# C_2014395EN.01002401.xml

| 10.11.2014 | EN | Official Journal of the European Union | C 395/24 |
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10.11.2014

EN

Official Journal of the European Union

C 395/24

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Request for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 7 August 2014 — Bundesagentur für Arbeit — Familienkasse Sachsen v Tomislaw Trapkowski

(Case C-378/14)

(2014/C 395/29)

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant: Bundesagentur für Arbeit — Familienkasse Sachsen

Respondent: Tomislaw Trapkowski

Questions referred

| 1. | In a case where a person residing in one Member State (Germany) has entitlement to child benefit for children who live in another Member State (abroad) with the other spouse from whom he is separated, is the second sentence of Article 60(1) of Regulation No 987/2009 (1) to be applied in such a way that the fiction that, for the purpose of applying Articles 67 and 68 of Regulation No 883/2004, (2) the situation of the whole family is to be taken into account as if all the persons involved were subject to the legislation of the Member State concerned and residing there, in particular as regards a person’s entitlement to claim benefits, leads to the parent residing in the other Member State (abroad) being exclusively entitled to child benefit because the national law of the first Member State (Germany) provides that where several persons are entitled to child benefit, the benefit is granted to the parent who has taken the child into his or her household? |
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1.

In a case where a person residing in one Member State (Germany) has entitlement to child benefit for children who live in another Member State (abroad) with the other spouse from whom he is separated, is the second sentence of Article 60(1) of Regulation No 987/2009 (1) to be applied in such a way that the fiction that, for the purpose of applying Articles 67 and 68 of Regulation No 883/2004, (2) the situation of the whole family is to be taken into account as if all the persons involved were subject to the legislation of the Member State concerned and residing there, in particular as regards a person’s entitlement to claim benefits, leads to the parent residing in the other Member State (abroad) being exclusively entitled to child benefit because the national law of the first Member State (Germany) provides that where several persons are entitled to child benefit, the benefit is granted to the parent who has taken the child into his or her household?

| 2. | If the first question is to be answered in the affirmative:
  In the situation set out in paragraph 1, is the third sentence of Article 60(1) of Regulation No 987/2009 to be interpreted as meaning that the parent residing in one Member State (Germany) has the right to child benefit under domestic law because the other parent residing in the other Member State (abroad) has not made an application for child benefit? |
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2.

If the first question is to be answered in the affirmative:

In the situation set out in paragraph 1, is the third sentence of Article 60(1) of Regulation No 987/2009 to be interpreted as meaning that the parent residing in one Member State (Germany) has the right to child benefit under domestic law because the other parent residing in the other Member State (abroad) has not made an application for child benefit?

| 3. | If, in the situation set out in paragraph 1, the answer to the second question is that the failure of the parent residing in another EU Member State to make an application leads to the transfer of the right to child benefit to the parent residing in Germany:
  After what period of time may it be presumed that a parent residing in another EU Member State is not ‘exercising’ his or her right to child benefit within the meaning of the third sentence of Article 60(1) of Regulation No 987/2009, so that the parent residing in Germany has the right to child benefit? |
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3.

If, in the situation set out in paragraph 1, the answer to the second question is that the failure of the parent residing in another EU Member State to make an application leads to the transfer of the right to child benefit to the parent residing in Germany:

After what period of time may it be presumed that a parent residing in another EU Member State is not ‘exercising’ his or her right to child benefit within the meaning of the third sentence of Article 60(1) of Regulation No 987/2009, so that the parent residing in Germany has the right to child benefit?

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(1)  Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).

(2)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

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