Opinion of the Advocate General — ECLI:EU:C:2010:195
Date: 2010-04-15
Language of the case: German
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Social security for migrant workers – Family allowances – Community rules for prevention of overlapping benefits (Council Regulations No 1408/71, Arts 73 and 76, and No 574/72, Art. 10) On a proper interpretation of Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72, as amended by Regulation No 647/2005, a right, which is not subject to conditions of insurance, employment or self-employment, to benefits under the legislation of a Member State in which one parent resides with the children in favour of which those benefits are granted cannot be partially suspended in a situation in which the former spouse, who is the other parent of the children concerned, would in principle be entitled to family benefits under the legislation of the State in which he is employed, either simply by virtue of the national legislation of that State, or in application of Article 73 of Regulation No 1408/71, but does not actually draw those benefits because he has not made an application for them. For it to be possible to regard family benefits as being due under the legislation of a Member State, the law of that State must recognise the right to the payment of benefits in favour of the member of the family who works in that State. It is thus necessary for the person concerned to fulfil all the conditions, as to both form and substance, imposed by the internal legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits. (see paras 53, 59, operative part)