Opinion of the Advocate General — ECLI:EU:C:2022:436
Date: 2022-06-02
Language of the case: German
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-199/21 – 1 
Case C-199/21 
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: 
30 March 2021 
Referring court or tribunal: 
Bundesfinanzgericht (Austria) 
Date of the decision to refer: 
19 March 2021 
Applicant: 
DN 
Defendant authority: 
Finanzamt Österreich 
  
Subject matter of the main proceedings 
Freedom of movement of workers  Family benefits  Rights available on the basis 
of receipt of pensions  State of the pension  Recovery  Competent Member State  
Payment of differential supplement 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
Question 1, referred together with Question 2: 
Is the phrase ‘Member State competent for his/her pension’ in the second sentence 
of Article 67 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, corrected in OJ 2004 L 200, p. 1), as amended by Regulation 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-199/21 
 
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(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’) to be interpreted as meaning 
that it refers to the Member State previously competent for family benefits as the 
State of employment and now required to pay an old-age pension, the right to 
which is based on the freedom of movement of workers previously exercised in its 
territory? 
Question 2: 
Is the phrase ‘rights available on the basis of receipt of pensions’ in 
Article 68(1)(b)(ii) of Regulation No 883/2004 to be interpreted as meaning that 
the right to family benefits is to be regarded as being available on the basis of 
receipt of pensions if, first, the laws of the EU OR of the Member State governing 
the right to family benefits provide for receipt of pensions as a criterion and, 
second and additionally, the criterion of receipt of pensions is fulfilled in fact at a 
factual level, meaning that ‘simple receipt of pensions’ does not fall under 
Article 68(1)(b)(ii) of Regulation No 883/2004 and the Member State concerned 
is not to be regarded as the ‘State of the pension’ under EU law? 
Question 3, referred in the alternative to Questions 1 and 2, if simple receipt of 
pensions suffices for the purpose of interpretation of the concept of the State of 
the pension: 
In the case of receipt of an old-age pension, the right to which [accrued] under the 
migrant workers regulations and, prior to that, as a result of the pursuit of an 
activity as an employed person in a Member State in a period when neither the 
State of residence alone nor both States were Member States of the EU or the 
European Economic Area, is the phrase ‘a differential supplement shall be 
provided, if necessary’ in the second clause of the second sentence of 
Article 68(2) of Regulation No 883/2004 to be understood, in light of the 
judgment of 12 June 1980, Laterza, 733/79, as meaning that EU law guarantees 
family benefits to the maximum possible extent even in the case of receipt of 
pensions? 
Question 4: 
Is the third sentence of Article 60(1) of Regulation (EC) No 987/2009 to be 
interpreted as meaning that it precludes Paragraph 2(5) of the FLAG 1967, 
according to which, in the case of divorce, the right to the family allowance and 
tax credit for the child remains vested in the parent who is the head of the 
household but who has not made an application either in the State of residence or 
in the State of the pension for as long as the adult child in education is a member 
of his or her household, meaning that the other parent living as a pensioner in 
Austria, who in fact bears the entire cost of supporting the child, can exercise the 
right to the family allowance and tax credit for the child against the institution of 
the Member State whose laws take precedence based directly on the third sentence 
of Article 60(1) of Regulation No 987/2009? 
FINANZAMT ÖSTERREICH 
 
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Question 5, referred together with Question 4: 
Is the third sentence of Article 60(1) of Regulation No 987/2009 to be further 
interpreted as meaning that it is also necessary, in order to substantiate the 
standing of the EU worker as a party in the Member State family benefits 
procedure, that he/she is mainly responsible for the cost of maintenance within the 
meaning of Article 1(i)(3) of Regulation No 883/2004? 
Question 6: 
Are the provisions governing the dialogue procedure in 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’ or ‘the implementing Regulation’) to be interpreted as 
meaning that that procedure must be conducted by the institutions of the Member 
States involved not only where family benefits are granted, but also where family 
benefits are recovered? 
Provisions of EU law cited 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems 
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 
Provisions of national law cited 
Familienlastenausgleichsgesetz 1967 (Law on compensation for family expenses 
1967, ‘FLAG 1967’), Paragraphs 2, 2a, 10 and 26 
Paragraph 2(2) of the FLAG states that the person entitled to the family allowance 
for a child referred to in Paragraph 2(1) is the person to whose household the child 
belongs. A person to whose household the child does not belong but who is 
mainly responsible for the cost of maintaining that child is entitled to the family 
allowance where no other person is entitled to receive it under the first sentence of 
that subparagraph. 
Paragraph 2(5)(a) of the FLAG 1967 states: 
‘A child belongs to a person’s household where he/she 
shares with that person a dwelling that forms a single household. A child does not 
cease to be a member of the household: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-199/21 
 
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  if he/she stays outside the shared dwelling only temporarily. 
A child is regarded as belonging to the household of both parents if they maintain 
a joint household to which the child belongs. 
Paragraph 2a of the FLAG 1967 states: 
(1) If a child belongs to the parents’ joint household, the right of the parent mainly 
responsible for running the household takes priority over the right of the other 
parent. It is presumed, unless proven otherwise, that the mother is mainly 
responsible for running the household. 
(2) Where subparagraph (1) applies, the parent with the priority right may waive 
that right for the benefit of the other parent. The waiver may also apply 
retroactively, but only for periods for which the family allowance has not yet been 
received. The waiver may be revoked. 
Brief summary of the facts and procedure 
1 The Finanzamt Österreich (Tax Office, Austria) is seeking recovery from the 
applicant of the family allowance for his adult child for the period from January to 
August 2013.  
2 The applicant, who is Polish by birth, worked in Austria from 1989. At the 
beginning, he worked 3 weeks at a time in Austria and then spent 1 week with his 
family in Poland. From 1992 onwards, he visited Poland only occasionally. He 
obtained Austrian nationality in 2001 and is resident exclusively in Austria. His 
wife and daughter are resident in Poland and are Polish nationals. The applicant 
divorced his Polish wife in 2011. Prior to working in Austria, the applicant 
worked in Poland until the end of 1988. 
3 The Austrian family allowance was always paid to the applicant, who passed it on 
to his daughter. A declaration of waiver by the mother was not demanded. In 
granting the allowance, the defendant authority assumed, based on the fact that the 
applicant pursued an activity as an employed person in Austria, that Austria was 
the State with primary competence. 
4 The applicant has been in receipt of an old-age pension in Austria and in Poland 
since November 2011. It is on this that the defendant authority has based recovery 
of the Austrian family allowance and tax credit for the child. It contends that 
receipt of a pension in Poland substantiates Austria’s lack of competence and also 
that the obligation to pay a differential supplement under Article 68(2) of 
Regulation No 883/2004 is irrelevant. 
5 The daughter was studying in Poland in 2013. The Polish income threshold of 
PLN 539 per person was exceeded in 2013, meaning that the right to family 
FINANZAMT ÖSTERREICH 
 
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benefits in Poland lapsed. Neither the applicant nor the child’s mother received 
Polish family benefits. 
Brief summary of the basis for the request 
6 The referring court states as regards Questions 1 and 2 that Austria is a typical 
State of residence for the purposes of family allowance legislation by operation of 
primary law. The family allowance does not depend on the pursuit of an activity 
as an employed person or receipt of pensions. Thus, Austria can only become a 
State of employment or a State of the pension in conjunction with EU law. The 
second sentence of Article 67 of Regulation No 883/2004 includes a separate and 
definitive instruction for pensions for the purpose of determining the one 
competent Member State. The applicant was employed from 1 May 2004 onwards 
further to the exercise of freedom of movement of workers, based on which he has 
been in receipt of a pension in Austria since November 2011. As that is a criterion 
laid down in Articles 67 and 68 of Regulation No 883/2004 for the right to family 
benefits, the referring court takes the view that Austria is the State of the pension 
under EU law and thus a competent Member State.  
7 According to Article 67 of Regulation No 883/2004 only one Member State can 
be competent. As the applicant is in receipt of pensions in Austria and Poland, an 
additional criterion is needed in order to determine the one competent Member 
State. Article 68(1)(b)(ii) of Regulation No 883/2004 refers to ‘rights available on 
the basis of receipt of pensions’. Contrary to the view taken by the defendant 
authority, Austria is a competent Member State in any case; the question is simply 
whether or not that competence takes priority. 
8 The referring court takes the view that reversal of the priority between two 
Member States was regulated in Article 76 of Regulation (EEC) No 1408/71. That 
provision was subsequently amended several times. In the beginning, it referred to 
Aussetzung of the entitlement; in the last applicable version, however, it referred 
to Ruhen.  
9 Under EU law, all Member States are States of employment in a situation that 
falls under the scope of Regulation No 883/2004. However, many Member States 
are already a State of employment under national law, as the right to family 
benefits depends upon the actual pursuit of an activity as an employed person as 
well as residence. These Member States are referred to in recent commentaries as 
the ‘State of employment by operation of primary law’, in order to distinguish 
them from the ‘State of employment pursuant to EU law within the meaning of 
Article 67 of Regulation No 883/2004. 
10 What is common to all the aforesaid versions of Article 76 of Regulation 
No 1408/71 is that they provided, where the State of residence is itself a State of 
employment under its domestic legislation, for it to ‘take priority’ over the 
competent State of employment under Article 73 of Regulation (EEC) 
No 1408/71. An explicit rule of EU law designated the State of residence as the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-199/21 
 
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Member State with primary competence while, in the State of employment with 
secondary competence, the right to family benefits provided for under its laws was 
suspended up to the threshold amount. As the suspension under Article 76 of 
Regulation (EEC) No 1408/71 was not to be understood absolutely, the Court has 
provided clarification by developing the law and has already linked the two 
Member States within the scope of that Regulation to the effect that, where 
necessary, the Member State with secondary competence was required to pay the 
differential supplement. 
11 Reference has to be made in that context to the judgment of the Court in Sanina 
(C-363/08). Following her divorce, Ms Sanina and her daughter moved from 
Austria to Greece. The child’s father continued to carry on an occupation in 
Austria. Thus, Austria was the ‘State of employment by operation of EU law’ 
Ms Sanina did not work in Greece; hence Greece was simply a State of residence 
and Austria took priority in the obligation to pay family benefits. Had Ms Sanina 
started to pursue an occupation in Greece that substantiated a claim to Greek 
family benefits under Greek law, primary competence would have passed to 
Greece (as a ‘State of employment by operation of primary law’) and the claim to 
Austrian family benefits would have been suspended up to the sum provided for 
by Greek legislation.  
12 As, where an occupation is pursued, both Member States must guarantee family 
benefits to the maximum extent, the referring court takes the view that the same 
should apply in the case of receipt of pensions. Regulation No 883/2004 
coordinates the participating Member States in each permutation through 
standardisation and the adoption of a hierarchy by which the order of priority is 
determined and the joint obligation to ensure maximum family benefits is 
guaranteed. The joint obligation of the participating Member States in the case of 
pensions follows from the case-law of the Court, especially in Laterza (733/79). 
13 According to the EU’s Mutual Information System on Social Protection 
(MISSOC), residence is the only relevant factor for the receipt of family benefits 
in Poland. The pursuit of an occupation is not a prerequisite. This means that 
Poland would have to be typecast as a State of residence under its national 
legislation, with Austria as the State of the pension. The referring court takes the 
view that benefits are payable by more than one Member State for different 
reasons and Article 68(1)(a) of Regulation No 883/2004 therefore applies. Thus, 
Austria takes priority as the State of the pension and is obliged to pay benefits in 
full. 
14 However, the defendant authority classed both Austria and Poland as States of the 
pension only and thus on an equal footing, meaning that, as the daughter’s State of 
residence, Poland would be obliged to pay the benefits. As no right exists in 
Poland because the earnings threshold was exceeded, the referring court takes the 
view that Austria’s liability for the differential supplement is unaffected and it 
should pay benefits as the Member State with primary competence.  
FINANZAMT ÖSTERREICH 
 
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15 Question 3 is referred in the alternative to Questions 1 and 2, as the case-law on 
this differs in Austria. 
16 The referring court states with regard to Questions 4 and 5 that EU law establishes 
Austrian law as the (primary or secondary) applicable law. Paragraph 2(2) of the 
FLAG 1967 confers the primary right on the person to whose household the child 
belongs. Paragraph 2a of the FLAG 1967 is irrelevant to the situation at issue in 
the main proceedings, as the parents do not have a joint household. Under 
Austrian law, the mother living in Poland is the person authorised to make a 
claim. The defendant authority has pleaded, as an alternative ground for recovery, 
that the mother had a claim to the family allowance under Austrian law and that, 
as Austrian law allows any family allowance paid in error to be recovered from 
the person who had no right to it, the applicant should repay it and the mother 
living in Poland should apply for the family allowance herself. However, she 
would no longer receive it for the year 2013, as the deadline for making an 
application has expired.  
17 The referring court questions whether the situation at issue in the main 
proceedings fulfils the criteria adopted in the third sentence of Article 60(1) of 
Regulation No 987/2009, as the mother, who has a claim under Austrian law, has 
not exercised her right; the inevitable legal consequence of this is that the Austrian 
institution has to take account of the application submitted by the other parent, 
that is the applicant. Although, in principle, EU law makes the Austrian rules 
applicable, an exception would have to be assumed were the application of the 
third sentence of Article 60(1) of Regulation No 987/2009 to take priority over 
Paragraph 2(2) of the FLAG 1967. Then the applicant could base his standing as a 
party directly on EU law, which would safeguard the child’s claims. The question 
also arises as to whether the applicant’s standing as a party depends on his being 
mainly responsible for the cost of maintenance (which he is). 
18 It has to be noted with regard to Question 6 that the two Member States concerned 
must cooperate in a dialogue procedure and, if necessary, any differential 
supplement must be paid in order to guarantee family benefits for migrant workers 
to the maximum possible extent. The referring court questions whether that 
dialogue procedure is also compulsory for the purpose of recovery of family 
benefits, as the same rights and obligations apply in that procedure (as the actus 
contrarius to payment of the benefit).