# C_2022051EN.01001102.xml

| 31.1.2022 | EN | Official Journal of the European Union | C 51/11 |
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31.1.2022

EN

Official Journal of the European Union

C 51/11

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Judgment of the Court (Eighth Chamber) of 25 November 2021 (request for a preliminary ruling from the Bundesfinanzgericht — Austria) — QY v Finanzamt Österreich, formerly Finanzamt Wien für den 8., 16. und 17. Bezirk

(Case C-372/20) (1)

(Reference for a preliminary ruling - Articles 45 et 48 TFEU - Freedom of movement for workers - Equal treatment - Family benefits for development aid workers who take their family members to the third country to which they have been posted - Discontinuation - Article 288, second paragraph TFEU - Legal acts of the European Union - Scope of regulations - National legislation with a wider personal scope than that of a regulation - Conditions - Regulation (EC) No 883/2004 - Article 11(3)(a) and (e) - Scope - Employed person who is a national of a Member State employed as a development aid worker by an employer established in another Member State and sent on mission to a third country - Article 68(3) - Right of the applicant for family benefits to submit a single application to the institution of the Member State having primary jurisdiction or to the institution of the Member State having subsidiary jurisdiction)

(2022/C 51/14)

Language of the case: German

Referring court

Bundesfinanzgericht

Parties to the main proceedings

Applicant: QY

Defendant: Finanzamt Österreich, formerly Finanzamt Wien für den 8., 16. und 17. Bezirk

Operative part of the judgment

| 1. | Article 11(3)(a) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems must be interpreted as meaning that an employed person who is a national of a Member State of which she and her children are residents, who is engaged under an employment contract as a development aid worker by an employer whose registered office is in another Member State, who is subject, under the legislation of that other Member State, to the compulsory social security scheme of that Member State, who is posted to a third country not immediately after her recruitment but after a training period in that other Member State and who subsequently returns there for a reintegration period, must be regarded as pursuing an activity as an employed person in that Member State within the meaning of that provision; |
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1.

Article 11(3)(a) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems must be interpreted as meaning that an employed person who is a national of a Member State of which she and her children are residents, who is engaged under an employment contract as a development aid worker by an employer whose registered office is in another Member State, who is subject, under the legislation of that other Member State, to the compulsory social security scheme of that Member State, who is posted to a third country not immediately after her recruitment but after a training period in that other Member State and who subsequently returns there for a reintegration period, must be regarded as pursuing an activity as an employed person in that Member State within the meaning of that provision;

| 2. | The second paragraph of Article 288 TFEU must be interpreted as not precluding the adoption by a Member State of a national legislation the personal scope of which is wider than that of Regulation No 883/2004, in so far as it provides for the assimilation of nationals of the member states to the Agreement on the European Economic Area of 2 May 1992 to its own nationals, provided that that legislation is interpreted in a manner consistent with that regulation and that the primacy of that regulation is not called into question; |
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2.

The second paragraph of Article 288 TFEU must be interpreted as not precluding the adoption by a Member State of a national legislation the personal scope of which is wider than that of Regulation No 883/2004, in so far as it provides for the assimilation of nationals of the member states to the Agreement on the European Economic Area of 2 May 1992 to its own nationals, provided that that legislation is interpreted in a manner consistent with that regulation and that the primacy of that regulation is not called into question;

| 3. | Article 68(3)(a) of Regulation No 883/2004 and Article 60(2) and (3) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down detailed rules for the application of Regulation No 883/2004 must be interpreted as mutually binding on the institution of the Member State having primary jurisdiction and on the institution of the Member State having subsidiary jurisdiction, with the result that the applicant for family benefits must lodge only one application with one of those institutions and it is then for those two institutions to process that claim jointly; |
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3.

Article 68(3)(a) of Regulation No 883/2004 and Article 60(2) and (3) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down detailed rules for the application of Regulation No 883/2004 must be interpreted as mutually binding on the institution of the Member State having primary jurisdiction and on the institution of the Member State having subsidiary jurisdiction, with the result that the applicant for family benefits must lodge only one application with one of those institutions and it is then for those two institutions to process that claim jointly;

| 4. | Articles 45 TFEU and 48 TFEU must be interpreted as meaning that they do not preclude a Member State from generally discontinuing the family benefits which it has hitherto provided to development aid workers who take their family members to a third country to which they have been posted, provided that, first, that discontinuation is applied without distinction to beneficiaries who are nationals of that Member State and to beneficiaries who are nationals of other Member States and, second, that that discontinuation involves a different treatment between the development aid workers concerned, not depending on whether or not they have exercised their right to freedom of movement before or after that discontinuation, but depending on whether their children reside with them in a Member State or in a third country. |
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4.

Articles 45 TFEU and 48 TFEU must be interpreted as meaning that they do not preclude a Member State from generally discontinuing the family benefits which it has hitherto provided to development aid workers who take their family members to a third country to which they have been posted, provided that, first, that discontinuation is applied without distinction to beneficiaries who are nationals of that Member State and to beneficiaries who are nationals of other Member States and, second, that that discontinuation involves a different treatment between the development aid workers concerned, not depending on whether or not they have exercised their right to freedom of movement before or after that discontinuation, but depending on whether their children reside with them in a Member State or in a third country.

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(1)  OJ C 433, 14.12.2020.

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