Judgment;Summary — ECLI:EU:C:2024:292
Date: 2024-04-11
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Social security for migrant workers;Anti-discrimination;Fundamental rights;Non-discrimination on grounds of nationality;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-116/23 – 1 
Case C-116/23 
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: 
27 February 2023 
Referring court: 
Bundesverwaltungsgericht (Austria) 
Date of the decision to refer: 
23 February 2023 
Applicant: 
XXXX 
Defendant authority:  
Sozialministeriumservice (SMS), Landesstelle Steiermark 
  
Subject matter of the main proceedings 
Care leave – Care leave allowance – Family hospice leave – Sickness benefit – 
Benefit for temporary absence from work – Prerequisite for claiming care 
allowance – Migrant workers – Discrimination 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is the care leave allowance a sickness benefit within the meaning of 
Article 3 of Regulation (EC) No 883/2004 or, if not, another benefit under 
Article 3 of Regulation (EC) No 883/2004? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-116/23 
 
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2. If it is deemed to be a sickness benefit, would the care leave allowance then 
be a cash benefit within the meaning of Article 21 of Regulation (EC) 
No 883/2004? 
3. Is the care leave allowance a benefit for the caregiver or the person in need 
of care? 
4. Consequently, does a situation in which an applicant for the care leave 
allowance, who is an Italian citizen, and has been permanently resident in Austria 
in the province of Upper Austria since 28 June 2013, and has also been 
continuously working in Austria in the same province with the same employer 
since 1 July 2013 (for which reason there is no indication that the applicant is a 
cross-border commuter), entered into an agreement with his employer to take care 
leave in order to care for his father, an Italian citizen who resided in Italy 
(Sassuolo), throughout the relevant period from 1 May 2022 to 13 June 2022 and 
applied to the defendant authority for a care leave allowance, fall within the scope 
of Regulation (EC) No 883/2004? 
5. Does Article 7 of Regulation (EC) No 883/2004 or the prohibition of 
discrimination enshrined in various pieces of European legislation (e.g. Article 18 
TFEU, Article 4 of Regulation (EC) No 883/2004, etc.) preclude a national 
provision that makes the payment of a care leave allowance conditional upon the 
person in need of care receiving an Austrian care allowance of level 3 or higher? 
6. Does the EU law principle of effectiveness or the EU law principle of non-
discrimination enshrined in various pieces of European legislation (e.g. Article 18 
TFEU, Article 4 of Regulation (EC) No 883/2004, etc.) preclude, in a situation 
such as the present case, the application of national legislation or established 
national case-law that does not provide any scope to reclassify a ‘care leave 
allowance application’ as a ‘family hospice leave application’, when clearly a 
‘care leave allowance application’ form was used rather than the ‘family hospice 
leave application’ form, and an agreement was clearly entered into with the 
employer that referred to ‘nursing care for a close relative’ instead of ‘end-of-life 
care’, although the underlying facts would – given that the father, who was in 
need of care, has subsequently passed away – in principle also satisfy the 
requirements for a care leave allowance under the header of ‘family hospice leave’ 
if only a different agreement had been entered into with the employer and a 
different application had been lodged with the authority? 
7. Does Article 4 of Regulation (EC) No 883/2004 or another provision of 
European Union law (for example Article 7 of the Charter of Fundamental Rights) 
preclude a national provision (Paragraph 21c(1) of the Bundespflegegeldgesetz 
(Austrian Federal Care Allowance Act, ‘the BPGG’)) which makes the payment 
of care leave allowance conditional upon the person in need of care receiving an 
Austrian care allowance of level 3 or higher, whereas another national provision 
(Paragraph 21c(3) BPGG), when applied to the same facts, does not make the 
payment of the allowance conditional upon a similar requirement? 
SOZIALMINISTERIUMSERVICE 
 
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Provisions of European Union law relied on 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems 
Charter of Fundamental Rights of the European Union 
Provisions of national law relied on 
Arbeitsvertragsrechts-Anpassungsgesetz (Austrian Law amending the Law on 
employment contracts; ‘the AVRAG’), Paragraphs 14a, 14c 
Bundespflegegeldgesetz (Austrian Federal Law introducing a care allowance, ‘the 
BPGG’), Paragraphs 3a, 21c, 21d 
Succinct presentation of the facts and procedure in the main proceedings 
1 Mr XXXX, an Italian citizen who has been resident and working in Austria since 
2013, entered into a leave of absence agreement with his employer in order to care 
for his father, who resided in Italy. Subsequently, on 10 May 2022, he applied to 
the defendant authority Sozialministeriumservice, Landesstelle Steiermark 
(Department of the Ministry of Social Affairs (SMS), Styria Regional Office) for 
a care leave allowance. 
2 This application was dismissed by the defendant authority by decision dated 
7 June 2022 on the grounds that the care leave allowance would only be portable 
to the EEA or Switzerland if the person in need of care were resident in one of 
these countries and received a care allowance under the BPGG, as Austria would 
then be responsible for the payment of sickness benefits within the meaning of 
Regulation (EC) No 883/2004. According to that decision, since the applicant’s 
father did not receive any Austrian care allowance, there was no entitlement to 
care leave allowance. 
3 In observance of the prescribed period, the applicant lodged an objection against 
this decision on 7 July 2022, in which he applied for the care leave allowance in 
the amount provided for by law for the period from 10 May 2022 to 13 June 2022. 
He stated that his father had been dependent on 24-hour-a-day care during the 
period in respect of which the care leave allowance had been applied for and had 
received a care allowance in Italy equivalent to the level-3 care allowance in 
Austria. According to the applicant, the legal opinion of the defendant authority 
according to which the care leave allowance is an ancillary benefit which, in cases 
having a connection to other European countries, a caregiver working in Austria is 
only entitled to if the person to be cared for is entitled to an Austrian care 
allowance, is incomprehensible. After all, the care allowance is applied for by and 
paid to the person in need of care, whereas the care leave allowance is applied for 
by and paid to the caregiver. The care leave allowance is intended to provide the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-116/23 
 
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caregiver with security under social and labour law, which is why the caregiver’s 
place of work is a crucial factor. 
4 The applicant also argued that the care leave allowance should be regarded as a 
sickness benefit under European law and that, under Article 11(3)(a) of 
Regulation (EC) No 883/2004, Austrian law was applicable since he was 
employed in Austria. According to the applicant, this social security benefit is 
portable. Moreover, he contended that Paragraph 21c(3) BPGG also does not 
require that the person in need of care has to be covered by health insurance in 
Austria. According to the case-law of the Court of Justice of the European Union, 
benefits such as a care allowance are to be classified as ‘sickness benefits’. 
According to the applicant, the defendant authority’s interpretation infringes the 
freedom of movement for workers within the European Union, since it is almost 
exclusively EU citizens without Austrian nationality who have parents in need of 
care outside Austria, and it is therefore only those citizens who do not receive a 
care leave allowance. In the present case, the applicant had taken care leave 
pursuant to Paragraph 14c AVRAG, which is why he was entitled to a care leave 
allowance for the period from 10 May 2022 to 13 June 2022 (14 days after the 
death of his father on 29 May 2022). 
5 On 31 August 2022, the referring court, the Bundesverwaltungsgericht (Federal 
Administrative Court), heard the defendant authority. In this context, the court 
incorrectly stated that it was a matter of family hospice leave (instead of, more 
correctly, care leave) and that the national law provision on family hospice leave 
did not require that the person in need of care be covered by health insurance in 
Austria. The court therefore did not share the view of the defendant authority that 
the care leave allowance was a benefit for the person being cared for that was 
ancillary to the care allowance. 
6 The defendant authority subsequently submitted a statement dated 20 September 
2022, in which it clarified that the applicant had not applied for family hospice 
leave, and therefore no application for a care leave allowance in connection with 
family hospice leave had been rejected. It also stated that the receipt of an 
Austrian care allowance of level 3 or higher was a prerequisite for any entitlement 
to care leave. As the applicant’s father did not receive any care allowance in 
Austria, the applicant’s application for a care leave allowance in connection with 
care leave had been rejected. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 The parties to the proceedings agree that the care leave allowance in this case is to 
be classified as a sickness benefit. 
8 However, in the view of the referring court, the care leave allowance could also be 
deemed to be a benefit for a temporary absence from work, which would have to 
be treated like an unemployment benefit, since the employment relationship 
SOZIALMINISTERIUMSERVICE 
 
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undergoes a change or is put on hold and the benefit is calculated on the basis of 
unemployment insurance rules. 
9 On the question of the distinction between cash benefits and benefits in kind, the 
Court of Justice of the European Union has already clarified that benefits paid 
directly to the caregiver (instead of to the person in need of care) are also deemed 
to be sickness benefits within the meaning of Regulation (EC) No 883/2004. The 
benefit in question could therefore be considered to ultimately benefit the person 
in need of care. As proof of use is required due to the granting of the benefit to the 
caregiver, the care leave allowance would have to be classified as a benefit in 
kind. If that view were to be followed, the care leave allowance would be payable 
only in respect of care provided to a person in Austria (and would therefore not be 
payable if the recipient of an Austrian care allowance resided in another Member 
State). However, this benefit would then also have to be granted, against 
reimbursement of costs by the competent foreign institution, for the care of a 
person insured in another Member State if that person resided in Austria. 
10 As yet, the Administrative Commission for the Coordination of Social Security 
Systems does not share the Austrian view that the care leave allowance is a care 
benefit in kind. 
11 Another possibility would be to regard this benefit as a benefit that is not covered 
by Regulation (EC) No 883/2004 and to focus on the labour-law connection of the 
caregiver. This benefit would thus always have to be granted if the caregiver 
fulfils the requirements of Paragraph 21c(1) BPGG, irrespective of the place of 
residence of the person in need of care. In this case, however, an entitlement to the 
benefit would be precluded if the person in need of care lived in Austria and 
received an Austrian care allowance, but the caregiver were employed in another 
Member State and took leave of absence from employment in that Member State, 
or agreed on a suspension of his/her employment with his/her employer that was 
comparable to Austrian care leave. 
12 Furthermore, the proof of use required by Paragraph 21d(2)(4) BPGG could be an 
indication that this is a benefit in kind, if proceeding on the assumption that this is 
a benefit that inures to the benefit of the person in need of care. 
13 Question 3 seeks to ascertain whether the relevant Member State is required to 
provide a benefit to the caregiver or the person in need of care. If a Member State 
had to pay in both cases, this would necessarily lead to an unintended 
accumulation of entitlements, which is why this possibility has been excluded by 
the referring court. The obligation to pay a benefit can therefore only relate to one 
person. If the caregiver is the decisive factor, this gives rise once again to the 
question of the nature of the benefit (question 1), as the caregiver does not qualify 
for a sickness benefit. 
14 Question 4 seeks to clarify whether the fact that the applicant came to Austria 
almost 10 years ago, exercising his freedom of movement, has any bearing on the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-116/23 
 
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application of Regulation (EC) No 883/2004, and whether therefore the refusal to 
grant the benefit does not constitute any impediment to the exercise of the right to 
free movement. In addition, it must be clarified whether it is relevant that the 
family member concerned resides in another Member State and has never 
exercised his right to freedom of movement. 
15 Question 5 relates to the receipt of an Austrian care allowance, of level 3 or 
higher, by the person in need of care. As a matter of principle, the care allowance 
is available to Austrian citizens or EEA citizens if they have their habitual abode 
in Austria. Naturally, it is easier for nationals to fulfil this criterion than it is for 
non-citizens, such as the applicant’s father, who resided in Italy. Migrant workers 
are therefore more affected by the nexus between the care leave allowance and the 
receipt of the Austrian care allowance than Austrian nationals, whose family 
members usually have their habitual abode in Austria. This would indicate 
discrimination based on nationality or domicile. 
16 In the view of the referring court, the care leave allowance would be granted in the 
present case, in line with current Austrian practice, if the applicant’s father resided 
in Italy but received an Austrian pension and was therefore covered by health 
insurance in Austria and entitled to Austrian care allowance in Italy. With regard 
to the care leave allowance, the defendant authority takes the view that this is 
classified as a benefit for the person in need of care and therefore grants this 
allowance if Austria is obligated in relation to the person in need of care. 
However, the referring court doubts that this is permissible. If it is permissible, the 
referring court would like to know whether it is permissible for the defendant 
authority to base its decision on the level-3 Austrian care allowance. However, 
even assuming that it is a benefit for the caregiver and that, by virtue of the 
equivalent treatment of facts in accordance with Article 5 of Regulation (EC) 
No 883/2004, it would have to be treated as an equivalent foreign benefit, the 
question arises whether the degree of seriousness of the illness of the person in 
need of care abroad must be comparable to what is necessary in Austria in order to 
receive the level-3 care allowance. 
17 Questions 6 and 7: According to the case-law of the Verwaltungsgerichtshof 
(Supreme Administrative Court), due to the duty of care incumbent on a public 
authority, it must be assumed that the social security institution must work 
towards an (effective) application that takes into account the legal interests of the 
applicants. When assessing applications, social security institutions must proceed 
in the spirit of a social application of the law: in cases of doubt, they must 
therefore interpret applications in favour of the insured person. If there are any 
doubts with regard to the applicant’s intention, his or her intention needs to be 
clarified (e.g. by way of an interview). That said, the insured person may not be 
awarded any benefit other than the one he/she has unequivocally applied for. 
18 However, the defendant authority is not a social security institution and therefore 
not required to assess claims in the spirit of a social application of the law. Since 
the applicant agreed with his employer care leave pursuant to Paragraph 14c 
SOZIALMINISTERIUMSERVICE 
 
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AVRAG and filled out the form to apply for a care leave allowance pursuant to 
Paragraph 21c(1) BPGG and not the form to apply for a care leave allowance 
based on family hospice leave pursuant to Paragraph 21c(3) BPGG, according to 
national case-law he cannot be awarded any benefit other than the one he 
unequivocally applied for. 
19 The relevant question therefore seems pertinent, given that, in view of the facts of 
the present case, the applicant would also fulfil the criteria for a care leave 
allowance based on family hospice leave pursuant to Paragraph 21c(3) BPGG, if 
he had lodged the correct applications. However, as a provision of national law, 
Paragraph 21c(3) BPGG is more favourable than the applicable national provision 
of Paragraph 21c(1) BPGG, as Paragraph 21c(3) BPGG is not linked to the 
granting of an Austrian care allowance, of level 3 or higher, for the person 
needing care. 
20 Article 4 of Regulation (EC) No 883/2004 stipulates equal treatment. Although 
the situation at issue falls within the scope of two differing national provisions 
whose application depends on the will of the applicant, the nature of the 
agreement concluded with his employer and the application form used, it is 
conceivable that this is a case of discrimination.