Judgment;Summary — ECLI:EU:C:2019:662
Date: 2019-09-04
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

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: 
20 July 2018 
Referring court: 
Finanzgericht Baden-Württemberg (Germany) 
Date of the decision to refer: 
17 May 2018 
Applicant: 
GP 
Defendant: 
Bundesagentur für Arbeit — Familienkasse Baden-Württemberg 
West 
  
Subject-matter of the case in the main proceedings 
Basis in EU law for converting Swiss family allowances (family benefits) from 
Swiss francs into euros in the context of the granting of differential child 
allowance — Relevant point in time for the conversion — Decision No H3 
Subject-matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-473/18 
 
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Questions referred 
1. Which provision of Decision No H3 of 15 October 2009 (OJ 2010 C 106, 
p.56) is to be applied in circumstances such as those in the main proceedings 
for the purposes of a currency conversion of family benefits relating to 
children and taking the form of child allowance? 
2. How is the applicable provision of that decision to be interpreted specifically 
for the purposes of determining the amount of differential child allowance, 
which is dependent on the exchange rate? 
(a) If Paragraph 2 of Decision No H3 is to be applied: within the meaning 
of that provision, which day is the day ‘when the operation is 
performed by the institution’? 
(b) If Paragraph 3(b) (where necessary, in combination with Paragraph 4) 
of Decision No H3 is to be applied: within the meaning of that 
provision, which month is the month ‘when the provision must be 
applied’? 
(c) If Paragraph 5 of Decision No H3 is to be applied: is the saving clause 
relating to national law compatible with the enabling provision in 
Article 90 of Regulation (EC) No 987/2009? If yes: in order for it to be 
‘provided for differently’ in national legislation, is legislation under a 
formal statute necessary or is an administrative instruction from the 
national administrative authorities sufficient? 
3. Are there any special features to be taken into account specifically in the 
case of a currency conversion of Swiss child allowance by the German 
family allowance office? 
(a) When Decision No H3 is applied, in relation to Switzerland, is it 
significant that the German national rule in point 2 in sentence 1 of 
Paragraph 65(1) of the Einkommensteuergesetzes (Law on Income 
Tax) in itself lays down an exclusion from the payment of benefits? 
(b) Is the relevant date for the purposes of the currency conversion 
pursuant to Decision No H3 the date on which the Swiss institution 
granted or paid the family benefits? 
(c) Is the relevant date for the purposes of the currency conversion 
pursuant to Decision No H3 the date on which the German institution 
refused or granted the differential child allowance? 
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Provisions of EU law cited 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems 
Regulation (EC) No 987/2009 of the European Parliament and of the Council of 
16 September 2009 laying down the procedure for implementing Regulation (EC) 
No 883/2004, Article 90 in particular 
Decision No H3 of 15 October 2009 concerning the date to be taken into 
consideration for determining the rates of conversion referred to in Article 90 of 
Regulation No 987/2009 
National legislation cited 
Einkommensteuergesetz (Law on Income Tax; ‘EStG’), in particular point 2 in 
sentence 1 of Paragraph 65(1) 
Brief summary of the facts and procedure 
1 The dispute relates to whether the applicant has a right to differential child 
allowance for the period from April 2012 to December 2014 (‘the disputed 
period’). This depends on which exchange rate (see Article 90 of Regulation 
No 987/2009) or rate of conversion (see Decision No H3) is to be used. 
2 The applicant and her husband have two children, born in the years 2009 and 2012 
respectively. Both spouses were in employment in Switzerland during the 
disputed period. Since February 2012 the husband has been receiving two child 
allowance payments in Switzerland for the children each totalling 200 Swiss 
francs (CHF) per month. 
3 By her action, the applicant requests differential child allowance from April 2012 
of EUR 36.10 per month (or EUR 18.05 per child). The issue in this case is what, 
according to the relevant provisions, is the reference date to be used for the 
purpose of establishing the exchange rate or rate of conversion (CHF into euros). 
According to the rate used by the defendant, the child allowance paid in 
Switzerland is higher than the German equivalent, with the effect that there is no 
right to differential child allowance. The applicant takes the view that another rate 
is to be used, meaning that she has a right to the amount that she is claiming. 
4 In respect of the questions that have arisen, the referring court sent a request for 
information to the European Commission on 17 August 2017. The Commission 
answered in its letter of 29 January 2018 that the Administrative Commission had 
already considered this matter in December 2017 in relation to questions raised in 
respect of Decision No H3, but reached no consensus. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-473/18 
 
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5 The referring court had already made a request for a preliminary ruling to the 
Court on 18 April 2013 on, inter alia, the interpretation of Decision No H3. 
However, in the resulting judgment of 30 April 2014, Wagener (C-250/13, 
EU:C:2014:278), the Court refrained from answering the questions on Decision 
No H3, as they were not relevant for the purposes of the decision. 
Brief summary of the basis for the reference 
6 In principle, the applicant, who lives in Germany, has a right to (differential) child 
allowance. She fulfils the requirements under national law to receive child 
allowance for her children who also live in Germany. However, pursuant to 
Article 68 of Regulation No 883/2004, the right to claim child allowance on the 
basis of place of employment takes precedence, thus, in the present case, the right 
to Swiss child allowance comparable to German child allowance. In line with that, 
point 2 in sentence 1 of Paragraph 65(1) EStG provides that child allowance will 
not be paid for a child in respect of which social welfare benefits comparable to 
child allowance are payable abroad. The applicant therefore only has a right to 
German differential child allowance if and to the extent that German child 
allowance is greater than the comparable Swiss child allowance. 
7 The amount of the claim for differential child allowance is uncertain. That amount 
is dependent on the rate of conversion. If Regulation No 883/2004 applies, any 
currency conversion necessary is to be carried out pursuant to Article 90 of 
Regulation No 987/2009 (see judgment of 30 April 2014, Wagener, C-250/13, 
EU:C:2014:278, paragraph 33). Pursuant to the second sentence of Article 90, the 
relevant date for determining the exchange rate is to be fixed by the 
Administrative Commission. On the basis of that enabling provision, the 
Administrative Commission issued Decision No H3 on 15 October 2009. 
8 It is uncertain which of the reference dates referred to in Decision No H3 is to be 
applied in the present case. The first matter to be examined is whether paragraph 3 
of the decision is applicable. Paragraph 3(a) ought not to apply simply due to the 
fact that the German differential child allowance for a given month is dependent 
on the Swiss child allowance for that same month and not on previous months. 
Nevertheless, Paragraph 3(b) may still apply. According to that provision, an 
institution of a Member State, which, for the purpose of the establishment of an 
entitlement and for the first calculation of the benefit, has to convert an amount 
into the currency of another Member State, is to proceed as follows: when, 
according to national law, for the purpose of calculation of the benefit an 
institution takes into account one amount, it is to use the rate of conversion 
published for the first day of the month immediately preceding the month when 
the provision must be applied. 
9 In its order for reference in Case C-250/13, the referring court argued that 
Paragraph 3(b) of Decision No H3 is not relevant, because, in order for it to apply, 
it is necessary that the institution takes into account amounts ‘according to 
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national law’, which is not the case in respect of a claim for differential child 
allowance during employment in Switzerland, on account of point 2 in sentence 1 
of Paragraph 65(1) EStG; rather, Swiss family benefits are to be taken into 
account in this case by the family allowance office ‘directly in accordance with 
EU law’. The referring court maintains that that narrow interpretation of regard ‘to 
national law’ is uncertain, in so far as a broader interpretation of regard ‘to 
national law’ in accordance with national case-law can also be argued, pursuant to 
which the right to child allowance ultimately arises under national law. In 
addition, it appears to be questionable whether the provision in Decision No H3 to 
be applied for the purposes of establishing the currency conversion depends upon 
whether or not there is a statutory condition comparable to point 2 in sentence 1 of 
Paragraph 65(1) EStG in the relevant national law. 
10 Further, the application of Paragraph 3(b) of Decision No H3 (and of Paragraph 3 
in general) could be precluded by the fact that an institution of a Member State 
has to convert an amount into the currency of another Member State in accordance 
with the introductory sentence of Paragraph 3. According to a strict interpretation 
of that wording it can be argued that the German family allowance office, as an 
institution of a Member State, does not have to convert the amount into the 
currency of another Member State, but rather, vice versa, it must convert a (CHF) 
amount into its own currency (euro). 
11 These doubts exist also in respect of any application of Paragraph 4 of Decision 
No H3, according to which Paragraph 3 is to apply mutatis mutandis when an 
institution of a Member State has to convert an amount into the currency of 
another Member State for the recalculation of the benefit, due to changes in the 
factual or legal situation of the person concerned. 
12 In the event that Paragraph 3(b) of Decision No H3 cannot be applied, the catch-
all provision in Paragraph 2 of Decision No H3 may be applicable. According to 
that provision, the rate depends upon ‘the operation [being] performed by the 
institution’. As is specified in the order for reference in Case C-250/13, it is 
unclear, in that respect, whether that reference is to the national or foreign 
institution and which ‘operation’ is being referred to in Paragraph 2. 
13 Finally, Paragraph 5 of Decision No H3 is also to be taken into account. 
According to that provision, an institution which pays a benefit that is regularly 
indexed according to the national law, and where the amounts in other currency 
have an impact on that benefit, is, when recalculating it, to use the rate of 
conversion applicable on the first day of the month preceding the month when the 
indexation is due, unless provided for differently in the national law. The referring 
court assumes that an increase in child allowance constitutes a regular indexation 
within the meaning of Paragraph 5. It also assumes that at the beginning of the 
temporal scope of application, in respect of Switzerland, of Regulation 
No 883/2004 and Regulation No 987/2009 the application of Paragraph 5 of 
Decision No H3 was not triggered on 1 April 2012 (since the child allowance was 
not increased on 1 April 2012). If it were to be assumed otherwise, then it would 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-473/18 
 
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depend on the requirements arising from the saving clause (‘unless provided for 
differently in the national legislation’). In this regard, the question could arise as 
to whether the saving clause is compatible with Article 90 of Regulation 
No 987/2009. If the latter question is answered in the affirmative, a further 
question arises as to the form in which national law may establish derogating 
provisions.