# C_2009090EN.01000702.xml

| 18.4.2009 | EN | Official Journal of the European Union | C 90/7 |
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18.4.2009

EN

Official Journal of the European Union

C 90/7

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Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 15 January 2009 — Gudrun Schwemmer v Agentur für Arbeit Villingen-Schwenningen — Familienkasse

(Case C-16/09)

2009/C 90/11

Language of the case: German

Referring court

Referring court

Bundesfinanzhof

Parties to the main proceedings

Parties to the main proceedings

Appellant: Gudrun Schwemmer

Appellant:

Respondent: Agentur für Arbeit Villingen-Schwenningen — Familienkasse

Respondent:

Questions referred

Questions referred

| 1. | Is the rule in Article 76(2) of Regulation (EEC) No 1408/71 of the Council 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 (1) to be applied mutatis mutandis to Article 10(a) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (2) in cases where the parent with a right to claim does not apply for the family benefits to which he is entitled in the country of employment? |
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1.

Is the rule in Article 76(2) of Regulation (EEC) No 1408/71 of the Council 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 (1) to be applied mutatis mutandis to Article 10(a) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (2) in cases where the parent with a right to claim does not apply for the family benefits to which he is entitled in the country of employment?

1

mutatis mutandis

2

| 2. | In the event that Article 76(2) of Regulation No 1408/71 is to be applied mutatis mutandis: on the basis of which discretionary considerations may the institution competent for family benefits in the country of residence apply Article 10(a) of Regulation No 574/72 as if benefits had been granted in the country of employment? May the discretion to assume that family benefits have been received in the country of employment be restricted where the person entitled intentionally does not apply for the family benefits to which he is entitled in the country of employment in order to cause detriment to the person entitled to child benefit in the country of residence? |
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2.

In the event that Article 76(2) of Regulation No 1408/71 is to be applied mutatis mutandis: on the basis of which discretionary considerations may the institution competent for family benefits in the country of residence apply Article 10(a) of Regulation No 574/72 as if benefits had been granted in the country of employment? May the discretion to assume that family benefits have been received in the country of employment be restricted where the person entitled intentionally does not apply for the family benefits to which he is entitled in the country of employment in order to cause detriment to the person entitled to child benefit in the country of residence?

mutatis mutandis

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(1)  OJ English Special Edition 1971(II), p. 416.

1

(2)  OJ English Special Edition 1972(I), p. 159.

2

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