled under Article 19.

111. I do not believe that a different solution can be derived from Article 3 of the regulation, as the Commission contends.

112. I would remind the Court in this regard that, under that article, persons ‘to whom this Regulation applies’ are subject to the obligations and ‘enjoy the same benefits under the legislation of any Member State’ (22) as the nationals of that state.

113. As is well known, for the purposes of applying the regulation the term ‘legislation’ means in respect of each Member State the provisions of the national legal code ‘relating to the branches and schemes of social security covered by Article 4(1) and (2)’, (23) that is to say, in so far as the present case is concerned, the ‘branches of social security [relating to] ... sickness [or] old‑age benefits’.

114. In the present case this means that the applicant can rely on Article 3 of the regulation solely to challenge discrimination that denies her ‘sickness benefits’ or ‘old-age benefits’ which she could otherwise have enjoyed.

115. However, for the reasons I have indicated above (see paragraphs 109 and 110), I do not consider that the payment of the pension contributions contested in this case can be classified as a ‘sickness benefit’ or an ‘old-age benefit’ in favour of the carer. The latter, in my opinion, cannot usefully invoke Article 3 of the regulation in support of her claim.

116. I therefore have to conclude that, with regard to Case C‑31/02 and in the circumstances of that case, neither Article 3 nor Article 19 of Regulation No 1408/71 prohibits the refusal of the competent social security institution to pay a benefit such as that described in Paragraph 44 of SGB XI by reason of the foreign residence of the applicant.

The first question in Case C-31/02

117. In the first question in Case C‑31/02 the Sozialgericht Aachen asks essentially whether Regulation No 1408/71 also applies to the part of care insurance that is covered not by the public care insurance scheme under Paragraph 20 of SGB XI care but by benefits provided by a private insurance institution, in accordance with Paragraphs 23 and 110 of SGB XI.

118. The only observations submitted to the Court on this point are those from the Greek Government and the Commission.

119. The Greek Government considers that the regulation does not apply to a contract under private law. In its opinion, that can be concluded from Article 1(j), which, in defining the scope of the concept of ‘national legislation’ within the meaning of the regulation, excludes ‘provisions of existing or future industrial agreements’.

120. According to the Commission, by contrast, since the rules governing the supplementary insurance policy are in every way identical to those applicable to public care insurance, it should be concluded that the regulation is fully applicable to the benefits provided for under the ‘private’ supplementary scheme.

121. For myself, since I have already concluded with regard to Case C‑31/02 that Regulation No 1408/71 does not, in the circumstances of that case, prohibit the competent social security institution from refusing to pay a benefit of the kind described in Paragraph 44 of SGB XI by reason of the foreign residence of the applicant, I do not consider that the Court need deal with this question.

Discrimination prohibited by the Treaty

Introduction

122. In the second question in Case C‑502/01 and the third question in Case C-31/02 the national courts ask the Court essentially whether Article 39 EC or other Treaty provisions relating to the freedom of movement of persons and the prohibition of discrimination based on nationality preclude the application of a provision such as Paragraph 3 of SGB IV, which makes the payment of the pension contributions described in Paragraph 44 of SGB XI subject to a residence requirement.

123. In the light of the replies I have proposed to the preceding questions, it is appropriate to deal with this question exclusively by reference to Case C‑31/02 Barth.

Arguments of the parties

124. According to the Greek Government, application of the residence requirement in the case in question infringes Article 39 EC. The Court has consistently held that a person employed for a limited number of hours a week in exchange for a limited remuneration is nevertheless a ‘worker’ within the meaning of Article 39 EC, provided that the activities performed are ‘effective and genuine’. (24)

125. The Commission, for its part, notes that the application of Paragraph 3 of SGB IV leads to denial of the right to payment of the pension contributions, to the detriment of the applicant in the main proceedings. Such loss, according to the Commission, is due solely to the fact that the applicant originally lived in Germany but subsequently transferred her residence to another Member State; by contrast, a person who had remained resident in Germany would have been entitled to have those contributions paid.

126. In the opinion of the Commission as well, therefore, the application of such a provision is liable to discriminate against persons exercising freedom of movement and hence is incompatible with Articles 18 EC, 39 EC and 42 EC.

Assessment

127. I wish to begin by saying that, for reasons of clarity, the reply to this question should, in my opinion, be in two parts. It will be necessary to determine first whether a person in the situation of the applicant in Case C‑31/02 is a ‘worker’ within the meaning of Article 39 EC. If so, it must then be asked whether application of the residence requirement in the circumstances of the specific case constitutes discrimination prohibited by Article 39(2) EC.

The concept of worker within the meaning of Article 39 EC

128. In this regard I note first that, according to the settled case-law of the Court, ‘since freedom of movement for workers constitutes one of the fundamental principles of the Community, the term “worker” in Article 48 (now, after amendment, Article 39 EC) ... has a Community meaning’ (25) and may not be interpreted narrowly. (26) It therefore includes every 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’. (27)

129. In particular, the Court has made clear that the concept of ‘worker’ also applies to a person who is not in full-time employment and does not receive remuneration capable of ensuring, by itself, a dignified standard of living (the so-called ‘minimum means of subsistence’), (28) provided that the person engages in ‘effective and genuine activities’, to the exclusion only of ‘activities on such a small scale as to be regarded as purely marginal and ancillary’. (29)

130. Care activities such as those under consideration in this case, performed for 18 hours a week in exchange for a monthly remuneration of about EUR 400, are undoubtedly ‘effective and genuine activities’ within the meaning of the case-law cited above.

131. It can therefore be stated that a person who performs effective and genuine care services for and under the direction of another person, as does the applicant in Case C‑31/02, is a worker within the meaning of Article 39 EC.

Discrimination prohibited under Article 39(2) EC

132. On that premiss, I must further note that the application of a provision such as Paragraph 3 of SGB IV in the circumstances of the case in question has the potential to impede the freedom of movement of workers by making it financially less ‘attractive’ because it deprives frontier workers of an advantage that is generally granted to national workers.

133. It is appropriate, then, to ask whether such an advantage constitutes one of the ‘social advantages’, the enjoyment of which is safeguarded by Article 7 of Regulation No 1612/68 implementing the freedom of movement proclaimed in Article 39 EC. I would point out that Article 7 first establishes in paragraph 1 that ‘a worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work’ and then lays down in paragraph 2 that he is to enjoy the same social advantages as national workers.

134. According to consistent case-law, ‘the concept of social advantage, referred to in Article 7(2) of Regulation No 1612/68, ... means ... all the advantages which, whether or not linked to a contract of employment, are generally 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’. (30)

135. The payment of pension contributions by the care insurance institution is precisely one of the rights generally granted to national workers ‘because of their objective status as workers’: in the case in point, because of their objective status as persons caring for a person in need of care for more than 14 hours a week. Moreover, there is no doubt that the extension of such a right to the nationals of other Member States is ‘likely to facilitate the mobility of such workers within the Community’.

136. It can therefore be held that here we have a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, to which the prohibition on discrimination laid down in Article 7(1) of that regulation in implementation of Article 39(2) EC therefore applies.

137. If that is so, the established principle applies, according to which ‘the rules regarding equal treatment forbid not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result’. (31) As is well known, these are ‘conditions imposed by national law ... where, although applicable irrespective of nationality, they affect essentially migrant workers ... or the great majority of those affected are migrant workers, ... where they are indistinctly applicable but can more easily be satisfied by national workers than by migrant workers ... or where there is a risk that they may operate to the particular detriment of migrant workers’, (32) without there being any objective justification for such inequality of treatment. (33)

138. It is obvious that the condition of residency for the purpose of acquiring the right to payment of the pension contributions described in Paragraph 44 of SGB XI, although indistinctly applicable, operates to the particular detriment of a specific category of migrant workers, that is to say frontier workers.

139. Moreover, no objective element has emerged from the documents in the case to justify the inequality of treatment between residents and non-residents as regards the right to payment of the pension premia described in Paragraph 44 of SGB XI.

140. Such a measure must therefore be held to be indirectly discriminatory and, as such, contrary to Article 39(2) EC and Article 7 of Regulation No 1612/68.

141. I therefore conclude that, with regard to Case C‑31/02 and in the circumstances of that case, Article 39(2) EC and Article 7 of Regulation No 1612/68 prohibit the application of a provision such as Paragraph 3 of SGB IV which makes payment of the pension contributions described in Paragraph 44 of SGB XI subject to the requirement that the recipient reside in German territory.

V – Conclusion

142. In the light of all the foregoing, I propose that the Court reply as follows to the questions from the Sozialgericht Hannover in Case C‑502/01 and from the Sozialgericht Aachen in Case C‑31/02:

1): A person covered by the care insurance scheme of Book XI of the SGB accords with the concept of ‘worker’ within the meaning of Article 1 of Regulation No 1408/71; a person providing care within the meaning of Paragraph 19 of SGB XI also accords with that concept and for that reason is insured under one of the social security schemes mentioned in Article 1(a) of Regulation No 1408/71.

2): Payment of the pension contributions for the benefit of the carer by the care insurance institution under Paragraph 44 of SGB XI constitutes a sickness insurance cash benefit within the meaning of Article 4(1) of Regulation No 1408/71 in favour of the person covered by the care insurance.

3): With regard to Case C‑502/01 and in the circumstances of that case, Article 19 of Regulation No 1408/71 prohibits the refusal of the competent social security institution to pay a benefit such as that described in Paragraph 44 of SGB XI by reason of the foreign residence of the applicant.

4): With regard to Case C‑31/02 and in the circumstances of that case, neither Article 3 nor Article 19 of Regulation No 1408/71 prohibits the refusal of the competent social security institution to pay a benefit such as that described in Paragraph 44 of SGB XI by reason of the foreign residence of the applicant.

5): A person who performs effective and genuine care services for and under the direction of another person, as does the applicant in Case C‑31/02, is a worker within the meaning of Article 39 EC.

6): With regard to Case C‑31/02 and in the circumstances of that case, Article 39(2) EC and Article 7 of Regulation No 1612/68 prohibit the application of a provision such as Paragraph 3 of SGB IV which makes payment of the pension contributions described in Paragraph 44 of SGB XI subject to the requirement that the recipient reside in German territory.

1 –: Original language: Italian.

2 –: OJ, English Special Edition 1968 (II), p. 475.

3 –: OJ, English Special Edition 1971 (II), p. 416; the most recent consolidated version is to be found in OJ 1997 L 28, p. 1.

4 –: As defined in Paragraph 14 of SGB XI.

5 –: Statutory pension insurance.

6 –: Common provisions regarding social security insurance.

7 –: See paragraph 15 above.

8 –: See, among many others, the judgments in Case C‑475/99 Ambulanz Glöckner v Landkreis Südwestpfalz [2001] ECR I‑8089, paragraph 10, and recently in Case C‑462/99 Connect Austria v Telekom-Control-Kommission [2003] ECR I‑5197, paragraph 71. Emphasis added.

9 –: See the judgments in Cases C‑2/89 Bestuur van de Sociale Verzekeringsbank v Kits van Heijningen [1990] ECR I‑1755, paragraphs 8-10, and C‑266/95 Merino García v Bundesanstalt für Arbeit [1997] ECR I‑3279, paragraph 22; during the currency of Council Regulation No 3/64/CEE on the social security of migrant workers, see to the same effect the judgment in Case 75/63 Hoekstra (née Unger) v Bestuur der Bedrijfsvereniging voor Detailhandel en Ambachten [1964] ECR 177, paragraph 1.

10 –: .Kits van Heijningen judgment, cited above, paragraph 9. See also the Opinion of Advocate General Tesauro in that case, paragraphs 15 and 16.

11 –: Judgment in Case C‑160/96 Molenaar and Fath‑Molenaar v Allgemeine Ortskrankenkasse Baden‑Württemberg [1998] ECR I‑843, paragraphs 20-25.

12 –: .Molenaar judgment, cited above, paragraph 24.

13 –: .Molenaar judgment, cited above, paragraphs 20-25.

14 –: Judgment in Case C‑78/91 Hughes v Chief Adjudication Officer, Belfast [1992] ECR I‑4839, paragraph 15, and the Molenaar judgment, cited above, paragraph 20. See also the previous judgments, in identical terms, in Cases 249/83 Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn, Kalmthout [1985] ECR 973, paragraphs 12-14, and 122/84 Scrivner and Cole v Centre Public d’Aide Sociale de Chastre [1985] ECR 1027, paragraphs 19-21.

15 –: .Molenaar judgment, cited above, paragraph 35.

16 –: .Molenaar judgment, cited above, ibid.

17 –: Judgment in Case C‑73/99 Movrin v Landesversicherungsanstalt Westfalen [2000] ECR I‑5625.

18 –: .Molenaar judgment, cited above, paragraph 39.

19 –: Judgment in Case C‑255/99 Humer [2002] ECR I‑1205.

20 –: Judgments in Cases 237/78 CRAM v Toia [1979] ECR 2645, paragraph 12, and C‑131/96 Mora Romero v Landesversicherungsanstalt Rheinprovinz [1997] ECR I‑3659, paragraph 32.

21 –: Judgment in Case 103/75 Aulich v Bundesversicherungsanstalt für Angestellte [1976] ECR 697, paragraph 7; to the same effect, see the Movrin judgment, cited above, paragraph 41.

22 –: Emphasis added.

23 –: Article 1(j) of the regulation.

24 –: Judgment in Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 17.

25 –: See, among many others, the judgment in Case 66/85 Lawrie‑Blum v Land Baden‑Württemberg [1986] ECR 2121, paragraph 16.

26 –: Ibid. See also the judgment in Case 139/85 Kempf v Staatssecretaris van Justitie [1986] ECR 1741, paragraph 13.

27 –: The Lawrie-Blum judgment, cited above, paragraph 17.

28 –: The Kempf judgment, cited above, paragraph 14.

29 –: The Levin judgment, cited above, paragraph 17; to the same effect, see the Kempf judgment, cited above, paragraphs 13-16.

30 –: Judgment in Case C‑85/96 Martínez Sala v Freistaat Bayern [1998] ECR I‑2691, paragraph 25; to the same effect, see the Hoeckx judgment, cited above, paragraph 20.

31 –: See, among many others, the judgments in Cases 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11, 41/84 Pinna v Caisse d’Allocations Familiales de la Savoie [1986] ECR 1, paragraph 23, C‑27/91 URSSAF v Hostellerie Le Manoir [1991] ECR I‑5531, paragraph 10, C‑419/92 Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda [1994] ECR I‑505, paragraph 7, C-151/94 Commission v Luxembourg [1995] ECR I-3685, paragraph 14, C‑237/94 O’Flynn v Adjudication Officer [1996] ECR I‑2617, paragraph 17, C‑278/94 Commission v Belgium [1996] ECR I‑4307, paragraph 27, C‑266/95 Merino García v Bundesanstalt für Arbeit [1997] ECR I‑3279, paragraph 33, and C‑411/98 Ferlini v Centre Hospitalier de Luxembourg [2000] ECR I‑8081, paragraph 57.

32 –: The O’Flynn judgment, cited above, paragraph 18. To the same effect, see also the Pinna judgment, cited above, paragraph 23, and the Merino García judgment, cited above, paragraph 33.

33 –: See, among many others, the Ferlini judgment, cited above, paragraph 59.