Judgment;Summary — ECLI:EU:C:2022:737
Date: 2022-09-29
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Ireland

C-3/21-1
THE HIGH COURT 
JUDICIAL REVIEW
[2020] IEHC 548
[2019 No. 274 JR]
BETWEEN
AND
APPLICANT
THE CHIEF APPEALS OFFICER, THE SOCIAL WELFARE APPEALS OFFICE, THE MINISTER 
FOR EMPLOYMENT AFFAIRS AND THE MINISTER FOR SOCIAL PROTECTION
RESPONDENTS
JUDGMENT of Mr. Justice Richard Humphreys delivered on Friday the 6th day of 
November, 2020
1. The ultimate issue in this case is whether the applicant was entitled to backdated payment
of the difference between Irish and Romanian child benefit for the period between her
arrival in Ireland in November/December 2016 and the making of an application for Irish
child benefit on 16th January, 2018.
Facts ____ ______
2. The applicant was bom in July 1989 (nee In Nasaud in the Transylvanian
region of Romania. She was a Romanian citizen from birth and an EU citizen from Romanian 
accession in 2007.
3. She married on 12th August, 2012. The child of the marriage,
■ was born in December 2015. That month, the applicant submitted a 
claim for the Romanian equivalent of child benefit which was granted in December 2015 or 
January 2016.
4. The applicant's husband moved to Ireland in October 2016 to take up employment as a 
healthcare worker. He did not make an application for child benefit. The applicant and the 
child then moved to Ireland in November or December 2016 and while she continued to 
receive Romanian child benefit she didn't make an application for Irish child benefit.
5. She completed an application form for child benefit on 10th January, 2018 which was 
received by the Minister on 16th January, 2018 (the latter date was deemed to be the date 
of the application). Part 7 of the form deals with late applications where the claim is made 
more than twelve months after the month in which the applicant or their spouse came to 
live in the jurisdiction. It provides for reasons for late application in the event of making 
an application for a backdated payment. That part of the form was left blank so the 
applicant didn't, at least originally, specifically seek back pay. The claim was granted in 
February 2018 and Romanian child benefit ceased around that time.
6. On 13th August, 2018 the applicant sought a review of the decision under s. 301 of the 
Social Welfare Consolidation Act 2005 on the basis that she should have been considered 
for a backdated payment. That was refused on 22nd August, 2018. The applicant then 
lodged a notice of appeal on 29th August, 2018 but the appeal was refused on 12th 
February, 2019.
CURIA GREFFE 
Luxembourg
04. 01. 2021
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7 A statement of grounds in the present proceedings was filed on 10th May, 2019, the primary 
relief sought being certiorari of the decision of 12th February, 2019 together with 
declaratory relief and an order that the matter be referred to the CJEU. Leave was granted 
by Noonan J. on 13th May, 2019 and a statement of opposition was filed on 15th July, 
2019. I have now received helpful submissions from Mr. Derek Shortall S.C. for the 
applicant and from Mr, Kieran Binchy B.L. for the respondents.
Relevant European law
8. The relevant EU legislation is regulation (EC) No. 883/2004, as amended, and as 
implemented by regulation (EC) No. 987/2009. The predecessor regulations were 
Reglement no. 4 du Conseil (J.O. no. 30 du 16th Decembre, 1958, p. 597) and regulation 
(EEC) No. 1408/71, implemented by regulation (EEC) No. 574/72.
9. Key provisions of regulation (EC) No. 883/2004 include the following:
(i) . Recital 12 of the preamble notes that "[i]n the light of proportionality, care should be
taken to ensure that the principle of assimilation of facts or events does not lead to 
objectively unjustified results or to the overlapping of benefits of the same kind for 
the same period."
(ii) . Article 76(4) includes a requirement that applicants must inform the institutions of
the competent Member State and of the state of residence as soon as possible of any 
change in their personal or family situation which affects their right to benefits under 
the regulation,
(iii) . Article 76(5) goes on to say that failure to respect the obligation of information may
result in the application of proportionate measures in accordance with national law, 
but nevertheless these measures shall be equivalent to those applicable in similar 
situations under domestic law and shall not make it impossible or excessively difficult 
in practice for claimants to exercise the rights conferred on them by the regulation.
(iv) . Article 81 states that, "[a]ny claim, declaration or appeal which should have been
submitted, in application of the legislation of one Member State, within a specified 
period to an authority, institution or tribunal of that Member State shall be admissible 
if it is submitted within the same period to a corresponding authority, institution or 
tribunal of another Member State. In such a case the authority, institution or tribunal 
receiving the claim, declaration or appeal shall forward it without delay to the 
competent authority, institution or tribunal of the former Member State either directly 
or through the competent authorities of the Member States concerned. The date on 
which such claims, declarations or appeals were submitted to the authority, 
institution or tribunal of the second Member State shall be considered as the date of 
their submission to the competent authority, institution or tribunal. "
10. As regards regulation (EC) No. 987/2009, recital 9 refers to the complexity of the field of 
social security and states that this requires all the institutions of a Member State to make
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particular efforts to support insured persons in order to avoid penalising those who have 
not submitted their claim or certain information in accordance with regulation 883/2004.
11. Key caselaw includes the following:
(i) . In van Roosmalen v. Bestuur van de Bedrijfsvereniging voor de Gezondheid, Case C-
300/84 (European Court of Justice, 23rd October, 1986) the court said that the 
predecessor regulation must be interpreted broadly.
(ii) . In Institut National d' Assurances Sociales pour Travallleurs Independants (Inasti) v.
Picard, Case C-335/95 (European Court of Justice, 24th October, 1996), the court 
held that failure to submit a claim in a correct manner to the competent authorities 
of the applicant's place of residence did not preclude the application of a rule for the 
apportionment of benefits under regulation 574/72. That illustrates the point that 
different elements of the regulation may have an autonomous application so that 
non-compliance with certain provisions may not be disqualifying.
(iii) . The court held in Partena ASBL v. Les Tartes de Chaumont-Gistoux SA, Case C-
137/11 (Court of Justice of the European Union, 26th June, 2012), that the provisions 
of the regulation should be interpreted so as to contribute to the establishment of 
the greatest possible freedom of movement for migrant workers.
(iv) . In Raad van bestuur van de Sociale verzekeringsbank v. E. Fischer-Lintjens, Case C-
543/13 (Court of Justice of the European Union, 4th June, 2015), failure to provide 
information was held not necessarily fatal to continuity of social insurance cover.
(v) . The court emphasised in Tarola v. Minister for Social Protection, Case C-483/17,
(Court of Justice of the European Union, 11th April, 2019) at para. 36, and in other 
cases, that in the absence of reference to national law, provisions of EU law should 
generally be given an autonomous and uniform meaning throughout the EU.
Relevant provisions of Irish law
12. Pertinent domestic law provisions Include the following:
(i) . Section 241(1) of the Social Welfare Consolidation Act 2005 requires that, "[ijt shall
be a condition of any person's right to any benefit that he or she makes a claim for 
that benefit in the prescribed manner."
(ii) . Section 241(4) of the 2005 Act provides that a person who fails to make a claim for
child benefit within the prescribed time shall be disqualified from seeking any 
backdating of payment to before the date on which the claim is made, "unless a 
deciding officer or appeals officer is satisfied that there was good cause for delay in 
making the claim".
(iii) . Section 301 of 2005 Act allows for review of decisions, and was availed of by the
applicant unsuccessfully prior to formal appeal.
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(iv) The prescribed time is twelve months from becoming a qualified person under s. 220 
of the 2005 Act - see art. 182(k) of the Social Welfare (Consolidated Claims, 
Payments and Control) Regulations 2007 (S.I. No. 142 of 2007) inserted by the Social 
Welfare (Consolidated Claims, Payments And Control) (Amendment) (No. 3) 
(Prescribed Time) Regulations 2008 (S.I. No. 243 of 2008).
The grounds of challenge
13. A number of the grounds as pleaded in the statement of grounds do not in themselves give 
rise to a basis to challenge the decision or to seek any other form of relief:
(i) . grounds (i)l and 2 are simply statements of fact;
(ii) . grounds (i)3 and (ii)l are simply statements of law; and
(iii). grounds (iii)l and 2 are not substantive reliefs, but simply seek ancillary matters, 
namely a reference to Luxembourg and the consequential order of a reference back 
to the Chief Appeals Officer.
14, Thus, there are only three substantive grounds for the challenge, ground (i)4, (ii)2 first 
paragraph and (ii)2 second paragraph.
Ground (i)4 - failure to treat ongoing receipt of Romanian child benefit as a claim for 
the purposes of art. 8(1) of regulation 883/2004
15. This ground claims that "[it] is common case that the Applicant has an extant claim in 
Romania since shortly after the birth of her son. The first named Respondent erred in law 
by refusing to treat the, then, extant claim in Romania as a claim for the purpose of Irish 
Child Benefit pursuant to Art. 81 of Regulation 883/2004. The first Named Respondent's 
justification for this is that the Irish claim was made later. This is an unduly narrow and 
restrictive interpretation of the provision which is erroneous and contrary to EU law. The 
extant claim in Romania should have been treated as a claim for the purpose of Irish Child 
Benefit, from the date upon which Ireland became the competent Member State (October 
2016)."
16. This question, while phrased in slightly tendentious terms, nonetheless raises a question of 
European law with which I deal with further below. The applicant's submissions sought to 
go beyond this to suggest that EU nationals who enter the State must be informed of their 
rights to apply for benefits generally, including the specific benefits they might qualify for. 
Apart from anything else, the problem for the applicant with that point is that she didn't 
plead any such obligations, so any such suggestion falls entirely outside the present case.
Ground (ii)2, first paragraph - whether art. 76 of regulation 883/2004 applies
17. This ground contends that "[sjubject to an extant claim made in one Member State being
deemed acceptable in another Member State pursuant to Art. 81 of Regulation 883/2004, 
it is difficult to see how the provisions of Art. 76 would apply in the within proceedings''.
18. While the drafting of this ground is somewhat sub-optimal in that the applicant is not 
entitled to relief merely because something is difficult to see, the essence of the ground is 
that non-compliance with art. 76 does not disapply the provisions of art. 81 of regulation
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883/2004, if that applies. That raises a question of EU law with which I deal with further 
below.
Ground (ii}2, second paragraph - breach of principle of effectiveness
19. This ground contends that "[i]n the alternative and without prejudice to the foregoing ...
[t]he first named Respondent, applying the first limb of Art. 76(5) determined that the 
Applicant, having failed in her obligation to notify relevant changes in their circumstances, 
proportionate measures under national law 'equivalent to those applicable in similar 
situations under domestic law' fell to be applied. The first named Respondent stated that 
these measures apply equally to all claimants and that they were not disproportionate. 
However, the first named Respondent failed to have regard to the second limb of Art. 76(5) 
of Regulation 883/2004, which provides that 'these measures... shall not make it impossible 
or excessively difficult in practice for claimants to exercise the rights conferred on them by 
this Regulation.' Which is precisely is occurring here insofar as the claim has been rendered 
impossible."
20. Where art, 76(4) and (5) are applicable, possible questions that might arise are whether 
the outcome is disproportionate or alternatively in breach of the principle of effectiveness. 
The legal grounds set out in s. (e) of the statement of grounds don't provide any ground 
for challenging the outcome as disproportionate, but only refer to the principle of 
effectiveness. Admittedly, a relief was sought including a declaration that the Chief Appeals 
Officer was in error in determining that the outcome was not disproportionate, but the 
respondents have objected that there is in fact no ground supporting that relief. I must 
uphold that objection in line with completely normal and orthodox rules of pleading - a 
relief alone is insufficient because there must be a supporting ground - and therefore have 
to hold that the complaint of disproportionallty is not one on which this applicant can 
succeed on these pleadings, However, the complaint of breach of principle of effectiveness 
is properly pleaded and raises an issue of EU law which I deal with further below.
Questions of European law arising
21. It seems to me that three questions of European law arise from the three substantive 
grounds identified above, and I consider it appropriate in all circumstances to make a 
reference to the Court of Justice under art. 267 of the TFEU.
The first question
22. The first question is: does the concept of "claim" in art. 81 of regulation 883/2004 include 
the ongoing state of being in receipt of a periodic benefit from a first Member State (where 
the benefit is correctly payable by a second Member State) on each and every occasion on 
which such benefit is paid, even after the original application and the original decision by 
the first Member State to grant the benefit.
23. The position in relation to that question is as follows:
(i). The applicant's position is that the concept of claim does include the notion of an 
ongoing claim, construing the regulation broadly.
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(ii) . The respondents' position is that "claim" merely means the original claim and that
art. 81 doesn't make sense if applied to an ongoing "claim" because there is no date 
on which that claim is submitted to a Member State for the purposes of the article. 
It was also contended that there would be no deadline for an application for social 
security in the case of EU nationals already in receipt of a benefit when moving 
between Member States and thus they would be treated significantly more favourably 
than nationals or other EU citizens who were not in receipt of social security benefits 
at the time of entering the second Member State.
(iii) . My proposed answer to the question Is "No". I accept the respondents' submission
and don't accept that every periodic payment amounts to a fresh claim. Those are 
payments made on foot of the only decision made by the authorities of the first 
Member State which was to grant the original claim. Subsequent payments are 
simply giving effect to that decision, which was made on foot of a single original 
claim. To extend the meaning of a claim to apply to every date on which a person 
receives a social security benefit would give rise to anomalies and discrimination 
against EU nationals who are not in receipt of a benefit when changing their member 
state of residence.
(iv) . The answer makes a difference to the disposal of the proceedings because the
reasoning of the decision under challenge would be incorrect if the applicant's 
submission is upheld.
The second question
24. The second question is: if the answer to the first question is yes, then in circumstances 
where a claim for social security is made incorrectly to a Member State of origin, when It 
should have been made to a second Member State, is the obligation of the second Member 
State pursuant to art. 81 of regulation 883/2004 (specifically, the obligation to treat a claim 
to the Member State of origin as being admissible in the second Member State) to be 
interpreted as being entirely independent of the applicant's obligation to give correct 
information regarding her place of residence pursuant to art. 76(4) of regulation 883/2004, 
such that a claim made incorrectly to the Member State of origin must be accepted as 
admissible by the second Member State for the purposes of art. 81, notwithstanding the 
failure of the applicant to provide correct information as to her place of residence in 
accordance with art. 76(4), within the period for making a claim prescribed by the law of 
the second Member State.
25. The position in relation to that question is as follows.
(i). The applicant's position is that this question should be answered "Yes" and that the 
obligation to treat the claim as admissible in the second Member State is entirely 
independent of the applicant's compliance or otherwise with the duty to provide 
information. Reliance is placed on Raad van bestuur van de Sociale verzekeringsbank 
v. E. Fischer-Lintjens, Case C-543/13 (Court of Justice of the European Union, 4th 
June, 2015), especially para. 54, where failure to provide information was held not 
necessarily fatal to continuity of social insurance cover.
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(ii) . The respondents' position is that the question does not arise having regard to the
proposed answer to the first question, but if it does arise, the answer is "No", and 
that failure to provide correct information that would have allowed the claim to be 
properly transferred precludes application of the transfer procedure in art. 81 in 
practice and in principle. Here, there was a fundamental failure to comply with legal 
duties. The applicant was in breach of art. 76(4) and it would not have been possible 
for the Romanian authorities to operate art. 81 because the applicant never told them 
that she was living in Ireland prior to making the claim for child benefit here.
(iii) . My proposed answer is that the question does not arise having regard to the proposed
answer to the first question, but if it does arise, the answer is "No", for the reasons 
articulated in the respondents' submission.
(iv) . The answer to this question makes a difference because the decision challenged
places reliance on the applicant's non-compliance with art. 76(4).
The third question
26. The third question is: whether the general EU law principle of effectiveness has the 
consequence that access to EU law rights is rendered ineffective in circumstances such as 
those in the present proceedings (in particular, in circumstances where the EU national 
exercising free movement rights is in breach other obligation under art. 76(4) to notify the 
social welfare authorities of the Member State of origin of her change of country of 
residence) by a requirement of national law in the Member State in which the right of free 
movement is exercised that in order to obtain a backdating of claims for child benefit an EU 
national must apply for such a benefit in the second Member State within a period of twelve 
months prescribed by the domestic law of the latter Member State.
27. The position in relation to that question Is as follows:
(i) . The applicant's position is that there has been a breach of the principle of
effectiveness because the applicant's claim for backdating was not allowed.
(ii) . The respondents' position is that the question should be answered "No" and that
there has been no breach of the principle of effectiveness. The twelve-month rule Is 
a neutral provision that applies equally to both Irish and EU citizens and provides an 
opportunity for backdating if application is made withih twelve months or if good 
reason is shown.
(iii) . My proposed answer is also "No" and I accept the submission of the respondents. In
my view, the applicant's submission fundamentally misunderstands the test of 
effectiveness. It is not a guarantee that any particular claim will succeed. If it was 
so interpreted, then no claim with an EU law basis could ever be refused on the basis 
of national law (such as the statute of limitations); not just in social welfare, but 
across all fields of law where there is an intersection with EU law, because that would 
make the particular claim impossible or excessively difficult for the particular 
applicant concerned, even if he or she failed to avail of opportunities to exercise
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rights. That is a totally different situation from a law that fails to give a reasonable 
opportunity to applicants generally. The latter kind of provision contravenes the 
principle of effectiveness; a neutral and reasonable law that a particular applicant 
fails to avail of does not.
(iv). The question makes a difference because the 12 month time limit for making a claim 
was relied on by the respondents to justify refusal of backdating.
Order
28. Accordingly, the order will be:
(i). I will refer the following questions to the CJEU under art. 267 of the TFEU:
(a) , does the concept of "claim" in art. 81 of regulation 883/2004 include the ongoing
state of being in receipt of a periodic benefit from a first Member State (where the 
benefit is correctly payable by a second Member State) on each and every occasion 
on which such benefit Is paid, even after the original application and the original 
decision by the first Member State to grant the benefit;
(b) . if the answer to the first question is yes, then in circumstances where a claim for
social security is made incorrectly to a Member State of origin, when It should have 
been made to a second Member State, is the obligation of the second Member State 
pursuant to art. 81 of regulation 883/2004 (specifically, the obligation to treat a claim 
to the Member State of origin as being admissible in the second Member State) to be 
interpreted as being entirely independent of the applicant's obligation to give correct 
information regarding her place of residence pursuant to art, 76(4) of regulation 
883/2004, such that a claim made incorrectly to the Member State of origin must be 
accepted as admissible by the second Member State for the purposes of art. 81, 
notwithstanding the failure of the applicant to provide correct information as to her 
place of residence in accordance with art. 76(4), within the period for making a claim 
prescribed by the law of the second Member State;
(c) . whether the general EU law principle of effectiveness has the consequence that
access to EU law rights is rendered ineffective in circumstances such as those in the 
present proceedings (in particular, in circumstances where the EU national exercising 
free movement rights is in breach of her obligation under art. 76(4) to notify the 
social welfare authorities of the Member State of origin of her change of country of 
residence) by a requirement of national law in the Member State in which the right 
of free movement is exercised that in order to obtain a backdating of claims for child 
benefit an EU national must apply for such a benefit in the second Member State 
within a period of twelve months prescribed by the domestic law of the latter Member 
State.
(ii). I will direct the applicant to lodge all necessary books and papers for the CJEU with
the Principal Registrar within 28 days and will adjourn the balance of the matter pending
the decision of that court.
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