CELEX: 62006CJ0507
Entitlement to childcare allowance in Austria
Periods of drawing family benefits in another Member State not taken into account
Regulation (EEC) No 1408/71

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’).
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 Austria.

Legal context

Community law
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.
…’
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.
…’
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.’
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
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
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.
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.
On 18 August 2004, Ms Klöppel and Mr Kraler, together with their child, established themselves in Austria, where Mr Kraler
resumed his professional activity.
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.
Ms Klöppel appealed against that decision.
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.
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
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.
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).
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).
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).
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.
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.
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.
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
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]
*
Language of the case: German.