Keywords
Summary

Keywords

1 Social security for migrant workers - Family allowances - Workers subject to German legislation - Self-employed workers - Meaning as used in Article 73 of Regulation No 1408/71 - Compulsory for self-employed workers to have old-age insurance

(Council Regulations No 1408/71, Arts 1(a)(ii) and 73, and Annex I, point I,(C),(b), and No 3427/89)

2 Freedom of movement for persons - Freedom of establishment - Rules of a Member State making the taking into account of dependent children for the calculation of family allowances subject to the condition that they reside on the national territory - Discrimination against self-employed migrant workers - Not permissible

(EC Treaty, Art. 52)

Summary

3 For the purposes of the payment of family benefits under German legislation, Article 73 of Regulation No 1408/71, as amended and updated by Regulation No 2001/83, as amended by Regulation No 3427/89, which provides that an employed or self-employed person subject to the legislation of a Member State is to be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State as if they were residing in that State, must be interpreted as covering only self-employed persons complying with the specific definition provided by the combined provisions of Article 1(a)(ii) and point I, C, (b) of Annex I to that regulation, that is to say, those required to join, or pay contributions in respect of, an old-age insurance within a scheme for self-employed persons, or to join a scheme within the framework of compulsory pension insurance.

The broad interpretation to be attributed to the concept of a self-employed person within the meaning of the regulation, in view of the objective of freedom of movement which the Community has set itself, cannot go so far as to render ineffective those provisions of Annex I by which the Community legislator determined, as it was entitled to do, which self-employed persons were to benefit in future from Article 73, which was previously applicable only to employed persons.

4 Article 52 of the Treaty must be interpreted as precluding national rules which cause the taking of a self-employed person's children into account when calculating family allowances to be dependent upon their residing in that Member State.

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

The problems to which abolition of the residence requirement could give rise, regard being had to the need to ensure that benefits are in fact used for the upkeep of the children and to avoid overlapping payments, must be tackled by applying by analogy the provisions introduced into Regulation No 1408/71 for self-employed persons coming within its scope.