JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
JUDGMENT OF THE COURT
11 October 2001 *
In Joined Cases C-95/99 to C-98/99 and C-180/99,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234
EC) by the Bundessozialgericht (Germany) for a preliminary ruling in the
proceedings pending before that court between
Mervett Khalil (C-95/99),
Issa Chaaban (C-96/99),
Hassan Osseili (C-97/99)
and
Bundesanstalt für Arbeit,
between
Mohamad Nasser (C-98/99)
and
Landeshauptstadt Stuttgart
*
Language of the case: German.
I - 7438
KHALIL AND OTHERS
and between
Meriem Addou (C-18 0/99)
and
Land Nordrhein-Westfalen,
on the validity and interpretation 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),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, P. Jann, F. Macken, N. Colneric
and S. von Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,
A. La Pergola, J.-P. Puissochet, L. Sevón (Rapporteur), M. Wathelet, R. Schintgen
and V. Skouris, Judges,
Advocate General: EG. Jacobs,
Registrar: R. Grass,
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
after considering the written observations submitted on behalf of:
— Mrs Addou, by A.S. Iven, Rechtsanwalt (Case C-180/99),
— the Swedish Government, by A. Kruse (Cases C-95/99 to C-98/99) and
L. Nordling (Case C-180/99), acting as Agents,
— the United Kingdom Government, by R.V. Magrill, acting as Agent, assisted
by N. Paines QC (Cases C-95/99 to C-98/99 and C-180/99),
— the Commission of the European Communities, by P. Hillenkamp (Cases
C-95/99 to C-98/99 and C-180/99) and J. Sack (Case C-180/99), acting as
Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mrs Khalil, Mr Chaaban, Mr Osseili and
Mr Nasser, represented by J. Lang, Rechtsanwalt; of the Spanish Government,
represented by N. Díaz Abad, acting as Agent; of the United Kingdom
Government, represented by N. Paines QC; and of the Commission, represented
by J. Sack, at the hearing on 10 October 2000,
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KHALIL AND OTHERS
after hearing the Opinion of the Advocate General at the sitting on 30 November
2000,
gives the following
Judgment
1
By orders of 15 October 1998, received at the Court on 17 March 1999 (C-95/99
to C-98/99) and on 17 May 1999 (C-180/99), the Bundessozialgericht (Federal
Social Court) referred for a preliminary ruling under Article 177 of the EC Treaty
(now Article 234 EC) a number of questions on the validity and interpretation 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; 'Regulation No 1408/71').
2
Those questions were raised in proceedings between Mrs Khalil, Mr Chaaban
and Mr Osseili, on the one hand, and the Bundesanstalt für Arbeit, on the other,
Mr Nasser and the Landeshauptstadt Stuttgart, and Mrs Addou and the Land
Nordrhein-Westfalen, concerning the right of stateless persons and refugees, or
their spouses, to child benefit and child-raising allowance.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
The relevant legislation
3
Article 51 of the EEC Treaty (later Article 51 of the EC Treaty and now, after
amendment, Article 42 EC) provides:
'The Council shall, acting unanimously on a proposal from the Commission,
adopt such measures in the field of social security as are necessary to provide
freedom of movement for workers; to this end, it shall make arrangements to
secure for migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit
and of calculating the amount of benefit, of all periods taken into account
under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.'
4
Article 1(d) of Regulation No 1408/71 states that, for the purpose of that
regulation, 'refugee shall have the meaning assigned to it in Article 1 of the
Convention on the Status of Refugees, signed at Geneva on 28 July 1951' {United
Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954), 'the Geneva
Convention').
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KHALIL AND OTHERS
5
Article 1(e) of Regulation No 1408/71 provides in addition that, for the purpose
of that regulation, 'stateless person shall have the meaning assigned to it in
Article 1 of the Convention on the Status of Stateless Persons, signed in New
York on 28 September 1954' {United Nations Treaty Series, Vol. 360, p. 130,
No 5158 (1960), 'the New York Convention').
6
Article 2(1) of Regulation No 1408/71 states:
'This regulation shall apply to employed or self-employed persons who are or
have been subject to the legislation of one or more Member States and who are
nationals of one of the Member States or who are stateless persons or refugees
residing within the territory of one of the Member States, as well as to the
members of their families and their survivors.'
7
Under Article 3(1) of Regulation No 1408/71:
'Subject to the special provisions of this regulation, persons resident in the
territory of one of the Member States to whom this regulation applies shall be
subject to the same obligations and enjoy the same benefits under the legislation
of any Member State as the nationals of [that] State.'
The main proceedings and the questions referred for a preliminary ruling
8
The applicant in the main proceedings in Case C-95/99, Mrs Khalil, and her
husband are Palestinians from the Lebanon. In flight from the civil war in the
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
Lebanon, Mrs Khalil and her husband arrived in Germany in 1984 and 1986
respectively. They have lived in Germany continuously since then. They have been
refused recognition as political refugees.
9
The applicant in the main proceedings in Case C-96/99, Mr Chaaban, and his
wife are Kurds from the Lebanon. In flight from the civil war in the Lebanon,
they arrived in Germany in 1985 where they have since lived continuously. They
have been refused recognition as political refugees. Mr Chaaban, like his children,
has Lebanese nationality.
10 The applicant in the main proceedings in Case C-97/99, Mr Osseili, and his wife
arrived in Germany in 1986. Mr Osseili has a Lebanese travel document for
Palestinian refugees. His application for asylum has been unsuccessful.
1 1 The applicant in the main proceedings in Case C-98/99, Mr Nasser, holds a
Lebanese travel document for Palestinian refugees. He has resided in Germany
with his family since 1985. He has been refused recognition as a political refugee.
He has had a residence permit since 30 April 1998.
12 It is clear from the orders for reference in these cases that Mrs Khalil and her
husband, Mrs Chaaban, Mr Osseili and Mr Nasser are to be regarded as stateless
persons under German law.
1 3 During the period from December 1993 to March 1994, the applicants in the
main proceedings in those cases all had the grant of child benefit discontinued on
the ground that, under the new version of Paragraph 1(3) of the Bundeskindergeldgesetz (Federal Law on Child Benefit), only foreigners in possession of a
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KHALIL AND OTHERS
residence entitlement or a residence permit were henceforth entitled to child
benefit. That provision was amended by the Erste Gesetz zur Umsetzung des
Spar-, Konsolidierungs- und Wachstumsprogramms (First Law implementing the
Savings, Consolidation and Growth Programme) of 21 December 1993
(BGBl. 1993 I, p. 2353) which entered into force on 1 January 1994.
1 4 In support of their actions challenging the decisions thus depriving them of child
benefit, those applicants in the main proceedings submitted that they and/or their
spouses had to be regarded as stateless persons. Consequently, in accordance with
Articles 2(1) and 3(1) of Regulation No 1408/71, they should have been treated
in the same way as German nationals and other nationals of the Member States of
the European Union with regard to the grant of family benefits. Accordingly,
those benefits should not have been made conditional on possession of a specific
residence document.
15 The national courts seized at first instance and then on appeal dismissed those
applications.
16 The applicants in the main proceedings in Cases C-95/99 to C-98/99 then brought
appeals on a point of law before the Bundessozialgericht.
17 The applicant in the main proceedings in Case C-180/99, Mrs Addou, is an
Algerian national. Like her children, her husband had Moroccan nationality at
the material time. He subsequently became a German national by naturalisation.
Mrs Addou and her husband travelled to Germany in 1988 from Algeria and
Morocco respectively. They have since lived continuously in Germany. They have
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
been refused the right of asylum but, in February 1994, they received a residence
authorisation and, in May 1996, a residence permit.
18 From 13 January 1994, as one of the 'other persons suffering political
persecution', Mr Addou enjoyed legal status with so-called 'minor asylum' as a
refugee within the meaning of Article 1 of the Geneva Convention. He retained
this status up to the time of his naturalisation.
19 From 13 January 1994, the Land Nordrhein-Westfalen refused Mrs Addou the
child-raising allowance which she had requested for her youngest child, on the
ground that she did not possess either the residence entitlement or permit
required under Paragraph 1(1a) of the Bundeserziehungsgeldgesetz (Federal Law
on Child-Raising Allowance), as amended by Paragraph 4 of the Gesetz zur
Umsetzung des Föderalen Konsolidierungsprogramms (Law implementing the
Federal Consolidation Programme) of 23 June 1993 (BGBl. 1993 I, p. 944).
20
The application by Mrs Addou challenging that refusal was dismissed at first
instance but granted on appeal. The appeal court held that the possession of a
residence document was immaterial since, as a member of the family of a
recognised refugee, Mrs Addou had to be treated in the same way as German
nationals and other nationals of the Member States of the European Union,
pursuant to Regulation No 1408/71.
21 The Land Nordrhein-Westfalen brought before the Bundessozialgericht an appeal
on a point of law against that decision of the appeal court.
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KHALIL AND OTHERS
22
The Bundessozialgericht seeks to ascertain, in respect of each of the disputes in
the main proceedings, whether the inclusion of stateless persons and refugees
within the personal scope of Regulation No 1408/71, as evidenced by Articles 2(1) and 3(1) thereof, is covered by an enabling provision in the EC Treaty. In
that regard, the national court points out that stateless persons and refugees do
not expressly enjoy a right to freedom of movement within the Community under
the EC Treaty. Article 51 of the EC Treaty and Article 235 of the EC Treaty (now
Article 308 EC), which are given as legal bases in the preamble to Regulation
No 1408/71, refer, however, to measures necessary to provide freedom of
movement for workers and those necessary to attain one of the objectives of the
Community.
23
Even assuming that the EC Treaty allows the scheme of equal treatment provided
for under Articles 2(1) and 3(1) of Regulation No 1408/71, the national court
considers that it is still necessary to determine whether that scheme is applicable
not only where stateless persons or refugees leave a Member State in order to
travel to another Member State, but also where stateless persons or refugees have
entered the territory of a Member State from a non-member country and have
stayed there without travelling within the Community.
24
To the extent that such is the case, the Bundessozialgericht notes that it is
necessary to determine whether Joined Cases C-245/94 and C-312/94 Hoever and
Zachow [1996] ECR I-4895, in which the Court held that, under Community
law, entitlement to family benefits is not dependent on knowing which member of
the family is authorised, under national legislation, to claim payment of those
benefits, are applicable to the disputes in the main proceedings in Cases C-96/99
and C-180/99.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
25 On the basis of those considerations, the Bundessozialgericht decided to stay
proceedings and to refer the following questions to the Court for a preliminary
ruling:
— In Cases C-95/99, C-97/99 and C-98/99:
'(1) Does 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
apply to stateless persons and to members of their families if such persons
have no right of free movement under the Treaty of 25 March 1957
establishing the European Community, as amended by the Treaty of
7 February 1992 on European Union?
(2) If the answer to Question 1 is in the affirmative:
Does Regulation (EEC) No 1408/71 also apply to stateless workers and to
members of their families who have travelled directly to a Member State from
a non-member country and have not moved within the Community?'
— In Case C-96/99:
'(1) Does 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
I - 7448
KHALIL AND OTHERS
apply to stateless persons and to members of their families if such persons
have no right of free movement under the Treaty of 25 March 1957
establishing the European Community, as amended by the Treaty of
7 February 1992 on European Union?
(2) If the answer to Question 1 is in the affirmative:
Does Regulation (EEC) No 1408/71 also apply if the stateless person, his
spouse, who is a national of a non-member country, and the other members
of their family have travelled directly to a Member State from a non-member
country and have not moved within the Community?
(3) If the answer to Question 2 is in the affirmative:
Is a family benefit such as child benefit under the German Bundeskindergeldgesetz to be granted even if only the spouse who is a national of a nonmember country is an employed person, while the stateless other spouse,
from whom the first spouse derives his right, is not herself an employed
person?'
— In Case C-180/99:
'(1)Does 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
apply to refugees and to members of their families who are nationals of a
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
non-member country if such persons have no right of free movement under
the Treaty of 25 March 1957 establishing the European Community, as
amended by the Treaty of 7 February 1992 on European Union?
(2) If the answer to Question 1 is in the affirmative:
Does Regulation (EEC) No 1408/71 also apply in the case where a refugee
working as an employed person and the members of his family have travelled
directly to a Member State from a non-member country and have not moved
within the Community?
(3) If the answer to Question 2 is in the affirmative:
Is a family benefit such as child-raising allowance under the Bundeserziehungsgeldgesetz also payable to the spouse of such an employed person who
is likewise not a national of a Member State and who is herself neither an
employed person nor a recognised refugee?'
26 By order of the President of the Court of Justice of 2 July 1999, Cases C-95/99 to
C-98/99 and C-180/99 were joined, pursuant to Article 43 of the Rules of
Procedure, for the purposes of the written and oral procedure and the judgment.
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KHALIL AND OTHERS
27
By order of 11 May 2000, Mrs Khalil, Mr Chaaban, Mr Osseili, Mr Nasser and
Mrs Addou were granted legal aid.
Preliminary observations
28
As a preliminary point, it should be noted, first, that it is clear from the order for
reference in Case C-180/99 that the spouse of the applicant in the main
proceedings has Moroccan nationality and, second, that, on 27 April 1976, the
European Economic Community and the Kingdom of Morocco signed a
cooperation agreement in Rabat, which was approved on behalf of the
Community by Council Regulation (EEC) No 2211/78 of 26 September 1978
(OJ 1978 L 264, p. 1). Article 41(1) ofthat agreement provides that, subject to a
number of provisos, workers of Moroccan nationality and any members of their
families living with them are to enjoy, in the field of social security, treatment free
from any discrimination based on nationality in relation to nationals of the
Member States in which they are employed. However, since the Bundessozialgericht has not referred a question on that subject, the Court is not in a position to
give a ruling on the interpretation of that agreement.
The first question in Cases C-95/99 to C-98/99 and C-180/99
29
It is clear from the orders for reference that, by its first question in Cases C-95/99
to C-98/99 and C-180/99, the national court questions the validity of Regulation
No 1408/71 in so far as it includes in its personal scope stateless persons or
refugees residing in the territory of one of the Member States and members of
their families, even though such persons do not enjoy the right to freedom of
movement under the EC Treaty.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
Arguments put forward in the observations submitted to the Court
30 The United Kingdom Government and the Commission point out the importance
of considering the issue in its historical context and state that, even before the
Community was established, the Member States had contracted, both between
themselves and with non-member countries, international obligations towards
stateless persons and refugees not only under the Geneva and New York
Conventions, but also under the European interim agreement on social security
schemes relating to old age, invalidity and survivors, the European interim
agreement on social security other than schemes for old age, invalidity and
survivors ('the European interim agreements') and the European convention on
social and medical assistance, which had been signed in Paris on 11 December
1953 by the members of the Council of Europe (European Treaty Series, Nos 12,
13 and 14). The protocols to those agreements, which were signed on the same
day (European Treaty Series, Nos 12A, 13A and 14A), state that the provisions of
the principal agreements are to apply to refugees, within the meaning of the
Geneva Convention, under the same conditions as they apply to the nationals of
the contracting parties thereto.
31 The Swedish and United Kingdom Governments and the Commission further
submit that stateless persons and refugees residing in a Member State were also
included in the personal scope of Council Regulation No 3 of 25 September 1958
concerning social security for migrant workers (Journal Officiel 1958 30, p. 561),
and that the legal basis of that regulation was Article 51 of the EEC Treaty. The
Swedish Government and the Commission add that stateless persons and refugees
were already covered by the European convention on social security for migrant
workers, which was signed on 9 December 1957 by the Governments of the
States then constituting the European Coal and Steel Community and was based
on Article 69 of the ECSC Treaty, in particular Article 4 thereof ('the European
convention of 1957'). According to the Commission, that convention incorporated the European interim agreements.
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KHALIL AND OTHERS
32 Similarly, the Spanish Government submits that Article 51 of the EC Treaty
constitutes a legal basis which is sufficient to include stateless persons a n d
refugees in the personal scope of Regulation N o 1408/71. Coordinating the social
security rules of the Member States should indeed take account of the obligations
in public international law, in relation to stateless persons and refugees, which are
imposed on the Member States as a result of the ratification of the Geneva a n d
N e w York Conventions. That conclusion is borne out by Case 35/74 Rzepa
[1974] ECR 1241, in which the Court of Justice applied Regulation N o 3 to a
refugee.
33 The Swedish Government adds that, according to the case-law of the Court of
Justice, in addition to the principal objective of promoting freedom of movement,
the objective of Article 51 of the EC Treaty a n d Regulation N o 1408/71 is to
coordinate rules in the field of social security for workers w h o either are not
entitled to freedom of movement or do not use it, but whose situation makes
coordination of the social security schemes necessary (see Case 182/78 Pierik
[1979] ECR 1977; Case C-194/96 Kulzer [1998] ECR 1-895, paragraph 3 1 ; a n d
Case C-85/96 Martínez Sala [1998] ECR 1-2691, paragraph 31).
34
In the Swedish Government's submission, there is n o doubt that the particularly
insecure position of stateless persons and refugees, which is often distinguished by
legal uncertainty and an unclear scheme of assistance, makes coordination of the
national social security systems necessary. T h a t need seemed particularly
important at the time of European reconstruction after the Second World War.
35
The United Kingdom Government submits that the objective of including
stateless persons and refugees residing in the territory of a Member State in the
personal scope of Regulation N o 1408/71 was merely to enable stateless persons
and refugees w h o have been granted the right to reside in a Member State to
benefit from the provisions of that regulation by aggregation or export of benefits
in situations falling within the material scope of the Regulation.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
36 The United Kingdom Government takes the view that, given the historical
context, Article 51 of the EC Treaty must be interpreted as meaning that it allows
stateless persons and refugees residing in a Member State to be included in the
personal scope of Regulation N o 1408/71, in spite of the fact that they do not
enjoy the right to freedom of movement.
37 The Commission submits that, when the Community legislation in the social
security field was adopted, it was important, first, not to drop below the
recognised European standard and, second, for the purpose of administrative
simplification, to establish common rules applicable both to Member State
nationals and to stateless persons and refugees, of which there were very few,
rather than to create or to retain separate sets of rules. Such a minor extension of
Community competence to extra-Community matters or to fields which are not
covered by a specific legal basis in Community law is allowed in so far as it relates
to an ancillary Community competence.
38 In particular, the inclusion of stateless persons and refugees in the scope of
Regulation N o 1408/71 on the ground of a material connection is justified
because, when the Community legislation in the social security field was adopted,
the Community legislature was bound to take into account a situation which was
already governed by international agreements laying down a minimum standard,
a standard to which, according to a strict interpretation of international law, the
Member States could not fail to have regard without withdrawing from those
agreements.
Findings of the Court
39
Stateless persons and refugees were included in the personal scope of the original
version of Regulation N o 1408/71, adopted on 14 June 1971. Accordingly, it is
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KHALIL AND OTHERS
necessary to determine the legal basis of that inclusive measure as at that date. It
is clear from the preamble to that version of that regulation that its legal basis
was Article 7 of the EEC Treaty (later, after amendment, Article 6 of the EC
Treaty, and now, after amendment, Article 12 EC) and Article 51 of the EEC
Treaty.
40 Article 7 of the EEC Treaty, which prohibits discrimination against Community
nationals on the ground of nationality (see Case C-45/93 Commission v Spain
[1994] ECR 1-911, paragraph 10), is not relevant to the present case.
41 Article 235 of the EEC Treaty (later Article 235 of the EC Treaty) constitutes one
of the legal bases of Council Regulation (EEC) No 1390/81 of 12 May 1981
extending to self-employed persons and members of their families Regulation
No 1408/71 (OJ 1981 L 143, p. 1). It is only since Regulation No 1390/81 was
adopted that Article 235 of the EEC Treaty has been one of the legal bases of
Regulation No 1408/71. It follows that that provision cannot be regarded as the
legal basis of the provisions of Regulation No 1408/71 which predated
Regulation No 1390/81.
42
It must therefore be determined whether Regulation No 1408/71 is contrary to
Article 51 of the EEC Treaty, in so far as it includes in its personal scope stateless
persons or refugees residing in the territory of one of the Member States and
members of their families, even though those persons do not, according to the
EEC Treaty, enjoy the right to freedom of movement.
43
In that regard, it is necessary first to recall the historical context of the inclusion
of stateless persons and refugees in the personal scope of Regulation No 1408/71.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
44 Within the framework of the United Nations, the Geneva Convention, to which
the original six Member States of the European Economic Community were all
contracting parties, was signed on 28 July 1951. Article 7(1) thereof provides
that, except where the Convention contains more favourable provisions, 'a
contracting state shall accord to refugees the same treatment as is accorded to
aliens generally'.
45 Article 24(l)(b) of the Geneva Convention provides that the contracting states
are to accord to refugees lawfully staying in their territory the same treatment as
is accorded to nationals in respect of 'social security (legal provisions in respect of
employment injury, occupational diseases, maternity, sickness, disability, old age,
death, unemployment, family responsibilities and any other contingency which,
according to national laws or regulations, is covered by a social security scheme)'
subject, in particular, to provisions concerning benefits or portions of benefits
which are payable wholly out of public funds.
46
On 11 December 1953, the members of the Council of Europe signed the
European interim agreements, which had been ratified by the original six
Member States of the European Economic Community. Article 2 of those two
agreements provides that, subject to certain provisos, a national of any one of the
contracting parties is to be entitled to receive the benefits of the social security
laws and regulations of any other of the contracting parties under the same
conditions as if he were a national of the latter.
47
The protocols to the European interim agreements, signed on the same day, refer
in their preambles to the provisions of the Geneva Convention and the desire of
the signatories to extend the provisions of those agreements so as to apply to
refugees. Article 2 thereof provides that the provisions of those agreements are to
apply to refugees, as defined in the Geneva Convention, under the same
conditions as they apply to the nationals of the contracting parties to those
agreements.
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KHALIL AND OTHERS
48
The New York Convention was signed on 28 September 1954. The six original
Member States of the European Economic Community are also contracting
parties to that convention, Articles 7 and 24 of which contain in respect of
stateless persons provisions which are analogous to those applicable to refugees
under Articles 7 and 24 of the Geneva Convention.
49
Each of the six original Member States had thus already undertaken at
international level a general obligation to allow stateless persons and refugees
to benefit from the social security laws and regulations under the same conditions
as apply to the nationals of other States.
50 It is in that context that, on 9 December 1957, before the EEC Treaty entered
into force, those Member States signed the European convention of 1957, which
had been prepared with the assistance of the International Labour Office, the
seventh recital in the preamble to which affirms 'the principle of equal treatment
for all nationals of contracting parties and for stateless persons and refugees
resident on the territory of a contracting party in the application of national
social security legislation' (unofficial translation; no official English version
exists).
51 The European convention of 1957 is based, according to the second recital in the
preamble thereto, on Article 69(4) of the ECSC Treaty, under which Member
States 'shall endeavour to settle among themselves any matters remaining to be
dealt with in order to ensure that social security arrangements do not inhibit
labour mobility'. Article 4(1) of the convention states that it applies to 'wageearners or assimilated workers who are or have been subject to the legislation of
one or more of the contracting states and are nationals of a contracting state or
are stateless persons or refugees resident in the territory of a contracting state, as
also to members of their families and their survivors'.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
52
On 25 September 1958, the Council of the European Economic Community
adopted Regulation N o 3, Article 4(1) of which replicated the content of
Article 4(1) of the European convention of 1957.
53
Article 2(1) of Regulation N o 1408/71 is, as regards those aspects relevant to the
present cases, substantively identical to Article 4(1) of Regulation N o 3 and of
the European convention of 1957.
54
Second, t h e establishment of as complete freedom of m o v e m e n t for workers as
possible, w h i c h forms p a r t of t h e foundations of the Community, constitutes t h e
ultimate objective of Article 5 1 of the E E C Treaty a n d thereby conditions the
exercise of t h e p o w e r w h i c h it confers u p o n t h e Council (Case 4 4 / 6 5 Singer
[1965] E C R 965, 9 7 1 ) .
55
Article 51 of the EEC Treaty provides for that purpose for recourse to the
technique of coordinating the national social security schemes. Coordination
would not be effective if it were necessary to limit its application solely to
workers moving within the Community for the purpose of their employment. As
the Court has held in relation to Regulation No 3, Regulation No 1408/71 is
applicable to any worker, within the meaning of Article 1 thereof, who has the
nationality of a Member State and finds himself in one of the situations involving
international elements as provided for in the said regulation, as to members of his
family (Case 27/69 Compagnie belge d'assurances générales sur la vie et contre les
accidents [1969] ECR 405, paragraph 4; see also Singer, p. 971; and Case 61/65
Vaassen-Göbbels [1966] ECR 261, 277).
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56
The Council cannot be criticised for having, in the exercise of the powers which
have been conferred on it under Article 51 of the EEC Treaty, also included
stateless persons and refugees resident on the territory of the Member States in
order to take into account the abovementioned international obligations of those
States.
57
As the Advocate General pointed out in paragraph 59 of his Opinion,
coordination excluding stateless persons and refugees would have meant that
the Member States, in order to ensure compliance with their international
obligations, had to establish a second coordination regime designed solely for
that very restricted category of persons.
58 In the light of the foregoing considerations, the answer to the first question in
Cases C-95/99 to C-98/99 and C-180/99 must be that examination of that
question has disclosed no factor of such a kind as to affect the validity of
Regulation No 1408/71 in so far as it includes in its personal scope stateless
persons or refugees residing in the territory of one of the Member States and
members of their families.
The second question in Cases C-95/99 to C-98/99 and C-180/99
59 By its second question in Cases C-95/99 to C-98/99 and C-180/99, the national
court seeks essentially to ascertain whether workers who are refugees or stateless
persons residing in the territory of one of the Member States and members of
their families may rely on the rights conferred by Regulation No 1408/71 where
they have travelled to that Member State directly from a non-member country
and have not moved within the Community.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
Arguments put forward in the observations submitted to the Court
60 The applicants in the main proceedings in Cases C-95/99 to C-98/99 claim that
the refusal to recognise a factor linking Community law with the situation of a
stateless person or refugee moving to a Member State directly from a nonmember country would have absurd results, especially in the light of Kulzer. On
the basis of that case, if those applicants left Germany and moved to France to
work, they would be entitled to child benefit not only under French law, but also,
if they returned to Germany, under German law. Similarly, they would be entitled
to child benefit if their children studied in France.
61 In the submission of the Spanish Government, Regulation No 1408/71 also
applies to stateless persons and refugees who have travelled to a Member State
directly from a non-member country. That is clear, first of all, from the wording
of Article 2(1) of that regulation. Next, if the application of Regulation
No 1408/71 were limited to situations having a link with freedom of movement
for workers, Member State nationals who had always resided in another Member
State and worked there would not be covered by the Regulation either. Finally, it
is clear from the case-law of the Court that such a link with freedom of movement
is not required for that regulation to apply (see Kulzer).
62 The Swedish and United Kingdom Governments submit that it is clear from the
Court's case-law that Regulation No 1408/71 and thus the principle of equal
treatment affirmed in Article 3(1) thereof do not apply to cases which have no
factor linking them with Community law (see Case C-153/91 Petit [1992] ECR
I-4973, paragraphs 8 to 10; Joined Cases C-64/96 and C-65/96 Uecker and
Jacquet [1997] ECR 1-3171, paragraphs 16 and 17; and Kulzer, paragraph 31).
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KHALIL AND OTHERS
Accordingly, that principle is equally inapplicable to a stateless person or refugee
in a situation where there is no such factor.
63 The Commission submits that it is clear from Article 2 of the protocols to the
European interim agreements that refugees are only to be included in so far as
nationals of the contracting parties may rely on the rights flowing from those
agreements. Those agreements are not applicable to purely internal relations
between a contracting party and its own nationals working within the country.
Refugees can therefore enjoy those rights only in the context of cross-border
relations between contracting parties, and not within the host country.
64
That analysis is corroborated by the legal basis of Regulations No 3 and
No 1408/71. Stateless persons and refugees were included in the scope of those
regulations because of a material link with a power of the legislature based on
Article 51 of the EEC Treaty. Regulation No 1408/71 is not applicable to
stateless persons or refugees who have never been associated in any way with a
Member State other that the host State and who are therefore in a situation where
there is no link with Community law.
Findings of the Court
65
As regards stateless persons and refugees, and members of their families, who
travelled to a Member State directly from a non-member country and have not
moved within the Community, it must be recalled, on the one hand, that
Regulation No 1408/71 must be interpreted in the light of Article 51 of the EEC
Treaty which constitutes one of its legal bases.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
66 The principal objective of Article 51 of the EEC Treaty is coordination of the
social security schemes of the Member States and the payment of benefits under
those coordinated schemes.
67 On the other hand, it is clear from the Court's case-law that the essential object of
Regulation No 1408/71 is to ensure that social security schemes governing
workers in each Member State moving within the Community are applied in
accordance with uniform Community criteria. To this end it lays down a whole
set of rules founded in particular upon the prohibition of discrimination on
grounds of nationality or residence and upon the maintenance by a worker of his
rights acquired by virtue of one or more social security schemes which are or have
been applicable to him (see Case 69/79 Jordens-Vosters [1980] ECR 75,
paragraph 11).
68
Admittedly, the Court has held that the fact that Article 4(1) of Regulation N o 3,
which is substantively identical to Article 2(1) of Regulation N o 1408/71, even
refers to persons who come or have come under the legislation of a single
Member State shows that, far from referring solely to migrant workers within the
strict meaning of the term, Regulation N o 3 is applicable to any wage-earner or
assimilated worker who finds himself in one of the situations involving
international elements as provided for in the said regulation, as well as to his
survivors (see Compagnie belge d'assurances générales sur la vie et contre les
accidents, paragraph 4).
69
However, the Court has since made clear that the Treaty rules governing freedom
of movement for persons and measures adopted to implement them cannot be
applied to activities which have no factor linking them with any of the situations
governed by Community law and which are confined in all relevant respects
within a single Member State (see, in particular, Petit, paragraph 8; Joined Cases
C-225/95 to C-227/95 Kapasakalis and Others [1998] ECR I-4239, paragraph
22; and Case C-18/95 Terhoeve [1999] ECR I-345, paragraph 26).
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70 As regards social security, the Court has concluded that Article 51 of the EEC
Treaty and Regulation No 1408/71, in particular Article 3 thereof, do not apply
to situations which are confined in all respects within a single Member State (see
Petit, paragraph 10).
71 Such is in particular the case where the situation of a worker has factors linking it
solely with a non-member country and one single Member State (see, to that
effect, Case C-297/92 Baglieri [1993] ECR 1-5211, paragraph 18; and Case
C-60/93 Aldewereld [1994] ECR 1-2991, paragraph 14).
72
In those circumstances, the answer to the second question in Cases C-95/99 to
C-98/99 and C-180/99 must be that workers who are stateless persons or refugees
residing in the territory of one of the Member States, and members of their
families, cannot rely on the rights conferred by Regulation No 1408/71 where
they are in a situation which is confined in all respects within that one Member
State.
The third question in Cases C-96/99 and C-180/99
73
In the light of the answer to the second question in Cases C-95/99 to C-98/99 and
C-180/99, it is not necessary to answer the third question referred in Cases
C-96/99 and C-180/99.
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JUDGMENT OF 11. 10. 2001 — JOINED CASES C-95/99 TO C-98/99 AND C-180/99
Costs
74 The costs incurred by the Spanish, Swedish and United Kingdom Governments
and by the Commission, which have submitted observations to the Court, are not
recoverable. Since these proceedings are, for the parties to the main proceedings,
a step in the proceedings pending before the national court, the decision on costs
is a matter for that court.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Bundessozialgericht by orders of
15 October 1998, hereby rules:
1. Examination of the first question referred has disclosed no factor of such a
kind as to affect the validity 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
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(EEC) No 2001/83 of 2 June 1983, in so far as it includes in its personal
scope stateless persons or refugees residing in the territory of one of the
Member States and members of their families.
2. Workers who are stateless persons or refugees residing in the territory of one
of the Member States, and members of their families, cannot rely on the
rights conferred by Regulation No 1408/71, as amended and updated by
Regulation No 2001/83, where they are in a situation which is confined in all
respects within that one Member State.
Rodríguez Iglesias
Jann
Macken
Colneric
von Bahr
Gulmann
Edward
La Pergola
Puissochet
Sevón
Wathelet
Schintgen
Skouris
Delivered in open court in Luxembourg on 11 October 2001.
R. Grass
Registrar
G.C. Rodríguez Iglesias
President
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