OPINION OF ADVOCATE GENERAL

delivered on 7 December 1995 (1)

(Reference for a preliminary ruling from the Sozialgericht Stuttgart)

((Social security for migrant workers – Family benefits – Article 74 of Regulation (EEC) No 1408/71))

6. The Bundesanstalt also refused, by decision of 6 April 1993, to pay family benefits for January and February 1993 in respect of Mr Moreno's children, who were living in Spain, on the ground that Mr Moreno had not for those two months been drawing unemployment benefits under the legislation of a Member State, as required under Article 74 of the regulation. Mr Moreno contested that decision. The Bundesanstalt rejected his complaint on 27 May 1993.

Observations submitted to the Court

10. The German Government contends that an unemployed worker who has received compensation must be placed on a par with someone who draws unemployment benefits within the meaning of Article 74. During a temporary exclusion period, however, an unemployed worker receives neither unemployment benefit, benefits from his employer nor any other financial benefits, and therefore no unemployment benefits are drawn once a period of temporary exclusion has begun.

11. The Commission submits that a benefit cannot be excluded from the scope of the regulation simply because it is paid by the employer. Compensation in respect of termination of an employment relationship must be regarded as constituting an unemployment benefit in view of the fact that it is granted as a result of unemployment and replaces unemployment benefit. During a temporary exclusion period, unemployed workers are insured, under German legislation, against sickness and accidents, and the provision of such insurance must be regarded as an unemployment benefit.

Analysis

12. It must, in my view, follow from the words draws unemployment benefits in Article 74 of the regulation that there must have been a substantive transfer of assets in favour of an unemployed person. The fact that a person is in principle affiliated to an unemployment scheme cannot in itself suffice to satisfy this requirement if in fact no benefits are drawn and there is consequently no substantive transfer of assets.

13. Mr Moreno can therefore be deemed to be entitled to family benefits in respect of his children only if he has, under German legislation, drawn benefits other than unemployment benefit during the periods for which unemployment benefit was suspended.

15. Paragraph 117(3) of the AFG contains rules as to what portion of the compensation must be taken into consideration in calculating the period for which unemployment benefit is suspended. Under the German rules, the amount of compensation may therefore be regarded as consisting of two parts: one part which can be attributed to the previous employment relationship and another covering the period after cessation of that relationship. The underlying reason for the rules on the suspension of unemployment benefit in cases where compensation has been paid appears to be that it is unreasonable to provide unemployment benefit during a period of unemployment in which the upkeep of the person in question is guaranteed through other means, namely through part of the compensation sum. Since, therefore, the compensation sum has to be regarded as a benefit in connection with unemployment over the period for which payment of unemployment benefit is suspended, it is necessary to address the question whether any significance attaches to the fact that it is the employer who pays the benefit.

16. Article 74 of the regulation does not, however, appear to contain any requirement that the benefit must be paid by the State, by an unemployment fund, or suchlike. According to the Court's consistent case-law, the manner in which a benefit is financed has no bearing on whether it is a social security benefit covered by the regulation. Thus, in a judgment of 3 June 1992 (6) concerning benefits from an employer as a result of sickness, the Court held that:... the fact that the financial burden of those benefits rests on the employer cannot remove those benefits from the scope of Regulation No 1408/71 since, according to the Court's case-law ... , the classification of an allowance as a social security benefit covered by the regulation does not depend upon the manner in which it is financed.

17. The true delimitation of the benefits covered by Article 74 rests on the fact that this provision refers to benefits under the legislation of a Member State. Payment of compensation by an employer cannot of course in itself be deemed to occur under the legislation of a Member State. If, however, that payment is to be regarded under German legislation as replacing for a certain period the payment of unemployment benefit, it strikes me as perfectly logical to treat receipt of such compensation as analogous to the receipt of a benefit under the legislation of a Member State.

18. The question then arises as to what significance attaches to the fact that the unemployed person is insured against illness and accidents during the temporary exclusion period ─ after expiry of the suspension period resulting from the compensation. Both Articles 4(1)(g) and 74 of the regulation use the general term unemployment benefits. Those provisions do not specify whether this expression covers only financial benefits or whether it may also cover other benefits associated with unemployment. None of the provisions appears to impose requirements regarding the nature of the unemployment benefits or to lay down minimum requirements regarding the benefits drawn. As mentioned above, the crucial consideration must be regarded as being whether a substantive transfer of assets has taken place. Thus, there may be nothing to prevent benefits which do not consist in the disbursement of money from satisfying the requirement in Article 74 if it is necessary to assume only that there has been a substantive transfer of assets in favour of the unemployed person. The fact that under German legislation unemployed persons enjoy insurance cover against sickness and accidents implies, in the first place, expenditure for the unemployment fund or the State, which meet the expenditure associated with those risks, and, secondly, an economic advantage for the unemployed person, who does not himself have to spend money for that purpose. There is thus a substantive transfer of assets in favour of the unemployed person, and it must therefore be assumed, in my view, that the person is drawing unemployment benefits under the legislation of a Member State.

20. I for that reason take the view that Article 74 of the regulation must be interpreted as meaning that the provision of sickness and accident insurance is also covered by the expression unemployment benefits.

21. I accordingly consider it unnecessary in the present case to address the question whether employment promotion services provided, for instance, in the form of advice can be regarded as constituting unemployment benefits.

22. The reply to the question submitted ought therefore in my view to be that Article 74 of the regulation must be interpreted as meaning that the expression unemployed person who ... draws unemployment benefits under the legislation of a Member State includes unemployed persons registered with the labour office whose entitlement to unemployment benefit has, under rules such as those laid down in German legislation, been suspended because compensation was paid to them by their employer on termination of their employment or because of a temporary exclusion period, if, under rules such as those laid down in German legislation, they are covered by sickness and accident insurance during that temporary exclusion period.

23. Mr Moreno and the Spanish Government also submit that the rule in Article 73 of the regulation, in conjunction with Article 1 thereof, concerning members of an employed or self-employed person's family, may also be applied in this case, since cover by sickness and accident insurance must mean that an unemployed worker satisfies the regulation's definition of a worker during a temporary exclusion period. Against this, the German Government and the Commission argue that such insurance cannot bring Mr Moreno within the scope of Article 73. The Commission adds that Article 74 constitutes a lex specialis in relation to Article 73. The Commission also questions whether Mr Moreno can come within the definition of the term employed person used in both Article 73 and Article 74 of the regulation.

25.I do not for that reason find it necessary to consider whether Mr Moreno can be regarded as being an employed person within the meaning of the regulation, or whether Article 73 of the regulation concerning persons in employment may be applicable to the present case.

Conclusion

26.I accordingly propose that the Court reply as follows to the question which has been submitted to it: Article 74 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 by Council Regulation (EEC) No 3427/89 of 30 October 1989, must be interpreted as meaning that the expression unemployed person who ... draws unemployment benefits under the legislation of a Member State includes unemployed persons registered with the labour office whose entitlement to unemployment benefit has, under rules such as those laid down in German legislation, been suspended because compensation was paid to them by their employer on termination of their employment or because of a temporary exclusion period, if, under rules such as those laid down in German legislation, they are covered by sickness and accident insurance during that temporary exclusion period.

Original language: Danish.

As amended and updated by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6) and Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1).

Bundesgesetzblatt I, p. 582.

Sozialgesetzbuch ─ Fünftes Buch, Gesetzliche Krankenversicherung (Social Security Code ─ Book V, Statutory Sickness Insurance).

See Paragraph 165 of the AFG.

Case C-45/90 Paletta [1992] ECR I-3423, paragraph 18.

Judgment in Case 375/85 Campana v Bundesanstalt für Arbeit [1987] ECR 2387.

See, for example, the judgment in Case 10/69 Portelange v Marchant [1969] ECR 309.