Judgment;Summary — ECLI:EU:C:2024:355
Date: 2024-04-25
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-36/23 – 1 
Case C-36/23 
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: 
25 January 2023 
Referring court: 
Finanzgericht Bremen (Germany) 
Date of the decision to refer: 
19 January 2023 
Applicant: 
L 
Defendant: 
Familienkasse Sachsen der Bundesagentur für Arbeit 
  
Subject matter of the main proceedings 
Social security – Regulation (EC) No 883/2004 – Article 68 – Grant of family 
benefits – Residence of one parent in another Member State – Failure of that 
parent to apply for child benefit – Application for child benefit by the other 
parent – Consequences 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1) Does Article 68 of Regulation (EC) No 883/2004 allow German child 
benefit to be partly recovered retrospectively on the ground of a priority 
entitlement in another Member State, even though no family benefit has 
been or is being assessed or paid for the child in the other Member State, 
EN 
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with the result that the amount remaining to the beneficiary under German 
law effectively falls below the German child benefit? 
2) In the event that the first question is answered in the affirmative: 
Does the answer to the question as to the grounds on which benefits are 
payable by more than one Member State within the meaning of Article 68 of 
Regulation (EC) No 883/2004, or the bases on which the entitlements to be 
coordinated arise, depend on the conditions of entitlement under the national 
rules, or on the circumstances on account of which the persons concerned 
are subject to the legislation of the relevant Member States in accordance 
with Articles 11 to 16 of Regulation (EC) No 883/2004? 
3) In the event that the decisive criterion is the circumstances on account of 
which the persons concerned are subject to the legislation of the relevant 
Member States in accordance with Articles 11 to 16 of Regulation (EC) 
No 883/2004: 
Is Article 68 in conjunction with Article 1(a) and (b) and Article 11(3)(a) of 
Regulation (EC) No 883/2004 to be interpreted as meaning that an activity 
as an employed person or an activity as a self-employed person in another 
Member State, or an equivalent situation treated as such an activity for the 
purposes of social insurance legislation, is to be assumed to be present 
where the social insurance fund in the other Member State certifies that the 
person concerned is insured ‘as a farmer’ and the competent family benefits 
institution in that State confirms the existence of an activity as an employed 
person, even though the person concerned claims that that insurance is 
dependent only on ownership of the farm, which is registered as 
agriculturally productive land but is not actually in use? 
Provisions of European Union law relied on 
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 
No 883/2004’), in particular Article 1(a) and (b), Articles 11 to 16 and Article 68 
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 on the coordination of social security systems (‘Regulation 
No 987/2009’), in particular Articles 59 and 60 
Provisions of national law relied on 
Einkommensteuergesetz (Law on Income Tax), in the version unchanged, so far 
as the present case is concerned, since the publication of the revised version of the 
Law on Income Tax of 8 October 2009 (Bundesgesetzblatt (Federal Law Gazette), 
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Part I 2009, point 68, pp. 3366-3465) (‘the EStG’), in particular the third sentence 
of Paragraph 31, point 1 of the first sentence of Paragraph 32(1), Paragraph 32(3), 
the first sentence of Paragraph 62(1), the first and second sentences of 
Paragraph 63(1) and the first sentence of Paragraph 70(2) 
Abgabenordnung (Tax Code), in the version unchanged, so far as the present case 
is concerned, since the publication of the revised version of the Tax Code of 
1 October 2002 (Bundesgesetzblatt (Federal Law Gazette) Part I 2002, point 72, 
pp. 3866-3953) (‘the AO’), in particular Paragraph 37(1) and the first and second 
sentences of Paragraph 37(2) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The parties are in dispute over the partial revocation of a child benefit assessment 
and the recovery of the child benefit overpaid following that assessment in the 
period at issue, from July 2019 to September 2020. 
2 The applicant is a Polish national and has been employed in Germany for years. 
His child, born in 2008, and his wife (the child’s mother) live together in the 
family household in Poland. 
3 By letter of 22 February 2016, the applicant, with his wife’s consent, applied to 
the German authorities for child benefit for his child. To that end, he provided 
evidence of his employment in Germany and stated that his wife was not gainfully 
employed in Poland. 
4 By decision of 27 October 2016, the defendant granted the applicant child benefit 
for the period from October 2014 to July 2026. The reason given for that decision 
was that the applicant was in gainful employment in Germany and, according to 
the certificate submitted, was subject to unlimited tax liability. As the other parent 
was not in gainful employment in the country where the child is resident, the 
priority entitlement to child benefit for the period of employment arises in 
Germany. 
5 On 16 April 2019, the applicant was sent a ‘child benefit entitlement review 
questionnaire’ to complete. The applicant completed and returned that 
questionnaire. In it, the applicant explained that his wife was neither employed nor 
self-employed. For his part, he submitted an employer’s certificate attesting to his 
having been employed in Germany since 1 January 2016. 
6 By request of 6 August 2019, the defendant asked Poland for information on any 
gainful employment engaged in by the applicant’s wife and on any entitlement to 
Polish family benefits.  
7 On 5 October 2020, the defendant received from the Pomeranian Voivodeship in 
Gdańsk (Polish information authority) an answer, dated 28 September 2020, field 
4.1 of which contained the following information: ‘[The child’s mother] has been 
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gainfully employed from 28 September 2006 to date (Social Insurance Fund for 
Farmers – KRUS). Since 1 November 2013 to date, [the child’s mother] has not 
received any family or childcare benefits under the “Family 500+” programme. 
[The child’s mother] explained that she did not wish to apply for any family or 
childcare benefits under the “Family 500+” programme’. 
8 As a result, the defendant, by decision of 7 October 2020, revoked the child 
benefit assessment in the amount of the family benefits provided for by law in 
Poland with effect from October 2020, in accordance with Paragraph 70(2) of the 
EStG. 
9 By a ‘request for a decision on competence’ of 7 October 2020 which it sent to 
Poland, the defendant, in reference to an application received on 4 July 2019, the 
child’s father’s gainful employment in Germany and the child’s mother’s gainful 
employment in Poland, asked: ‘Please review as if the application had been 
submitted to Poland the entitlement to family benefits and the “500+” programme 
with effect from July 2019’. 
10 In answer to the request, the Polish information authority, on 17 December 2020, 
sent a record on the applicant’s wife containing the following supplementary 
information. ‘[The child’s mother] has been gainfully employed from 
28 September 2006 to date (Social Insurance Fund for Farmers – KRUS). Since 
1 July 2019 to date, [the child’s mother] has not received any family or childcare 
benefits under the “Family 500+” programme. [The child’s mother] explained 
that she did not wish to apply for any family or childcare benefits under the 
“Family 500+” programme’. 
11 By the decision at issue of 6 January 2021, the defendant revoked the child benefit 
assessment for the period from July 2019 to September 2020 in the amount of the 
family benefits provided for by law in Poland, in accordance with Paragraph 70(2) 
of the EStG, and sought recovery of the child benefit overpaid during that period 
in the amount of EUR 1 674.60. 
12 By letter of 22 January 2021, the applicant applied to have that decision amended, 
on the ground that he and his wife had not received any family benefits in Poland 
from July 2019 to date. 
13 The defendant treated that letter as an objection to the decision of 6 January 2021 
and, by decision of 2 February 2021, dismissed that objection as unfounded. 
14 On 2 March 2021, the applicant brought an action against the partial revocation of 
the child care assessment and the recovery [of the overpaid sum].  
The essential arguments of the parties in the main proceedings 
15 As grounds for its action, the applicant submits that his wife (the child’s mother) 
is not gainfully employed and does not receive any income. His wife is neither 
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unemployed nor registered as a job seeker and was given a farm by her parents in 
order to enable them to receive a pension. Ownership of the farm gives rise to 
insurance with KRUS, the Polish social insurance fund for farmers. That 
insurance does not presuppose any activity as a self-employed farmer and is 
subject only to the condition that the farm, which is not in use, is registered as 
agriculturally productive land. Since his wife has no income, he pays the 
insurance contributions to KRUS. His wife neither received nor applied for child 
benefit in Poland for the period in question. Competence in respect of the 
entitlement to child benefit therefore lies by priority with Germany. 
16 The defendant opposes the action on the ground that, while the applicant is in 
principle entitled to German child benefit for his child who is resident in Poland, 
in accordance with Paragraph 62(1) of the EStG, his wife is at the same time 
entitled to non-German family benefits for the child in Poland. After all, the 
‘500+’ benefit has been available for children under the age of 18 in Poland, 
irrespective of income, since July 2019. 
17 According to the defendant, that conflict as to entitlement must be resolved by 
reference to the coordination rules of the European Union. In accordance with 
those rules, the decisive criterion is whether, in the States concerned, a gainful 
activity is pursued or a pension is received or whether the entitlement to family 
benefits is obtained exclusively on the basis of residence (Articles 67 and 68 of 
Regulation No 883/2004, Decision F1 of the Administrative Commission of the 
European Union of 12 June 2009). It is true that the applicant carries on a gainful 
activity or is in an equivalent situation treated as such within the meaning of 
Decision F1 of the Administrative Commission of the European Union of 12 June 
2009. However, since his wife also carries on a gainful activity or is in an 
equivalent situation treated as such in the country where the child lives, Poland, 
the entitlement to family benefits arises by priority in that State 
(Article 68(1)(b)(i) of Regulation No 883/2004). The German entitlement to child 
benefit is therefore suspended in the amount of the non-German family benefit. 
The non-German family benefit is lower than the child benefit granted by the 
German authorities. There is therefore an entitlement to child benefit from July 
2019 to September 2020 in the amount of the difference between the two and the 
child benefit assessment must be amended to the lower amount represented by that 
difference. 
18 The fact that the benefit is neither applied for nor paid in Poland does not mean 
that the child benefit must be granted in full in Germany. The information from 
Poland shows that the applicant’s wife reported there that she did not wish to 
apply for benefit. This was the only reason why no decision was taken on any 
entitlement to benefit in Poland. In accordance with the first sentence of 
Paragraph 65(1) of the EStG, however, the fact that a[nother] benefit would be 
payable if it were applied for is a sufficient ground for not granting child benefit. 
19 With regard to the question of the child’s mother’s employment in Poland, the 
German authorities and courts are in principle bound by the certification by a non-
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German insurance institution of the existence of insurance. On the basis of the 
information from the Polish information authority, the child’s mother must 
therefore be regarded as carrying on a gainful activity. 
20 The obligation to refund arises from Paragraph 37(2) of the Abgabenordnung 
(German Tax Code) (AO). According to that provision, a tax refund must be made 
if the tax was paid without legal grounds. That is so in this case, inasmuch as an 
entitlement did not arise and the child benefit assessment was to that extent 
revoked. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
21 Under German law, a child benefit assessment must be retrospectively revoked, in 
accordance with the first sentence of Paragraph 70(2) of the EStG, where, during 
the period of receipt of child benefit, the circumstances relevant to entitlement to 
that benefit have changed in such a way that the conditions of entitlement to child 
benefit are no longer met. In accordance with Paragraph 37(2) of the AO, any 
overpaid child benefit must in that event be refunded by the recipient.  
22 It is common ground between the parties that the applicant fulfils the conditions 
laid down by German law with regard to entitlement to child benefit for his child 
living with its mother in Poland in respect of the period at issue. Child benefit was 
initially paid in full by the German authorities. It was only during the period of 
receipt of child benefit that the Polish legal position changed, inasmuch as, since 
July 2019, the Polish authorities have been paying childcare allowance, 
irrespective of income and up until the child reaches the age of 18, for the first 
child too (see Article 4(1) and (2) and Article 5(1) of the Polish Law on State 
Assistance for Child Rearing of 11 February 2016, as modified by the Amending 
Law of 26 April 2019). 
23 There has been no assessment or payment of Polish benefits to date, however, 
because the child’s mother stated that she did not wish to apply for any. It also 
follows from Article 18(1) and (2) and Article 21(3) of the Polish Law on State 
Assistance for Child Rearing of 11 February 2016, as modified by the Amending 
Law of 26 April 2019, that Polish family benefits are granted annually and not 
retrospectively and may be applied for only as from 1 April for the following 
period of 1 June to 31 May. That being the case, the Polish institution itself would 
probably no longer have been able to make an assessment of family benefits for 
the period at issue of July 2019 to September 2020, if, on the basis of the notice of 
an application of 4 July 2019 that was given by means of the ‘request for a 
decision on competence’ of 7 October 2020, it had taken the view that Polish 
family benefits (too) had been applied for. 
24 On the first question: The partial recovery of German child benefit is lawful only 
if the entitlement to German child benefit may, on the basis of Article 68 of 
Regulation No 883/2004, be reduced by the amount of family benefit provided for 
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in Polish substantive law, even though no assessment or payment has been made 
to date, and none is expected in the future, in Poland. 
25 With regard to the rules that preceded Regulation No 883/2004, the Court of 
Justice has repeatedly held that an entitlement to family benefits may be 
suspended on account of an entitlement to family benefits in another Member 
State only where the family benefits are actually paid by the other Member State 
too, it being immaterial whether the non-payment of those benefits is attributable 
only to the fact that they have not been applied for (see the judgments of 4 July 
1990, Kracht, C-117/89, EU:C:1990:279, paragraph 18, and of 14 October 2010, 
Schwemmer, C-16/09, EU:C:2010:605, paragraphs 53 to 54 and 58 to 59). In its 
case-law on Regulation No 883/2004, the Court of Justice has fully adhered to that 
view (see the judgments of 22 October 2015, Trapkowski, C-378/14, 
EU:C:2015:720, paragraphs 32 to 33, and of 18 September 2019, Moser, C-32/18, 
EU:C:2019:752, paragraph 42). 
26 In its judgment of 13 October 2022, DN, C-199/21, EU:C:2022:789, paragraph 58, 
the Court of Justice further held that the third sentence of Article 60(1) of 
Regulation No 987/2009 must be interpreted as precluding national legislation 
which allows the recovery of family benefits awarded, where the parent entitled to 
such benefits pursuant to that legislation has not applied for them, to the other 
parent, whose application has been taken into account, in accordance with that 
provision, by the competent institution, and who in fact bears the entire cost 
associated with the maintenance of the child. 
27 The Bundesfinanzhof (Federal Finance Court) (BFH), as the highest German court 
with jurisdiction in respect of child benefit awarded under the EStG, takes the 
view with regard to the legal position under Regulation No 883/2004 that the 
application of the coordination rules laid down in Article 68 of Regulation 
No 883/2004 and the restriction of the German entitlement to the difference 
between the amounts payable, in the case where there is an entitlement under the 
substantive law of another Member State, are not precluded by the fact that the 
latter entitlement has not been assessed and paid (BFH, judgment of 9 December 
2020 – III R 73/18 –, BFHE 271, 508). The retrospective emergence of 
circumstances relevant to the order of priority triggers a retrospective set-off 
against the child benefit awarded under German law and, in consequence, a 
(partial) recovery of sums so paid, and is not contingent upon the assessment and 
payment of the non-German entitlement (BFH, judgment of 9 December 2020 – 
III R 73/18 –, BFHE 271, 508, BStBl II 2022, 178). For, in accordance with the 
second half of the first sentence of Article 68(3)(b) and Article 81 of Regulation 
No 883/2004, an application for family benefits made in the State under an 
obligation to pay such benefits but not by priority is also to be regarded as an 
application for family benefits under the legislation of the Member State under an 
obligation to pay them by priority, meaning that the formal condition of 
entitlement consisting in making an application in the other Member State is met 
(BFH, judgment of 9 December 2020 – III R 73/18 –, BFHE 271, 508). An 
application for family benefits made in a Member State competent but not by 
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priority triggers the fiction whereby that application is regarded as having been 
made in the State competent by priority too, also in the case where the institution 
to which the application was made is unaware that it is dealing with a situation 
with a connection outside the country in which that institution is located, for 
example because the person entitled to child benefit has taken up an activity in 
another country without informing the Familienkasse (Family Benefits Office) of 
this. That fiction thus obtains also in the case where, at the time when the 
application for child benefit was made, there was as yet no reason to forward it to 
a family benefits institution in another country (BFH, judgment of 9 December 
2020 – III R 31/18 –, BFH/NV 2021, 771). 
28 In the view of the BFH, the reference by the Court of Justice in the judgment of 
22 October 2015, Trapkowski, C-378/14, EU:C:2015:720, to its judgment of 
14 October 2010, Schwemmer, C-16/09, EU:C:2010:605, does not support any 
other inference, because the judgment of 22 October 2015, Trapkowski, C-378/14, 
EU:C:2015:720, concerned not a failure to meet a formal condition of an 
application for family benefits but a failure to meet a material condition of such an 
application, in that the income limit was exceeded (BFH, judgment of 9 December 
2020-111 R 73/18-, BFHE 271, 508, BStBl II 2022, 178). It is only in the case 
where the material conditions for an application are not met in the Member State 
whose legislation is applicable by priority, for example because the age limit or 
certain income limits are exceeded, that the priority rules set out in Article 68 of 
Regulation No 883/2004 do not apply (BFH, judgment of 25 February 2021 – 
III R 23/20 –, BFH/NV2021, 1344-1347). 
29 Thus, in the view of the BFH, the application of the priority rules is in principle 
conditional (only) upon the existence of a material application for family benefits 
in the other Member State. In accordance with the case-law of the BFH, however, 
the German authorities and courts must refrain from examining the material 
application under the law of another country where an authority in that other 
country has already made a decision in that regard in respect of the period at issue 
and that decision is binding on the German authorities and courts (BFH, judgment 
of 26 July 2017 – III R 18/16 –, BFHE 259, 98, BStBl II 2017, 1237). Otherwise, 
it is necessary, within the framework of cooperation in good faith between the 
Member States and in accordance with Article 60(3) of Regulation No 883/2004 
in conjunction with Article 59 et seq. of Regulation 987/2009, to clarify by means 
of a request for information submitted to the competent authority of the other 
Member State whether and to what extent an application for family benefits for 
the applicant’s children has been made there (BFH, judgment of 22 February 
2018 – III R 10/17 – BFHE 261, 214, BStBl II 2018, 717). 
30 In the view of the referring court, the interpretation of the priority rules contained 
in Article 68 of Regulation No 883/2004, in particular in cases of recovery such as 
that at issue here, appears not be so clear as the BFH makes out in its case-law. 
According to recital 35 of Regulation No 883/2004, that regulation is intended to 
avoid the unwarranted overlapping of benefits in cases involving the overlapping 
of rights to family benefits from different Member States. The purpose of doing 
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so, however, is not to restrict rights under national law. In accordance with the 
first sentence of Article 68(1) of Regulation No 2004/883, the priority rules are to 
apply only where, during the same period and for the same family members, 
benefits are provided for under the legislation of more than one Member State. 
They are not therefore, in principle, meant to cause beneficiaries to receive lower 
payments than they would if those rules did not apply. 
31 The case-law of the Court of Justice also suggests that the priority rules are to 
apply only where family benefits would otherwise actually be awarded by more 
than one Member State. After all, the grant of family benefits by more than one 
Member State could repeatedly lead to a situation in which, because of 
ambiguities or a lack of knowledge with respect to factual circumstances or legal 
assessments, child benefit is (partly) recovered retrospectively in Germany 
without being back-paid in the other Member State. As a result, beneficiaries 
could thus receive fewer benefits overall than they would be entitled to under 
German law.  
32 As regards the question of the significance of the fiction whereby the Member 
State whose legislation is applicable by priority treats as if submitted directly to 
itself an application for family benefits made to another Member State whose 
legislation is applicable but not by priority, it must also be noted that this is 
primarily intended to simplify the procedure for beneficiaries. Most importantly, 
however, it does not change the fact that deadlines for making claims and the 
possibility of family benefits being granted retrospectively are subject to different 
rules in the Member States. Thus, as a rule, child benefit in Germany is, first of 
all, the subject of an assessment valid for an indefinite period until the child 
reaches the age of 18. In addition, the benefit is back-paid six months from the 
date of the application. By contrast, other countries – including, to the referring 
court’s knowledge, Poland – have rules requiring an annual and prior application. 
Furthermore, in cases in which circumstances indicating that entitlements to 
family benefits fall to be paid by priority in another Member State come to light 
only retrospectively, there is commonly no longer any guarantee that the 
application will be promptly forwarded to the other Member State. If the 
application of the priority rules were contingent only upon the existence of a 
material application in the other Member State, the domestic courts would 
regularly have to decide upon the existence of entitlements to family benefits 
under the law of another country. 
33 Article 68(3)(a) of Regulation No 883/2004 in conjunction with the second 
sentence of Article 60(1) and Article 60(2) and (3) of Regulation No 987/2009 
provide for a special procedure for coordinating overlapping entitlements which, 
according to the wording of those provisions, nonetheless concerns only the case 
where a decision is to be taken on an as yet undecided application for the grant of 
family benefits in the future. That procedure does not appear to be immediately 
transposable to cases of retrospective examination. The same applies, in 
accordance with Article 60(4) of Regulation No 987/2009, to the so-called 
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dialogue procedure provided for in Article 6(2) to (5) of Regulation No 987/2009, 
applicable in the event of a dispute as to the prioritisation of multiple entitlements. 
34 Furthermore, in the referring court’s experience, the process of coordination 
between the institutions in the different Member States which are competent to 
deal with the benefits to be paid in each case does not run smoothly, certainly in 
cases involving recovery. In the case at issue too, the Polish authority, when 
disclosing at the defendant’s request that no family benefits had been paid during 
the period at issue, referred only to the fact that the child’s mother had failed to 
apply for any. No decision or other form of substantive position on the presence of 
the (other) formal and material conditions of Polish entitlement to family benefits 
could be obtained from the Polish authority. However, practical difficulties in the 
cooperation between the Member States should not operate to the detriment of the 
person claiming entitlement to family benefits. 
35 On the second question: If, in principle, Article 68 of Regulation No 883/2004 
allows sums paid in Germany to be recovered there even though no payment has 
been made in Poland, the lawfulness of that partial recovery of sums paid depends 
on whether the entitlement in Poland arises by priority over the entitlement in 
Germany. 
36 The priority rules laid down in Article 68 of Regulation No 883/2004 take as their 
point of reference the grounds on which the overlapping benefits are payable or 
the bases on which the entitlements are obtained. If the answer to that question 
were to depend on the national rules, it would have to be assumed that the 
situation in the case at issue is one in which the benefits are payable in both 
instances on the basis of residence, since the family benefits in question are linked 
in both Germany and Poland to the place of residence/usual abode of the 
beneficiary. In this case, because of the place of residence of the child, the Polish 
entitlement would take priority, in accordance with Article 68(1)(b)(iii) of 
Regulation No 883/2004. 
37 If, however, the answer to that question were to depend on the circumstances on 
account of which the persons concerned are subject to the legislative provisions of 
the relevant Member States in accordance with Articles 11 to 16 of Regulation 
No 883/2002, the legislation applicable by priority would, because of the 
applicant’s employment in Germany, be determined by reference to whether the 
child’s mother is to be regarded as gainfully employed in Poland or merely 
resident there. 
38 According to the wording of the provision at issue, priority depends on the 
grounds on which benefits are payable by more than one Member State or the 
bases on which entitlements are obtained. This might suggest a link to the 
conditions of entitlement laid down in the national legislation. 
39 The BFH, however, on the question of the bases on which entitlements are 
obtained for the purposes of Article 68(1) of Regulation No 883/2004, takes into 
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account the circumstances on account of which the beneficiary is subject to the 
legislation of the Member State concerned in accordance with Articles 11 to 16 of 
Regulation No 883/2004 (BFH, judgment of 26 July 2017 – III R 18/16 –, BFHE 
259, 98, BStBl II 2017, 1237 and judgment of 1 July 2020 – III R 22/19 –, BFHE 
269, 320, BFH/NV2021, 134). 
40 In the view of the referring court, the judgment of the Court of Justice of 
7 February 2019, Bogatu, C-322/17, paragraphs 24 to 25, might support the 
proposition that account is to be taken of the grounds on which family benefits are 
awarded under the national rules. That judgment does not, however, clearly 
indicate to the referring court whether the question as to the grounds on which 
benefits are payable for the purposes of Article 68 of Regulation No 883/2004 is 
contingent upon the national rules providing for entitlement to them or upon the 
provision in Article 11 of Regulation No 883/2004 determining that the 
beneficiary is subject to the legislation of the Member State concerned, or whether 
the entitlements are obtained by reason of employment or self-employment or by 
reason of residence. 
41 On the third question: If the question of whether the child’s mother is to be 
regarded as being gainfully employed in Poland can be answered solely on the 
basis of the Polish institution’s confirmation that that is the case, by reference to 
her insurance with the Social Insurance Fund for Farmers, the Polish entitlement 
would take priority on account of the child’s place of residence, in accordance 
with Article 68(1)(b)(i) of Regulation No 883/2004. Otherwise, the German 
entitlement would take priority, in accordance with Article 68(1)(a) of Regulation 
No 883/2004. 
42 In the event that the decisive criterion is the circumstances on account of which 
the persons concerned are subject to the legislative provisions of the relevant 
Member States in accordance with Articles 11 to 16 of Regulation No 883/2004, 
the question arises as to the conditions under which the wife of the person entitled 
to child benefit, being resident in another Member State, can be said to be in 
gainful employed or in an equivalent situation treated as such for the purposes of 
Article 68 in conjunction with Article 1(a) and (b) and Article 11(3)(a) of 
Regulation No 883/2004. 
43 The question as to the presence or otherwise in another Member State of an 
activity or equivalent situation treated as such, within the meaning of Article 1(b) 
of Regulation No 883/2004, which is regarded as such for the purposes of the 
social security legislation of that Member State, involves an assessment of the law 
of the other Member State. For that reason, the referring court inclines to the view 
that it is to this extent bound by the information from Poland. This seems not 
necessarily to be the case, however, since that information is provided only in the 
course of proceedings between the authorities and no unappealable decision has 
been adopted in respect of the person concerned. There is – so far as is apparent – 
no case-law of the Court of Justice on this question.