Judgment;Summary — ECLI:EU:C:2020:203
Date: 2020-03-12
Language of the case: French
Court formation: Eighth Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the provisions of European Union law relied on in support of the 
ground of appeal: 
8. In Title 1: General Provisions, Article 5 of Regulation No 883/2004, entitled 
‘Equal treatment of benefits, income, facts or events’, provides: 
Unless otherwise provided for by this Regulation and in the light of the special 
implementing provisions laid down, the following shall apply:  
(a) where, under the legislation of the competent Member State, the receipt of 
social security benefits and other income has certain legal effects, the relevant 
provisions of that legislation shall also apply to the receipt of equivalent benefits 
acquired under the legislation of another Member State or to income acquired in 
another Member State; 
(b) where, under the legislation of the competent Member State, legal effects are 
attributed to the occurrence of certain facts or events, that Member State shall 
take account of like facts or events occurring in any Member State as though they 
had taken place in its own territory. 
Summary of national provisions (France): 
9. Under Article L. 351-4-1 of the Social Security Code: 
Socially insured persons raising a child and entitled, pursuant to the first and 
second paragraphs of Article L. 541-1, to the child-rearing allowance for a 
disabled child and to any supplement thereto or, instead of the latter, to the 
receipt of the compensation allowance provided for by Article L. 245-1 of the 
Social Action and Families Code, shall benefit, without prejudice, as the case may 
be, [Or. 5] to Article L. 351-4, from an increase in their period of insurance by 
one quarter per period of child-rearing of thirty months, subject to a maximum of 
eight quarters.  
10. Under Article L. 541-1 of the same code:  
Any person with responsibility for a disabled child is entitled to a child-rearing 
allowance for a disabled child, if the child’s permanent disability is at least 
equivalent to the specified rate.  
An additional allowance shall be granted in respect of a child with a disability if 
the nature or the severity of that disability requires high expenditure or regular 
help from a third party. The amount thereof shall vary according to the 
importance of the additional expenditure or the permanence of the required 
assistance.  
That allowance and, as the case may be, the supplement thereto may be granted 
where the permanent disability of the child, whilst it does not reach the 
percentage referred to in the first paragraph, nevertheless remains equivalent to 
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or exceeds a minimum, where the child attends an establishment referred to in 
point 2 or point 12 of paragraph 1 of Article L. 312-1 of the Social Action and 
Families Code or where the child’s condition requires recourse to a customised 
device or support within the meaning of Article L. 351-1 of the Education Code or 
requires care in accordance with measures recommended by the Committee 
referred to in Article L. 146-9 of the Social Action and Families Code.  
The child-rearing allowance for a disabled child is not payable where a child is in 
residential care and the costs thereof are covered by health insurance, by the 
State or by social assistance, except for holiday periods and periods during which 
the care is suspended.  
11. For the purposes of the application of the provisions in point 10, Article R. 541-1 
of the same code sets the degree of permanent incapacity which the disabled child 
must demonstrate in order to qualify for the child-rearing allowance for a disabled 
child at 80% (first paragraph) and at the rate of 50% for the application of the 
third paragraph of Article L. 541-1 of the Social Security Code (paragraph 3). 
The provisions of national law (Germany) as they appear in the documents in the 
case: 
12. The assistance for the integration of children and young people with mental 
disabilities which SJ received for her daughter derives, in principle, from the 
provisions of a federal law of 26 June 1990 (BGBl I, p. 1163) inserted after 
Paragraph S 35a of the Sozialgesetzbuch (German Social Code, SGB). Those 
provisions provide: 
Children and young people with a mental disability or threatened by such a 
disability are entitled to assistance for integration. That assistance is available 
according to individual need: [Or. 6]  
1. on an outpatient basis, 
2. in a crèche for young children or on a half-board basis in other settings; 
3. by suitable personal care staff and  
4. on the basis of board in a specialised facility or in other types of 
accommodation.  
The purpose and objective of the assistance, the designation of the groups of 
persons and the types of measures are covered by Paragraphs 9(3) and 40 of the 
federal law on social assistance and the duration of the application of these 
provisions to persons with mental disabilities or persons at risk of such disability 
are covered by the law implementing Paragraph 47. 
Where assistance for education is granted at the same time, the institutions, 
services and staff that are used for the fulfilment of the duties of the integration 
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assistance should also be used to meet the educational needs. Therapeutic 
educational measures must be offered for children who have not yet reached 
school age and, if the care needs allow, use should be made of facilities catering 
for both children with disabilities and children without disabilities.  
Grounds for reference:  
13. The value of retirement pensions under the general scheme is determined mainly 
by the period during which the insured was, prior to claiming his pension, subject 
to the scheme and required to contribute to old-age provision. That period is 
expressed in quarters, the payment of contributions relating to a minimum period 
of paid employment … Where the insured does not have sufficient quarters to 
meet the required number (which depends on the year of birth of the insured), the 
calculation of the pension is subject, depending on the number of the shortfall in 
quarters, first, to a reduction in its rate (discount) and secondly, to proration of its 
amount; the reduction in rate is, however, avoided if the insured has reached a 
certain age (65 for those insured persons, like SJ, born before 1952); conversely, 
an insured person who can show that he has more than the required number of 
quarters may, under certain conditions, claim an increase in his pension rate 
(premium). 
14. Where the career normally consists of periods generating contributions, it may be 
completed by the taking into account of periods [Or. 7] during which there was no 
employment or contributions, but which are nevertheless treated as such periods 
and taken into account for the calculation of the pension. This is the case, for 
example, for periods of receipt of sickness or maternity benefits or periods of 
receipt of unemployment benefit as well as periods relating to the completion of 
national service. The supplementary pension for these periods is paid into the old-
age insurance scheme, either by the Old-Age Solidarity Fund or by the Family 
Benefits Fund.  
15. That is the framework for the operation of the provisions of Article L. 351-4-1 of 
the Social Security Code which entitles an insured person who has had 
responsibility for a disabled child to an increase in career equal to one quarter per 
period of 30 months of child-rearing, subject to a maximum of eight quarters. The 
increase is subject, however, to a very specific condition: receipt of child-rearing 
allowance for a disabled child.  
16. It is clear from the provisions on the child-rearing allowance for a disabled child, 
first, that it falls within the field of family benefits, which is one of the branches of 
the French social security system; as such, it is included within the material scope 
of social security within the meaning of Article 2 of Regulation No 883/2004. 
Secondly, the benefit is awarded by the Commission on the Rights and Autonomy 
of People with Disabilities and paid by the Family Benefits Fund; it is subject to 
objective criteria and is not means-tested. Thirdly, the rate of disability of the 
child in respect of whom the allowance and the supplement thereto are payable are 
determined, in the various cases in which they are payable, according to a scale-
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guide which is prescribed by regulation and subject to judicial control. Lastly, it is 
noteworthy that the disabled child supplement applies without prejudice to the 
provisions of Article L. 351-4 of the Social Security Code, which entitles any 
insured person who has had or has raised children, subject to the conditions laid 
down therein, to an increase in the duration of his career for the purposes of the 
calculation of his pension. It was in those circumstances that SJ was entitled to 
receive the child-rearing allowance for a disabled child, in respect of her daughter.  
17. It should be added that receipt of the career increase provided for in Article 
L. 351-4-1 of the Social Security Code also applies where the disability insurance 
takes the form of the disability compensation allowance provided for by Article 
L. 245-1 of the Social Action and Families Code, rather than the child-rearing 
allowance for a disabled child, the payment of which normally ends on the child’s 
20th birthday. Normally available to disabled persons aged 20 years and over (16 
in certain specified cases), the compensation allowance [Or. 8] falls within the 
scope of social assistance; entitlement to the allowance is not directly means-
tested but income is taken into account, as appropriate, in order to determine the 
amount of the allowance.  
18. From the evidence presented, the assistance paid to SJ by the City of Stuttgart 
does not appear, in accordance with the relevant rules of German law, to fall 
within the scope of the social security structure, but rather within the scope of 
social support and assistance. Moreover, it is not included in the declaration made 
by the German Government to the European Union pursuant to Article 9 of 
Regulation No 883/2004 which describes the German legislation included within 
the material scope of that Regulation relating to contributory benefits (benefits 
within a branch of social security within the meaning of Article 3(1)) or the 
special benefits which comprise a mixture of social security and social assistance 
(benefits referred to in Article 3(3) of the Regulation, falling within the scope of 
Article 70 and Annex 10 thereof). Furthermore, it appears that this assistance is 
supplemental in nature and that its payment is not subject, a priori, to a specified 
rate or level of disability or handicap.  
19. The provisions of Article 5(a) of Regulation No 883/2004 have a very specific 
purpose: to enable an insured person who falls within the scope of the legislation 
of one Member State under which the receipt of social security benefits and other 
income has certain legal effects to have the same principal effects applied to 
‘equivalent benefits acquired under the legislation of another Member State or to 
income acquired in another Member State.’ There is no equivalent of that 
wording, which appears in a number of the general provisions of the Coordinating 
Regulation, in the previous Regulation No 1408/71/EC of 14 June 1971; 
nonetheless, it reflects the drafters’ concern to incorporate into the mechanism for 
coordination some of the guiding principles formulated by the Court of Justice of 
the European Union.  
20. The dispute between SJ and the CARSAT of Alsace-Moselle concerns, more 
particularly, the definition of equivalent benefits within the meaning of the 
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provisions of Regulation No 883/2004. Are the child-rearing allowance for a 
disabled child and the assistance for the integration of children and young people 
with mental disabilities equivalent benefits within the meaning of Article [5(a)] of 
Regulation No 883/2004 so that SJ can benefit, for the calculation of her pension 
under French legislation, from the career increase provided for by that legislation 
for the benefit of those insured persons who have raised a disabled child and, for 
that purpose, received the child-rearing allowance for a disabled child? 
21. Even though the assistance for the integration of children and young people with 
mental disabilities is not included in the list of benefits referred to in the 
declaration of the German Government pursuant to Article 9 of Regulation 
No 883/2004, that fact alone does not exclude the [Or. 9] benefit from the 
material scope of the regulation, given Article 3(3) and Article 70 thereof relating 
to special non-contributory benefits. The characterisation of the benefit, having 
regard to the provisions of Regulation No 883/2004 which determine the material 
scope of coordination, is of fundamental importance.  
22. If it is acknowledged that it is included within the material scope of Regulation 
No 883/2004, it must then be established whether the assistance for the integration 
of children and young people with mental disabilities and the child-rearing 
allowance for a disabled child constitute equivalent benefits within the meaning of 
Article 5(a) of the regulation, given that, whilst both have the same aim of 
compensating the costs inherent in the raising of a child with a disability, the 
payment of the child-rearing allowance for a disabled child is based on the 
fulfilment of objective criteria which entail, in particular, an increased rate of 
disability, but exclude any means-testing of the recipient, and the assistance for 
the integration of children and young people with mental disabilities seems to 
depend, primarily, on the actual extent of their needs.  
23. The Court of Justice of the European Union does not seem to have ruled on this 
issue. It is true that, in judgment C-453/14 of 21 January 2016, the Court held, 
first, that the provisions of Article [5(a)] of Regulation No 883/2004 were 
intended to apply only to benefits falling within the scope of that regulation 
(paragraph 32), and, secondly, that, in order to compare the benefits at issue, 
account had to be taken of the aim pursued by those benefits and by the legislation 
which established them (paragraph 34). However, the question referred to the 
Court concerned benefits which expressly fell within the scope of one or other of 
the conflicting national social security legislations within the meaning of 
Regulation No 883/2004. 
24. It therefore appears that the dispute between SJ and the CARSAT of Alsace-
Moselle raises a serious issue regarding the interpretation of Article 5(a) of 
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems, as to whether or 
[not] it applies, for the purposes of the calculation of a retirement pension under 
national law which confers legal effects on the former receipt of a family benefit, 
to a benefit paid under the social assistance legislation of another Member State.  
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25. It is therefore necessary to refer the issue to the Court of Justice of the European 
Union. 
ON THOSE GROUNDS: 
Having regard to Article 267 of the Treaty on the Functioning of the European 
Union; [Or. 10] 
The following questions are referred to the Court of Justice of the European 
Union:  
1. Does the social assistance for help with the expenditure associated with a 
disability provided for by Paragraph 35a of the Eighth Book of the 
Sozialgesetzbuch (German Social Code) fall within the material scope of 
Regulation No 883/2004? 
2. If it does, are the payment of the child-rearing allowance for a disabled child 
and the supplement thereto, or, in its place, the disability compensation allowance, 
on the one hand, and the social assistance for the integration of children and 
young people with mental disabilities, provided for in Paragraph 35a of the Eighth 
Book of the Sozialgesetzbuch (German Social Code), on the other hand, of an 
equivalent nature within the meaning of Article 5(a) of Regulation No 883/2004, 
having regard to the purpose of Article L. 351-4-1 of the French Social Security 
Code aimed at the taking into account of the costs inherent in raising a child with 
a disability for the purposes of the determination of the insurance period providing 
entitlement to a retirement pension?  
The proceedings are stayed pending the ruling of the Court of Justice of the 
European Union; 
…