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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Kuusijarvi (Free movement of persons) [1998] EUECJ C-275/96 (11 June 1998)
URL: http://www.bailii.org/eu/cases/EUECJ/1998/C27596.html
Cite as: [1998] EUECJ C-275/96, [1998] ECR I-3443, ECLI:EU:C:1998:279, EU:C:1998:279
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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.
JUDGMENT OF THE COURT (Sixth Chamber)
11 June 1998 (1)
(Social security - Regulation (EEC) No 1408/71 - Personal scope - Parental benefit - Maintenance of entitlement to benefits after transfer of residence to another Member State)
In Case C-275/96,
REFERENCE to the Court under Article 177 of the EC Treaty by the Kammarrätt, Sundsvall, Sweden, for a preliminary ruling in the proceedings pending before that court between
Anne Kuusijärvi
and
Riksförsäkringsverket
on the interpretation of a number of provisions of Council Regulation (EEC) No 1408/71 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, and of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing 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), and further amended by Council Regulation (EEC) No 2195/91 of 25 June 1991 (OJ 1991 L 206, p. 2),
THE COURT (Sixth Chamber),
composed of: H. Ragnemalm, President of the Chamber, R. Schintgen (Rapporteur), G.F. Mancini, J.L. Murray and G. Hirsch, Judges,
Advocate General: F.G. Jacobs,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Riksförsäkringsverket, by H. Almström, Ombudsman in social insurance matters with that authority,
- the Swedish Government, by E. BrattgÊard, Departmental Adviser at the Ministry of Foreign Affairs, acting as Agent,
- the Netherlands Government, by J.G. Lammers, Legal Adviser, acting as Agent,
- the Finnish Government, by H. Rotkirch, Ambassador, Head of Legal Affairs at the Ministry of Foreign Affairs, acting as Agent,
- the Norwegian Government, by A. Rygnestad, Head of Division at the Ministry of Foreign Affairs, acting as Agent,
- the Commission of the European Communities, by P. Hillenkamp, Legal Adviser, and K. Simonsson, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Riksförsäkringsverket, represented by A.M. Stenberg and I. Anderson, of the Stockholm Bar, the Swedish Government, represented by E. BrattgÊard, the Netherlands Government, represented by M. Fierstra, Deputy Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, the Finnish Government, represented by T. Pynnä, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, and the Commission, represented by K. Simonsson, at the hearing on 6 November 1997,
after hearing the Opinion of the Advocate General at the sitting on 16 December 1997,
gives the following
Judgment
- By order of 6 August 1996, received at the Court on 14 August 1996, the
Kammarrätt (Administrative Court of Appeal), Sundsvall, Sweden, referred to the
Court for a preliminary ruling under Article 177 of the EC Treaty three questions
on the interpretation of a number of provisions of Council Regulation (EEC)
No 1408/71 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, and of Council Regulation (EEC) No 574/72 of 21
March 1972 laying down the procedure for implementing 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), and further amended by Council Regulation (EEC)
No 2195/91 of 25 June 1991 (OJ 1991 L 206, p. 2).
- Those questions were raised in proceedings between Mrs Kuusijärvi, a Finnish
national, and Riksförsäkringsverket (Swedish Social Security Board) concerning Mrs
Kuusijärvi's entitlement to continued payment of social security benefits paid under
Swedish legislation after she had transferred her residence to Finland, where,
however, she did not work.
- Mrs Kuusijärvi worked in Sweden for 11 months until 10 February 1993. Thereafter
she drew unemployment benefit until 1 February 1994, the date on which her child
was born. She was then granted the child allowance provided for under Swedish
legislation and also the benefit known as 'föräldrapenning' (hereinafter 'parental
benefit') which is paid by reason of the birth of a child and which is governed by
Chapter 4 of the lag (1962:381) om allmän försäkring (Swedish law on the general
social security scheme, hereinafter 'the Law').
- Under the provisions of Chapter 4 of the Law a parent is entitled to parental
benefit by reason of the birth of a child for a maximum of 450 days, and this
applies until the child has reached the age of eight years or the end of its first
school year, whichever is later, provided that the parent has been registered as an
insured person with a general social security office for at least 180 consecutive days
prior to the commencement of payment of the benefits.
- It appears from the Swedish Government's observations that, at the time of the
entry into force on 1 January 1994 of the Agreement on the European Economic
Area (OJ 1994 L 1, p. 1), which rendered Regulation No 1408/71 applicable in
Sweden, the parental benefit was notified by the Swedish Government in
accordance with Article 5 of that regulation as a maternity benefit.
- On 24 May 1994 Mrs Kuusijärvi informed the social security office with which she
was registered that she was intending to transfer her residence to Finland and
enquired whether she would continue to receive parental benefit after that change
of residence. On 1 July 1994 Mrs Kuusijärvi established her residence in Finland
but did not work there.
- Mrs Kuusijärvi's application to continue to draw parental benefit after moving to
Finland was rejected by Norrbottens läns allmänna försäkringskassa (social
insurance office for Norrbotten County) on the grounds that she had left Sweden
on 1 July 1994 to establish her residence in Finland and had been removed from
the Swedish social security register on 2 July 1994.
- Under Article 3 of Chapter 1 of the Law Swedish citizens and non-Swedish
nationals residing in the territory of the Kingdom are to be insured. An insured
person who leaves Sweden continues to be regarded as resident in Sweden if the
stay abroad is not intended to exceed one year.
- Under Article 4 of Chapter 1 of the Law every person insured pursuant to the Law
is to be registered with a general social insurance office with effect from the month
in which he reaches the age of 16 years provided that he is resident in the territory
of the Kingdom and, under Article 5, the general social insurance office must
remove the insured person from its register once it receives notice that that person
is no longer to appear on its register.
- As regards the condition of residence in the territory of the Kingdom,
Riksförsäkringsverket föreskrifter (RFFS 1985:16) om inskrivning och avregistrering
hos allmän försäkringskassa (Instructions concerning registration and deregistration
with a general social insurance office) state that a person is regarded as resident
in Sweden if he has his actual place of residence there or if he goes to Sweden with
the intention of either permanently residing there or staying there for more than
one year to work or study. Moreover, a person who is entitled to benefits under
Swedish legislation on the basis of Regulation No 1408/71 is deemed to be resident
in Sweden for so long as he is entitled to such benefits, even though he does not
fulfil the abovementioned conditions for residence.
- The Instructions issued by the National Social Security Board also state that, if the
insured person transfers his residence to another Nordic country with the intention
of staying there for more than one year, he is to be removed from the social
insurance register with effect from the day on which he is removed from the
national population register in Sweden. However, where a person covered by
Regulation No 1408/71 moves to another Member State, he is to be removed from
the register of the social security office as soon as he becomes subject, in
accordance with that regulation, to the legislation of the host State, even if he
intends to stay there for less than one year.
- The Länsrätt (Administrative Court), Norbotten, dismissed the appeal lodged by
Mrs Kuusijärvi against the decision refusing to continue payment of the benefit at
issue after the transfer of her residence to Finland and her removal from the
register of the Swedish social security office. Mrs Kuusijärvi thereupon appealed
to the Kammarrätt in Sundsvall.
- Before that court Mrs Kuusijärvi relied on Article 22(1)(b)(ii) of Regulation
No 1408/71, which provides:
'1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:
...
(b) who, having become entitled to benefits chargeable to the competent institution, is authorised by that institution to return to the territory of the Member State where he resides, or to transfer his residence to the territory of another Member State;
...
shall be entitled:
...
(ii) to cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. ...'
- Mrs Kuusijärvi submitted that, by virtue of that provision, she was entitled, in the
case of maternity, to the continued payment of cash benefits in the form of
parental benefit, even after her move to Finland, for the same period of
entitlement as applies to persons residing in Sweden.
- The Swedish Social Security Board which, in its capacity as a body governed by
public law, was joined as defendant before the national court, contended that Mrs
Kuusijärvi had ceased to be entitled to payment of maternity benefits under the
Swedish Law owing to the fact that, following the transfer of her residence to
Finland, she no longer fulfilled the condition of residence in Sweden, with the result
that the Swedish legislation no longer applied to her.
- The Swedish Social Security Board referred in that connection first to Article
13(2)(f) of Regulation No 1408/71, as inserted by Regulation No 2195/91, which
provides that '[a] person to whom the legislation of a Member State ceases to be
applicable, without the legislation of another Member State becoming applicable
to him in accordance with one of the rules laid down in the aforegoing
subparagraphs or in accordance with one of the exceptions or special provisions
laid down in Articles 14 to 17 shall be subject to the legislation of the Member
State in whose territory he resides in accordance with the provisions of that
legislation alone', and, secondly, to Article 10b of Regulation No 574/72, as also
inserted by Regulation No 2195/91, according to which '[the] date and conditions
on which the legislation of a Member State ceases to be applicable to a person referred to in Article 13(2)(f) of the Regulation shall be determined in accordance with that legislation'.
- Taking the view that, in order to resolve the dispute before it, it was necessary to
interpret certain provisions of Regulations Nos 1408/71 and 574/72, the national
court decided to stay proceedings and refer to the Court the following questions for
a preliminary ruling:
'(1) Does Regulation (EEC) No 1408/71 apply at all to a person who, before the regulation became applicable in Sweden, moved from Finland to Sweden and took up employment here, but who was not in employment in Sweden when the regulation came into force in Sweden and did not come here as an unemployed person after the regulation became applicable in Sweden, but only stayed here at that time as an unemployed person after a previous period of employment and then drew Swedish unemployment benefit? That is to say, can a person in that situation claim that, after 1 January 1994, on the basis of Regulation No 1408/71, he or she is covered by Swedish legislation as regards entitlement to Swedish social security benefits in the form of parental benefit?
If that question is answered in the affirmative, the following questions also need to be answered:
(2) Is Article 13(2)(f) of Regulation No 1408/71, in conjunction with Article 10b of Regulation No 574/72, to be understood as meaning that a Member State is not precluded from introducing a condition of residence in its territory in order for a person who has ceased working there to remain covered by that country's legislation as regards cash maternity benefits?
(3) Is Article 22 of Regulation No 1408/71 to be understood as meaning that, if a person begins to draw cash maternity benefits in a competent state, that person retains entitlement, on the conditions applying according to that article, to those cash benefits when moving to another Member State only on condition that the person concerned satisfies all the provisions of the legislation applied by the competent country, that is to say including the requirement, laid down in those provisions, that the person concerned must be resident in its territory, or is Article 22 to be interpreted as meaning that such entitlement exists so long as the person concerned fulfils all other conditions of the national legislation of the country which he or she leaves, apart from the residence requirement?'
The first question
- By its first question the national court is essentially asking whether Regulation
No 1408/71 applies to a person who, when that regulation entered into force in a
Member State, was residing in that State as an unemployed person, having
previously been in employment there, and who, by reason of that employment, was
receiving unemployment benefit under the social security scheme of that Member
State.
- The personal scope of Regulation No 1408/71 is defined in Article 2 thereof. Under
paragraph 1 of that article, the regulation applies to employed or self-employed
persons who are or have been subject to the legislation of one or more Member
States.
- The terms 'employed person' and 'self-employed person' used in Article 2(1) of
Regulation No 1408/71 are defined by Article 1(a). They designate any person
insured under one of the social security schemes mentioned in Article 1(a) for the
contingencies and under the conditions mentioned in that provision (Case C-2/89
Kits van Heijningen [1990] ECR I-1755, paragraph 9 and Joined Cases C-4/95 and
C-5/95 Stöber and Piosa Pereira [1997] ECR I-511, paragraph 27).
- Accordingly, as the Court has pointed out, particularly in its judgment of 12 May
1998 in Case C-85/96 Martínez Sala [1998] ECR I-0000, paragraph 36, a person has
the status of an employed person within the meaning of Regulation No 1408/71
where he is covered, even if only in respect of a single risk, on a compulsory or
optional basis, by a general or special social security scheme mentioned in Article
1(a) of Regulation No 1408/71, irrespective of the existence of an employment
relationship.
- That is certainly the situation in the case of a person who is unemployed in a
Member State and is in receipt there of unemployment benefits under the
legislation of that Member State.
- The fact that such a person was already unemployed on the date on which
Regulation No 1408/71 entered into force in the Member State in question and was
receiving unemployment benefits on the basis of his employment there before that
date is not such as to bring him outside the personal scope of the regulation.
- Article 94(3) of Regulation No 1408/71 expressly provides that a right is to be
acquired under that regulation even though it relates to a contingency which
materialised prior to the date of application of that regulation in the territory of the
Member State concerned.
- Similarly, Article 94(2) of Regulation No 1408/71 provides that all periods of
insurance and, where appropriate, all periods of employment or residence
completed under the legislation of a Member State before the date of its
application in the territory of that Member State are to be taken into consideration for the determination of rights acquired under the provisions of the regulation.
- In light of the foregoing considerations, the reply to the first question must be that
Regulation No 1408/71 applies to a person who, on the entry into force of that
regulation in a Member State, was residing in that State as an unemployed person,
having previously been in employment there, and who, by reason of that
employment, was receiving unemployment benefit under the social security scheme
of that Member State.
The second question
- By its second question the national court is essentially asking whether Article
13(2)(f) of Regulation No 1408/71, as inserted by Regulation No 2195/91, precludes
the legislation of a Member State from making the right of a person who has
ceased all occupational activity in its territory to remain covered by its legislation
dependent on his continued residence there.
- In that connection it should be pointed out that the provisions of Title II of
Regulation No 1408/71, of which Article 13 forms part, constitute a complete and
uniform system of conflict rules. Those provisions are intended not only to prevent
the concurrent application of a number of national legislative systems and the
complications which might ensue, but also to ensure that persons covered by
Regulation No 1408/71 are not left without social security cover because there is
no legislation which is applicable to them (see, in particular, Kits van Heijningen,
cited above, paragraph 12).
- It should next be emphasised that the sole purpose of Article 13(2) of Regulation
No 1408/71 is to determine the national legislation applicable to persons who are
in one of the situations referred to in subparagraphs (a) to (f) of that provision. As
such, the provision is not intended to lay down the conditions creating the right or
the obligation to become affiliated to a social security scheme or to a particular
branch of such a scheme. As the Court has pointed out on several occasions, it is
for the legislature of each Member State to lay down those conditions (see, to that
effect, Kits van Heijningen, cited above, paragraph 19, and Case C-245/88
Daalmeijer [1991] ECR I-555, paragraph 15).
- Admittedly, when the Member States lay down the conditions creating the right or
the obligation to become affiliated to a social security scheme, they are under an
obligation to comply with the provisions of the Community law in force and, in
particular, may not exclude from the scope of the legislation at issue persons to
whom it applies pursuant to Regulation No 1408/71 (Kits van Heijningen, cited
above, paragraph 20).
- Thus, in its judgment in Kits van Heijningen, cited above, at paragraph 21, the
Court held that if the legislation of a Member State made affiliation to the
insurance scheme which it establishes of a person employed in its territory
conditional upon his residing there, Article 13(2)(a) of Regulation No 1408/71,
which provides that a person employed in the territory of one Member State is to
be subject to the legislation of that State, even if he resides in the territory of
another Member State, would be deprived of all practical effect.
- However, the fact that the legislation of a Member State makes the right of a
person who has ceased all occupational activity in its territory, and who thus no
longer satisfies the conditions laid down in Article 13(2)(a) of Regulation
No 1408/71, to be or to remain affiliated to that Member State's social security
scheme conditional upon his residing in its territory is not such as to deprive Article
13(2)(f) of the regulation of its practical effect or to exclude that person from the
application of all social security legislation, in particular that applicable by virtue
of Regulation No 1408/71.
- On the contrary, Article 13(2)(f) is specifically intended to govern such a situation
and, to that end, in the case of a person who is no longer subject to any legislation
applicable by virtue of the other provisions of Article 13(2), including subparagraph
(a), or of the provisions of Articles 14 to 17 of Regulation No 1408/71, declares
applicable to that person the legislation of the Member State in whose territory he
resides.
- Accordingly, a person who has ceased all employment in the territory of a Member
State and thus no longer satisfies the conditions laid down in Article 13(2)(a) and
who, moreover, does not satisfy the conditions laid down in any other provision of
Regulation No 1408/71 for the legislation of a Member State to be applicable to
him is subject, by virtue of Article 13(2)(f) and in accordance with the legislation
of the State in whose territory he resides, either to the legislation of the State in
which he was previously employed, if he continues to reside there, or to that of the
State to which, if such be the case, he has transferred his residence.
- However, the Swedish and Norwegian Governments contend that Article 13(2)(f)
of Regulation No 1408/71 applies only if the person concerned who has transferred
his residence to another Member State has definitively ceased all occupational
activity. In their submission, a person who has only temporarily ceased to work
remains subject, by virtue of Article 13(2)(a), to the legislation of the Member
State where he was last employed, even if he has established his residence in
another Member State.
- Both governments refer in that connection to the judgment in Case 302/84 Ten
Holder [1986] ECR 1821 in which the Court ruled that Article 13(2)(a) of
Regulation No 1408/71 must be interpreted as meaning that a worker who has
ceased to carry on an activity in the territory of a Member State and has not gone
to work in the territory of another Member State continues to be subject to the legislation of the Member State in which he was last employed, regardless of the length of time which has elapsed since the termination of the activity in question and the end of the employment relationship. They add that it follows inter alia from the judgment in Case C-140/88 Noij [1991] ECR I-387, paragraphs 9 and 10, that only workers who have definitively ceased all occupational activity are outside the scope of Article 13(2)(a) of Regulation No 1408/71 (see, to that effect, Case C-215/90 Twomey [1992] ECR I-1823, paragraph 10).
- The Netherlands Government and, at the hearing, the Finnish Government have
submitted that Article 13(2)(f) of Regulation No 1408/71 lays down an express
conflict rule which applies to situations such as those in point in the main
proceedings where, for whatever reason, a person has ceased all occupational
activity in a given Member State and resides in another Member State without
working there, and has thereby rendered obsolete the line of case-law beginning
with the judgment in Ten Holder, cited above.
- The Commission, for its part, considers that that case-law remains valid and that
Article 13(2)(f) of Regulation No 1408/71 is applicable only from the date of expiry
of entitlement to a benefit in the State in which the person concerned was last
employed, save where he has definitively ceased all occupational activity.
- On this point it should first be stated that there is nothing in the wording of Article
13(2)(f) of Regulation No 1408/71 to suggest that that provision applies only to
workers who have definitively ceased all occupational activity and not to persons
who have merely ceased their occupational activity in a given Member State.
- On the contrary, that provision is couched in general terms so as to cover any
situation in which the legislation of a Member State ceases to be applicable to a
person, for whatever reason, and not only because the person concerned has ceased
his occupational activity, be it definitively or temporarily, in a given Member State.
- To restrict the application of Article 13(2)(f) of Regulation No 1408/71 to the
situation where all occupational activity has definitively ceased would thus amount
to depriving that provision of part of its substance.
- It should next be noted that, according to the third recital in the preamble to
Regulation No 2195/91, Article 13(2)(f) was inserted into Regulation No 1408/71
following the judgment in Ten Holder, cited above.
- That judgment concerned the situation of a person who had ceased her
occupational activities in the territory of a Member State, was drawing sickness
benefits there under the legislation of that Member State and went to reside in the
territory of another Member State without taking up an activity there while she was
in receipt of those sickness benefits; it did not appear that she had definitively
ceased all occupational activity or that she was not going to take up such activity in her new State of residence.
- Although no provision of Title II of Regulation No 1408/71 expressly governed that
situation, the Court held in Ten Holder, cited above, that a person in that situation
continued to be subject, under Article 13(2)(a), to the legislation of the Member
State in which he was last employed.
- In those circumstances, it must be recognised that, by inserting subparagraph (f)
into Article 13(2) of Regulation No 1408/71, the Community legislature sought to
make express provision for the case of a person in such a situation.
- As Advocate General Jacobs pointed out at paragraph 56 of his Opinion, this is,
moreover, borne out by the explanatory memorandum on the Commission's
proposal for an amendment which led to the adoption of Article 13(2)(f).
According to that explanatory memorandum, the intention was to fill in the 'gap'
in Title II of Regulation No 1408/71 which the judgment in Ten Holder, cited above,
had revealed and which was attributable to the fact that '[t]here [was] ... no specific
provision determining what legislation is applicable to persons who have ceased to
engage in any occupational activity under the legislation of one Member State and
who reside in the territory of another Member State'.
- Confirmation of the foregoing interpretation may, moreover, be found in another,
parallel, amendment which the Community legislature made to the relevant rules
and which, according to the third recital in the preamble to Regulation No 2195/91,
is closely linked to the adoption of Article 13(2)(f).
- According to that recital, the insertion into Regulation No 1408/71 of Article
13(2)(f) entailed adapting Article 17, which allows one or more Member States, the
competent authorities of those States or bodies designated by those authorities, to
provide by common accord for exceptions to the provisions of Articles 13 to 16.
- Following that adaptation, such exceptions may now be decided upon not only in
the interest of persons pursuing an activity on an employed or self-employed basis
but also in the interest of all persons without distinction, whether or not they are
pursuing such an activity.
- It follows from all the foregoing considerations that Article 13(2)(f) of Regulation
No 1408/71, on the one hand, applies to a person who has ceased his occupational
activities in one Member State and has transferred his residence to another
Member State and, on the other hand, does not preclude the legislation of a
Member State from making affiliation to a social security scheme of that Member
State subject to a residence requirement.
- The reply to the second question must therefore be that Article 13(2)(f) of
Regulation No 1408/71, as inserted by Regulation No 2195/91, does not preclude
the legislation of a Member State from making the right of a person who has
ceased all occupational activity in that State to remain subject to its legislation
dependent on his continued residence there.
The third question
- By its third question the national court is essentially asking whether Article 22 of
Regulation No 1408/71 precludes the legislation of a Member State from providing
that a person who has ceased all occupational activity in its territory loses the right
to continued payment of a parental benefit, such as that at issue in the main
proceedings, on the ground that he has transferred his residence to another
Member State.
- It must first be noted that Article 22 forms part of Chapter 1, entitled 'Sickness
and Maternity', of Title III of Regulation No 1408/71 and that its application
presupposes, therefore, that the parental benefit at issue in the main proceedings
constitutes a sickness or maternity benefit within the meaning of that chapter.
- It should next be pointed out that, as stated in paragraph 5 of this judgment, when
Regulation No 1408/71 entered into force on Swedish territory, the Swedish
Government had, pursuant to Article 5 of that regulation, notified the parental
benefit as a maternity benefit.
- In its observations before the Court the Swedish Government submitted, however,
that, in view of the Court's judgment of 10 October 1996 in Joined Cases C-245/94
and C-312/94 Hoever and Zachow v Land Nordrhein-Westfalen [1996] ECR I-4895,
the benefits at issue in the main proceedings had thenceforth to be regarded as
family benefits within the meaning of Regulation No 1408/71.
- In those circumstances, in order to provide the national court with a helpful answer,
the parental benefits at issue in the main proceedings should be classified for the
purposes of Regulation No 1408/71.
- The Court has consistently held that a benefit may be regarded as a social security
benefit for the purposes of Regulation No 1408/71 where it is granted, without any
individual and discretionary assessment of personal needs, to recipients on the basis
of a legally defined position and provided that it concerns one of the risks expressly
listed in Article 4(1) of Regulation No 1408/71 (judgment of 5 March 1998 in Case
C-160/96 Molenaar [1998] ECR I-0000, paragraph 20).
- As regards the first of those two conditions, it is not disputed that the provisions
concerning the grant of parental benefits confer a legally defined right on recipients
and that that benefit is awarded to persons who satisfy certain objective criteria, without any individual and discretionary assessment of their personal needs.
- As regards the second condition, it should be borne in mind that according to
Article 1(u)(i) of Regulation No 1408/71 'the term family benefits means all
benefits in kind or in cash intended to meet family expenses under the legislation
provided for in Article 4(1)(h), excluding the special childbirth allowances
mentioned in Annex II'.
- It follows from the judgment in Hoever and Zachow, cited above, that a benefit
intended to enable one of the parents to devote himself or herself to the raising of
a young child, and designed, more specifically, to remunerate the service of bringing
up a child, to meet the other costs of caring for and raising a child and, as the case
may be, to mitigate the financial disadvantages entailed in giving up income from
an occupational activity, must be treated as a family benefit within the meaning of
Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71.
- It is clear from the file that the parental benefit at issue in the main proceedings
satisfies those criteria.
- That benefit, which is paid by reason of the birth of a child, is paid to the parents
jointly for a maximum total period of 450 days, during which one of the parents has
the right not to work. This applies until the child has reached the age of eight years
or the end of its first school year, whichever is later. Where the parents have joint
care of the child, each of them is eligible for the benefit for one half of the period
prescribed for its payment. A parent who has sole care of the child may receive
parental benefit for the whole of that period.
- Although it is true that the mother is eligible for parental benefit with effect from
the 60th day before the day on which the child is due to be born, it is nevertheless
the case, therefore, that during by far the greater part of the period for which
parental benefit is payable, the right to that benefit belongs to the parent who
primarily has care of the child; that right may therefore also accrue to the father.
- Moreover, the amount of benefit is, subject to certain conditions and reservations,
directly determined by the amount of the earned income of the parent concerned.
Provided that the parent concerned was affiliated to a social insurance office for
at least 240 consecutive days before the birth or the due date of the birth, that
parent is entitled, for 360 of the 450 days during which parental benefit is payable,
to an allowance in a sum which is greater than the minimum guaranteed amount
of SKR 60 per day and is generally equivalent to 75% of the income which he or
she previously earned.
- Those detailed rules show that parental benefit is intended, on the one hand, to
enable the parents to devote themselves, in alternation, to the care of the young
child until that child has started to attend school and, on the other, to offset to some extent the loss of income entailed for the parent devoting himself or herself to the care of the child in temporarily giving up his or her occupational activity.
- In light of the foregoing, reference must be made to the provisions specific to
family benefits which form Chapter 7 of Title III of Regulation No 1408/71 in order
to determine whether a person in a situation such as that of Mrs Kuusijärvi is
entitled to continue to receive the parental benefit which has been paid to her
under the legislation of a Member State, even after she has ceased all occupational
activity in the territory of that State and has transferred her residence to another
Member State.
- In that connection, it should be observed that Article 73 of Regulation No 1408/71,
as amended by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ
1989 L 331, p. 1), provides: 'An employed or self-employed person subject to the
legislation of a Member State shall be entitled, in respect of 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, subject to
the provisions of Annex VI.'
- As the Court held in its judgment in Case 101/83 Raad van Arbeid v Brusse [1984]
ECR 2223, paragraph 30, that article creates, in favour of a worker who is subject
to the legislation of a Member State other than the State in whose territory the
members of his family reside, a real entitlement to the family benefits provided for
by the applicable legislation. That entitlement cannot be defeated by the
application of a provision of that legislation by virtue of which persons not residing
in the territory of the Member State in question are not to receive family benefits.
- In accordance with the case-law of the Court (see Case 104/80 Beeck [1981] ECR
503, paragraphs 7 and 8, Case C-78/91 Hughes [1992] ECR I-4839, paragraph 28,
and Hoever and Zachow, cited above, paragraph 38), that provision is also
applicable to a worker who lives with his family in a Member State other than the
one whose legislation is applicable to him.
- The same is true of Article 74 of Regulation No 1408/71, as amended by
Regulation No 3427/89, which applies the rule laid down in Article 73 to an
unemployed person who was formerly employed or self-employed and who draws
unemployment benefit under the legislation of a Member State.
- A person in a situation such as that of the applicant in the main proceedings,
however, clearly does not fulfil the conditions either of Article 73 or of Article 74
of Regulation No 1408/71, inasmuch as neither that person nor the members of his
family have ever resided in a Member State other than the one whose legislation
was applicable to him. That is so in particular by reason of the fact that, under
Article 13(2)(f) of Regulation No 1408/71, a person in such a situation is subject,
after transferring his residence to another Member State, to the legislation of that Member State, as is to be seen by the reply to the second question.
- It is also important to note that Article 10 of Regulation No 1408/71, which
provides that certain benefits acquired under the legislation of one or more
Member States may not be the subject of any withdrawal by reason of the fact that
the recipient resides in the territory of a Member State other than that in which the
institution responsible for payment is situated, applies only to the benefits expressly
mentioned therein, which do not include family benefits.
- In light of the foregoing considerations, the reply to the third question must be that
Regulation No 1408/71 does not preclude the legislation of a Member State from
providing that a person who has ceased all occupational activity in its territory loses
the right to continued payment of family benefits paid under that legislation on the
ground that he has transferred his residence to another Member State where he
lives with the members of his family.
Costs
- The costs incurred by the Swedish, Netherlands, Finnish and Norwegian
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 questions referred to it by the Kammarrätt, Sundsvall, by order of 6 August 1996, hereby rules:
1. Council Regulation (EEC) No 1408/71 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, applies to a person who, on the entry into force of that regulation in a Member State, was residing in that State as an unemployed person, having previously been in employment there, and who, by reason of that employment, was receiving unemployment benefit under the social security scheme of that Member State.
2. Article 13(2)(f) of Regulation No 1408/71, as inserted by Council Regulation (EEC) No 2195/91 of 25 June 1991, does not preclude the legislation of a Member State from making the right of a person who has ceased all occupational activity in its territory to remain subject to its legislation dependent on his continued residence there.
3. Regulation No 1408/71 does not preclude the legislation of a Member State from providing that a person who has ceased all occupational activity in its territory loses the right to continue to receive family benefits paid under that legislation on the ground that he has transferred his residence to another Member State where he lives with the members of his family.
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RagnemalmSchintgen
Mancini
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Delivered in open court in Luxembourg on 11 June 1998.
R. Grass H. Ragnemalm
Registrar President of the Sixth Chamber
1: Language of the case: Swedish.