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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Gaumain-Cerri (Social security for migrant workers) [2004] EUECJ C-31/02 (08 July 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C3102.html Cite as: [2004] EUECJ C-31/02, [2004] EUECJ C-31/2 |
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JUDGMENT OF THE COURT (Second Chamber)
8 July 2004 (1)
(Social security - Freedom of movement for workers - EC Treaty - Council Regulation (EEC) No 1408/71 - Benefits designed to cover the risk of becoming reliant on care - Payment by the care insurance of old age insurance contributions of the carer assisting the reliant person)
In Joined Cases C-502/01 and C-31/02,REFERENCE to the Court under Article 234 EC by the Sozialgericht Hannover (Germany) (C-502/01) and the Sozialgericht Aachen (Germany) (C-31/02) for a preliminary ruling in the proceedings pending before those courts between Silke Gaumain-CerriandMaria Barthand
Kaufmännische Krankenkasse-Pflegekasse, Landesversicherungsanstalt Rheinprovinz, interested party:interested party:Bundesversicherungsanstalt für Angestellte, Silke Gaumain-CerriandMaria Barthand
Kaufmännische Krankenkasse-Pflegekasse, Landesversicherungsanstalt Rheinprovinz, interested party:interested party:PAX Familienfürsorge Krankenversicherung,Bundesministerium für Gesundheit und Soziale Sicherung, on the interpretation of the provisions of the EC Treaty and of secondary legislation relating to freedom of movement of Union citizens and in particular of Council Regulation (EEC) 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 (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1),THE COURT (Second Chamber),
after considering the written observations submitted on behalf of:
- the Kaufmännische Krankenkasse - Pflegekasse, by K. Böttcher, acting as Agent, - the German Government, by C.-D. Quassowski and M. Lumma, acting as Agents (C-31/02), - the Greek Government, by D. Kalogiros and G. Alexaki, acting as Agents (C-31/02), - the Commission of the European Communities, by H. Michard and H. Kreppel, acting as Agents,having regard to the Report of the Judge-Rapporteur
after hearing the Opinion of the Advocate General at the sitting on 2 December 2003,
gives the following
-(1) Can the expressions -sickness benefit- and -old age benefit- within the meaning of Article 1 of Regulation No 1408/71 cover benefits paid by one insurer to another if the insured derives only an abstract and indirect advantage therefrom (payment of pension insurance contributions by the care insurance fund on behalf of a voluntary carer)? If they can, under what circumstances can they do so? (2) Is there a prohibition of discrimination under primary or secondary Community law from which it follows that a benefit as described in (1) above is to be granted irrespective of whether the activity conferring the entitlement to benefit is carried on in Germany or in another EU Member State, and irrespective of where the insured or the immediate beneficiary has his residence?-
-(1) Are the provisions of Regulation - No 1408/71 - also applicable to German care insurance scheme if cover for the risk of reliance on care under Paragraph 23, in conjunction with Paragraph 110, of Volume XI of the [SGB], which relates to Social Care Insurance, is based in whole or in part on a private care insurance policy? (2) Do the contributions payable to the statutory pension insurance scheme by care insurance institutions on behalf of carers not acting in the course of employment pursuant to Paragraph 44 of SGB XI, in conjunction with the first sentence of Paragraph 3(a) and Paragraph 166(2) of SGB VI, which relates to Statutory Pension Insurance, constitute -sickness benefits- within the meaning of Article 4(1)(a) of Regulation No 1408/71? If so, may such benefits be payable on behalf of carers who provide care in the country of the competent institution but live in a different Member State? (3) Are carers within the meaning of Paragraph 19 of SGB XI workers within the meaning of Article 39 EC? If so, does that preclude denying them the right to have -pension insurance contributions- paid on their behalf on the basis that they do not have their residence or habitual place of stay in the relevant country?-
Substance
Whether Regulation No 1408/71 applies to the payment of old age insurance contributions of a third person assisting a reliant person in circumstances such as those in issue in the main proceedings
-22 [-] it appears from the file that care insurance benefits are designed to develop the independence of persons reliant on care, in particular from the financial point of view. The system introduced is aimed at encouraging prevention and rehabilitation in preference to care and at promoting home care in preference to care provided in hospital. 23 Care insurance gives entitlement to full or partial direct payment of certain expenditure entailed by the insured person-s reliance on care such as care provided in the home, in specialised centres or hospitals, the purchase of equipment required by insured persons, the carrying out of work in the home and the payment of monthly financial aid allowing the insured to choose the method of assistance they prefer and, for example, to remunerate in one form or another the third party assisting them. The care insurance scheme provides cover, furthermore, against the risks of accident, old age and invalidity for some of those third parties. 24 Accordingly, benefits of that type are essentially intended to supplement sickness insurance benefits to which they are, moreover, linked at the organisational level, in order to improve the state of health and the quality of life of persons reliant on care. 25 In those circumstances, even if they have their own characteristics, such benefits must be regarded as -sickness benefits- within the meaning of Article 4(1)(a) of Regulation No 1408/71.-
Whether it is possible to refuse to pay the old age insurance contributions of a third person assisting a reliant person on the ground that one or other of those persons is resident on the territory of a Member State other than the competent State
-31 In its judgment in Case 61/65 Vaassen v Beambtenfonds Mijnbedrijf [1966] ECR 261, in particular at p. 278, the Court has already stated, in connection with Regulation No 3 of the Council of 25 September 1958 concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.), which preceded Regulation No 1408/71 and used the same terminology, that the term -benefits in kind- does not exclude the possibility that such benefits may comprise payments made by the debtor institution, in particular in the form of direct payments or the reimbursement of expenses, and that -cash benefits- are essentially those designed to compensate for a worker-s loss of earnings through illness. 32 As stated above - care insurance benefits consist, first, in the direct payment or reimbursement of expenses incurred as a result of the insured person-s reliance on care, in particular medical expenses entailed by that condition. Such benefits, which are designed to cover care received by the person concerned, both in the home and in specialised centres, purchases of equipment and work carried out, indisputably fall within the definition of -cash benefits- referred to in [Article] 19(1)(a) - of Regulation No 1408/71. 33 However, although the care allowance is also designed to cover certain costs entailed by reliance on care, in particular those relating to aid provided by a third person, rather than to compensate for loss of earnings on the part of the recipient, it nevertheless displays features distinguishing it from sickness insurance benefits in kind. 34 First, payment of the allowance is periodical and is not subject either to certain expenditure, such as care expenditure, having already been incurred, or a fortiori to the production of receipts for the expenditure incurred. Secondly, the amount of the allowance is fixed and independent of the costs actually incurred by the recipient in meeting his daily requirements. Thirdly, recipients are to a large extent unfettered in their use of the sums thus allocated to them. In particular, as the German Government itself pointed out, the care allowance may be used by recipients to remunerate a member of their family or entourage who is assisting them on a voluntary basis. 35 The care allowance thus takes the form of financial aid which enables the standard of living of persons requiring care to be improved as a whole, so as to compensate for the additional expense brought about by their condition. 36 A benefit such as the care allowance must therefore be regarded as a sickness insurance -cash benefit-, as referred to in [Article] 19(1)(b) - of Regulation No 1408/71.-
On those grounds,
THE COURT (Second Chamber),
in answer to the questions referred to it by the Sozialgericht Hannover and the Sozialgericht Aachen, by orders of 12 December 2001 and 18 January 2002, hereby rules: 1. A benefit such as the payment, by the body providing care insurance, of old age insurance contributions of the third party providing care in the home of a reliant person in the circumstances of the cases in the main proceedings constitutes a sickness benefit to the advantage of the reliant person covered by Council Regulation (EEC) 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 (EC) No 118/97 of 2 December 1996. 2. So far as concerns benefits such as those under German care insurance accorded in the circumstances of the cases in the main proceedings to an insured person resident on the territory of the competent State or to a person resident on the territory of another Member State and covered by that insurance as a member of the family of a worker, the Treaty, in particular Article 17 EC, and Regulation No 1408/71, as amended and updated by Regulation No 118/97, preclude payment of the old age insurance contributions of a national of a Member State in the position of the third party caring for the recipient of those benefits being refused by the competent institution on the ground that that third party or the aforementioned recipient resides in a Member State other than the competent State.
Timmermans |
Puissochet |
Schintgen |
Macken |
Colneric |
|
R. Grass |
C. W. A. Timmermans |
Registrar |
President of the Second Chamber |
1 - Language: German.