# C_2005182EN.01001302.xml

| 23.7.2005 | EN | Official Journal of the European Union | C 182/13 |
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23.7.2005

EN

Official Journal of the European Union

C 182/13

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Grand Chamber)

of 7 June 2005

in Case C-543/03: Reference for a preliminary ruling from the Oberlandesgericht Innsbruck in Christine Dodl, Petra Oberhollenzer v Tiroler Gebietskrankenkasse (1)

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(Regulations (EEC) Nos 1408/71 and 574/72 - Family benefits - Child-raising allowance - Entitlement to benefits of the same kind in the Member State of employment and the Member State of residence)

(2005/C 182/25)

Language of the case: German

In Case C-543/03: reference for a preliminary ruling under Article 234 EC from the Oberlandesgericht (Higher Regional Court) Innsbruck (Austria), made by decision of 16 December 2003, received at the Court on 29 December 2003, in the proceedings between Christine Dodl, Petra Oberhollenzer and Tiroler Gebietskrankenkasse — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans and A. Rosas, Presidents of Chambers, C. Gulmann, J.-P. Puissochet, K. Schiemann (Rapporteur), J. Makarczyk, P. Kūris, E. Juhász, U. Lõhmus, E. Levits and A. Ó Caoimh, Judges; L.A. Geelhoed, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 7 June 2005, in which it ruled:

Christine Dodl

Petra Oberhollenzer

Tiroler Gebietskrankenkasse

| 1. | A person has the status of an employed or self-employed person within the meaning 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 Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001 where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship. It is for the national court to make the necessary enquiries to determine whether the claimants in the main proceedings belonged to a branch of the Austrian social security system during the periods in respect of which the allowances in issue were applied for and, accordingly, whether they were 'employed persons' within the meaning of Article 1(a). |
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1.

A person has the status of an employed or self-employed person within the meaning 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 Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001 where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship. It is for the national court to make the necessary enquiries to determine whether the claimants in the main proceedings belonged to a branch of the Austrian social security system during the periods in respect of which the allowances in issue were applied for and, accordingly, whether they were 'employed persons' within the meaning of Article 1(a).

| 2. | Where the legislation of the Member State of employment and that of the Member State of residence of an employed person each provide for an entitlement to family benefits in respect of the same member of that person's family and for the same period, the Member State responsible for paying those benefits is, in principle, the Member State of employment pursuant to Article 10(1)(a) 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 Commission Regulation (EC) No 410/2002 of 27 February 2002.
  However, where a person having the care of children, in particular the spouse or partner of the employed person, carries out a professional or trade activity in the Member State of residence, the family benefits must be paid by that Member State in application of Article 10(1)(b)(i) of Regulation No 574/72, as amended by Regulation No 410/2002, irrespective of who is designated as directly entitled to those benefits by the legislation of that State. In that situation, the payment of family benefits by the Member State of employment is to be suspended up to the sum of family benefits provided for by the legislation of the Member State of residence. |
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2.

Where the legislation of the Member State of employment and that of the Member State of residence of an employed person each provide for an entitlement to family benefits in respect of the same member of that person's family and for the same period, the Member State responsible for paying those benefits is, in principle, the Member State of employment pursuant to Article 10(1)(a) 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 Commission Regulation (EC) No 410/2002 of 27 February 2002.

However, where a person having the care of children, in particular the spouse or partner of the employed person, carries out a professional or trade activity in the Member State of residence, the family benefits must be paid by that Member State in application of Article 10(1)(b)(i) of Regulation No 574/72, as amended by Regulation No 410/2002, irrespective of who is designated as directly entitled to those benefits by the legislation of that State. In that situation, the payment of family benefits by the Member State of employment is to be suspended up to the sum of family benefits provided for by the legislation of the Member State of residence.

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(1)  OJ C 850 of 03.04.2004.

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