JUDGMENT OF THE COURT (Second Chamber)
(Entitlement
to childcare allowance in
In Case
C‑507/06,
REFERENCE
for a preliminary ruling under Article 234 EC from the Oberlandesgericht
Innsbruck (
Malina Klöppel
v
Tiroler Gebietskrankenkasse,
THE COURT
(Second Chamber),
composed
of C.W.A. Timmermans, President of the Chamber, L.
Bay Larsen, K. Schiemann (Rapporteur),
P. Kūris and C. Toader,
Judges,
Advocate
General: P. Mengozzi,
Registrar:
R. Grass,
having
regard to the written procedure,
after
considering the observations submitted on behalf of:
– Ms
Klöppel, by D. Rief,
– the Tiroler Gebietskrankenkasse,
by A. Bramböck, acting as Agent,
– the Austrian Government, by C. Pesendorfer,
acting as Agent,
– the
Italian Government, by I.M. Braguglia, acting as
Agent, assisted by W. Ferrante, avvocato
dello Stato,
– the Commission of the European Communities, by V. Kreuschitz, acting as Agent,
having
decided, after hearing the Advocate General, to proceed to judgment without an
Opinion,
gives the
following
Judgment
1 This
reference for a preliminary ruling concerns the interpretation of Articles 3
and 72 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 (EC) No 118/97 of 2 December 1996 (OJ
1997 L 28, p. 1), as amended in turn by Regulation (EC) No 1386/2001 of
the European Parliament and of the Council of 5 June 2001 (OJ 2001 L 187, p. 1)
(‘Regulation No 1408/71’), as well as of Article 10a of Council Regulation
(EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing
Regulation No 1408/71, as amended and updated by Regulation No 118/97, as
amended in turn by Commission Regulation (EC) No 410/2002 of 27 February 2002
(OJ 2002 L 62, p. 17) (‘Regulation No 574/72’).
2 The
reference has been made in the course of proceedings between Ms Klöppel and the Tiroler Gebietskrankenkasse (Tyrol Regional Health Insurance Fund)
concerning the duration of the period during which Ms Klöppel
is entitled to receive childcare allowance in
Legal
context
Community
law
3 As
set out in Article 3 of Regulation No 1408/71, headed ‘Equality of treatment’:
‘1. 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.
…’
4 Article
4 of Regulation No 1408/71, headed ‘Matters covered’, provides:
‘1.
This Regulation shall apply to all legislation concerning the following
branches of social security:
…
(h) family benefits.
…’
5 Article
72 of Regulation No 1408/71, headed ‘Aggregation of periods of insurance,
employment or self-employment’, provides:
‘Where
the legislation of a Member State makes acquisition of the right to benefits
conditional upon completion of periods of insurance, employment or
self-employment, the competent institution of that State shall take into
account for this purpose, to the extent necessary, periods of insurance,
employment or self-employment completed in any other Member State, as if they were
periods completed under the legislation which it administers.’
6 Under
Article 10a of Regulation No 574/72, headed ‘Rules applicable where an employed
or self-employed person is subject successively to the legislation of several
Member States during the same period or part of a period’:
‘Where
an employed or self-employed person has been subject successively to the
legislation of two Member States during the period separating two dates for the
payment of family benefits as provided for by the legislation of one or both of
the Member States concerned, the following rules shall apply:
(a) the family benefits which the person concerned may claim by
virtue of being subject to the legislation of each one of these States shall
correspond to the number of daily benefits due under the relevant legislation. Where
such legislation does not provide for daily benefits, the family benefits shall
be granted in proportion to the length of time during which the person
concerned has been subject to the legislation of each one of the Member States
in relation to the period fixed by the legislation concerned;
(b) where the family benefits have been provided by an
institution during a period when they should have been provided by another
institution, there shall be an adjustment of accounts between the said
institutions;
… .’
Austrian law
7 Paragraph
5 of the Law on childcare allowance (Kinderbetreuungsgeldgesetz)
of 8 August 2001 (BGBl. I 103/2001, the ‘KBGG’) provides:
‘1. Childcare
allowance shall be paid at the most until the child reaches the age of 36
months unless otherwise provided below.
2. If
only one parent claims childcare allowance it shall be paid at the most until
the child reaches the age of 30 months. If the second parent also claims
childcare allowance then the duration of entitlement is extended beyond the age
of 30 months for such period as the second parent claims childcare allowance,
but not later than the date on which the child reaches the age of 36 months.
3. Both
parents may take it in turns to draw childcare allowance, in the course of
which two changes per child are permitted. …’
The
dispute in the main proceedings and the question referred for a preliminary
ruling
8 Ms
Klöppel, a German national and a civil servant of the
Land of North Rhine-Westphalia, is resident in Austria and is employed as a
teacher at a grammar school in Germany. Until 18 August 2004, she was resident
in Germany, where, on 11 April 2004, her daughter was born. Mr Kraler, an Austrian national and Ms Klöppel’s
partner and father of that child, came to live at the home of Ms Klöppel from 1 March 2004 onwards, in order to help her in
the period before the birth of the child and to care for the child after her
birth. For that purpose, Mr Kraler’s employer, the
University of Innsbruck, granted him unpaid leave. Ms Klöppel,
for her part, was granted unpaid full-time leave from 22 July 2004 until 10
April 2007.
9 Following
the birth of their daughter, Ms Klöppel and Mr Kraler, who were at that time residing in Germany, received
the child-raising allowance paid in that State, with the allowance actually
having being drawn by Mr Kraler, for the period from
11 April 2004 to 11 August 2004.
10 On 18 August 2004, Ms Klöppel and Mr Kraler, together
with their child, established themselves in Austria, where Mr Kraler resumed his professional activity.
11 From that date onwards until 11
October 2006, Ms Klöppel received childcare allowance
in Austria. Her application for payment of that allowance to be extended until
10 April 2007 was rejected by a decision of the Tiroler
Gebietskrankenkasse of 3 May 2006. That refusal was
based on Paragraph 5(2) of the KBGG, which provides that, where only one parent
claims childcare allowance, it is to be paid for a maximum of 30 months
following the birth of the child concerned, but that if the second parent also
claims (or has claimed) childcare allowance, the right to that allowance can be
granted for 36 months, with both parents taking it in turns to draw that
allowance. However, Mr Kraler’s drawing of the
child-raising allowance in Germany between 11 April 2004 and 11 August 2004 was
not taken into account when Ms Klöppel’s entitlement
to childcare allowance for a period of 36 months was being examined.
12 Ms Klöppel
appealed against that decision.
13 The Landesgericht
Innsbruck followed the reasoning of the Tiroler Gebietskrankenkasse and dismissed Ms Klöppel’s
appeal by holding that the latter was entitled to receive the childcare allowance
for a period of 30 months only.
14 Ms Klöppel
appealed against that decision; it is in those circumstances that the Oberlandesgericht (Higher Regional Court) Innsbruck decided
to stay proceedings and to refer to the Court of Justice the following question
for a preliminary ruling:
‘Must
Article 72 of Regulation … No 1408/71 …, in conjunction with Article 3 of that
regulation and Article 10a of Regulation … No 574/72 …, be interpreted to the
effect that periods of drawing family benefits in one Member State (in this
case the national child-raising allowance in the Federal Republic of Germany (Bundeserziehungsgeld)) must be treated equally for the
purposes of founding an entitlement to draw a comparable benefit in another
Member State (in this case childcare allowance in Austria (Kinderbetreuungsgeld))
and, accordingly, must be treated in the same way as domestic periods of
drawing for the purposes of entitlement in that second Member State, if, during
those periods of drawing, both parents are to be regarded as employed persons
under Article 1(a)(i) of Regulation No 1408/71?’
The
question referred for a preliminary ruling
15 The Oberlandesgericht
Innsbruck observes that, in Ms Klöppel’s case, the reference
periods which are taken into consideration as a precondition to entitlement to
childcare allowance are assessed differently depending on whether they were
completed in Austria or in another Member State. Accordingly, if Mr Kraler had cared for his child in Austria and had, on that
basis, drawn childcare allowance in that Member State, Ms Klöppel
would have a right to claim that allowance for a longer period. It is in this
context, and after having found that Ms Klöppel’s
case falls within the scope of Regulation No 1408/71, that the Oberlandesgericht Innsbruck asks whether the provisions of
that regulation may be interpreted to the effect that periods of drawing family
allowances in Germany must be treated in the same way as periods during which
comparable allowances are drawn in Austria.
16 In this respect, first of all, it
must be observed – as the Austrian Government submits – that
Community law does not limit the power of the Member States to organise their
social security schemes and that, in the absence of harmonisation at Community
level, it is for the legislation of each Member State to lay down the
conditions under which social security benefits are granted, as well as the
amount of such benefits and the period for which they are granted. However,
when exercising that power, the Member States must comply with Community law
and, in particular, the EC Treaty provisions on freedom of movement for workers
or again the freedom of every citizen of the European Union to move and reside
in the territory of the Member States (Case C‑135/99 Elsen
[2000] ECR I‑10409, paragraph 33).
17 The principle of non-discrimination,
as laid down in Article 39(2) EC and implemented, as far as concerns social
security for migrant workers, by Article 3(1) of Regulation No 1408/71,
prohibits not only overt discrimination based on the nationality of the
beneficiaries of social security schemes but also all covert forms of
discrimination which, through the application of other distinguishing criteria,
lead in fact to the same result (see Case C‑332/05 Celozzi
[2007] ECR I‑563, paragraphs 13 and 23).
18 Accordingly, conditions imposed by
national law must be regarded as indirectly discriminatory where, although
applicable irrespective of nationality, they affect essentially migrant workers
or the great majority of those affected are migrant workers, where they are
applicable without distinction but can more easily be satisfied by national
workers than by migrant workers, or where there is a risk that they may operate
to the particular detriment of the latter (Celozzi,
paragraph 24).
19 The refusal to take into account,
for the purposes of granting Ms Klöppel the Austrian
childcare allowance, the period during which her partner, Mr Kraler, received a comparable benefit in Germany is likely
to lead to such a result, given that, as a general rule, it is workers who are
nationals of other Member Sates who, prior to their establishment in Austria,
would have received family benefits paid in those other States.
20 It should be noted that the Court
does not possess the information that would allow it to examine a possible
justification for such a difference in treatment to the detriment of migrant
workers.
21 Given that the interpretation of
Article 3 of Regulation No 1408/71 on its own suffices to provide the Oberlandesgericht Innsbruck with the necessary information
to allow it to resolve the dispute before it, it is not necessary for the Court
to proceed to an interpretation of Article 72 of Regulation No 1408/71 and
Article 10a of Regulation No 574/72.
22 In the light of the foregoing, the
answer to the question referred must be that Article 3(1) of Regulation No
1408/71 precludes a Member State from refusing to take into account, for the
purposes of granting a family benefit such as the Austrian childcare allowance,
the period during which a comparable benefit was drawn in another Member State
as if that period had been completed in its own territory.
Costs
23 Since these proceedings are, for the
parties to the main proceedings, a step in the action pending before the
national court, the decision on costs is a matter for that court. Costs
incurred in submitting observations to the Court, other than the costs of those
parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
Article
3(1) 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 (EC) No 118/97 of 2 December 1996, as amended in turn by
Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5
June 2001, precludes a Member State from refusing to take into account, for the
purposes of granting a family benefit such as the Austrian childcare allowance,
the period during which a comparable benefit was drawn in another Member State
as if that period had been completed in its own territory.
[Signatures]