Opinion of the Advocate General — ECLI:EU:C:2004:463
Date: 2004-07-15
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Luxembourg

summary, it should therefore be stated that under the overlapping rule laid down in Article 10 of Regulation No 574/72 the State of residence is competent, on the basis of priority, for the grant of family benefits where the spouse of a frontier worker who is personally entitled to benefits is employed there. C – The consequences of the unlawful refusal by the State of residence to grant a benefit 41. On the basis of the considerations set out above, Germany has responsibility, on the basis of priority, for granting the contested family benefit. Irrespective of this finding, as the Austrian Government and the Commission rightly stress, the German authorities would at least have been required under Article 114 of Regulation No 574/72 to grant that benefit provisionally. The CNPF and the Austrian Government conclude that the Luxembourg authorities may refuse to grant the benefit up to the amount of the German benefit. The Commission, on the other hand, rejects the unilateral refusal to grant social benefits. 42. It could be inferred from the wording of Article 10 of Regulation No 574/72, according to which the entitlement vis-à-vis the lower priority Member State is suspended, that that Member State is not required to pay the family benefit. However, this conclusion is not consistent with the Court’s interpretation of the overlapping rules. The Court has previously held that entitlement is suspended in the Member State with secondary responsibility only where all the conditions of substance and of form have been satisfied in the Member State with primary responsibility, including, where appropriate, the making of an application for a benefit. (30) In practice, the entitled persons could choose the Member State from which they claimed a benefit, if necessary by refraining from making an application in the State with primary responsibility. This case-law was restricted by Article 76(2) of Regulation No 1408/71 to cases in which the entitled person had failed to make an application in the Member State with primary responsibility. In this case, the competent institution of the other Member State may apply Article 76(1) of Regulation No 1408/71 as if benefits were granted in the first Member State. 43. The Court has found that Article 76 of Regulation No 1408/71 cannot be interpreted as an overriding rule of priority, since this would have the effect of restricting the range of facilities enjoyed by migrant workers under Article 73 of Regulation No 1408/71. However, Article 76 is not intended to restrict this range of facilities, but only to prevent the possibility of a de facto overlapping of allowances. (31) 44. These considerations should be applied mutatis mutandis in connection with Article 10 of Regulation No 574/72. In the view of the Court, it follows from the fundamental principle of freedom of movement for workers and the objective of Article 42 EC that a rule designed to prevent the overlapping of family allowances is applicable only to the extent to which it does not, without cause, deprive the persons concerned of an entitlement to a benefit existing under the legislation of a Member State. (32) 45. In the present case, Ms Weide has made the necessary applications in Germany and has even – going beyond her obligation under Article 76(2) of Regulation No 1408/71 – referred the matter to two judicial bodies. 46. It should also be taken into consideration that Ms Weide might not be able to assert her claim for benefits in Germany any longer, since a final decision has been taken on the subject. It cannot be automatically ruled out that this legal finality could be overcome in accordance with the Kühne & Heitz judgment (33) or that a claim for reparation should be granted up to the amount of the forfeited benefits (including legal costs) in accordance with the Köbler judgment. (34) According to the information available, however, it is not certain that one of these methods would produce an outcome in the case that is compatible with Community law. 47. It would therefore go beyond the objective of the overlapping rules to allow the Luxembourg authorities to disregard the decisions taken by the German authorities in relation to Ms Weide and to set off German benefits that are not granted in practice. 48. Luxembourg would not therefore be required, ultimately, to bear the burden that should be borne by Germany under the overlapping rules. Rather, as the Commission rightly points out, the Member States may not resolve conflicts at the expense of migrant workers, but are required to cooperate under Article 10 EC and Article 84 of Regulation No 1408/71. This is also underlined by Article 114 of Regulation No 574/72, which provides for the provisional payment of social benefits pending the resolution of such conflicts between States. 49. The resolution of conflicts between States is not limited to bilateral contacts – something which the Luxembourg authorities sought to do in vain, according to the Luxembourg Government and the CNPF. As the Commission argues, they could also have referred the matter to the Administrative Commission under Article 81(a) of Regulation No 1408/71. In addition, reference is also made to the possibility of Treaty infringement proceedings under Article 227 EC in order to bring about a final resolution of the matter. (35) Possible overpayments would have to be compensated in accordance with the principle of genuine cooperation or at least as a consequence of Treaty infringement proceedings under Article 228(1) of the Treaty. 50. In summary, it must therefore be held that the State of employment may not refuse to pay the full family benefit where the State of residence is competent, on the basis of priority, but refuses to pay the benefit. V – Conclusion 51. I therefore propose that the Court answer the questions referred for a preliminary ruling as follows: (1) The conflict of law rule laid down in Article 13 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community does not preclude a frontier worker receiving family benefits in the State of residence where those benefits do not require status as an employed person. (2) Under the overlapping rule laid down in Article 10 of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 the State of residence is competent, on the basis of priority, for the grant of family benefits where the spouse of a frontier worker who is personally entitled to benefits is employed there. (3) The State of employment may not refuse to pay the full family benefit where the State of residence is competent, on the basis of priority, but refuses to pay the benefit. 1 – Original language: German. 2 – Although, according to German custom, the married name, Schwarz, should be used, the maiden name, Weide, will be used hereinafter in order to avoid misunderstandings for the referring court and the parties to the proceedings. 3 – Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), in the applicable version, hereinafter: Regulation No 1408/71. 4 – Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ, English Special Edition 1972 (I), p. 159) in the applicable version, hereinafter: Regulation No 574/72. 5 – OJ 1998 L 168, p. 1. 6 – OJ 1998 L 209, p. 1. 7 – OJ 1999 L 38, p. 1. 8 – OJ 1999 L 164, p. 1. 9 – With regard to the requirements for the admissibility of a reference for a preliminary ruling, see the judgment in Joined Cases C-320/90, C-321/90 and C‑322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6, and the orders in Case C-157/92 Banchero [1993] ECR I-1085, paragraph 4, Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 5, and Case C-9/98 Agostini [1998] ECR I-4261, paragraph 4. 10 – Case C-476/01 Kapper [2004] ECR I-0000, paragraph 29. 11 – Case C-35/99 Arduino [2002] ECR I-1529, paragraph 29, Case C-176/96 Lehtonen and Castors Braine [2000] ECR I-2681, paragraph 24 et seq., Case C-67/96 Albany [1999] ECR I-5751, paragraph 43, and Joined Cases C-115/97 to C-117/97 Brentjens’ [1999] ECR I-6025, paragraph 42. 12 – See point 5 et seq. above. 13 – Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 28. 14 – Case C-117/89 Kracht [1990] ECR I-2781, paragraph 15. 15 – Case C-119/91 McMenamin [1992] ECR I-6393. 16 – Case C-119/91 McMenamin (cited in footnote 15, paragraph 14 et seq.). 17 – Case C-277/99 Kaske [2002] ECR I-1261, paragraph 37, with further references. 18 – Case C-168/88 Dammer [1989] ECR 4553, paragraph 22. 19 – See also my Opinion of 25 May 2004 in Case C-302/02 Effing [2005] ECR I-0000, point 37. 20 – Opinion of Advocate General Darmon in Case C-119/91 McMenamin [1992] ECR I-6407, point 87 et seq. 21 – Case 149/82 Robards [1983] ECR 171. 22 – Case C-119/91 McMenamin (cited in footnote 15, paragraph 20 et seq.). 23 – Opinion of Advocate General Darmon in Case C-119/91 McMenamin (cited in footnote 20, point 79 et seq.). 24 – Opinion of Advocate General Darmon in Case C-119/91 McMenamin (cited in footnote 20, point 81 et seq.). 25 – Case C-119/91 McMenamin (cited in footnote 15, paragraph 26). 26 – Case C-255/99 Humer [2002] ECR I-1205, paragraph 50, and Joined Cases C-245/94 and C‑312/94 Hoever and Zachow [1996] ECR I-4895, paragraph 37, under which family benefits by their nature cannot be regarded as entitlements due to an individual in isolation from his family circumstances. 27 – Article 2(1) of Council Regulation (EEC) No 1249/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1992 L 136, p. 28). 28 – Case C-119/91 McMenamin (cited in footnote 15, paragraph 26). 29 – Council Regulation (EC) No 118/97 of 2 December 1996 amending and updating Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1997 L 28, p. 1). 30 – Case 191/83 Salzano [1984] ECR 3741, Case 153/84 Ferraioli [1986] ECR 1401, paragraph 14 et seq., and Case C-117/89 Kracht (cited in footnote 14, paragraph 11 et seq.). 31 – Case C-117/89 Kracht (cited in footnote 14, paragraph 15 et seq.). 32 – Case 100/78 Rossi [1979] ECR 831, paragraph 16 et seq., Case 104/80 Beeck [1981] ECR 503, paragraph 12, and Case 104/84 Kromhout [1985] ECR 2205, paragraph 21. 33 – Judgment in Case C-453/00 Kühne & Heitz [2004] ECR I-837. 34 – Case C-224/01 Köbler [2003] ECR I-10239. 35 – Case C-202/97 Fitzwilliam [2000] ECR I-883, paragraph 56 et seq.