Judgment;Summary — ECLI:EU:C:2020:269
Date: 2020-04-02
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Citizenship of the Union;Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

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Translation C-802/18 — 1 
Case C-802/18 
Request for a preliminary ruling 
Date lodged: 
19 December 2018 
Referring court: 
Conseil supérieur de la Sécurité sociale (Luxembourg) 
Date of the decision to refer: 
17 December 2018 
Appellant: 
Caisse pour l’avenir des enfants (formerly Caisse nationale des 
prestations familiales) 
Respondents: 
FV 
GW 
  
[…] [Or. 2] 
By an application lodged at the Secretariat of the Conseil supérieur de la sécurité 
sociale (Higher Social Security Board) on 29 December 2017, the Caisse pour 
l’avenir des enfants (Children’s Future Fund) appealed against a judgment given 
by the Conseil arbitral de la sécurité sociale (Social Security Arbitration Board) on 
17 November 2017 in the case pending between the Children’s Future Fund and 
the married couple FV and GW, […] the judgment [having declared] the action 
founded in respect of the claim that family allowances for HY should continue to 
be payable after 31 July 2016 […]. 
[…] 
EN 
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[…] [Conduct of proceedings] At the public hearing held on today’s date, […] the 
Higher Social Security Board delivered the following judgment: 
By a decision […] of 8 November 2016, the Caisse pour l’avenir des enfants 
(Children’s Future Fund (‘the CAE’)) held, on the basis of Articles 67 and 68 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 and of new 
Articles 269 and 270 of the code de la sécurité sociale (Social Security Code), 
applicable with effect from the entry into force on 1 August 2016 of the loi du 23 
juillet 2016 portant réforme des prestations familiales (Law of 23 July 2016 
reforming family benefits), that, with effect from 1 August 2016, FV was no 
longer entitled to family allowance for the child HY, born on 5 December 2000 
and raised in his household since July 2008, on the grounds that the child, who 
was GW’s child from a previous relationship, was not related to him and could 
[therefore] not be classed as a family member and was not entitled to Luxembourg 
family allowances. 
Following an action brought by FV, […] the Social Security Arbitration Board 
held in its judgment of 17 November 2017 […] that the action was founded in 
respect of the claim that family allowances for HY should continue to be payable 
after 31 July 2016. 
In so ruling, the Social Security Arbitration Board held that Luxembourg family 
benefits constitute a ‘social advantage’ within the meaning of Article 7(2) of 
Regulation (EU) No 492/2011 of the European Parliament and of the Council of 
5 April 2011 on freedom of movement for workers within the Union, that the 
benefits necessarily relate to the actual pursuit of activity as an employed person 
since, in order to be eligible for them, the applicant must be a worker [Or. 3] 
subject to Luxembourg law, and that no distinction is to be drawn according to 
whether that social advantage takes the form, as in the case of family benefits, of 
the child having an entitlement to the benefits in his own right or of entitlement to 
those benefits lying with the applicant who has responsibility for the child and 
who is subject to Luxembourg social legislation, whether or not he is a national 
worker. The Social Security Arbitration Board also held that the difference in the 
rules according to the residence of the child concerned and, consequently, an 
indirect but inevitable difference in the rules in the recognition of social 
advantages [f]or the recipient of the family allowances depending on whether he is 
a national worker with responsibility for a child of his or her spouse who lives in 
Luxembourg or a frontier worker who takes responsibility for a spouse’s child 
who lives in the frontier worker’s Member State of origin rather than in 
Luxembourg, is contrary to the equality of treatment in social advantages as 
between national workers and non-national workers which is referred to in 
Article 7(2) of Regulation (EU) No 492/2011. The Social Security Arbitration 
Board also stated that, even though Article 1(i)(1)(i) and 1(i)(3) of Regulation 
(EC) No 883/2004 refers back to the national legislation of the Member State 
concerned for the definition of a member of the family, the national law at issue, 
namely Article 270 of the Social Security Code, in the version in force since 
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1 August 2016, should not be applied, in so far as it is incompatible with 
Article 7(2) of Regulation 492/2011. 
By an application lodged […] on 29 December 2017, the CAE duly appealed 
against that judgment, disputing the Social Security Arbitration Board’s treatment 
of family benefits as a social advantage and arguing that the reasoning was neither 
justified nor in accordance with EU legislation and that it is premised on a 
difference in treatment as between factual and legal situations that are not 
comparable. In [addition], the CAE claims that the Social Security Arbitration 
Board did not take into consideration the objective elements that could justify a 
supposed difference in treatment. […], [The CAE seeks] in the alternative [to] 
refer the following questions for a preliminary ruling: 
‘Must Luxembourg family allowances awarded pursuant to Articles 269 and 270 
of the Social Security Code be treated as a social advantage within the meaning of 
Article 45 TFEU and Article 7(2) of Regulation 492/2011 on freedom of 
movement for workers within the Union? 
If they are so treated, the definition of member of the family applicable under 
Article 1(i) of Regulation 883/2004 is at odds with the broader definition of family 
member in Article 2(2) of Directive 2004/38/EC of the European Parliament and 
of the Council when the latter excludes, contrary to what is established by the 
Coordination Regulation, all autonomy of the Member State in defining a member 
of the family, and excludes any, subsidiary, concept of a person who is mainly 
dependent. Must the definition of member of the family under Article 1(i) of 
Regulation 883/2004 prevail given its specificity in the context of the coordination 
of social security systems and, above all, does the Member State retain 
competence to define members of the family who are entitled to family 
allowances? 
If Article 2(2) of Directive 2004/38/EC of the European Parliament and of the 
Council is applicable to family benefits and more precisely to Luxembourg family 
allowances, can the exclusion of the child of a spouse from the definition of a 
member of the family be considered indirect discrimination that is justified in view 
of the domestic objective [Or. 4] of the Member State of safeguarding the personal 
right of the child and the need to protect the authorities of the Member State of 
employment when extension of the personal field of application amounts to an 
unreasonable burden for the Luxembourg family benefits system, which, in 
particular, exports almost 48% of its family benefits?’ 
[…]. 
Under Article 269(1) of the Social Security Code, the following persons are 
entitled to family allowances: 
(a) any child, for his or her own benefit, actually living in Luxembourg on a 
continuous basis and officially resident there; 
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(b) for the benefit of his or her family members, in accordance with the 
international instrument applicable, any person who is subject to Luxembourg law 
and who is covered by Community regulations or any other bilateral or 
multilateral instrument relating to social security concluded by Luxembourg 
providing for the payment of family allowances in accordance with the legislation 
of the country of employment. A child forming part of that person’s family unit, 
as defined in Article 270, shall be regarded as a member of the family. The family 
members referred to in this provision must reside in one of the countries to which 
the regulations or instruments in question apply.’ 
Under Article 270 of the Social Security Code, [in the version] in force […] since 
1 August 2016, ‘for the purposes of Article 269(1)(b), the following shall be 
regarded as members of a person’s family and give rise to entitlement to family 
allowances: children born within marriage, children born outside marriage and 
adopted children of the person’. 
It is not disputed that three children live in FV and GW’s joint household in 
France, namely Elena and Cecilia, who are the children of both of them, and HY, 
who is Ms GW’s child from a previous relationship, and that until the Law of 
23 July 2016 came into force, the couple received family allowances on behalf of 
all three children in their household owing to Mr FV’s status as a frontier worker. 
With effect from 1 August 2016, when that law came into force, the couple has 
ceased to receive family allowances on behalf of the child HY. 
It follows from the judgment of 2 February 2007 of the Tribunal de Grande 
Instance de Nevers (Regional Court, Nevers, France) that sole parental authority 
of the child HY is exercised by the mother and that, due to a clear lack of interest 
on the part of the biological father and his failure to make monthly maintenance 
payments of EUR 155, he was not awarded any rights of access or the right to 
have the child to stay with him. 
In accordance with European legislation and international conventions in force, 
Article 269(b) of the Social Security Code confers entitlement to family 
allowances for workers who are required to be insured with Luxembourg social 
security and their family members. With the exception of bilateral conventions 
which expressly provide for the payment of family benefits in the country where 
the children reside, European legislation and, more particularly, Regulation 
No 883/2004 on the coordination of social security systems, require precedence to 
be given to work over residence and lay down rules of priority between Member 
States. In its appeal, the [Or. 5] CAE emphasised that family benefits therefore 
depend on a regulation of the European Parliament (No 883/2004) which deals not 
with the harmonisation but rather with the coordination of social security systems, 
allowing different national systems to exist (judgment of 19 September 2013, 
Brey, C-140/12, EU:C:2013:565) and the regulation leaves it to the national 
legislature to define ‘member of the family’, meaning that the payment of family 
benefits limited to biological and adopted children [of the worker] does not 
constitute a social advantage. 
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In support of its arguments, the CAE refers, inter alia, to the judgment of 
22 October 2015, Trapkowski (C-378/14, EU:C:2015:720), which established the 
EU legal framework in connection with Regulation No 883/2004 on the 
coordination of social security systems, referring to the definition of member of 
the family given in the legislation under which benefits are provided, and in which 
the Court stated (in paragraph 40) that it is for the competent national authority to 
determine the persons who, in accordance with national law, have a right to family 
benefits. 
The CAE goes on to submit that any indirect discrimination that might exist is 
appropriate for achieving a legitimate objective and is [therefore] justified in view 
of Luxembourg’s unique situation in exporting more than 48% of its family 
benefits, the highest rate in the European Union, the second highest being Austria 
with 6.2%. 
Finally, the CAE considers that upholding the judgment under appeal would call 
into question the fundamental principles of the coordination of social security 
systems […]. 
The respondents [repeat their argument] […] that the aim [of] EU social law is 
that EU citizens residing lawfully in another Member State should not be treated 
in a different and discriminatory way from nationals of that State. The EU 
principle of equal treatment means that EU citizens who go to another Member 
State should be entitled to the social benefits, social and tax advantages and social 
assistance which are already available in the host Member State for its own 
nationals. Social assistance should include all living allowances the purpose of 
which is not only to meet the basic needs of individuals but also to enable them to 
deal with particular life circumstances. 
They therefore claim that the same legal reasoning should, by analogy, be adopted 
as that used by the Court in the judgment of 15 December 2016, Depesme and 
Others (C-401/15 to C-403/15, EU:C:2016:955), in which it was held that the 
children of the spouse or partner recognised by the host Member State of a frontier 
worker may also be considered to be the children of that frontier worker for the 
purposes of qualifying for the right to receive financial aid for the pursuit of 
higher education studies, which is considered to be a social advantage within the 
[meaning] of Article 7(2) of the regulation. 
In the judgment cited above, the Court held, more particularly (paragraph 60), that 
the status of dependent member of a family is the result of a factual situation, 
which it is for the Member State and, if appropriate, the national courts to assess 
and may, when it relates to the case of a child of a spouse or recognised partner of 
that worker, [Or. 6] be evidenced by objective factors, such as a joint household 
shared by that worker and the student, and it is not necessary to determine the 
reasons for the contribution made by the frontier worker or make a precise 
estimation of its amount. The Court recalled that, in relation to EU citizenship, 
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children are defined as direct descendants who are under the age of 21 or are 
dependants and those of the spouse or partner. 
The Court held that: ‘Article 45 TFEU and Article 7(2) of Regulation (EU) 
No 492/2011 of the European Parliament and of the Council of 5 April 2011 
on freedom of movement for workers within the Union must be interpreted 
as meaning that a child of a frontier worker, who is able to benefit indirectly 
from the social advantages referred to in the latter provision, such as study 
finance granted by a Member State to the children of workers pursuing or 
who have pursued an activity in that Member State, means not only a child 
who has a child-parent relationship with that worker, but also a child of the 
spouse or registered partner of that worker, where that worker supports that 
child. The latter requirement is the result of a factual situation, which it is for 
the national authorities and, if appropriate, the national courts, to assess, and 
it is not necessary for them to determine the reasons for that contribution or 
make a precise estimation of its amount.’ 
In view of the issues raised and the respective arguments put forward, the 
questions set out […] in the operative part of this interlocutory judgment should 
[…] be referred to the Court of Justice of the European Union for a preliminary 
ruling. 
On those grounds, 
the Higher Social Security Board, 
[…], rules that the following questions should be referred to the Court of Justice 
of the European Union for a preliminary ruling: 
‘Must Luxembourg family allowances awarded pursuant to Articles 269 and 270 
of the code de la sécurité sociale (Social Security Code) be treated as a social 
advantage within the meaning of Article 45 TFEU and Article 7(2) of Regulation 
492/2011 on freedom of movement for workers within the Union? 
If they are so treated, the definition of member of the family applicable under 
Article 1(i) of Regulation 883/2004 is at odds with the broader definition of family 
member in Article 2(2) of Directive 2004/38/EC of the European Parliament and 
of the Council when the latter excludes, contrary to what is established by the 
Coordination Regulation, all autonomy of the Member State in defining a member 
of the family, and excludes [Or. 7] any, subsidiary, concept of a person who is 
mainly dependent. Must the definition of member of the family under Article 1(i) 
of Regulation 883/2004 prevail given its specificity in the context of the 
coordination of social security systems and, above all, does the Member State 
retain competence to define members of the family who are entitled to family 
allowances? 
If Article 2(2) of Directive 2004/38/EC of the European Parliament and of the 
Council is applicable to family benefits and more precisely to Luxembourg family 
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allowances, can the exclusion of the child of a spouse from the definition of a 
member of the family be considered indirect discrimination that is justified in view 
of the domestic objective of the Member State of safeguarding the personal right 
of the child and the need to protect the authorities of the Member State of 
employment when extension of the personal field of application amounts to an 
unreasonable burden for the Luxembourg family benefits system, which, in 
particular, exports almost 48% of its family benefits?’ 
 […] [signatures]