Information;Order — ECLI:EU:C:2023:27
Date: 2023-01-13
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Provisions governing the Institutions;Social security for migrant workers;Free movement of workers;Acts of the institutions
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Austria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 November 2020 
Referring court or tribunal: 
Bundesfinanzgericht (Austria) 
Date of the decision to refer: 
21 October 2020 
Appellant: 
XO 
Respondent authority: 
Finanzamt Waldviertel  
  
Subject matter of the main proceedings 
Social policy – Family benefits granted to migrant workers in respect of children 
residing permanently in another EU Member State – National rule adjusting those 
benefits to the purchasing-power conditions in the State of residence of the 
children. 
Subject matter and legal basis of the request 
Interpretation of EU law and validity of secondary law, Article 267 TFEU; in 
particular: 
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, 
corrigendum in OJ 2004 L 200, p. 1) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-574/20 
 
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Questions referred 
Question 1, concerning the validity of secondary legislation: 
Are Articles 4 and 7 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 
(OJ 2004 L 166, p. 1, corrigendum in OJ 2004 L 200, p. 1), as amended by 
Regulation (EU) No 465/2012 of the European Parliament and of the Council of 
22 May 2012 (OJ 2012 L 149, p. 4), (‘Regulation No 883/2004’, ‘the New 
Coordination Regulation’ or ‘the Basic Regulation’) valid? 
Question 2: 
Is Article 7 of Regulation No 883/2004, in particular its title ‘Waiving of 
residence rules’, to be interpreted as meaning that it precluded the legally valid 
adoption of the general rules governing the indexation of family allowances by 
reference to the purchasing-power conditions in the State of residence – 
Paragraph 8a of the Familienlastenausgleichsgesetz 1967 (1967 Law on 
compensation for family expenses; ‘the FLAG’), point 2 of Paragraph 33(3) of the 
Einkommensteuergesetz 1988 (1988 Law on income tax; ‘the EStG’) and the 
Familienbeihilfe-Kinderabsetzbetrag-EU-Anpassungsverordnung (Order adapting 
family allowances and tax credits for the European Union – in so far as they entail 
a decrease in the value of family benefits for certain Member States? 
Question 3: 
Is the prohibition of the reduction of cash benefits laid down in Article 7 of 
Regulation No 883/2004, in particular its wording ‘cash benefits … shall not be 
subject to any reduction, amendment, suspension, withdrawal or confiscation’, to 
be interpreted as meaning that that provision did not preclude the legally valid 
adoption of the provisions governing the indexation of family allowances by 
reference to the purchasing power conditions in the State of residence – 
Paragraph 8a of the FLAG and point 2 of Paragraph 33(3) of the EStG – in so far 
as the value of the family allowances in question is to be increased? 
Questions 4 and 5, concerning the expert report on which the legislative 
amendment was based: 
Question 4: 
Are Articles 7 and 67 of Regulation No 883/2004 to be interpreted – and delimited 
in relation to one other – to the effect that Article 7 relates to the law-making 
process in which the residence rule is created as a general, abstract rule by the 
Member State’s parliament, whereas Article 67 concerns the law-making process 
for an individual, specific rule in an actual specific case and is addressed directly 
to the institution, as initially established under Title II of the Basic Regulation? 
Question 5: 
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Are Articles 67, 68(1) and (2) of Regulation No 883/2004 and Article 60(1) of 
Regulation No 987/2009 to be interpreted as meaning that, like their predecessor 
provisions – Articles 73, 76 of Regulation No 1408/71 and Article 10 of 
Regulation No 574/72 – they are to be applied in conjunction with one another 
and therefore understood only in context, and they pursue, in conjunction with one 
another and in compliance with the anti-accumulation principle, the objective of 
ensuring that the person concerned does not lose any entitlements, as guaranteed 
by the classification and hierarchisation of the Member States prescribed in 
Article 68(1) and (2) and by the express requirement that the competent Member 
State whose legislation is applicable on a secondary basis will be required to make 
a supplementary payment if necessary, with the result that an isolated 
interpretation of Article 67 of Regulation 883/2004, such as that in the expert 
report, is not permissible? 
Question 6: 
Are the concept of ‘general application’ of a regulation and the wording ‘It shall 
be binding in its entirety and directly applicable’ in the second paragraph of 
Article 288 TFEU to be interpreted as meaning that they also precluded the valid 
adoption of the competent institutions’ individual rules which build on the rules 
governing indexation and that the administrative decision under appeal in the 
main proceedings has not acquired the force of formal res judicata 
(Bestandskraft)? 
Question 7: 
Do Paragraph 53(1) of the FLAG in the original version of the 
Budgetbegleitgesetz (Law accompanying the budget) of 29 December 2000, BGBl 
1142/2000, and Paragraph 53(4) of the FLAG in the original version of the 
Federal Law of 4 December 2018 amending the 1967 Law on compensation for 
family expenses, the 1988 Law on income tax and the Entwicklungshelfergesetz 
(Law on development aid workers), BGBl I 83/2018, infringe the prohibition of 
the transposition of regulations within the meaning of the second paragraph of 
Article 288 TFEU? 
Questions 8 to 12, which are to be examined together 
[Question 8:] 
Are the requirement of equality of treatment with nationals under Article 4 of 
Regulation No 883/2004 and the underlying prohibition of discrimination under 
Article 45(2) TFEU to be interpreted as meaning that they are complied with only 
if a migrant worker is treated in the same way as a national in a domestic situation 
and is therefore notified of the family allowance in advance and is paid the family 
allowance monthly in advance on an ongoing basis pursuant to Paragraph 12, in 
conjunction with Paragraphs 2 and 8, of the FLAG, or is there compliance with 
the requirement of equality of treatment with nationals if a migrant worker is 
treated in the same way as a national who, like him, is in a cross-border situation 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-574/20 
 
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pursuant to Paragraph 4 of the FLAG, but, in the second case, by way of 
derogation, it is only annually after the end of the calendar year that he receives 
the family allowance under Paragraph 4(4) of the FLAG for the calendar year in 
question? 
Question 9: 
Is the suspension of entitlements to family benefits by virtue of other conflicting 
legislative provisions up to the amount provided for by the legislation designated 
as having priority, as prescribed in the second sentence of Article 68(2) of 
Regulation No 883/2004, to be interpreted as precluding a Member State’s anti-
accumulation rule, such as Paragraph 4(1) to (3) of the FLAG, which, in a 
situation such as the present one, entitles Austria, as the Member State with 
primary responsibility, to reduce family allowances by entitlements to ‘an 
equivalent foreign allowance’ in the other Member State, because the rule of EU 
law has already prevented anti-accumulation and the anti-accumulation rule in 
Paragraph 4(1) to (3) of the FLAG therefore serves no purpose? 
Question 10: 
Is the suspension of entitlements to family benefits by virtue of other conflicting 
legislative provisions up to the amount provided for by the legislation designated 
as having priority, as prescribed in the second sentence of Article 68(2) of 
Regulation No 883/2004, to be interpreted as meaning that the Member State 
whose legislation is applicable on a secondary basis and which must comply with 
the suspension of family benefits provided for in its legislation due to the 
requirement under EU law is obliged to reject an application of a migrant worker 
or a member of his family or a person otherwise entitled under the legislation of 
the Member State and not to grant family benefit up to the amount provided for by 
the legislation designated as having priority, even if an approach based solely on 
the situation of the Member State – possibly on an alternative legal basis – would 
permit the granting of that family benefit? 
Question 11: 
If Question 10 is answered in the affirmative, the question then arises as to 
whether the Member State whose legislation is applicable on a secondary basis 
and which must comply with the suspension of family benefits provided for in its 
legislation due to the requirement under EU law, but which is not required to 
provide the differential supplement for the sum which exceeds the amount 
provided for by the first legislation, owing to the lack of such a sum, would have 
to reject an application on the ground that the suspension under the second 
sentence of Article 68(2) of Regulation No 882/2004 precludes the granting of 
entitlements to family allowances? 
Question 12: 
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Must Article 68(1) and (2) of Regulation No 883/2004 be interpreted as meaning 
that, in a situation such as that at issue in the main proceedings, points 6 and 7 of 
form E 411 of the Administrative Commission on Social Security for Migrant 
Workers, which are to be completed by the Member State whose legislation is 
applicable on a secondary basis, no longer meet the information requirements of 
the Member State whose legislation is applicable on a primary basis, because the 
Member State with primary responsibility needs to be informed by the other 
Member State, within the meaning of Questions 10 and 11, that the latter Member 
State will be enforcing the suspension under the second sentence of Article 68(2) 
of Regulation No 883/2004, as a result of which there is no need to examine the 
Member State’s legal situation, which includes earnings thresholds? 
Question 13: 
Is the obligation to recast legislation, as developed by the Court of Justice in 
settled case-law on the basis of the principle of loyalty under Article 4(3) TEU, to 
be understood as meaning that it could also be discharged by the 
Verfassungsgerichtshof (Constitutional Court, Austria) pursuant to a request from 
the referring court? 
Question 14: 
Are point (b) of the first paragraph of Article 267 TFEU on questions concerning 
the validity of secondary law, which is mandatory even for a referring court not 
adjudicating at last instance, and the referring court’s obligation, which is linked 
to questions concerning validity, to ensure the application of valid EU law by 
adopting, by decision, an interim order refusing leave for an appeal on a point of 
law, owing to the primacy of application of EU law, to be interpreted as 
precluding rules of Member States such as Article 133(4) and (9) of the Bundes-
Verfassungsgesetz (Federal Constitutional Law; ‘the B-VG’), in conjunction with 
Paragraph 25a(1) to (3) and Paragraph 30a(7) of the 
Verwaltungsgerichtshofgesetz (Law on the Supreme Administrative Court; ‘the 
VwGG’), which grant, at national level, the parties to the underlying 
administrative proceedings a review of legal protection conducted by the 
Verwaltungsgerichtshof (Supreme Administrative Court, Austria) against a 
decision of the Verwaltungsgericht (Administrative Court, Austria) in the form of 
an ‘extraordinary’ appeal on a point of law? 
Provisions of EU law cited 
Article 4(3) TEU 
Articles 45, 48, 263 and 267 and second paragraph of Article 288 TFEU  
Articles 4, 7, 67 and 68(1) and (2) of Regulation No 883/2004, as amended by 
Regulation (EU) No 465/2012 of the European Parliament and of the Council of 
22 May 2012 (OJ 2012 L 149, p. 4) 
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Article 60 of 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; ‘Regulation No 987/2009’) 
Articles 73 and 76 of Regulation (EEC) No 1408/71 of the Council of 14 June 
1971 on the application of social security schemes to employed persons and to 
their families moving within the Community (OJ, English Special Edition 
1971(II), p. 416; ‘Regulation No 1408/71’) 
Article 10 of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing 
the procedure for implementing Regulation (EEC) No 1408/71 on the application 
of social security schemes to employed persons and their families moving within 
the Community (OJ, English Special Edition 1972(I), p. 160; ‘Regulation 
No 574/72’) 
Provisions of national law cited 
Familienlastenausgleichsgesetz 1967 (1967 Law on compensation for family 
expenses; ‘the FLAG’): Paragraph 2 of the FLAG grants persons who have their 
residence or habitual abode in Austria entitlement to family allowances in respect 
of minor children, including stepchildren. Foreign nationals are entitled to family 
allowances only if they are lawfully resident in Austria (Paragraph 3 of the 
FLAG). 
Pursuant to Paragraph 4 of the FLAG, persons entitled to an equivalent foreign 
allowance are not entitled to family allowances (subparagraph 1). If the equivalent 
foreign allowance is lower than the Austrian family allowance, Austrian nationals 
receive a supplementary allowance (subparagraph 2) equal to the difference 
(subparagraph 3), the allowance being granted annually after the end of the 
calendar year – or after the entitlement to the equivalent foreign allowance lapses, 
if it lapses earlier (subparagraph 4). 
Paragraph 8 of the FLAG governs the amount of the family allowance on the basis 
of the number and age of the children. Paragraph 8a of the FLAG, which was 
introduced by the Federal Law of 4 December 2018 and has been in force since 
1 January 2019 (‘Paragraph 8a of the FLAG, new version’), provides for the 
adjustment of family allowances, with regard to, among others, children 
permanently residing in another EU Member State, to the purchasing-power 
conditions in the State of residence on the basis of the comparative price levels 
published by the Statistical Office of the European Union for each individual EU 
Member State. 
Pursuant to Paragraph 12 of the FLAG, the tax office must issue a notification 
when an entitlement to family allowance arises or ceases to exist. 
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Paragraph 53(1) of the FLAG places nationals of other Member States on an equal 
footing with Austrian nationals under the FLAG, whereby the permanent 
residence of a child in another Member State must be regarded as being equivalent 
to permanent residence in Austria. The provisions of Paragraph 53(4) and (5), 
which were introduced by the Federal Law of 4 December 2018 and have been in 
force since 1 January 2019, provide for an exception to this with regard to the 
adjustment of family allowances under Paragraph 8a of the FLAG. 
Einkommensteuergesetz 1988 (1988 Law on income tax; ‘the EStG’): Point 2 of 
Paragraph 33(3) of the EStG, which was introduced by the Federal Law of 
4 December 2018 and has been in force since 1 January 2019 (point 2 of 
Paragraph 33(3) of the EStG, new version), governs the tax credits to be paid out 
together with the family allowance, which are adjusted for, among others, children 
who are permanently residing in another Member State.  
Familienbeihilfe-Kinderabsetzbetrag-EU-Anpassungsverordnung (Order adapting 
family allowances and tax credits for the European Union) 
Bundes-Verfassungsgesetz (Federal Constitutional Law; ‘the B-VG’), in particular 
Article 133(4) and (9) on appeals on a point of law against administrative rulings 
and decisions of the Administrative Courts. 
Verwaltungsgerichtshofgesetz 1985 (1985 Law on the Supreme Administrative 
Court; ‘the VwGG’), in particular Paragraph 25a(1) to (3) and Paragraph 30a(7), 
pursuant to which the Administrative Court must state in its administrative ruling 
or decision whether an appeal on a point of law is permitted or – if such an appeal 
is excluded – on what grounds an ‘extraordinary’ appeal on a point of law is 
permitted. 
Bundesabgabenordnung (Federal Tax Code; ‘the BAO’) 
Brief summary of the facts and procedure 
1 The request for a preliminary ruling has been made in the context of a dispute 
between the appellant and the Finanzamt Waldviertel (Waldviertel Tax Office) 
(‘the respondent authority’) concerning the granting of family allowances and tax 
credits at a reduced amount, since, with effect from 1 January 2019, Austria has 
been adjusting those family allowances, with regard to, among others, children 
permanently residing in another EU Member State, to the purchasing-power 
conditions in the State of residence by virtue of Paragraph 8a of the FLAG, new 
version, and Paragraph 33(3) of the EStG, new version. 
2 The appellant, her husband, her stepson and their two biological daughters are 
Czech nationals and live in the Czech Republic. The appellant was employed in 
Austria by various Austrian employers from July 2017 to February 2020. Owing 
to their family income level, the appellant and her husband are not entitled in the 
Czech Republic to the corresponding family benefit in that country. 
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3 The period in dispute is that from January 2019 to March 2020. Until 
31 December 2018, the appellant was in receipt of the Austrian family allowance 
in full, in relation to which she received notifications on 20 April 2018 and 
20 August 2019. With effect from 1 January 2019, the adjustment of family 
allowances to the purchase-price conditions in the State of residence was 
introduced, in relation to which no separate notification was issued. The appellant 
noticed the reduction solely on the basis of the amounts paid out. As of April 
2020, the family allowance was no longer paid due to loss of employment in 
Austria. 
4 On 14 February 2019, the appellant submitted an application requesting that the 
family allowance be granted from 1 January 2019 in the non-indexed amount and 
that the differential amounts be paid retroactively. The respondent authority, by 
way of an administrative decision referring to the new legal situation, rejected the 
application as unfounded. The appellant’s appeal against the administrative 
decision was, in turn, dismissed by the respondent authority as unfounded by 
preliminary appeal decision, against which the appellant made a request for 
referral and proposed that the matter be referred to the Court of Justice of the 
European Union (‘the Court of Justice’) for a preliminary ruling. By reference 
report of 17 April 2020, the appeal against the administrative decision was 
referred to the Bundesfinanzgericht (Federal Finance Court, Austria; ‘the BFG’). 
Principal arguments of the parties to the main proceedings 
5 The appellant takes the view that the reduction in family allowances infringes EU 
law, and refers in this regard to Articles 45 and 48 TFEU, Regulation 
No 883/2004, Regulation No 492/2011 and the judgment of the Court of Justice of 
15 January 1986 in Case 41/84, Pinna I. She submits that the indexation 
discriminates against her in comparison with Austrian nationals because her 
children live in another Member State, even though, under the applicable EU law, 
cross-border workers have the same entitlement to family benefits as local 
workers. In support of the indexation of family allowances, the respondent 
authority refers to the Government’s draft legislation and to the expert report on 
which the legislative amendment introducing the indexation was based. 
Brief summary of the grounds for the request 
6 The main proceedings hinge on the question of the validity of regulations and the 
interpretation of EU law in areas on which there is no case-law of the Court of 
Justice. 
The situation under national law 
7 As a general rule, the pursuit of employment is not a condition for the granting of 
family allowances, for which reason Austria acquires the status of State of 
employment only by virtue of EU law. The Austrian family allowance and tax 
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credits are family benefits pursuant to Article 3(1)(j) of Regulation No 883/2004, 
which are to be provided as cash benefits and are ‘exportable’ pursuant to 
Article 7 of Regulation No 883/2004. 
The first question referred 
8 In implementation of Article 45 TFEU, Articles 4 and 7 of Regulation 
No 883/2004 provide for equivalence between persons covered by the regulation 
and nationals and for the waiving of residence rules. In the Pinna I case (judgment 
of 15 January 1984, 41/84), the Court of Justice already ruled, in relation to family 
benefits, that a residence rule in Article 73(2) of Regulation No 1408/71 was 
contrary to primary law and declared it to be invalid. The link to purchasing-
power conditions in the State of residence pursuant to Paragraph 8a of the FLAG, 
new version, and point 2 of Paragraph 33(3) of the EStG, new version, meets the 
criteria for such a residence rule and therefore runs counter to Regulation 
No 883/2004, which is why the question regarding the validity of that regulation 
must be referred to the Court of Justice on account of its exclusive power to reject 
illegal acts of secondary legislation (judgment of 22 October 1987, Case 314/85, 
Foto-Frost, paragraph 15 et seq.).  
The second question referred 
9 The referring court asks whether, in the light of the Simmenthal II case concerning 
the preclusion of the valid adoption of new legislative measures that would be 
incompatible with provisions of EU law (judgment of 9 March 1978, 106/77, 
paragraphs 17 and 18), the wording ‘waiving of residence rules’ in the title of 
Article 7 of Regulation No 883/2004 must be interpreted in itself as having 
precluded the valid adoption of Paragraph 8a of the FLAG, new version, and 
point 2 of Paragraph 33(3) of the EStG, new version. This would give the term 
‘waiving’ a more extensive meaning than has generally been understood up to 
now, because the national rules on indexation would not have been validly 
adopted ex tunc. This reinforces the assumption that the indexation of family 
allowances is not binding on the referring court. 
The third question referred 
10 It is unclear whether the indexation resulting in increases in the value of family 
allowances – which resembles an excessive transposition of a directive – comes 
within the scope of EU law and the jurisdiction of the Court of Justice. If not, the 
Austrian legislature would be obliged to recast the law only in respect of the 
reduced family allowance, if it were declared to be incompatible with secondary 
law by the Court of Justice. There is therefore a risk that, although the decreases 
in the value of family allowances would be eliminated with ex tunc effect, the 
increases in their value would continue to exist. A retroactive abolishment would 
appear to be problematic with regard to the increases in value, because the 
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addressees of the rule may have legitimate expectations with regard to the 
additional entitlement. 
11 The indexation resulting in increases in value could also run counter to 
Article 68(2) of Regulation No 883/2004, which pursues the objective of 
guaranteeing the highest family benefit and is based on consistent case-law of the 
Court of Justice (for example, judgment of 12 June 1980, Case 733/79, Laterza; 
judgment of 4 September 2019, C-473/18, Bundesagentur für Arbeit – 
Familienkasse Baden-Württemberg West, paragraph 34; judgment of 12 July 
1984, Case 242/83, Patteri, paragraphs 8 to 10). 
12 The legal nature of the family allowance indexation introduced by Federal law is 
also unclear. Paragraph 8a of the FLAG, new version, and point 2 of 
Paragraph 33(3) of the EStG, new version, constitute national law only in formal 
terms. The persons concerned by the indexation are exclusively nationals of other 
Member States who are subject to the FLAG only because EU law so requires. 
Although nationals residing in another Member State may also be concerned by 
the indexation, the requirement of residence within the national territory is more 
easily met by nationals, with the result that there is indirect discrimination (Court 
of Justice, judgment in Pinna, paragraph 23). EU law therefore exists here in 
substantive terms and a law of a Member State seeks to alter it. 
The fourth and fifth questions referred 
13 With regard to the infringement of EU law as a result of the linking of family 
allowances to price conditions, the question arises as to the delimitation of 
Articles 7 and 67 of Regulation No 883/2004. For the purposes of indexation, the 
expert report and the Government’s draft legislation are based on the fiction of 
Article 67 of Regulation No 883/2004 (‘as if [the family members] were residing 
in the [competent] Member State’) inasmuch as it refers to circumstances of value 
in the competent Member State, and therefore distinguish between ‘amount’ and 
‘value’. 
14 This isolated consideration of Article 67 of Regulation No 883/2004 is 
problematic, however. Article 67, which is supplemented by Article 60 of 
Regulation No 987/2009 (see judgment of 22 October 2015, C-378/14, 
Trapkowski), is, on the one hand, intended to avoid indirect discrimination, in 
particular as a result of a link to residence requirements, and, on the other hand, 
must be read in conjunction with the priority rules and the anti-accumulation rule 
of Article 68(1) and (2) of Regulation No 883/2004, as was the case with the 
predecessor provisions in Articles 73 and 76(1) of Regulation No 1408/71 
(judgment of 7 February 2019, C-322/17, Eugen Bogatu, paragraph 24). The 
priority rules ensure that an applicant receives the highest possible amount of 
family benefits without infringing the anti-accumulation principle (judgment of 
5 June 2005, C-543/03, Dodl and Oberhollenzer, paragraph 49). Article 68(2) of 
Regulation No 883/2004 obliges the Member State with primary responsibility to 
pay full benefits and the Member State with secondary responsibility to pay any 
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difference (with regard to the old regulation, see judgment of 12 June 1980, Case 
733/79, Laterza, with further references regarding acquired rights) or to suspend 
its family benefits.  
15 Articles 7 and 67 of Regulation No 883/2004 pursue the same objective – the 
prevention of indirect discrimination – but they relate to different law-making 
processes. Article 7 is addressed to the legislature, so that no residence rules are 
created in the legislation, whereas, by contrast, Article 67 is addressed to the 
competent institution qua part of the executive, so that it does not require the 
fulfilment of discriminatory conditions in a specific case of application. Articles 7 
and 67 of Regulation No 883/2004 therefore guarantee the primacy of application 
of EU law using different techniques. Therefore, a residence rule (such as 
indexation), which has already been waived by Article 7 of Regulation 
No 883/2004, can no longer be the subject of Article 67. 
16 Since, in Pinna I (paragraph 23), the Court of Justice has already declared a 
residence rule laid down in secondary legislation to be invalid on the basis of the 
principle of equal treatment, a residence rule in a national provision must be 
regarded as being all the more contrary to EU law. In the light of the case-law of 
the Court of Justice, according to which ‘all covert forms of discrimination [are 
prohibited]’, the differentiation of amount and value in the expert report and the 
Government’s draft legislation does not appear to be permissible. Therefore, the 
indexation probably infringes primary law, but certainly infringes Articles 4 and 7 
of Regulation No 883/2004.  
17 The grounds of justification given in the Government’s draft legislation are 
inappropriate: first, the saving resulting from indexation pertains to economic 
considerations, which are not recognised as an unwritten ground of justification 
(for example, judgment of 29 April 1999, C-224/97, Erich Ciola v Land 
Vorarlberg), while the avoidance of distortions is not a legitimate objective, since 
social welfare systems in the European Union could no longer be coordinated if 
each Member State were to index family benefits. Second, it is true that the 
Government’s draft legislation refers to the Conclusions of the European Council 
of 18 and 19 February 2016, OJ C 2016/69 I, in which, according to the draft 
legislation, the possibility of indexation under Regulation No 883/2004 was 
justified ‘at a high level’, and to the Declaration of the Commission setting out 
various grounds of justification. However, such grounds of justification must be 
substantiated and supported by a factual basis (for example, judgment of 7 July 
2005, C-147/03, Commission v Austria (access to university education), 
paragraph 48). Furthermore, restrictions on the exportability of cash benefits – 
currently in Article 63 (unemployment benefits) and Article 70(3) of Regulation 
No 883/2004 (special non-contributory cash benefits, see judgment of 
19 September 2013, C-140/12, Brey, paragraph 50) – ‘at a high level’ can be made 
only in accordance with the ordinary legislative procedure. 
18 Finally, there appears to be some doubt surrounding the proportionality of the 
indexation and the coherent conduct of Austria, since officials of local or regional 
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authorities are granted full family allowances when they are posted to other EU 
countries, but the family allowance for the Czech Republic was devalued by 
38.1% in accordance with the Order adapting family allowances and tax credits 
for the European Union, while in the same period the purchasing-power correction 
coefficient for embassy staff posted to Prague was calculated at between 7% and 
10% compared with the (thus lower) domestic price level. 
The sixth question referred 
19 The statements made in the Simmenthal II case would derogate from the principle 
of allowance of error (Fehlerkalkül) applicable in Austria, according to which 
unlawful provisions are part of the legal order until they are repealed by the 
competent legal protection institution. This would be the Constitutional Court in 
the case of Federal laws, and the BFG in the case of the administrative decision in 
dispute in the main proceedings. If the individual legal rules derived from a 
general rule that was not validly adopted were also to be regarded as invalid under 
EU law, this would have implications for the form of the ruling to be given by the 
referring court. 
The seventh question referred 
20 The question concerning the prohibition of the transposition of regulations has 
already been referred, in Case C-372/20 (Finanzamt für den 8., 16. und 17. Bezirk 
in Wien), albeit confined to Paragraph 53(1) and (5) of the FLAG, but is repeated 
here and extended to Paragraph 53(4) of the FLAG. 
21 Paragraph 53(1) of the FLAG obscures, for those subject to the law, the view of 
directly applicable EU law and the Court of Justice’s monopoly on interpretation, 
since the requirement of equality of treatment with nationals already arises from 
EU law. Furthermore, Paragraph 53(1) of the FLAG repeats part of Article 67 of 
Regulation No 883/2004, but without covering the family members referred to in 
the regulation, and conceals Article 68 of Regulation No 883/2004 and Article 60 
of Regulation No 987/2009. Furthermore, together with the indexation, 
Paragraph 53(4) of the FLAG, new version, restricts the equality of treatment 
under Paragraph 53(1), which, however, does not have independent normative 
value due to the direct applicability of the regulation. The referring court takes the 
view that if Paragraph 53(1) of the FLAG does not stand up to the scrutiny of the 
Court of Justice, Paragraph 4 must therefore be automatically repealed. 
The eighth question referred 
22 The respondent authority agreed with the appellant’s entitlements by way of 
‘Mitteilungen über den Bezug der Ausgleichszahlung’ (‘Notifications regarding 
the receipt of the supplementary allowance’) pursuant to Paragraph 4 of the 
FLAG. Nationals in cross-border situations are also granted the family allowance 
in the form of the supplementary allowance under that provision, but, in domestic 
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situations, nationals are issued a notification in advance in accordance with 
Paragraph 12 of the FLAG and the family allowances are paid out monthly. The 
tax offices argue that it is impossible, or at least difficult, to enforce recoveries 
against certain migrant workers and that Paragraph 4 of the FLAG allows the tax 
offices to establish limitations in time. However, the referring court takes the view 
that a national in a domestic situation should be used as the benchmark for the 
requirement of equality of treatment with nationals. Since Paragraph 53(1) of the 
FLAG is not applicable because of directly applicable secondary law, the 
appellant’s entitlement under Regulation No 883/2004 would exist solely by 
virtue of Paragraph 3(1) of the FLAG, which ensures that the appellant legally 
resides in Austria within the meaning of the EU Citizens’ Rights Directive. She 
must therefore be treated in the same way as an [Austrian] national and the 
notification should be issued solely under Paragraph 12 of the FLAG.  
The ninth question referred 
23 Article 68(2) of Regulation No 883/2004 requires the Member State whose 
legislation is applicable by priority to grant family benefits and the Member State 
whose legislation is applicable on a secondary basis (usually the State of 
residence) to suspend benefits up to the amount which is applicable by priority or 
to provide a differential supplement, in order to avoid an accumulation of 
entitlements but to guarantee the maximum amount of family benefits. The 
purpose of Paragraph 4(1) to (3) of the FLAG is to reduce the amount of foreign 
family benefits which is suspended by virtue of EU law and may no longer be 
paid. The referring court therefore asks whether those provisions are superseded 
by Article 68(2) of Regulation No 883/2004 by way of primacy of application. 
The amount of a cash benefit which has already been suspended under EU law 
and may therefore not be granted can no longer be the subject of a reduction by a 
national provision. 
The tenth question referred 
24 The purpose of the question is to assure the Member State with primary 
responsibility under EU law that the Member State with secondary responsibility 
will not pay the amount suspended under Article 68(2) of Regulation No 883/2004 
even if, under national rules, it would be granted in respect of the same family 
members and the same periods in another legal scenario. The BFG takes the view 
that the suspension must be effective vis-à-vis all persons referred to in Article 60 
of Regulation No 987/2009. 
The eleventh question referred 
25 In the present case, applications were made in the Czech Republic using E 411 
forms of the Administrative Commission on Social Security for Migrant Workers. 
The Czech institution ticked the box ‘is not entitled to family benefits for the 
following reasons’ and noted ‘high income’, which means that it can be assumed 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-574/20 
 
14  
that the application was rejected because the earnings threshold was exceeded. 
However, due to the primacy of application of the anti-accumulation provision in 
the second sentence of Article 68(2) of Regulation No 883/2004, the rejection of 
the application should have been based on EU law and the suspension of family 
benefits resulting for the Czech Republic. The Czech institution should have 
informed the Austrian institution of the suspension or, if no application was made, 
of any future change. 
The twelfth question referred 
26 The BFG takes the view that the E 411 form does not comply with Regulation 
No 883/2004, as amended by Regulation No 465/2012, since it does not provide 
that the Member State whose legislation is applicable on a secondary basis may or 
must notify the other Member State that it has complied with the suspension 
prescribed by EU law or will comply with it in the event of an application at a 
later point in time. Owing to the application primacy of EU law, the fulfilment or 
non-fulfilment of Member States’ connecting criteria (earnings thresholds, level of 
family benefits) cannot be the decisive factor. 
The thirteenth question referred 
27 This question concerns the case-law of the Court of Justice, which has imposed 
the obligation to recast law exclusively on the national parliaments. From the 
point of view of EU law, it may be irrelevant which Member State institution is 
responsible for the recast. However, the referring court has a preference for the 
Constitutional Court, as the highest instance. 
The fourteenth question referred 
28 Pursuant to the BAO, suspensive effect can be granted only upon application and 
only in the case of certain orders concerning tax liability. However, some take the 
view that Article 4(3) TEU and the case-law of the Court of Justice (for example 
the judgment of 19 June 1990, C-213/89, Factortame) give rise to a more far-
reaching obligation to grant interim relief where there are doubts as to the 
conformity of national administrative acts with EU law.  
29 In the present case, the BFG has doubts as to whether the general rules on 
indexation were validly adopted and will therefore assume that Articles 4 and 7 of 
Regulation No 883/2004 are valid pending the ruling of the Court of Justice. On 
account of the primacy of application of EU law and the question regarding its 
validity, the BFG has excluded, contrary to national law, the possibility of an 
‘extraordinary’ appeal on a point of law in its decision on the interim order. Since 
the request for a preliminary ruling is an intermediate stage in the national appeal 
procedure, it would be contrary to that concept of EU law if the national supreme 
courts of public law were to be seised of an ‘extraordinary’ appeal on a point of 
law before the Court of Justice had delivered its judgment. The decision on the 
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interim order is therefore accessory to the request for a preliminary ruling and is 
also subject exclusively to judicial control by the Court of Justice.