María Martínez Sala contra Freistaat Bayern.

• Jurisdiction: European Union
• Celex Number: 61996CJ0085
• ECLI: ECLI:EU:C:1998:217
• Date: 12 May 1998
• Docket Number: C-85/96
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Judgment of the Court of 12 May 1998. - María Martínez Sala v Freistaat Bayern. - Reference for a preliminary ruling: Bayerisches Landessozialgericht - Germany. - Articles 8A, 48 and 51 of the EC Treaty - Definition of 'worker' - Article 4 of Regulation (EEC) No 1408/71 - Child-raising allowance - Definition of 'family benefit'- Article 7(2) of Regulation (EEC) No 1612/68 - Definition of 'social advantage' - Requirement of possession of a residence permit or authorization. - Case C-85/96.

European Court reports 1998 Page I-02691

Summary Parties Grounds Decision on costs Operative part

Keywords

1 Social security for migrant workers - Community rules - Scope ratione materiae - Child-raising allowance intended to meet family expenses of the recipient, granted on the basis of objective and legally defined criteria - Whether included

(Council Regulation No 1408/71, Art. 4(1)(h))

2 Freedom of movement for persons - Workers - Equal treatment - Social advantages - Definition - Child-raising allowance intended to meet family expenses of the recipient, granted on the basis of objective and legally defined criteria - Whether included

(Council Regulation 1612/68, Art. 7(2))

3 Freedom of movement for persons - Workers - Definition of worker - Definition varying according to area in which it is applied - Worker within the meaning of Article 48 of the Treaty and Regulation No 1612/68 - Definition - Employed person within the meaning of Regulation No 1408/71 - Definition

(EC Treaty, Arts 48 and 51; Council Regulations Nos 1612/68 and 1408/71, Arts 1(a) and 2))

4 Citizenship of the European Union - Treaty provisions - Scope ratione personae - National of one Member State lawfully residing on the territory of another Member State - Whether included - Effect - Benefit of rights attaching to the status of citizen of the European Union

(EC Treaty, Arts 6 and 8(2))

5 Community law - Principles - Equal treatment - Discrimination on grounds of nationality - Child-raising allowance - Conditions for granting - National rules requiring only nationals of other Member States to produce a residence permit - Not permissible

(EC Treaty, Art. 6)

Summary

1 A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which is intended to meet family expenses, falls within the scope ratione materiae of Community law as a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.

2 A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which is intended to meet family expenses, falls within the scope ratione materiae of Community law as a social advantage within the meaning of Article 7(2) of Regulation No 1612/68.

The concept of social advantage covers all the advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and whose extension to workers who are nationals of other Member States therefore seems likely to facilitate the mobility of such workers within the Community

3 There is no single definition of worker in Community law: it varies according to the area in which the definition is to be applied. For instance, the definition of worker used in the context of Article 48 of the Treaty and Regulation No 1612/68 does not necessarily coincide with the definition applied in relation to Article 51 of the Treaty and Regulation No 1408/71.

In the context of Article 48 of the Treaty and Regulation No 1612/68, a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration must be considered to be a worker.

On the other hand, a person has the status of employed person within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, compulsorily or on an 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.

4 A national of a Member State lawfully residing in the territory of another Member State comes within the scope ratione personae of the provisions of the Treaty on European citizenship and can rely on the rights laid down by the Treaty which Article 8(2) attaches to the status of citizen of the Union, including the right, laid down in Article 6, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty.

5 Community law precludes a Member State from requiring nationals of other Member States authorised to reside in its territory to produce a formal residence permit issued by the national authorities in order to receive a child-raising allowance, whereas that Member State's own nationals are only required to be permanently or ordinarily resident in that Member State.

For the purposes of the grant of the benefit in question, possession of a residence permit cannot be constitutive of the right to the benefit when, for the purposes of recognition of the right of residence, it has only declaratory and probative force.

Parties

In Case C-85/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Bayerisches Landessozialgericht (Higher Social Court of Bavaria) (Germany) for a preliminary ruling in the proceedings pending before that court between

María Martínez Sala

and

Freistaat Bayern

on the interpretation of Articles 1, 2, 3(1) and 4(1)(h) 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 amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as amended by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1), and of 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),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm and M. Wathelet (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, P.J.G. Kapteyn, J.L. Murray, D.A.O. Edward (Rapporteur), J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón, Judges,

Advocate General: A. La Pergola,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Mrs Martínez Sala, by Antonio Pérez Garrido, Leiter der Rechtsstelle at the Spanish Embassy in Bonn,

- the German Government, by Ernst Röder, Ministerialrat in the Federal Ministry of Economic Affairs, and Bernd Kloke, Oberregierungsrat in that Ministry, acting as Agents,

- the Spanish Government, by D. Luis Pérez de Ayala Becerril, Abogado del Estado, State Legal Service, acting as Agent,

- the Commission of the European Communities, by Peter Hillenkamp, Legal Adviser, and Klaus-Dieter Borchardt, of its Legal Service, acting as Agents,$

having regard to the Report for the Hearing,

after hearing the oral observations of Mrs Martínez Sala, represented by Antonio Pérez Garrido; of the German Government, represented by Ernst Röder; of the Spanish Government, represented by D. Luis Pérez de Ayala Becerril; of the French Government, represented by Claude Chavance, Foreign Affairs Secretary at the Foreign Affairs Directorate of the Ministry of Foreign Affairs, acting as Agent; of the United Kingdom Government, represented by Stephen Richards, Barrister; and of the Commission, represented by Klaus-Dieter Borchardt, at the hearing on 15 April 1997,

after hearing the Opinion of the Advocate General at the sitting on 1 July 1997,

gives the following

Judgment

Grounds

1 By order of 2 February 1996, received by the Court on 20 March, the Bayerisches Landessozialgericht referred to the Court for a preliminary ruling pursuant to Article 177 of the EC Treaty four questions on the interpretation of Articles 1, 2, 3(1) and 4(1)(h) 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...