Judgment;Summary — ECLI:EU:C:2021:383
Date: 2021-05-12
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Citizenship of the Union;Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: France

summary submissions of 22 October 2018, which were repeated in their 
oral submissions at the hearing, and to which express reference is made, the 
applicants maintain their original claims. 
The [CAF d’Ille-et-Vilaine] contends that the court should declare the action 
unfounded and uphold the decision of the amicable settlement committee, on the 
basis that there has been no contravention of EU law and in accordance with 
Article R [532-3] of the Social Security Code, which, in its view, does not infringe 
the principle of equal treatment. 
GROUNDS FOR THE DECISION 
Having regard to the connection between them, and in the interests of the proper 
administration of justice, it is appropriate to order the joinder of Actions 18.00200 
and 18.00480. 
As regards the calculation of family allowance rights, Article R 532-3 of the 
Social Security Code specifies: 
The resources to be taken into account shall be those received during the 
reference calendar year. The reference calendar year shall be the year before that 
preceding the payment period. 
Subject to Articles R. 532-4 to R. 532-8 and to the following paragraphs of the 
present article, the resources to be taken into account shall be the total of the 
specific classes of net income used for the purposes of calculating income tax in 
accordance with the scale for income subject to proportional taxation or subject 
to an income tax deduction at source, and the income received outside France or 
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paid by an international organisation, excluding any income of children which 
has been subject to joint taxation and after application of: 
(a) the deduction relating to maintenance claims referred to in paragraph 2 in 
section II of Article 156 of the code général des impôts (General Tax Code) and 
increased as provided for in Article 158(7) of [that code]; 
(b) the abatement referred to in Article 157 bis of the General Tax Code payable 
to elderly or disabled persons. 
The following shall also be taken into account: [Or. 4] 
1° the daily allowance referred to in paragraph 2 of Article L. 431-1, after 
application of the deduction corresponding to that referred to in the second 
subparagraph of paragraph 3 of Article 83 of the General Tax Code; 
2° the remuneration referred to in Article 81 quater of the General Tax Code; 
Amounts falling due under lifetime annuities payable to disabled persons, as 
referred to in paragraph 2 of Article 199 septies of the General Tax Code, shall be 
excluded from the calculation of resources. 
Deductions made pursuant to Article 156-1 of the General Tax Code in respect of 
the carrying-forward of losses incurred in a year prior to that under 
consideration shall not be taken into account. 
Where the resources of the recipient of a family allowance or his or her spouse or 
unmarried partner are not derived, in the reference year, from salaried 
employment, and are not known at the time of the application for or review of 
rights, the resources to be taken into account shall be the most recent known 
resources, determined in accordance with the conditions set out in the preceding 
paragraphs. Those resources shall be adjusted by applying the average annual 
rate of change in the household consumer prices index for the reference calendar 
year as set out in the economic and financial report annexed to the draft finance 
law. 
In the case of unmarried partners, the resources to be taken into account shall be 
those received by each of the partners during the reference year, determined in 
accordance with the conditions set out in the preceding paragraphs. 
Article 49 of the code de procédure civile (Civil Procedure Code) provides: 
Any court hearing an application in respect of which it has jurisdiction may hear 
and determine any plea raised by way of defence, even if it necessitates the 
interpretation of a contract, except for pleas raising an issue which falls within 
the exclusive jurisdiction of another court. 
CAF 
 
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Where the resolution of a dispute depends on an issue giving rise to serious 
difficulty and falling within the jurisdiction of the administrative courts, the 
judicial court before which the matter has initially been brought shall refer that 
issue to the competent administrative court, pursuant to Title 1 of Book III of the 
code de justice administrative (Administrative Justice Code). It shall stay the 
proceedings pending a decision on the question referred. 
Under Article 267 of the Treaty on the Functioning of the European Union: 
The Court of Justice of the European Union shall have jurisdiction to give 
preliminary rulings concerning: 
(a) the interpretation of the Treaties; 
(b) the validity and interpretation of acts of the institutions, bodies, offices or 
agencies of the Union; 
Where such a question is raised before any court or tribunal of a Member State, 
that court or tribunal may, if it considers that a decision on the question is 
necessary to enable it to give judgment, request the Court to give a ruling thereon. 
[Or. 5] 
Where any such question is raised in a case pending before a court or tribunal of 
a Member State against whose decisions there is no judicial remedy under 
national law, that court or tribunal shall bring the matter before the Court. 
If such a question is raised in a case pending before a court or tribunal of a 
Member State with regard to a person in custody, the Court of Justice of the 
European Union shall act with the minimum of delay. 
Article 45(2) [TFEU] provides that freedom of movement for workers entails 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. 
Under that principle, any national measure which prevents or hinders the exercise 
of the fundamental freedoms, or makes it less attractive, constitutes a restriction of 
free movement, though Member States are entitled to adopt national measures 
where there are overriding reasons in the public interest for doing so, provided 
that those measures are apt to ensure the attainment of the objective pursued and 
do not go beyond what is necessary for that purpose, it being understood that 
national legislation is not apt to ensure the attainment of the objective pursued 
unless it genuinely responds to a concern to attain that objective and does so in a 
coherent and systematic manner. 
It should also be borne in mind that the principle of non-discrimination laid down 
in Articles 45 and 49 [TFEU] prohibits not only direct or overt discrimination but 
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also all covert forms of discrimination which, by the application of other 
distinguishing criteria, lead to the same result. 
In the present case, the question arises of whether the provision at issue can be 
justified on the basis of overriding reasons in the public interest, or whether it is 
discriminatory. 
Given that, in principle, a citizen of a Member State of the European Union must, 
in all Member States, receive the same legal treatment as nationals of those 
Member States who are in the same situation [and] in the light of that uncertainty 
[as to whether] it would be incompatible with the right of free movement for such 
a citizen to receive, in the Member State of which he or she is a national, less 
favourable treatment than he or she would have received if he or she had not 
exercised the rights of movement available to him or her under the [TFEU], it is 
appropriate to refer [a question] to the Court of Justice of the European Union [for 
a preliminary ruling]. 
[…] 
ON THOSE GROUNDS 
The court […], [Or. 6] 
[…] 
• Refers the following question to the Court of Justice of the European Union: 
‘Is EU law, in particular Articles 20 and 45 of the Treaty on the Functioning 
of the European Union, Article 4 of Regulation No 883/2004 and Article 7 of 
Regulation No 492/2011, to be interpreted as precluding a provision of 
national legislation, such as Article R 532-3 of the code de la sécurité sociale 
(French Social Security Code), which defines the reference calendar year, for 
the purposes of calculating family allowances, as the year before that 
preceding the payment period, and results, in a situation where the income of 
the person claiming the allowance has risen substantially in another Member 
State, and then fallen [following] his or her return to his or her Member State 
of origin, in that person being deprived, unlike residents who have not 
exercised their right of free movement, of part of his or her family allowance 
rights?’ 
• Stays the proceedings in the action brought by QG and PF, 
[…]. [procedural matters]