Opinion of the Advocate General — ECLI:EU:C:2021:1017
Date: 2021-12-16
Language of the case: German
Subject matter: Citizenship of the Union;Right of establishment;Principles, objectives and tasks of the Treaties;Freedom to provide services;Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-411/20 – 1 
Case C-411/20 
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: 
2 September 2020 
Referring court: 
Finanzgericht Bremen (Germany) 
Date of the decision to refer: 
20 August 2020 
Applicant: 
S 
Defendant: 
Familienkasse Niedersachsen-Bremen der Bundesagentur für Arbeit 
  
Subject matter of the main proceedings 
Freedom of movement – Social security – Directive 2004/38/EC – Regulation 
No 883/2004 – Family benefits – Child benefit – Proof of national income – Equal 
treatment  
Subject matter and legal basis of the reference for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Must Article 24 of Directive 2004/38/EC and Article 4 of Regulation (EC) 
No 883/2004 be interpreted as precluding legislation of a Member State under 
which a national of another Member State, who establishes a permanent residence 
or habitual residence in the Member State concerned and does not prove that he 
has national income from agriculture and forestry, business, employment or self-
employment, has no entitlement to family benefits within the meaning of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-411/20 
 
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Article 3(1)(j) of Regulation (EC) No 883/2004, in conjunction with Article 1(z) 
thereof, for the first three months of establishing a permanent residence or 
habitual residence, whilst a national of the Member State concerned, who is in the 
same situation, does have an entitlement to family benefits within the meaning of 
Article 3(1)(j) of Regulation (EC) No 883/2004, in conjunction with Article 1(z) 
thereof, without proving national income from agriculture and forestry, business, 
employment or self-employment? 
Provisions of EU law relied on 
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 amending Regulation 
(EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 
72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 
93/96/EEC (‘Directive 2004/38’), in particular Article 24 
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 
Articles 1, 3 and 4 
Provisions of national law relied on 
Einkommensteuergesetz (Law on income tax; ‘EStG’), in particular 
Paragraphs 31, 62(1) and (1a), 
Sozialgesetzbuch (Social Code; ‘SGB’) Second Book (II), Paragraph 11 
Succinct presentation of the facts and the main proceedings 
1 The applicant is the mother of three children born between 2003 and 2010. The 
father of the applicant’s children is her husband V. The applicant, V. and the three 
children are Bulgarian nationals. 
2 At the end of October 2019 the applicant applied to the defendant for child 
benefit. The applicant gave an address in Bremerhaven (Germany) as her 
residential address and in this respect submitted a rental agreement for a flat. The 
registration and household certificates submitted in the further course of the 
proceedings showed 19 August 2019 as the date on which she, her husband and 
three children moved from Bulgaria and also 19 August 2019 as the date on which 
they moved into the rented flat. On the basis of an overall assessment of the 
abovementioned documents and the other documents submitted, the defendant 
was satisfied that the applicant and her three children had had a permanent 
residence in Germany within the meaning of Paragraph 62 of the EStG since 
19 August 2019. The defendant was also able to identify the applicant, her 
FAMILIENKASSE NIEDERSACHSEN-BREMEN 
 
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husband and her three children by means of identification numbers assigned to 
each of them under the second sentence of Article 62(1) of the EStG and the third 
sentence of Paragraph 63(1) thereof. 
3 In the administrative proceedings the applicant stated that she had been seeking 
employment from 19 August 2019 until 4 November 2019 and had been employed 
as an employee at Z-Service GmbH in Bremerhaven, with a regular working time 
of 20 hours a week, since 5 November 2019. She submitted an employer’s 
certificate from that undertaking showing that her husband V. had been employed 
there regularly for 20 hours per week, without interruption, since 5 November 
2019. 
4 By decision of 27 December 2019, the defendant refused to grant child benefit for 
the three children as from August 2019. The applicant lodged an objection to this 
with the defendant on 20 January 2020. As grounds, the applicant stated that she 
and her family were entitled to freedom of movement. Her husband had worked in 
the period from 5 November 2019 to 12 December 2019. For this reason, the 
status of worker had been qualified for. She herself had found work from 
17 January 2020. 
5 By decision of 6 April 2020, the defendant dismissed the applicant’s objection as 
unfounded. 
6 The defendant essentially stated the following grounds for its decision: Under 
Paragraph 62(1a) of the EStG, in the first three months following establishment of 
a permanent residence or habitual residence in Germany nationals of the European 
Union and the European Economic Area who are entitled to freedom of movement 
and resident in Germany may obtain child benefit only if they receive ongoing 
national income from agriculture and forestry, business, employment or self-
employment. In the present case no entitlement to child benefit during the first 
three months following establishment of permanent residence in Germany exists 
since no national income was received during the first three months. The applicant 
is not in gainful employment and the father of the children, V., was in minor 
employment in the period from 5 November 2019 to 12 December 2019. 
7 On 10 May 2020 the applicant brought an action against the objection decision of 
6 April 2020 before the referring court. As grounds, she states that an entitlement 
to child benefit exists because her husband V. is in fact working. 
8 The applicant requests, in essence, that the defendant be ordered to grant her child 
benefit for children S., N. and A. for the months August 2019 to October 2019 and 
the decision of 27 December 2019 in the form of the objection decision of 6 April 
2020 be annulled. 
9 The defendant contends that the action should be dismissed.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-411/20 
 
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Succinct presentation of the reasons for the request for a preliminary ruling 
10 German child benefit is granted to beneficiaries regardless of parental income and 
regardless of an individual and discretionary assessment of personal needs. It is 
funded not from the recipient’s contributions, but by taxes. Under Paragraph 31 of 
the EStG, it has a dual function. It serves to exempt from tax, as required by the 
constitution, what is necessary for the child’s minimum standard of living, 
including the need for care, upbringing and education, under the first sentence of 
Article 31 of the EStG, and, in so far as the child benefit is not required for this 
purpose, to promote the family under social law, under the second sentence of 
Article 31 of the EStG. 
11 As a State contribution to the family budget, which is intended to reduce the costs 
of maintaining children, German child benefit is a cash benefit to meet family 
expenses. It is a social security benefit which falls under family benefits under 
Article 3(1)(j) of Regulation No 883/2004, in conjunction with Article 1(z) 
thereof. 
12 In July 2019 subparagraph 1a was inserted into Paragraph 62 of the EStG. This 
rule is to be applied for the first time to child benefit assessments concerning 
periods which begin after 31 July 2019. The first sentence of Paragraph 62(1a) of 
the EStG stipulates inter alia that a national of another Member State has no 
entitlement to child benefit in the first three months of establishing a permanent 
residence or habitual residence in Germany. Under the second sentence of 
Article 62(1a) of the EStG, this does not apply if he proves that he receives 
income in Germany from agriculture and forestry, business, employment or self-
employment, this is to say is gainfully employed. 
13 The applicant has not provided evidence to show that she was gainfully employed 
in the months August 2019 to October 2019 at issue. Since, as a Bulgarian 
national, she is the national of another Member State and established a residence 
in Germany after moving there with the husband and three children from Bulgaria 
on 19 August 2019, she is, under the first sentence of Paragraph 62(1a) of the 
EStG, excluded from receiving German child benefit for the first three months of 
establishing her residence in Germany, that is to say in respect of the months 
August 2019 to October 2019 at issue. 
14 By contrast, the entitlement to child benefit of the Federal Republic of Germany’s 
own nationals, who establish a permanent residence or habitual residence in 
Germany after a stay in another Member State, is not dependent on them being 
gainfully employed. 
15 The German legislature concluded that this unequal treatment is compatible with 
EU law because child benefit could provide an unintended incentive for 
movement from other Member States and inappropriate use of the social security 
scheme in Germany has to be prevented. For non-gainfully employed nationals of 
another Member State child benefit acts like a social benefit and, where assistance 
FAMILIENKASSE NIEDERSACHSEN-BREMEN 
 
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under social law was required as income, reduces need (see Paragraph 11(1) of 
Book II of the Social Code). Therefore, Article 24(2) of Directive 2004/38 is 
applicable, which – by derogation from the duty of equal treatment laid down in 
Article 24(1) of Directive 2004/38 – provides for exclusion from entitlement to 
social assistance during the first three months of residence. 
16 The Federal Government’s draft law of 25 March 2019 does not expressly address 
whether, and if so, to what extent Article 4 of Regulation No 883/2004 can 
preclude refusal to grant German child benefit to non-gainfully employed 
nationals of another Member State during the first three months of establishing a 
permanent residence or habitual residence in Germany. The German legislature 
evidently considerers any breach of the duty of equal treatment laid down in 
Article 4 of Regulation No 883/2004 justified by the possibility, provided for in 
Article 24(2) of Directive 2004/38, of restricting access to the national social 
assistance schemes for non-gainfully employed nationals of another Member 
State. 
17 Furthermore, the Federal Government’s draft law refers to the Court of Justice’s 
findings in its judgment of 14 June 2016 concerning rules on the granting of child 
benefit in the United Kingdom (C-308/14, Commission v United Kingdom, 
ECLI:EU:C:2016:436, paragraph 63 et seq.), according to which Regulation 
No 883/2004 merely lays down, in relation to family benefits, conflict rules which 
determine what national law is to be applied in cross-border cases. Regulation 
No 883/2004 does not lay down the conditions creating the right to social security 
benefits. They fall within the competence of each national legislature. 
18 By contrast, it is argued in academic writings that German child benefit cannot be 
classified as social assistance within the meaning of Article 24(2) of Directive 
2004/38 because it is granted without a means test. As a family benefit within the 
meaning of Article 3(1)(j) of Regulation No 883/2004, in conjunction with 
Article 1(z) thereof, German child benefit is a genuine social security benefit 
which cannot be regarded as social assistance within the meaning of Article 24(2) 
of Directive 2004/38. 
19 This view may be supported by the fact that Germany also has competence for 
granting family benefits to non-gainfully employed nationals of another Member 
State who reside in Germany. Article 67 of Regulation No 883/2004 provides that 
a person is to be entitled to family benefits in accordance with the legislation of 
the competent Member State, including for his family members residing in 
another Member State, as if they were residing in the former Member State. 
Article 11(3) of Regulation No 883/2004 confers competence for gainfully 
employed nationals of another Member State on the Member State in which the 
activity as an employed or self-employed person is pursued and competence for 
non-gainfully employed nationals of another Member State on the Member State 
of residence.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-411/20 
 
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20 Article 4 of Regulation No 883/2004 lays down a duty of equal treatment. 
According to that provision, unless otherwise provided for by that regulation, 
persons to whom that regulation applies are to enjoy the same benefits and be 
subject to the same obligations under the legislation of any Member State as the 
nationals thereof.  
21 On account of the primacy of EU law, a breach of the duty of equal treatment laid 
down in Article 4 of Regulation 883/2004 renders the discriminatory feature of 
national law inapplicable where the other conditions for entitlement to the benefit 
are applied (settled case-law of the Court of Justice since the judgment of 
16 December 1976, 63/76, Inzirillo, ECLI:EU:C:1976:192). 
22 The exclusion of non-gainfully employed nationals of another Member State from 
receiving child benefit for the first three months from establishment of a 
permanent residence or habitual residence in Germany pursuant to the first 
sentence of Paragraph 62(1a) of the EStG constitutes overt, direct discrimination 
since the decisive distinguishing criterion is nationality. Regulation No 883/2004 
itself contains no (express) provision authorising such a difference in treatment. 
Therefore, if it were concluded that the first sentence of Paragraph 62(1a) of the 
EStG breaches the duty of equal treatment laid down in Article 4 of Regulation 
No 883/2004, the provision would not be applicable as regards its discriminatory 
effects (exclusion from benefits). The applicant’s entitlement to child benefit for 
the months August 2019 to October 2019 at issue would then arise from 
Paragraph 62(1)(1) and the second sentence of Paragraph 63(1) of the EStG, in 
conjunction with Paragraph 32(1) and (3) thereof. 
23 If, on the other hand, it were concluded that the breach of the duty of equal 
treatment laid down in Article 4 of Regulation No 883/2004 is justified by the 
possibility provided for in Article 24(2) of Directive 2004/38 of restricting access 
to the national social assistance schemes for non-gainfully employed nationals of 
another Member State, the applicant would have no entitlement under the first 
sentence of Paragraph 62(1a) of the EStG to child benefit for the months August 
2019 to October 2019 at issue.