# C_2011103EN.01001104.xml

| 2.4.2011 | EN | Official Journal of the European Union | C 103/11 |
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2.4.2011

EN

Official Journal of the European Union

C 103/11

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse

(Case C-612/10)

2011/C 103/20

Language of the case: German

Referring court

Referring court

Bundesfinanzhof

Parties to the main proceedings

Parties to the main proceedings

Applicant: Jaroslaw Wawrzyniak

Applicant:

Defendant: Agentur für Arbeit Mönchengladbach — Familienkasse

Defendant:

Questions referred

Questions referred

| 1. | Must Article 14(1)(a) of Regulation No 1408/71 (1) be interpreted as meaning that it deprives a Member State, which under that provision is not the competent Member State, on whose territory a worker is posted and which is also not the Member State of residence of the worker’s children of the right to grant family benefits to the posted worker at any rate where that worker does not suffer any legal disadvantage as a result of his posting to that Member State? |
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1.

Must Article 14(1)(a) of Regulation No 1408/71 (1) be interpreted as meaning that it deprives a Member State, which under that provision is not the competent Member State, on whose territory a worker is posted and which is also not the Member State of residence of the worker’s children of the right to grant family benefits to the posted worker at any rate where that worker does not suffer any legal disadvantage as a result of his posting to that Member State?

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| 2. | If the answer to the first question is in the negative:
  Must Article 14(1)(a) of Regulation No 1408/71 be interpreted as meaning that under all circumstances a State which is not the competent Member State on whose territory a worker is posted has the right to grant family benefits only where it has been determined that in the other Member State no entitlement to comparable family benefits exists? |
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2.

If the answer to the first question is in the negative:

Must Article 14(1)(a) of Regulation No 1408/71 be interpreted as meaning that under all circumstances a State which is not the competent Member State on whose territory a worker is posted has the right to grant family benefits only where it has been determined that in the other Member State no entitlement to comparable family benefits exists?

| 3. | If the answer to that question is also in the negative:
  Do Community law or European Union law provisions preclude a provision of national law such as the first part of point 2 of Paragraph 65(1) of the EStG in conjunction with Paragraph 65(2) of the EStG which excludes entitlement to family benefits where a comparable benefit is paid outside Germany or would be due if an application to that effect were made? |
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3.

If the answer to that question is also in the negative:

Do Community law or European Union law provisions preclude a provision of national law such as the first part of point 2 of Paragraph 65(1) of the EStG in conjunction with Paragraph 65(2) of the EStG which excludes entitlement to family benefits where a comparable benefit is paid outside Germany or would be due if an application to that effect were made?

| 4. | If the answer to that question is in the affirmative:
  How should the overlap thus arising between the entitlement in the competent State which is also the Member State of residence of the children and the entitlement in the State which is neither the competent State nor the State of residence of the children be resolved? |
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4.

If the answer to that question is in the affirmative:

How should the overlap thus arising between the entitlement in the competent State which is also the Member State of residence of the children and the entitlement in the State which is neither the competent State nor the State of residence of the children be resolved?

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(1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416).

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