Keywords
Summary

Keywords

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1. Freedom of movement for persons ° Freedom of establishment ° Workers ° Equal treatment ° Social advantages ° Payment of childbirth and maternity allowances made conditional upon residence requirements on the territory of the Member State concerned ° Not permissible ° Justification on public health grounds ° None

(EEC Treaty, Art. 52; Council Regulation No 1612/68, Art. 7(2))

2. Social security for migrant workers ° Community rules ° Material scope ° Benefits covered and benefits excluded ° Distinguishing criteria ° Maternity allowance granted on the basis of objective and legally defined criteria ° Included ° Non-contributory benefit ° Not legally relevant ° Periods of residence completed in another Member State to be taken into account

(Council Regulation No 1408/71, Arts 4(1)(a), 4(2), and 18(1))

Summary

1. A Member State discriminates against nationals of other Member States if it makes the payment of childbirth and maternity allowances conditional upon requirements of prior residence on its territory, because such requirements are more easily met by its own nationals. When granting allowances which, for employed workers, constitute social advantages, such discrimination is in breach of Article 7(2) of Regulation No 1612/68. It is also in breach of Article 52 of the Treaty because, in the case of self-employed workers, even if not practised in the context of specific rules on the pursuit of occupational activities, it nevertheless hinders the pursuit of such activities by nationals of other Member States.

Regarding childbirth allowance, public health considerations do not justify the residence requirement, because the obligation to undergo various medical examinations (which is also a condition for the grant of the allowance) may be dissociated from those considerations.

2. 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 it is classified as a social security benefit by national legislation.

A maternity allowance must be regarded as a social security benefit falling within the material scope of Regulation No 1408/71, with the rules on aggregation of residence periods contained in Article 18 of the regulation applying to it as such, where it is granted on the basis of a legally defined position, without any individual and discretionary assessment of personal needs, and because maternity benefits are expressly mentioned in Article 4(1)(a) of the regulation. The fact that grant of the benefit is not made conditional on any contribution requirement is irrelevant, because Article 4(2) of Regulation No 1408/71 provides that the regulation also applies to non-contributory schemes.