Keywords
Summary

Keywords

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1. Social security for migrant workers ° Community rules ° Persons covered ° Members of a worker' s family ° Distinction between rights acquired directly by a person and rights derived through others ° Without relevance ° Entitlement to equal treatment in the application of national legislation

(Council Regulation No 1408/71, Arts 2(1) and 3(1))

2. Social security for migrant workers ° Equal treatment ° Members of a worker' s family ° Discrimination against a surviving spouse concerning voluntary insurance ° Not permissible ° Interpretation given by the Court not applicable to situations settled before 30 April 1996

(Council Regulation No 1408/71, Arts 2(1) and 3(1))

Summary

1. Article 2(1) of Regulation No 1408/71, which defines the persons covered by the regulation, refers to two clearly distinct categories of persons: workers, on the one hand, and members of their families and their survivors, on the other. In order to fall within the scope of the regulation, the former must be nationals of a Member State, or stateless persons or refugees residing within the territory of one of the Member States. There is, on the other hand, no nationality requirement for application of the regulation to the family members or survivors of workers who are themselves Community nationals.

The distinction drawn between workers and members of their families or survivors determines the persons to whom many of the provisions of Regulation No 1408/71 apply, some applying solely to workers. That is the case as regards, for example, Articles 67 to 71 of Regulation No 1408/71.

Thus, the spouse of a Community worker cannot rely on his or her status as a member of the worker' s family in order to claim application of Articles 67 to 71 of Regulation No 1408/71, the main purpose of which is coordination of rights to unemployment benefits provided by virtue of the national legislation of the Member States for employed persons who are nationals of a Member State and not for members of their families. That was the situation in Case 40/76 Kermaschek v Bundesanstalt fuer Arbeit.

On the other hand, subject to the special provisions of Regulation No 1408/71, Article 3(1) grants to "persons resident in the territory of one of the Member States" and to whom the regulation applies the right to equal treatment as regards application of the social security legislation of the Member States, without drawing any distinction between workers, members of workers' families or their surviving spouses.

In those circumstances, the impossibility for a worker' s spouse who, having accompanied the worker to another Member State, decides to return to his or her State of origin with the worker or after the worker' s death, to rely on the equal treatment rule in relation to the grant of certain benefits provided for by the legislation of the last State of employment would adversely affect freedom of movement for workers, which forms the context for the Community rules on coordination of national social security laws. It would run counter to the purpose and spirit of those rules to deprive the spouse or survivor of a migrant worker of the benefit of application of the principle prohibiting discrimination in the calculation of old-age benefits which the spouse or survivor would have been able to claim, on the same conditions as nationals, if he or she had remained in the host State.

Furthermore, the distinction between rights acquired in person and rights derived through others which the Court drew in Kermaschek, cited above, may undermine the fundamental Community law requirement that its rules should be applied uniformly, by making their applicability to individuals depend on whether the national law relating to the benefits in question treats the rights concerned as rights in person or as derived rights, in the light of specific features of the domestic social security scheme.

Consequently, the scope of the principle of equal treatment cannot, on the basis of the distinction drawn in the various national social security systems between direct personal rights and derived rights ° a distinction which varies from one Member State to another and which tends to become blurred as those systems develop ° be defined more or less restrictively where it is a matter of affording equal treatment to the worker' s family. On the contrary, in view of the aim and spirit of the Community social security rules and the need to apply them uniformly, the social security legislation of the worker' s host State must, save where Regulation No 1408/71 makes it clear that the benefit is one to which only workers are entitled on a non-discriminatory basis, be applied to members of a worker' s family on the same terms as it is to that State' s own nationals.

2. Articles 2 and 3 of Regulation No 1408/71 are to be interpreted as meaning that they may be relied on by the surviving spouse of a migrant worker for the purpose of determining the rate of contribution in relation to a period of voluntary insurance completed under the old-age pension scheme of the Member State in which the worker was employed.

A spouse who pays voluntary contributions to an old-age pension scheme in the Member State in which, by virtue of the worker' s employment, he or she has already accrued pension rights which he or she intends to supplement is in fact covered by the Community rules on freedom of movement for workers and, in particular, by the rule prohibiting discrimination in the field of social security laid down in Article 3(1) of Regulation No 1408/71.

However, that interpretation of Articles 2(1) and 3(1) of Regulation No 1408/71, which departs from that previously given by the Court, may not, by reason of overriding considerations of legal certainty which preclude legal situations which have been definitively settled in accordance with the Court' s previous settled case-law from being called into question, be relied upon in support of claims concerning benefits relating to periods prior to 30 April 1996, the date of the judgment giving that interpretation, except by persons who have, prior to that date, initiated proceedings or raised an equivalent claim.