Avis juridique important

Judgment of the Court of 10 March 1993. - Commission of the European Communities v Grand Duchy of Luxembourg. - Childbirth and maternity allowances - Residence requirement - Validity. - Case C-111/91. European Court reports 1993 Page I-00817 Swedish special edition Page I-00035 Finnish special edition Page I-00035

Summary Parties Grounds Decision on costs Operative part

++++

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))

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.

In Case C-111/91,

Commission of the European Communities, represented by Maria Patakia, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Grand Duchy of Luxembourg, represented by Georges Schroeder, Director of the General Inspectorate of Social Security, acting as Agent, assisted by Louis Schiltz, of the Luxembourg Bar, with an address for service at the office of the latter, 2 rue du Fort Rheinsheim,

defendant,

APPLICATION for a declaration that, by imposing residence requirements for the grant of childbirth and maternity allowances, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), under Article 18(1) 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, as codified by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) and under Article 52 of the EEC Treaty,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President of the First and Fifth Chambers, acting for the President, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse and D.A.O. Edward, Judges,

Advocate General: F.G. Jacobs,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 17 November 1992,

after hearing the Opinion of the Advocate General at the sitting on 16 December 1992,

gives the following

Judgment

1 By application at the Court Registry on 12 April 1991, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by imposing residence requirements for the grant of childbirth and maternity allowances, the Grand Duchy of Luxembourg had failed to fulfil its obligations under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475), under Article 18(1) 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, as codified by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), and under Article 52 of the EEC Treaty.

2 The Commission challenges the Luxembourg legislation on the ground that it makes the payment of childbirth and maternity allowances conditional on residence requirements that are discriminatory towards various categories of persons in the Grand Duchy of Luxembourg who enjoy the right of free movement.

3 The childbirth allowance is split into three instalments, namely the prenatal allowance, the childbirth allowance proper and the postnatal allowance, although the Commission is challenging the conditions of grant for the first two instalments only. The first instalment is paid when the mother-to-be has undergone the last of the medical examinations required by the legislation. It is a condition for such payment that the mother-to-be should have been "officially resident" in the Grand Duchy for a year preceding the birth of the child and have attended all the medical examinations required by the legislation. The second instalment of the childbirth allowance is paid after the birth of the child, but only if three conditions are met: the birth must have taken place on Luxembourg territory (or on foreign territory while the mother was absent on reasonable grounds), one of the parents must have been officially resident in the Grand Duchy for a year at the time of the birth, and the mother must have undergone the postnatal examination.

4 The maternity allowance is paid to every woman who is pregnant or has given birth, provided that either she has been officially resident in the Grand Duchy for the entire year preceding the beginning of her entitlement, or her husband has been officially resident in the Grand Duchy for three years preceding the entitlement date. The allowance is paid on demand for a maximum period of sixteen weeks, beginning with the eighth week preceding the presumed date of birth, as evidenced by a medical certificate.

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the legislative scheme in dispute, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Childbirth allowance

6 As both parties have agreed, childbirth allowance is a social advantage within the meaning of Article 7(2) of Regulation No 1612/68. By virtue of that Article, migrant workers must therefore receive the allowance in the same way as national workers.

7 The Luxembourg Government argues, first, that the disputed residence requirement is not discriminatory, because it is imposed on Luxembourg nationals in the same way as on nationals of other Member States.

8 That argument cannot be accepted.

11 The Luxembourg Government maintains, secondly, that the disputed residence requirement is objectively justified on public health grounds, because it goes hand in hand with the rules making payment of the childbirth allowance conditional on the carrying out of several medical examinations.

13 Moreover, the argument of the Luxembourg Government is irrelevant as regards the second instalment of the childbirth allowance because, in the first place, the residence requirement for that instalment can also be met by the child' s father and, in the second place, the compulsory postnatal examination of the mother has no connection with the requirement of residence prior to the birth.

14 The Luxembourg Government' s argument regarding the need to ensure that all the medical examinations take place under the supervision of a single doctor, cannot be accepted. It is enough to point out here that the Luxembourg legislation does not in any way require that the compulsory medical examinations should all take place under the supervision of the same doctor.

16 The imposition of such a discriminatory requirement also constitutes a breach of Article 52 of the Treaty.

18 It follows that the imposition of residence requirements which are, as has already been established, discriminatory as regards the payment of childbirth allowance constitutes a breach of Article 52 of the Treaty.

19 The Commission' s action must therefore be allowed in so far as it relates to childbirth allowance.

Maternity allowance

20 The question of maternity allowance must be examined in the light of Article 7(2) of Regulation No 1612/68, of Regulation No 1408/71 and of Article 52 of the Treaty. As Advocate General Jacobs points out in points 32 to 34 of his Opinion, those prov isions do not have the same scope ratione personae.

22 As the Luxembourg Government agreed at the hearing, maternity allowance is a social advantage within the meaning of Article 7(2) of Regulation No 1612/68. By virtue of that article, migrant workers must therefore receive the allowance in the same way as national workers.

23 The defendant Government' s argument that the residence requirement is not discriminatory, because it is imposed on Luxembourg nationals in the same way as on the nationals of other Member States, must be rejected for the reasons given in paragraphs 9 and 10 of this judgment.

24 That requirement is therefore incompatible with Article 7(2) of Regulation No 1612/68.

25 In the Commission' s view, the disputed requirement is also incompatible with Article 18(1) of Regulation No 1408/71.

26 Under that provision, the competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of periods of insurance, employment or residence must, to the extent necessary, take account of periods of insurance, employment or residence completed under the legislation of any other Member State as if they were periods completed under the legislation which it administers.

27 The Luxembourg Government maintains, however, that the maternity allowance was outside the material scope of Regulation No 1408/71 at the time the period for compliance with the reasoned opinion expired. It submits that the allowance could not have been covered by the regulation until after its amendment by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1), which came into force on 1 June 1992, because, following that amendment, the Luxembourg maternity allowance is now expressly referred to in the new text.

32 It follows that, even before Regulation No 1247/92 came into force, Regulation No 1408/71, and in particular Article 18 thereof, applied to maternity allowance. The Grand Duchy was therefore obliged to take account of periods of residence completed under the legislation of any other Member State, as if they were periods completed under Luxembourg legislation.

Costs

35 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Grand Duchy of Luxembourg has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by imposing residence requirements for the grant of childbirth and maternity allowances, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 7(2) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community, Article 18(1) of Council Regulation 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 codified by Council Regulation (EEC) No 2001/83 of 2 June 1983, and Article 52 of the EEC Treaty;

2. Orders the Grand Duchy of Luxembourg to pay the costs.