28.1.2012

Official Journal of the European Union

C 25/30

(Case C-538/11)

(2012/C 25/52)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Hermine Sax

Defendant: Pensionsversicherungsanstalt Landesstelle Salzburg

Questions referred

1.Are Regulation (EC) No 883/2004, in particular Article 7 and Title III, Chapter 1 (Sickness benefits), and Regulation (EC) No 987/2009 to be interpreted as meaning that a person needing long-term care who is receiving an Austrian pension may demand the payment of care allowance under the Bundespflegegeldgesetz (Federal Law on care allowance, BPGG) as a sickness benefit in cash, irrespective of her main residence in Germany, if she meets the other requirements for entitlement under the BPGG and do those regulations thus preclude the application of the national provision in Paragraph 3 BPGG?

2.If the reply to the first question is in the affirmative: Are Regulation (EC) No 883/2004, in particular Articles 10 and 11(3)(e), and also Articles 21, 29 and 34 and/or Title III, Chapter 1 (Sickness benefits), and Regulation (EC) No 987/2009 to be interpreted as meaning that a person needing long-term care who is receiving a double pension, to be exact, an Austrian pension and a German pension, may demand the payment of care allowance under the BPGG as a sickness benefit in cash, irrespective of her main residence in Germany, if she meets the other requirements for entitlement under the BPGG and do those regulations thus preclude the application of the national provision in Paragraph 3 BPGG?

3.If the reply to the second question is in the affirmative: How are Regulation (EC) No 883/2004, in particular Articles 10 and 34, and Article 31, and Regulation (EC) No 987/2009 to be interpreted where there are concurrent benefits, with set-off, from the social security system for covering the risk of need for long-term care, that is to say, in the present case, entitlement to a combination benefit of German care allowance (choice between benefit in kind and cash benefit) and entitlement to Austrian care allowance, more specifically:

3.1.Is only the cash benefit granted by Germany, the State of residence, or only the care benefit in kind or the entire care benefit (total of care allowance and value of care benefit in kind) to be set off against the Austrian care allowance under the BPGG which is to be exported, and is regard to be had to the differing price levels in the Member States concerned?

3.2.Is it necessary, when effecting the required set-off, to consider whether the State of residence grants care benefits with equivalent cover or are such care benefits from the State of residence to be left out of account when effecting set-off where those benefits are provided for only in the State of residence by the social security system to cover the risk of need for long term care?

3.3.Must the Social Court hearing the action brought by the person needing long-term care examine the substantive conditions for set-off if the defendant institution has not initiated a procedure within the meaning of Article 31 of Regulation (EC) No 987/2009, has made no submissions concerning the question of benefits with equivalent cover and, in particular, has omitted to inform the person needing long-term care of the prohibition of concurrent benefits?