Opinion of the Advocate General — ECLI:EU:C:2001:82
Date: 2001-02-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Principles, objectives and tasks of the Treaties;Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Austria

summary publication, and Hoever and Zachow, cited above, paragraph 34). 41. As has been held in paragraphs 33 and 36 above, the benefit at issue here has the characteristics of a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71 and there is nothing to prevent the applicant having the status of a member of the family of a worker or former worker for the purposes of Article 2(1) of Regulation No 1408/71, read in the light of Article 1(f)(i) thereof. 42. Admittedly, as the Swedish Government has pointed out, Regulation No 1408/71 does not expressly cover family situations following a divorce. However, contrary to that Government's argument, there is nothing to justify the exclusion of such situations from the scope of Regulation No 1408/71. 43. One of the normal consequences of a divorce is that custody of children is granted to one of the parents, with whom those children will reside. It is possible, for a variety of reasons (in this case as the result of a divorce), that the parent with custody of a child will leave his or her Member State of origin and become established in another Member State in order to work there. In such a case, the residence of the minor child will also be transferred to that other Member State. 44. In the present case, it is common ground that the applicant would have been entitled to the advance on maintenance payments had she continued to reside in Austria. The only reason for her exclusion from the benefit of that advance lies in the fact that her mother, who has custody of her, has exercised her right of free movement, which activated the residence clause contained in the UVG. 45. Two objections have been raised by the Austrian and Swedish Governments and by the Commission against application of Articles 73 and 74 of Regulation No 1408/71 in the present case, both of which rest on the fact that the UVG establishes an original right vested in the child herself. 46. It is contended, first, that, in a situation such as the present, no one is exercising the right of free movement for workers conferred by the Treaty. The parent subject to the legislation of the Member State providing the benefit, in casu the father, has not exercised that right, while the transfer to another Member State of the minor child, who is the beneficiary of the benefit, does not result from the exercise by that child of the right of free movement enjoyed by workers. 47. Second, Articles 73 and 74 of Regulation No 1408/71 provide that it is the parent working in the Member State providing the benefit who must apply for family benefits on behalf of the members of his or her family. In a situation such as the present it is the minor child who, in order to overcome the failure by that parent to comply with his maintenance obligations, seeks directly to invoke those provisions. 48. With regard to the first objection, it follows from the title of Regulation No 1408/71 and from Article 2 thereof that this regulation governs the application of social security schemes to members of the family of employed persons or self-employed persons moving within the Community, with the result that, if a member of the family of a worker resides in a Member State other than that in which the worker resides, the provisions of Regulation No 1408/71 are, in principle, applicable (see, along these lines, Case 115/77 Laumann [1978] ECR 805, paragraph 5, and Case C-194/96 Kulzer [1998] ECR I-895, paragraph 30). 49. A fortiori, the same holds true where, as in the present case, the transfer of the worker's child, a member of the worker's family, results from the exercise by that worker's former spouse of her right of free movement. 50. With regard to the second objection, it is true that the UVG establishes an original right vested in the child. That said, family benefits by their nature cannot be regarded as payable to an individual in isolation from his or her family circumstances (see Hoever and Zachow, paragraph 37). It follows, as regards application of Articles 73 and 74 of Regulation No 1408/71, first, that the legal classification of the benefit under domestic law has no bearing on their interpretation and, second, that it is irrelevant that the person to whom that benefit is to be awarded is a member of the worker's family rather than the worker himself. 51. According to the Court's case-law, the spouse of an employed person can directly claim a right to family benefits under Article 73 of Regulation No 1408/71 provided that he or she is a member of the family of a worker who fulfils the conditions laid down in Article 73 and provided also that under national legislation the family benefits concerned are provided for family members (see Case C-78/91 Hughes [1992] ECR I-4839, paragraph 26, and Hoever and Zachow, paragraphs 30 and 38). There is nothing to prevent that reasoning from being extended to all family members. 52. It follows from all of the foregoing that a member of the family of a worker, including a minor child such as the applicant, may directly invoke Articles 73 and 74 of Regulation No 1408/71 in order to apply, without the intervention of the worker himself, for the grant of a family benefit in circumstances where the conditions governing application of those articles are otherwise satisfied. 53. This conclusion is valid a fortiori where, as in the present case, entitlement to the benefit in question arises precisely because of the worker's failure to meet his maintenance obligations towards his family. 54. In light of the foregoing, the answer to the first question must be that: - a benefit such as the advance on maintenance payments provided for by the UVG is a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71; - a person, one or other of whose parents is an employed person or is out of work, comes within the scope ratione personae of Regulation No 1408/71 as a member of the family of a worker within the meaning of Article 2(1) of Regulation No 1408/71, read in the light of Article 1(f)(i) thereof; - Articles 73 and 74 of Regulation No 1408/71 are to be construed as meaning that, where a minor child resides with the parent who has custody in a Member State other than the Member State providing the benefit, and where the other parent, who is under an obligation to pay maintenance, works or is unemployed in the Member State providing the benefit, that child is entitled to receive a family benefit such as the advance on maintenance payments provided for by the UVG. The second question 55. As the answer to the first question is in the affirmative, there is no need to reply to the second question. Costs 56. The costs incurred by the Austrian, Danish, German and Swedish Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. On those grounds, THE COURT, in answer to the questions referred to it by the Oberster Gerichtshof by order of 23 June 1999, hereby rules: 1. A benefit such as the advance on maintenance payments provided for by the Österreichische Bundesgesetz über die Gewährung von Vorschüssen auf den Unterhalt von Kindern (Unterhaltsvorschussgesetz) (Austrian Federal Law on the Grant of Advances for the Maintenance of Children), adopted in 1985, is a family benefit within the meaning of Article 4(1)(h) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996. 2. A person, one or other of whose parents is an employed person or is out of work, comes within the scope ratione personae of Regulation No 1408/71, as amended, as a member of the family of a worker within the meaning of Article 2(1) of Regulation No 1408/71, read in the light of Article 1(f)(i) thereof. 3. Articles 73 and 74 of Regulation No 1408/71 are to be construed as meaning that, where a minor child resides with the parent who has custody in a Member State other than the Member State providing the benefit, and where the other parent, who is under an obligation to pay maintenance, works or is unemployed in the Member State providing the benefit, that child is entitled to receive a family benefit such as the advance on maintenance payments provided for by the Unterhaltsvorschussgesetz. Jann Macken Colneric Gulmann Edward La Pergola Wathelet Schintgen Skouris Delivered in open court in Luxembourg on 5 February 2002. R. Grass G.C. Rodríguez Iglesias Registrar President 1: Language of the case: German.