Hilmar Kulzer contra Freistaat Bayern.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:1998:85
• Date: 05 March 1998
• Celex Number: 61996CJ0194
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-194/96

Avis juridique important

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61996J0194

Judgment of the Court (Fifth Chamber) of 5 March 1998. - Hilmar Kulzer v Freistaat Bayern. - Reference for a preliminary ruling: Bundessozialgericht - Germany. - Regulation (EEC) No 1408/71 - Worker who has not exercised the right to freedom of movement - Retired civil servant - Article 73 - Family benefits - German institution competent - Article 77 - National legislation. - Case C-194/96.

European Court reports 1998 Page I-00895

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 Social security for migrant workers - Community rules - Persons covered - Retired civil servant who has not himself exercised the right to freedom of movement - Where his child has moved with her mother within the Community

2 Social security for migrant workers - Family benefits - Retired civil servant subject to German legislation - Child residing in another Member State - Definition of employed person for the purpose of paying family benefits - German institution competent - Application of the criteria laid down in Article 1(a) of Regulation No 1408/71 and in Annex I thereto - Effects - Refusal to award benefits under the national legislation - Whether permissible

(Council Regulation No 1408/71, Arts 1(a)(ii) and 73 and Annex I, Point I.C)

3 Social security for migrant workers - Family benefits - Pensioners - Legislation within the meaning of Article 77(2)(a) of Regulation No 1408/71 - Special schemes for civil servants and persons treated as such - Not included

(Council Regulation No 1408/71, Arts 1(j), 4(4) and 77(2)(a))

Summary

4 A retired civil servant who has worked only in the State of which he is a national is covered by Regulation No 1408/71 where his dependent child has moved within the Community with his former spouse, if he is, or has been, subject to the legislation of a Member State to which the regulation applies.

5 Article 73 of Regulation No 1408/71, read in conjunction with Point I.C of Annex I to the same regulation, is to be interpreted, for the purpose of payment of child allowance under German legislation, as not applying to a national of that Member State who receives, under its legislation, an old-age benefit as a retired civil servant, where that person has worked only in the Member State of which he is a national and his dependent child has moved within the Community with his former spouse. It appears from the wording of that annex, to which Article 1(a)(ii) of the regulation refers, that only workers compulsorily insured under one of the schemes mentioned therein are entitled to German family allowances in accordance with Chapter 7 of Title III of the regulation. Accordingly, to allow a retired civil servant to rely on Article 73 in order to receive German family allowances on the ground that the situation of civil servants must generally be treated in the same way as that of employed persons would involve disregarding the terms of Annex I.

6 Article 77(2)(a) of Regulation No 1408/71 is to be interpreted as not covering the situation of a person who draws a pension only under a special scheme for civil servants and persons treated as such. The term `legislation' used in that provision has the meaning stated in Article 1(j) of the regulation and therefore does not cover the statutes, regulations or other provisions or measures relating to the categories of benefits referred to in Article 4(4) of the regulation which include, in particular, special schemes for civil servants and persons treated as such.

Parties

In Case C-194/96,

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

Hilmar Kulzer

and

Freistaat Bayern

on the interpretation of Articles 2(3), 73 and 77 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), then by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1),

THE COURT

(Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, J.C. Moitinho de Almeida, D.A.O. Edward (Rapporteur), J.-P. Puissochet and P. Jann, Judges,

Advocate General: N. Fennelly,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Mr Kulzer, by Michael Kaplitz, Rechtsanwalt, Schwandorf,

- the Commission of the European Communities, by Peter Hillenkamp, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Commission at the hearing on 16 September 1997,

after hearing the Opinion of the Advocate General at the sitting on 23 October 1997,

gives the following

Judgment

Grounds

1 By order of 30 April 1996, received at the Court on 10 June 1996, the Bundessozialgericht (Federal Social Court) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Articles 2(3), 73 and 77 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), then by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1) (hereinafter `the Regulation').

2 Those questions were raised in proceedings between Mr Kulzer and Freistaat Bayern (Free State of Bavaria) concerning the grant of an allowance in respect of his dependent child.

Community law

3 The fourth and fifth recitals...