61996J0131

1 Freedom of movement for persons - Workers - Equal treatment - Social advantages - Members of family - Indirect entitlement - Child of a national of a Member State who died before accession of his country of origin to the Community - Excluded

(EC Treaty, Art. 48; Council Regulation No 1612/68, Arts 7(2) and 10)

2 Social security for migrant workers - Equal treatment - Family benefits - Orphans' benefits - Right to extension of an orphan's benefit provided for by the legislation of a Member State where the recipient's training was interrupted by military service - Assimilation of military service in another Member State to national military service for the purposes of granting the extension

(Council Regulation No 1408/71, Art. 3(1))

3 Members of a worker's family within the meaning of Article 10 of Regulation No 1612/68 qualify only indirectly for the equal treatment accorded to the worker himself by Article 7 of that regulation.

It follows that where a national of a Member State has died before the accession of his country of origin to the Community and therefore does not have the status of a worker within the meaning of Article 48 of the Treaty or of Regulation No 1612/68, his child cannot benefit, as a member of the family of a Community worker, from the equal treatment rule laid down by Article 7 of Regulation No 1612/68.

4 Article 3(1) of Regulation 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, as amended and updated by Regulation No 2001/83, must be interpreted as meaning that, where the legislation of a Member State provides for extension of the right to an orphan's benefit beyond the age of 25 for recipients of such benefits whose training has been interrupted by their military service, that State is required to assimilate military service in another Member State to military service under its own legislation.

The equal treatment rule laid down by that provision 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. The refusal to assimilate military service in another Member State to military service completed in the State concerned is liable to result in nationals of other Member States being unable to benefit from the right to extension of the orphan's benefit beyond the age of 25 for a period equal to that of their military service where the recipient's training is interrupted by reason of such service.

In Case C-131/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Bundessozialgericht for a preliminary ruling in the proceedings pending before that court between

Carlos Mora Romero

and

Landesversicherungsanstalt Rheinprovinz,

on the interpretation of Articles 6, 48 and 51 of the EC Treaty and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 1612/68 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475),

THE COURT

(Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, J.L. Murray, P.J.G. Kapteyn (Rapporteur), G. Hirsch and H. Ragnemalm, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Carlos Mora Romero, by Antonio Pérez Garrido, Head of the Social Department in the Spanish Consulate General, Düsseldorf, acting as Agent,

- the Spanish Government, by José Navarro González, Director General for Community Legal and Institutional Coordination, assisted by Luis Pérez de Ayala Becerril, Abogado del Estado, State Legal Service, acting as Agent,

- the French Government, by Claude Chavance, Secretary for Foreign Affairs, Direction des Affaires Juridiques, Ministry of Foreign Affairs, and Marc de Brichambaut, Director for Legal Affairs in the same Ministry, acting as Agents,

- the Commission of the European Communities, by Peter Hillenkamp, Legal Adviser, and Pieter van Nuffel, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Mora Romero, the Spanish Government, the French Government and the Commission at the hearing on 20 February 1997,

after hearing the Opinion of the Advocate General at the sitting on 13 March 1997,

gives the following

Judgment

1 By order of 8 February 1996, received at the Court Registry on 24 April 1996, the Bundessozialgericht (Federal Social Court) referred to the Court of Justice for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Articles 6, 48 and 51 of the EC Treaty and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 1612/68 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475).

2 That question was raised in proceedings brought by Carlos Mora Romero against the Landesversicherungsanstalt (Regional Social Security Office) Rheinprovinz concerning the grant of orphan's benefit under the Reichsversicherungsordnung (National Social Insurance Code, hereinafter `the RVO').

3 The second and third sentences of Paragraph 1267(1) of the RVO provide:

`Orphan's benefit shall be paid in respect of a child engaged in full-time education or vocational training until his twenty-fifth birthday at the latest ...

If the child's education or vocational training is suspended or delayed as a result of his military service or equivalent civil duties, orphan's benefit shall be paid beyond the age of 25 years for a period corresponding to the period of such service'.

4 According to the documents before the Court, Mr Mora Romero, who was born in 1965, is a Spanish national residing in Spain. In 1969, his father, who was employed in Germany, died following an accident at work.

5 Since he started his education and vocational training, Mr Mora Romero has received orphan's benefit from the Landesversicherungsanstalt Rheinprovinz. For the duration of his military service in the Spanish army, from 30 November 1987 to 30 November 1988, payment of the benefit was suspended. On completion of his military service, Mr Mora Romero resumed his training and the benefit was again paid to him until 1 March 1990, on which date the German institution terminated the payments on the ground that he had reached the age of 25 in the previous month.

6 Mr Mora Romero contested that decision before the Sozialgericht (Social Court) Düsseldorf and asked that orphan's benefit be paid to him beyond the age of 25 for a period equivalent to that of his military service in Spain.

7 His application was rejected on 18 March 1993 by the Sozialgericht Düsseldorf, whereupon Mr Mora appealed to the Landessozialgericht Nordrhein-Westfalen which, by judgment of 17 May 1995, set aside the judgment given at first instance and order the Landesversicherungsanstalt Rheinprovinz to pay him orphan's benefit for a further year. In its judgment the Landessozialgericht held that the third sentence of Paragraph 1267(1) of the RVO was to be interpreted in the light of the prohibition of discrimination laid down in Article 7 of the EEC Treaty - now Article 6 of the EC Treaty -with the result that military service in another Member State should be assimilated to compulsory service under the Wehrpflichtgesetz (Law on Military Service).

8 In its application for review before the Bundessozialgericht the Landesversicherungsanstalt Rheinprovinz takes exception to the assimilation of military service in other Member States to national military service.

9 Considering that the decision to be given in the case before it depended on an interpretation of Community law, the Bundessozialgericht stayed proceedings pending a preliminary ruling from the Court of Justice on the following question:

`Are Articles 6, 48 and 51 of the Treaty establishing the European Community and Article 7 of Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community to be interpreted as permitting the legislature of a Member State to extend the period for drawing orphan's benefit beyond the age of 25 years only in respect of those persons whose education and training has been prolonged beyond the age of 25 years through fulfilment of the duty of military service in accordance with the laws of that State?'

The applicability of Article 6 of the Treaty

10 It is settled case-law that Article 6 of the Treaty which lays down the general principle of the prohibition of discrimination on grounds of nationality, applies independently only to situations governed by Community law in respect of which the Treaty lays down no specific prohibition of discrimination (see in particular Case C-193/94 Skanavi and Chryssanthakopoulos [1996] ECR I-929, paragraph 20).

11 In the matter of freedom of movement for workers the principle of discrimination has been given effect and specific expression by Articles 48 to 51 of the Treaty and by acts of the Community institutions adopted on the basis of those articles, and in particular by Regulation No 1612/68 and 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 (OJ, English Special Edition 1971(II), p. 416) (Case 1/78 Kenny v Insurance Officer [1978] ECR 1489, paragraph 9).

12 Consequently, if a case such that in point in the main proceedings falls within the scope of those articles of the Treaty and of the Community regulations adopted on the basis of them, it is unnecessary to give a ruling on the interpretation of Article 6 of the Treaty.

13 It is therefore appropriate first to consider the the national court's question in the light of Articles 48 and 51 of the Treaty and, more particularly, of Regulations Nos 1612/68 and 1408/71.

The applicability of Regulation No 1612/68

14 Under Article 48(2) of the Treaty freedom of movement for workers entails 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.

15 Under Article 7(1) of Regulation No 1612/68 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. Article 7(2) provides that he is to enjoy the same social and tax advantages as national workers.

16 It is settled case-law that the members of a worker's family within the meaning of Article 10 of Regulation No 1612/68 qualify only indirectly for the equal treatment accorded to the worker himself by Article 7 of that regulation (Case 316/85 Centre Public d'Aide Sociale de Courcelles v Lebon [1987] ECR 2836, paragraph 12).

17 However, a national of a Member State who died before his country of origin acceded to the Community does not have the status of worker within the meaning of Article 48 of the Treaty and Regulation No 1612/68.

18 In this case the documents before the Court show that Mr Mora Romero's father, who had been employed in Germany, died in 1969, before Spain acceded to the Community.

19 It follows that a person in Mr Mora Romero's position cannot benefit, as a member of the family of a Community worker within the meaning of Article 10 of Regulation No 1612/68, from the equal treatment rule laid down in Article 7(2) of that regulation.

20 Accordingly, a situation such as that described in the order for reference does not come within the scope of Regulation No 1612/68.

The applicability of Regulation No 1408/71

21 Pursuant to Article 2(2) of Regulation No 1408/71, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6, hereinafter `Regulation No 1408/71'), that regulation is to apply to the survivors of employed or self-employed persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such employed or self-employed persons, where their survivors are nationals of one of the Member States or Stateless persons or refugees residing within the territory of one of the Member States.

22 Furthermore, pursuant to Article 1(g) of Regulation No 1408/71, `survivor' means any person defined or recognized as such by the legislation under which the benefits are granted.

23 It follows that a person in the circumstances such as those described by the national court is one of the persons covered by Regulation No 1408/71.

24 As regards the matters covered by that regulation, Article 4(1)(d) provides that it is to apply to survivor's benefits. In that regard, it is to be noted that, according to the declaration made by the Federal Republic of Germany under Article 5 of Regulation No 1408/71 (OJ 1980 C 139, p. 1), as later amended (OJ 1983 C 351, p. 1), orphan's pensions or benefits under the RVO are benefits covered by Article 78 of Regulation No 1408/71 concerning orphan's benefits.

25 It is settled case-law that where such benefits are mentioned in that declaration, they constitute benefits under Article 78 of the Regulation No 1408/71 (Case 237/78 CRAM v Toia [1979] ECR 2645, paragraph 8, and Case C-251/89 Athanasopoulos and Others [1991] ECR I-2797, paragraph 28).

26 It must therefore be concluded that a situation such as that described by the national court is covered by Regulation No 1408/71.

The interpretation of Article 3(1) of Regulation No 1408/71

27 Accordingly, it is necessary to consider whether Article 3(1) of Regulation No 1408/71 must be interpreted as meaning that, where the legislation of a Member State provides for the prolongation of the right to orphan's benefit beyond the age of 25 for recipients of benefits whose training has been interrupted by military service, that State is required to assimilate military service in another Member State to military service under its own legislation.

28 Article 3(1) of Regulation No 1408/71 provides that persons resident in the territory of one of the Member States to whom the regulation applies are to be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that Member State.

29 The object of that provision is to ensure, in conformity with Article 48 of the Treaty, equal treatment in matters of social security, without distinction based on nationality, for the persons to whom the regulation applies by abolishing all discrimination in that regard deriving from the national legislation of the Member States.

30 It is clear from the order for reference that orphan's benefit, such as that received by the respondent in the main proceedings, is granted to the recipient until the age of 25 if he is at school or undergoing vocational training. However, payment thereof is suspended for the period for which the recipient is called up for military service. For the purposes of such suspension, military service in another Member State is assimilated to military service in the German armed forces. If the education or vocational training being received by the recipient of the benefit is interrupted as a result of the time served by him in the armed forces, the benefit is paid for a further period equal to the duration of the military service. However, according to the case-law of the Bundessozialgericht, payment for that additional period is available only for orphans who have completed their military service under German legislation.

31 It must therefore be found that only orphans who have completed their military service under German legislation may benefit from the extension of the orphan's benefit beyond the age of 25 for a period equal to the duration of the military service.

32 In that connection, it must also be borne in mind 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 (CRAM v Toia, cited above, paragraph 12).

33 The refusal to assimilate military service in another Member State to military service completed in the State concerned is liable to result in nationals of other Member States being unable to benefit from the right to extension of the orphan's benefit beyond the age of 25 for a period equal to that of their military service where the beneficiary's training is interrupted by reason of such service.

34 In its order for reference the national court indicated that orphan's benefit paid beyond the age-limit, although forming part of the German social security system, is paid by the State to its own nationals by way of compensation for the disadvantages they suffer as a result of their military service.

35 In that regard, it need merely be stated, as the Advocate General observed in paragraph 34 of his Opinion, that even if payment of orphan's benefit beyond the age-limit were to represent compensation to some extent, it would nevertheless constitute deferred payment of a benefit which, as the national court moreover emphasized, forms part of the German social security scheme and the payment of which would for that reason not be excluded from the matters covered by Regulation No 1408/71.

36 The answer to the question must therefore be that Article 3(1) of Regulation No 1408/71 must be interpreted as meaning that where the legislation of a Member State provides for extension of the right to orphan's benefit beyond the age of 25 for recipients of benefits whose training has been interrupted by their military service, that State is required to assimilate the military service in another Member State to military service under its own legislation.

Costs

37 The costs incurred by the Spanish and French Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Sixth Chamber),

in answer to the question referred to it by the Bundessozialgericht by order of 8 February 1996, hereby rules:

Article 3(1) of 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, as amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983, must be interpreted as meaning that where the legislation of a Member State provides for extension of the right to orphan's benefit beyond the age of 25 for recipients of benefits whose training has been interrupted by their military service, that State is required to assimilate military service in another Member State to military service under its own legislation.