Keywords
Summary

Keywords

1 Social security for migrant workers - Family benefits - Employed person on unpaid leave and subject to German legislation - Children residing in another Member State - Definition of employed person for the purposes of paying family benefits - Application of the criteria laid down in Article 1(a) of Regulation No 1408/71 and in Annex I thereto - Effects - Refusal to award benefits under the national legislation - Whether permissible - Annex I - Breach of the Treaty - None

(EC Treaty; Council Regulation No 1408/71, Arts 1(a)(i) and (ii) and 73, and Annex I, Section I C)

2 Freedom of movement for persons - Workers - Equal treatment - Social advantages - Family benefits - Residence requirements for dependent children - Not permissible

(EC Treaty, Art. 48(2))

Summary

3 In so far as he 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, a person who resides and works in Germany, but whose children reside in another Member State, and who has taken unpaid leave with his employer's consent comes within the definition of `employed person' within the meaning of Article 1(a)(i) of Regulation No 1408/71.

However, for the purposes of paying family benefits under German legislation in accordance with Article 73 of the Regulation, the expression `employed persons' covers only employed persons who satisfy the definition resulting from the combined provisions of Article 1(a)(ii) of the Regulation and Section I C of Annex I thereto, that is to say, those who are compulsorily insured under one of the schemes mentioned in the Annex. To permit a worker in the situation described above to rely on one of the other definitions of employed person set out in Article 1(a) of the Regulation in order to qualify for German family benefits would deprive the provision in the Annex of all effectiveness.

Annex I, Section I C of the Regulation thus construed does not infringe any Treaty provision. Where a worker in the situation described does not satisfy the definition resulting from the combined provisions cited above and, in particular, is not covered by the Annex, the award or refusal of family benefits depends on the application of the national legislation, not of the Annex.

Furthermore, Article 73 of the Regulation does not itself confer any entitlement to family benefits, but is intended in particular to prevent Member States from making entitlement to, or the amount of, family benefits subject to the requirement that members of the worker's family reside in the Member State providing the benefits, so that Community workers are not deterred from exercising their right to freedom of movement.

4 Article 48(2) of the EC Treaty must be interpreted as precluding the application of national legislation which results in an employed person whose children reside in another Member State being refused family benefits in respect of full calendar months falling within an extended period of unpaid leave, where employed persons whose children are resident in the Member State concerned are entitled to such benefits.

In the absence of objective justification, such legislation discriminates against migrant workers since it is primarily their children who reside abroad.