Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

61996J0085 European Court reports 1998 Page I-02691 9
to family benefits to persons belonging to a solidarity system constituted by a particular insurance scheme,
in that case an old-age insurance scheme for self-employed persons.
42 According to Annex I, point I, C (`Germany'), to which Article 1(a)(ii) of Regulation No 1408/71
refers, only persons compulsorily insured against unemployment or persons who, as a result of such
insurance, obtain cash benefits under sickness insurance or comparable benefits can be considered, for the
purposes of the grant of family benefits pursuant to Title III, Chapter 7, of Regulation No 1408/71, to be
employed persons within the meaning of Article 1(a)(ii) of that regulation (Case C-266/95 Merino García
[1997] ECR I-3279).
43 As is clear from the wording of that provision, Annex I, point I, C, of Regulation No 1408/71 clarified
or narrowed the definition of employed person within the meaning of Article 1(a)(ii) of that regulation
solely for the purposes of the grant of family benefits pursuant to Title III, Chapter 7 of the regulation.
44 Since the situation of a person like the appellant in the main proceedings is not covered by any of the
provisions of Title III, Chapter 7, the restriction laid down by Annex I, point I, C, cannot be applied to
her, so that the question of her status of employed person within the meaning of Regulation No 1408/71
must be determined solely on the basis of Article 1(a)(ii) of that regulation. Such a person will therefore
be able to enjoy the rights attaching to that status once it is established that he or she is covered, even if
only in respect of a single risk, compulsorily or on an optional basis, by a general or special social
security scheme mentioned in Article 1(a) of Regulation No 1408/71.
45 Since the order for reference does not provide sufficient information to enable the Court to take
account of all the circumstances which may be relevant in this case, it is for the referring court to
determine whether a person such as the appellant in the main proceedings comes within the scope ratione
personae of Article 48 of the Treaty and of Regulation No 1612/68 or of Regulation No 1408/71.
The fourth question
46 By its fourth question the referring court seeks to ascertain whether Community law precludes a
Member State from requiring nationals of other Member States to produce a formal residence permit in
order to receive a child-raising allowance.
47 This question is based on the assumption that the appellant in the main proceedings has been
authorised to reside in the Member State concerned.
48 Under the BErzGG, in order to be entitled to German child-raising allowance, the claimant, besides
meeting the other material conditions for its grant, must be permanently or ordinarily resident in German
territory.
49 A national of another Member State who is authorised to reside in German territory and who does
reside there meets this condition. In that regard, such a person is in the same position as a German
national residing in German territory.
50 However, the BErzGG provides that, unlike German nationals, `a non-national', including a national of
another Member State, must be in possession of a certain type of residence permit in order to receive the
benefit in question. It is common ground that a document merely certifying that an application for a
residence permit has been made is not sufficient, even though such a certificate warrants that the person
concerned is entitled to stay.
51 The referring court points out, moreover, that `delays in granting [residence permits] for purely
technical administrative reasons can materially affect the substance of the rights enjoyed by citizens of the
European Union'.
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