Opinion of the Advocate General — ECLI:EU:C:2013:504
Date: 2013-07-18
Language of the case: French
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

Summary 77. On the basis of the foregoing, the calculation of any supplementary allowance that may be due from the Grand Duchy of Luxembourg in connection with the family allowances to which Mr and Mrs Wiering’s children are entitled cannot take account of ‘Elterngeld’. 78. If, on the other hand, the issue is whether a supplementary allowance may be due from the Grand Duchy of Luxembourg in connection with the family allowances and the allowance for bringing up a family, a distinction must be drawn: for the purposes of calculating any supplementary allowance that may be due in connection with the Luxembourg family allowances, the comparison should take account only of German ‘Kindergeld’ and, for the purposes of calculating any supplementary allowance in connection with the allowance for bringing up a family, the comparison should take account only of ‘Elterngeld’. VI – Conclusion 79. In the light of all the foregoing considerations, I propose that the Court’s answer to the question referred by the Cour de cassation should be as follows: Articles 4(1)(h), 12, 73 and 76 of Council Regulation (EEC) No 1408/71 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, in version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 and Article 10 of Council Regulation (EEC) No 574/72 of 21 March 1972, fixing the procedures for implementing Regulation No 1408/71 are to be interpreted as meaning that a family benefit such as ‘Elterngeld’, provided for by German legislation, is not a benefit of the same kind as ‘Kindergeld’ provided for by that legislation, or family allowances such as those provided for by Luxembourg legislation, and must not therefore be taken into account in the calculation of the allowance that is supplementary to any family allowances that may be payable in respect of the children of a migrant worker. 1 – Original language: French. 2 – OJ 1997 L 28, p. 1. 3 – OJ 2006 L 392, p. 1. 4 – OJ 1972 L 74, p. 1. 5 – A person is not considered to be in full-time employment if his working time does not average more than 30 hours a week in any given month (Paragraph 1(6) BEEG). 6 – If both parents fulfil the eligibility requirements, they must agree between them how the monthly payments are to be split. Each parent may receive ‘Elterngeld’ for a minimum of two and a maximum of twelve months. A parent enjoys exclusive entitlement to all 14 months of the allowance if, inter alia, he or she has sole parental responsibility or custody. 7 – See footnote 5 to this Opinion. 8 – See Article 1(u)(i) of Regulation No 1408/71. 9 – Case C‑62/11 [2012] ECR. 10 – Joined Cases C‑245/94 and C‑312/94 [1996] ECR I‑4895. 11 – In Case C‑543/03 Dodl and Oberhollenzer [2005] ECR I‑5049, paragraph 34, the Court held that a person has the status of an ‘employed person’ within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship. 12 – See point 26 of this Opinion. 13 – See Article 10(1)(b)(i) of Regulation No 574/72. 14 – See, in particular, Case C‑16/09 Schwemmer [2010] ECR I‑9717, paragraph 41. 15 – See, to that effect, Case 143/79 Walsh [1980] ECR 1639, paragraph 15, relating to maternity benefits. 16 – Article 76 of Regulation No 1408/71 provides for the suspension of entitlement to family benefits in the Member State of employment pursuant to Article 73 of Regulation No 1408/71 if family benefits are payable by the Member State of residence by virtue of the fact that the person concerned is carrying on an occupation. See, to that effect, Case C‑153/03 Weide [2005] ECR I‑6017, paragraphs 20 to 22. 17 – Paragraph 1(b)(i) of that article, which is applicable to the situation of the Wierings, states that the right to allowances payable by the Member State of residence takes precedence over the right to allowances payable by the Member State of employment, which are therefore suspended. See, to that effect, Weide, cited above (paragraph 28). 18 – Case 153/84 [1983] ECR 1401. 19 – See Ferraioli, cited above, paragraphs 16 to 18. See also Case 24/88 Georges [1989] ECR 1905, paragraphs 11 to 13; Case C‑168/88 Dammer [1989] ECR 4553, paragraph 25; and Case C‑119/91 McMenamin [1992] ECR I‑6393, paragraph 26. 20 – See, in particular, 91/425/EEC: Decision No 147 of 10 October 1990 concerning the application of Article 76 of Regulation (EEC) No 1408/71 (OJ 1991 L 235, p. 21). See also 2006/442/EC: Decision No 207 of 7 April 2006 concerning the interpretation of Article 76 and Article 79(3) of Regulation (EEC) No 1408/71 and of Article 10(1) of Regulation (EEC) No 574/72 relating to the overlapping of family benefits and allowances (OJ 2006 L 175, p. 83). 21 – The period in question in the dispute in the main proceedings is not contested. It runs from 1 July 2007 to 31 May 2008. 22 – Case C‑102/91 [1992] ECR I‑4341. 23 – Knoch, cited above (paragraphs 40 and 42). In that case, the Court held that unemployment benefits constituted benefits of the same kind, within the meaning of the first sentence of Article 12(1) of Regulation No 1408/71, where they are intended to replace the remuneration which a person has lost by reason of unemployment and thereby provide for the maintenance of that person, and where the differences which exist between those benefits, particularly those relating to the basis of the calculation and the conditions for granting them, are the result of structural differences between the national schemes. See also Case 171/82 Valentini [1983] ECR 2157, paragraph 13, on the overlapping of old-age and early retirement benefits, and Case C‑406/04 De Cuyper [2006] ECR I‑6947, paragraph 25. 24 – Cited above, paragraph 10. 25 – Dammer, cited above (paragraph 12). I would point out that the need to identify the recipient of the benefits is also apparent from the wording of Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72, which lay down rules for eliminating the overlapping of rights, during the same period, ‘for the same family member’. 26 – I would point out in this regard that it is settled case-law that a benefit may be regarded as a social security benefit only if, on the one hand, it is granted to recipients on the basis of a legally defined position, without any individual and discretionary assessment of personal needs, and, on the other hand, it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. See, in particular, Case C‑78/91 Hughes [1992] ECR I‑4839, paragraph 15; Case C‑85/99 Offermanns [2001] ECR I‑2261, paragraph 28; and Case C‑333/00 Maaheimo [2002] ECR I‑10087, paragraph 22. 27 – Case C‑275/96 [1998] ECR I‑3419, paragraph 60. 28 – See point 26 of this Opinion. 29 – See footnote 5 of this Opinion. 30 – I would point out in this regard that BEEG is one of the measures transposing Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by Businesseurope, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC (OJ 2010 L 68, p. 13) in the Federal Republic of Germany. Directive 2010/18/EU and its precursor, Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4), which was in force at the material time in the main proceedings, lay down minimum requirements for parental leave. I consider that, in spite of the fact that there are no provisions in the framework agreement annexed to Directive 96/34 and Directive 2010/18 relating to cases in which the Member States put in place arrangements for the remuneration of parental leave or other benefits in this regard, such arrangements are inextricably linked to parental leave itself. The intended beneficiaries of those remuneration arrangements are therefore necessarily parents who have taken parental leave. 31 – See point 34 of this Opinion. 32 – See Article 299(2) of the Social Security Code and point 18 of this Opinion.