DELIVERED ON 14 DECEMBER 1977 (*1)

Mr President,

Members of the Court,

The defendant in the main action which gave rise to the reference to this Court for a preliminary ruling with which we must deal today was born on 21 April 1956 and is of French nationality. After finishing her schooling in France in September 1973, she stayed in the United Kingdom from 3 October 1973 to 10 April 1974. She worked there as an au pair girl with a British family and in addition went to evening classes at an adult education centre.

Immediately after her return to France she registered herself with the competent authority as unemployed on 2 May 1974. From 17 May to 17 July 1974 she had to undergo medical treatment. She claimed from the competent French insurance institution reimbursement of the expenses incurred in this connexion.

The competent institution, however, the Caisse Primaire d'Assurance Maladie d'Eure-et-Loir (Sickness Fund for the Eure and Loir), refused this request. It takes the view that the applicant is not entitled to payment in right of her father who is a member of the social insurance scheme because after finishing her schooling she worked in the United Kingdom, which is relevant in this connexion under Article L 285 of the French Code de la Sécurité Sociale (Social Security Code). In addition the applicant has no claim in her own right because she does not fulfil the conditions applicable with regard to the length of the period of employment under Article L 249 of the Code de la Sécurité Sociale and because she cannot be regarded as a migrant worker within the meaning of the relevant provisions of Community law which is an important factor with regard to the taking into account of British insurance periods.

However, the Commission de Premiere Instance du Contentieux de la Sécurité Sociale (Commission of First Instance for Disputes concerning Social Security), before which the matter was brought, found in favour of the applicant. In a judgment delivered on 12 March 1975 it stated that the applicant was entitled to receive French sickness insurance benefits in right of her father. In this connexion it is determining that au pair girls in the United Kingdom are not regarded for national insurance purposes as employed persons but rather as students.

The Caisse Primaire d'Assurance Maladie d'Eure-et-Loir did not agree with that judgment and appealed to the Cour de Cassation (supreme court of appeal). In support of its appeal in cassation it referred in particular to the fact that under French law a child is automatically considered as dependent, for the purposes of the award of family benefits and therefore for the purposes of social insurance claims in right of the father only if the schooling is incompatible with the pursuit of a gainful occupation. The defendant however worked as an au pair girl and was remunerated for it, at least in the form of benefits in kind (for example board and lodging).

The Cour de Cassation takes the view that in examining the case, evidendy with regard to the fact that the applicant was a member of the sickness insurance scheme in the United Kingdom, the question arises whether she does not in fact have personal rights under Regulation No 1408/71 (Official Journal, English Special Edition 1971 (II), p. 416) in particular under Article 18 thereof which provides that:

‘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 insurance periods shall, to the extent necessary, take account of insurance periods completed under the legislation of any other Member State as if they were periods completed under its own legislation’.

The Cour de Cassation therefore stayed the proceedings by judgment of 3 June 1977 and referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty the questions:

Whether a national of a Member State who, while residing in the territory of another Member State for the purposes of working there au pair, and, at the same time, of following a part-time course of study, receives in that State social security benefits in kind, is a migrant worker within the meaning of Article 1 of Regulation No 1408/71.

Whether the rights acquired by such a national during his stay must be taken into account by any other Member State as if they were the periods laid down for the acquisition of a right under its own legislation.

I adopt the following point of view with regard to these questions:

The defendant may only derive rights from Regulation No 1408/71 if she is one of the persons to whom it applies.

In this connexion it is important that she was insured against sickness during her stay in the United Kingdom and obviously also received corresponding benefits. It is however also of importance that in the United Kingdom, and this may be deduced from the observations made by the representative of the British Government and from the statements of the Commission, that the rules relating to the sickness insurance scheme are such that, within the context of the Act of 1946 setting up the National Health Service, they apply to any person who is ordinarily resident in the United Kingdom irrespective of whether he is or is not gainfully occupied and that they may at the discretion of the administration also be extended to visitors from other countries.

In such a case it is necessary to refer to the definition of the concept of ‘worker’ in order to determine to which persons Regulation No 1408/71 applies; this definition is contained in Article 1 (a) (ii), according to which a worker is any person

‘who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this regulation, under a social security scheme for all residents or for the whole working population if such person:

— can be identified as an employed person by virtue of the manner in which such scheme is administered or financed, or

— failing such criteria, is insured for some other contingency specified in Annex V under a scheme for employed persons, either compulsorily or on an optional continued basis’.

In addition, it is necessary to refer to Annex VI in the version applicable after the accession of the United Kingdom to the European Economic Community by means of the Act concerning the Conditions of Accession and the Adjustments to the Treaties since it has already been pointed out in Case 17/76 (Brack v Insurance Officer, judgment of 29 September 1976 [1976] ECR 1449) that the purpose of this annex is to clarify the scope of Article 1 (a) (ii) vis-a-vis British legislation. It provides quite clearly that:

‘All persons required to pay contributions as employed workers shall be regarded as workers for the purposes of Article 1 (a) (ii) of the Regulation’.

Accordingly, it may only be accepted that au pair girls are persons to whom Regulation No 1408/71 applies if these conditions are fulfilled in relation to them and to their sickness insurance.

In my opinion the reference by the British Government to the fact that the conditions relating to medical treatment for au pair girls are generally the same as those relating to persons who stay in the United Kingdom as visitors is of little help with regard to the examination of this question. Likewise, the reference by the Caisse Primaire d'Assurance Maladie d'Eure-et-Loir, the plaintiff, to a European Agreement of 1969 on Au Pair Placement and the definitions contained therein is of no assistance since we do not know whether in the present case these conditions are actually fulfilled.

It is necessary, rather, to discover in the main action whether in view of the conditions laid down in Annex V to Regulation No 1408/71 the defendant in the main action was in the present case required to pay contributions as an employed worker. In this connexion, in accordance with the statements of the Commission, by virtue of regulations on contributions issued in 1975 benefits in kind (for example board and lodging) as well as payments of up to £ 8 per week are apparently not taken into consideration.

The result of this examination determines whether it was or was not necessary to regard the defendant, even as an au pair girl, as a worker within the meaning of Regulation No 1408/71 and whether it is possible to take into consideration the rights acquired by her in the United Kingdom, for example within the context of the above-mentioned Article 18.

The defendant produced in the procedure a certificate from the principal of the adult education centre which she attended in the United Kingdom according to which au pair girls who take part in these courses are considered as students and do not have to pay National Insurance stamps. Accordingly it is obvious to assume, if the Court will permit me to mention this now, that the defendant must not be considered as a migrant worker within the meaning of Regulation No 1408/71.

This certificate is not of course completely certain. In addition, such conclusions come within the field of the application of the law which, in proceedings under Article 177, is not the province of this Court but that of the national courts. For this reason I would now like to make the following observations in addition in case the defendant in fact fulfils the requirements laid down in Regulation No 1408/71:

The Commission correctly pointed out that it is very important for the purposes of appraising the defendant's legal situation and after her return to France, and this applies in particular to the period during which she was receiving medical treatment, she was not in employment but was registered as unemployed. If it were necessary to regard her as a migrant worker, the way in which she received unemployment benefits would accordingly be important.

First, it is conceivable that it was necessary to apply Article 69 (1) of Regulation No 1408/71 to her, according to which a worker who is wholly unemployed and who satisfies the conditions of the legislation of a Member State for entitlement to benefits and who goes to one or more other Member States in order to seek employment there retains his entitlement to such benefits under certain conditions and within certain limits. In this case the defendant would have rights under Article 25 (1) (a) of Regulation No 1408/71 which provides that:

‘An unemployed person, to whom Article 69 (1) … [applies], and who satisfies the conditions of the legislation of the competent State for entitlement to benefits in kind and in cash, taking account where appropriate of the provisions of Article 18, shall receive for the period provided under Article 69 (1) (c):

benefits in kind provided on behalf of the competent institution by the institution of the Member State in which he seeks employment in accordance with the legislation of the latter institution, as though he were insured with it;

…

On the other hand it is conceivable that it is necessary to apply to the defendant Article 71 (1) (b) (ii) of Regulation No 1408/71 which provides that:

An unemployed person who, during his last employment, was residing in the territory of a Member State other than the competent State shall receive benefits in accordance with the following provisions:

…

(ii) a worker, other than a frontier worker, who is wholly unemployed and who makes himself available for work to the employment services in the territory the Member State in which he resides, or who returns to that territory, shall receive benefits in accordance with the legislation of that State as if he had last been employed there; the institution of the place of residence shall provide such benefits at its own expense …’

If that were the case then Article 25 (2) would come into consideration, which provides that:

‘A totally unemployed person to whom the provisions of Article 71 (1) (a) (ii) or the first sentence of Article 71 (1) (b) (ii) apply shall receive benefits in kind and in cash in accordance with the legislation of the Member State in whose territory he resides, as though he had been subject to that legislation during his last employment, taking account where appropriate of the provisions of Article 18; the cost of such benefits shall be met by the institution of the country of residence’.

From the point of view of Community law there is little more to say with regard to the present case on the basis of the facts which have become known. It is for the court making the reference or other courts in the national sphere to make any further clarifications.

For this reason it is necessary to reply as follows to the questions put by the French Cour de Cassation: