Order;Summary — ECLI:EU:C:2019:684
Date: 2019-09-05
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-801/18 — 1 
Case C-801/18 
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: 
EU 
Respondent: 
Caisse pour l’avenir des enfants (formerly Caisse nationale des 
prestations familiales) 
  
[…][Or. 2] 
By an application lodged at the Secretariat of the Conseil supérieur de la sécurité 
sociale (Higher Social Security Board) on 4 August 2017, EU appealed against a 
judgment given by the Conseil arbitral de la sécurité sociale (Social Security 
Arbitration Board) on 7 July 2017 in the case pending between himself and the 
Caisse nationale des prestations familiales (National Agency for Family Benefits) 
(now the Caisse pour l’avenir des enfants) (Children’s Future Fund), […] 
declaring the action unfounded […]. 
[…] [Conduct of proceedings] 
[…] At the public hearing on 22 January 2018, […] the Higher Social Security 
Board […] [asked] the parties to adopt a position as to the application of the 
Social Security Convention between the Grand-Duchy of Luxembourg and the 
United States of Brazil signed on 16 September 1965 to persons, such as EU in the 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 12. 2018 — CASE C-801/18 
 
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present case, who do not live within the territory of either of the Parties, in this 
case Luxembourg or Brazil, in view of Article 4 of that convention, which makes 
[…] [the award of] cash benefits conditional on the national residing within the 
territory of one or other of the Parties, […]. 
[…] 
[…] [Conduct of proceedings] At the public hearing held on today’s date, […] the 
Higher Social Security Board delivered the following judgment: 
On 8 December 2015, EU applied […] to the Caisse nationale des prestations 
familiales (National Agency for Family Benefits) (now the Caisse pour l’avenir 
des enfants (Children’s Future Fund; the ‘CAE’)) for family allowances in respect 
of the child [...], [date of birth]. 
By a […] decision of 6 June 2016, the CAE rejected that application on the 
grounds that [EU] […] [did not fall within the scope of] Article 269(1)b) of the 
code de la sécurité sociale (Social Security Code), since, as he did not have 
Brazilian or Luxembourg nationality, the convention concluded between Brazil 
and Luxembourg did not apply to him. 
Following an action brought by EU, […] the Social Security Arbitration Board 
(‘the Arbitration Board’) held in its judgment of 7 July 2017 that the action was 
admissible but unfounded. [Or. 3] 
The Arbitration Board found that the child […] was not entitled to family 
allowances, either on her own account, since she did not actually live in 
Luxembourg on a continuous basis, or through her mother, who was not subject to 
Luxembourg law, or through her father, [since] he did not fall within the scope of 
the Social Security Convention between Luxembourg and Brazil signed on 
16 September 1965, as he was not a national of either of those countries and his 
status of frontier worker was insufficient for him to be classified as a Luxembourg 
national. 
In the alternative, the Arbitration Board noted that a question might arise as to 
whether the judgment of 15 January 2002 in Gottardo (C-55/00, EU:C:2002:16) 
[…] might apply, but did not submit that question to the parties or draw any legal 
inferences therefrom. 
EU duly […] appealed by means of an application lodged on 4 August 2017 […], 
seeking a ruling […] that he was entitled to family allowances in respect of the 
child […], or in the alternative to [have] the following question [referred] to the 
Court of Justice of the European Union for a preliminary ruling: 
‘Are the competent social security authorities of one Member State (in this case 
the Caisse pour l’avenir des enfants (Children’s Future Fund), Luxembourg) 
required, pursuant to their Community obligations under Article 45 TFEU, 
Directive 2004/38/EC and Regulation (EC) No 883/2004, to pay family benefits to 
CAISSE POUR L’AVENIR DES ENFANTS 
 
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a national of a second Member State when, under identical conditions for the 
grant of those benefits, those competent authorities recognise the entitlement of 
their own nationals to family benefits, pursuant to a bilateral international 
convention concluded between the first Member State (Luxembourg) and the third 
country (Brazil)?’. 
In support of his appeal, EU submits that, if he worked in France, he would be 
entitled to French family allowances for his daughter under a social security 
agreement signed between France and Brazil on 15 December 2011 or, if he 
worked in Portugal, to Portuguese family allowances on the basis of a bilateral 
‘Ibero-American’ agreement.  
Relying on the European principle of freedom of movement for workers 
(Article 45 TFEU […], Directive 2004/38/EC of the European Parliament and of 
the Council of 29 April 2004 on the right of citizens of the Union and their family 
members to move and reside freely within the territory of the Member States and 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems), the appellant claims 
to be entitled to Luxembourg family allowances. If that were not the case, he 
argues that the situation would constitute a particular disadvantage likely to 
discourage him from working in Luxembourg and would amount to an 
infringement of the principle of freedom of movement for workers within the 
European Union. 
In the alternative, EU argues, in reliance on the judgment of the Court of Justice 
of the European Union of 15 January 2002 in Gottardo, that the aforementioned 
conventions could be relied on against the institution in the second competent 
Member State, under whose legislation the individual is registered as insured 
(Luxembourg), where a social security convention exists between the second 
Member State and the third State (Brazil). [Or. 4] 
Alternatively, EU requests that a question be referred to the CJEU for a 
preliminary ruling. 
The CAE contends principally that the judgment under appeal should be upheld, 
on the grounds that neither the child […], nor her mother, nor the appellant fulfils 
the entitlement conditions laid down in Article 269 of the Social Security Code. 
In the alternative, the CAE does not oppose the reference for a preliminary ruling, 
but seeks to have a second question added on its own account, worded as follows: 
‘In the affirmative, and in the event that the approach taken in the aforementioned 
case Gottardo is extended to the context of family benefits, can the competent 
social security authority, more particularly the competent authority for family 
benefits — in this case, the Caisse pour l’avenir des enfants (Children’s Future 
Fund), the national agency of the Grand-Duchy of Luxembourg for family 
benefits — rely on objective grounds based on considerations relating to the 
extremely heavy financial and administrative burdens faced by the authority in 
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question to justify a difference in treatment between nationals of one of the 
contracting parties (to the bilateral convention concerned) and other nationals of 
European Union Member States? 
On 22 January 2018, […] the Higher Social Security Board [asked] the parties to 
adopt a position on the application of the Social Security Convention between 
Luxembourg and Brazil of 16 September 1965 to persons who, as in the present 
case, do not live within the territory of either of the parties to the convention, in 
view of Article 4 of the convention which makes the award of cash benefits 
conditional on the national residing within the territory of one or other of the 
parties. 
EU again relies on the case-law in Gottardo and argues that, under European 
Union law (principle of equal treatment and freedom of movement for workers), 
Article 4 of the Brazil-Luxembourg convention cannot be relied on against him. 
Alternatively, he considers that the question as amended should be referred for a 
preliminary ruling as follows: 
‘Are the competent social security authorities of one Member State (in this case 
the Caisse pour l’avenir des enfants (Children’s Future Fund), Luxembourg) 
required, pursuant to their Community obligations under Article 45 TFEU, 
Directive 2004/38/EC and Regulation (EC) No 883/2004, to pay family benefits to 
a national of a second Member State when, under identical conditions for the 
grant of those benefits, those competent authorities recognise the entitlement of 
their own nationals/residents to family benefits, pursuant to a bilateral 
international convention concluded between the first Member State (Luxembourg) 
and the third country (Brazil)?’ 
In reply, the CAE [observes] that even if, as a result of the Gottardo case, 
Luxembourg were now obliged to allow any national of a Member State to benefit 
from any international convention concluded between Luxembourg and a third 
country, [to avoid any] potential discrimination based on nationality, in the 
present case EU [Or. 5] is not in the same objective situation as nationals of a 
country which is a party to the convention who also fulfil the requirement to be 
officially resident within the territory of the country. 
In the alternative, the CAE seeks to have the question set out above referred for a 
preliminary ruling. 
[Assessment of the Higher Social Security Board] 
In the present case, it is not disputed that EU is of Portuguese nationality, that he 
lives in France and works in Luxembourg and that his [child] […] lives with her 
mother in Brazil. 
Under Article 269(1) of the Social Security Code, in the version applicable at the 
material time, the following persons are entitled to family allowances: 
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(a) any child, for his or her own benefit, actually living in Luxembourg on a 
continuous basis and officially resident there; 
(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. 
The child […] is not entitled to family allowances either on her own account, as 
she is not officially resident in Luxembourg and does not actually live there, or 
through her mother, who is not subject to Luxembourg law. 
In order to receive allowances as a member of EU’s family, EU, who is subject to 
Luxembourg law by virtue of his employment contract in Luxembourg, would 
have to be covered by a bilateral or multilateral instrument, on the conditions 
referred to above. 
At the material time, the Social Security Convention between Brazil and 
Luxembourg of 16 September 1965 applied. Article 3 of that convention provided 
that ‘nationals of either of the Parties who habitually work within the territory of 
either of them shall be governed by the laws of that Party’ and Article 4 stated that 
‘nationals of one Party who are entitled to cash benefits shall receive those 
benefits in their entirety and without restriction for as long as they reside within 
the territory of either of the Parties.’  
The scope of the convention is therefore limited to nationals and residents of one 
of the two countries. 
The appellant [submits] that those limitations amount to an infringement of the 
European principles of freedom of movement for workers and equal treatment 
(Article 45 TFEU […] providing that the free movement of workers shall be 
secured [Or. 6] within the Union and that such freedom of movement shall entail 
the abolition of any discrimination based on nationality between workers of the 
Member States as regards employment, remuneration and other conditions of 
work and employment, Directive 2004/38/EC of the European Parliament and of 
the Council of 29 April 2004 on the right of citizens of the Union and their family 
members to move and reside freely within the territory of the Member States and 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems, in particular 
Article 4 thereof, entailing the abolition of any discrimination based on nationality 
between workers of the Member States as regards employment, remuneration and 
other conditions of work and employment and ensuring that persons shall enjoy 
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the same benefits and be subject to the same obligations under the legislation of 
any Member State as the nationals thereof). 
To that effect, the Court of Justice held in its judgment of 15 January 2002, 
Gottardo (C-55/00, EU:C:2002:16) that ‘the competent social security authorities 
of one Member State are required, pursuant to their Community obligations under 
Article 39 EC, to take account, for purposes of acquiring the right to old-age 
benefits, of periods of insurance completed in a non-member country by a 
national of a second Member State in circumstances where, under identical 
conditions of contribution, those competent authorities will take into account such 
periods where they have been completed by nationals of the first Member State 
pursuant to a bilateral international convention concluded between that Member 
State and the non-member country’.  
The question therefore arises [as to] whether, in relation to family allowances and 
pursuant to the same European principle, the Social Security Convention 
concluded by Luxembourg and Brazil [referred to above] applies to EU even 
though he is neither a national nor a resident of either country. 
The question raised by EU […] must therefore […] be referred to the Court of 
Justice of the European Union for a preliminary ruling. 
Since the principle of equal treatment does not prohibit different situations from 
being treated differently but as any differentiation must be based on objective 
criteria, the question raised by the CAE must also be referred for a preliminary 
ruling […]. 
On those grounds, 
the Higher Social Security Board, 
[…] 
stays proceedings pending a reply by the Court of Justice of the European Union 
to the following questions referred to it for a preliminary ruling: [Or. 7] 
‘Are the competent social security authorities of one Member State (in this case 
the Caisse pour l’avenir des enfants (Children’s Future Fund), Luxembourg) 
required, pursuant to their Community obligations under Article 45 TFEU, 
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 
2004 on the right of citizens of the Union and their family members to move and 
reside freely within the territory of the Member States and Regulation (EC) 
No 883/2004 of the European Parliament and of the Council of 29 April 2004 on 
the coordination of social security systems, in particular Article 4 thereof, to pay 
family benefits to a national of a second Member State when, under identical 
conditions for the grant of those benefits, those competent authorities recognise 
the entitlement of their own nationals and residents to family benefits, pursuant to 
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a bilateral international convention concluded between the first Member State 
(Luxembourg) and the third country (Brazil)? 
In the affirmative, and in the event that the approach taken in the judgment [of 15 
January 2000,] Gottardo, [C-55/00, EU:C:2002:16] is extended to the context of 
family benefits, can the competent social security authority, more particularly the 
competent authority for family benefits — in this case, the Caisse pour l’avenir 
des enfants (Children’s Future Fund), the national agency of the Grand-Duchy of 
Luxembourg for family benefits — rely on objective grounds based on 
considerations relating to the extremely heavy financial and administrative 
burdens faced by the authority in question to justify a difference in treatment 
between nationals of countries that are contracting parties (to the bilateral 
convention concerned) and other nationals of European Union Member States?’ 
[…] [signatures]