Provisional text
OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 12 June 2025 (1)
Joined Cases C‑296/24 to C‑307/24 [Jouxy] (i)
SM,
PX (C‑296/24)
CY (C‑297/24)
LK,
MF (C‑298/24)
OP,
TD (C‑299/24)
MY,
IX (C‑300/24)
AH,
CJ (C‑301/24)
AE (C‑302/24)
BF,
CG (C‑303/24)
LH (C‑304/24)
TB,
MV (C‑305/24)
KN,
PE (C‑306/24)
NB (C‑307/24)
v
Caisse pour l’avenir des enfants
(Requests for a preliminary ruling from the Cour de cassation (Court of Cassation, Luxembourg))
( Reference for a preliminary ruling – Article 45 TFEU – Regulation
(EC) No 883/2004 – Article 67 – Freedom of movement for workers – Equal treatment – Social advantages – Regulation
(EU) No 492/2011 – Article 7(2) – Family allowance – Exclusion of the children of the spouses or partners of non-resident workers – Difference in treatment between resident and non-resident children – Concept of ‘members of the family’ – Concept relating to the act of ‘providing for the upkeep’ of a child – Assessment criteria – Presumption based on the joint household shared by the worker and the child )
I.      Introduction
1.        The applicants in the main proceedings reside, depending on the case, in Belgium, Germany or France but work in Luxembourg. Accordingly, they are subject to Luxembourg social security legislation. The Court is aware of the content of the relevant provisions of that legislation and, further inter alia to a request for a preliminary ruling from the conseil supérieur de la sécurité sociale (Higher Social Security Board, Luxembourg), (2) had the opportunity to set out their content within the legal context of the judgment in Caisse pour l’avenir des enfants (Child of the spouse of a non-resident worker), (3) which concerned a case relating to the same family allowance as that at issue in these joined cases.
2.        The present requests for a preliminary ruling concern, once more, the provisions of Luxembourg law under which, since 1 August 2016, frontier workers have been eligible for a family allowance solely in respect of the children covered by the concept of ‘members of the family’, as defined in those provisions, that is, children born within marriage, children born outside marriage and adopted children.
3.        Those requests have been made by the Cour de cassation (Court of Cassation, Luxembourg) in twelve sets of proceedings between a number of frontier workers and the Caisse pour l’avenir des enfants (Children’s Future Fund, Luxembourg; ‘the CAE’) concerning the CAE’s refusal to grant a family allowance to those workers for, depending on the case, a child of a spouse or registered partner, on the ground that such children had no child-parent relationship with the frontier workers concerned and were not therefore ‘members of the family’, as that term is defined in Luxembourg legislation.
4.        It is in that context that the referring court requests clarifications about the expression ‘providing for the upkeep of a child’, such a concept having been formulated in the case-law of the Court on the interpretation of Article 45 TFEU, Article 1(i) and Article 67 of Regulation (EC) No 883/2004 (4) and Article 7(2) of Regulation (EU) No 492/2011. (5)
II.    Legal framework
A.      European Union law
5.        Alongside Article 45 TFEU, the following provisions are relevant in the context of the present case: Article 2 of Directive 2004/38/EC; (6) Article 1(i), Article 2(1), Article 3(1), Article 4, Article 67 and Article 68(1)(b) of Regulation No 883/2004; Article 7(1) and (2) and Article 36(2) of Regulation No 492/2011; and Article 1 and Article 2(1)(c) and (2) of Directive 2014/54/EU. (7)
B.      Luxembourg law
6.        The relevant provisions are Articles 269 and 270 of the code de la sécurité sociale (Social Security Code). (8)
7.        Article 269 of that code, entitled ‘Conditions for award’, provides, in paragraph 1 thereof:
‘An allowance for children’s future, “the family allowance”, is hereby established.
The following persons shall give rise to entitlement to the family allowance:
(a)      any child actually living in Luxembourg on a continuous basis and officially resident there;
(b)      the members of the family, as defined in Article 270, of any person subject to Luxembourg law and covered by EU regulations or any other bilateral or multilateral instrument relating to social security concluded by Luxembourg providing for the payment of family allowances in accordance with the legislation of the country of employment. The family members must reside in one of the countries to which the regulations or instruments in question apply.’
8.        Article 270 of the Code states:
‘For the purposes of Article 269(1)(b), the following shall be regarded as members of a person’s family and give rise to entitlement to family allowances: children born within marriage, children born outside marriage and adopted children of the person.’
III. The facts of the dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
9.        It is apparent from the twelve orders for reference in Joined Cases C‑296/24 to C‑307/24 that the CAE, relying on Articles 269 and 270 of the Social Security Code, withdrew from the applicants in the disputes in the main proceedings, (9) with effect from 1 August 2016, the family allowances received for the children of their spouse or registered partner, on the ground that those children, who had no child-parent relationship with the applicants, were not ‘members of the family’ for the purposes of Article 270 of the Social Security Code.
10.      The conseil arbitral de la sécurité sociale (Social Security Arbitration Board, Luxembourg) upheld the applicants’ actions seeking the restoration of the payment of the family allowance at issue. However, on appeal, the conseil supérieur de la sécurité sociale (Higher Social Security Board, Luxembourg) upheld the CAE’s decision to withdraw that allowance from the applicants.
11.      The applicants lodged appeals on a point of law before the Cour de cassation (Court of Cassation), arguing, inter alia, that that decision was contrary to EU law and, in particular, that it was based on a restrictive interpretation of the concept relating to the act of ‘providing for the upkeep’ of the frontier worker’s non-biological child, contrary to the case-law stemming, inter alia, from the judgment in Caisse pour l’avenir des enfants.
12.      The referring court observes that, in that judgment, the Court, in interpreting Article 1(i) and Article 67 of Regulation
No 883/2004 read together with Article 7(2) of Regulation No 492/2011 and with Article 2(2) of Directive 2004/38, made the frontier worker’s entitlement to the payment of the family allowance at issue in respect of his or her spouse’s child, a child with whom that worker did not have a child-parent relationship, to proof that the worker satisfies the condition of providing for the upkeep of that child.
13.      With regard to the evolution in the Court’s interpretation of that condition, the referring court notes, first of all, that the concept relating to the act of ‘providing support’ was initially used by the Court to assert, in the judgments in Bernini, (10)Meeusen, (11)Commission v Netherlands (12) and Giersch and Others, (13) that a frontier worker is entitled to payment of a state benefit constituting a social advantage, namely financial aid for higher education studies, for his or her own child, where he or she continues to support that child.
14.      Next, the referring court makes reference to the judgment in Depesme and Others, (14) in which the Court clarified the scope of that concept, once again in the context of a social advantage in the form of financial aid for higher education studies but in relation to a child with whom the frontier worker did not have a child-parent relationship.
15.      Lastly, the referring court observes that the Court has more recently used that concept, in the judgment in Caisse pour l’avenir des enfants, (15) to determine whether a frontier worker was eligible for the social advantage in the form of the payment of a family allowance in respect of a child with whom that worker does not have a child-parent relationship. In that context, the Court ruled inter alia that the requirement that the worker provides for the upkeep of the child is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts to assess, on the basis of evidence provided by the person concerned, and that it is not necessary for them to determine the reasons for that contribution or to make a precise estimation of its amount.
16.      The referring court infers from the foregoing that, even though that concept exists, according to the case-law of the Court, in the context of a factual situation, it is not however immune from review by the Court. Referring to the judgment in Depesme and Others (16) in the context of legislation on entitlement to social advantages, the referring court takes the view that the concept is an autonomous concept of EU law which must be applied and interpreted uniformly.
17.      It is in those circumstances that the Cour de cassation (Court of Cassation), by orders of 25 April 2024, received at the Registry of the Court on 26 April 2024, decided to stay the proceedings and to refer the following questions, which are worded identically in each of Joined Cases C‑296/24 to C‑307/24, to the Court of Justice for a preliminary ruling:
‘(1)      (a)      Is the condition of “supporting” a child, from which is derived the status of “family member” within the meaning of the provisions of EU law, as applied by the case-law of the Court of Justice in the context of the free movement of workers and of the receipt of a social advantage linked to the pursuit, by that worker, of an activity as an employed person in a Member State, for the child of his or her spouse or registered partner, with whom the worker has no child-parent relationship, read alone or in conjunction with the principle that the provisions intended to ensure the free movement of workers must be construed broadly, to be interpreted as being fulfilled, and therefore as conferring entitlement to the receipt of the social advantage,
–        merely by reason of the marriage or registered partnership between the frontier worker and one of the child’s parents;
–        merely by reason of a joint home or household shared by the frontier worker and the child;
–         merely by reason of the frontier worker’s assumption, in general, of expenditure of whatever kind for the benefit of the child, even where
–        it covers needs other than essential or maintenance needs;
–        it is made to a third party and benefits the child only indirectly;
–        it is not made in the exclusive or specific interest of the child, but benefits the whole household;
–        it is only occasional;
–        it is less than that of the parents;
–        it is merely insignificant in the light of the child’s needs;
–        merely by reason of the fact that the expenditure is made from a joint account held by the frontier worker and his or her spouse or registered partner, who is a parent of the child, without regard to the origin of the funds present in the account;
–        merely by reason of the fact that the child is under 21 years of age?
(b)      If the answer to Question
1 is in the negative, is the condition of “support” to be interpreted as being fulfilled, and therefore as conferring entitlement to the receipt of the social advantage, where two or more of those circumstances are present?
(2)      Is the condition of “supporting” a child, from which is derived the status of a family member within the meaning of the provisions of EU law, as applied by the case-law of the Court of Justice in the context of the free movement of workers and of the receipt by a frontier worker of a social advantage linked to the pursuit, by that worker, of an activity as an employed person in a Member State, for the child of his or her spouse or registered partner, with whom the worker has no child-parent relationship, read alone or in conjunction with the principle that the provisions intended to ensure the free movement of workers must be construed broadly, to be interpreted as not being fulfilled, and therefore as excluding the right to receive the social advantage,
–        merely by reason of the existence of a maintenance obligation imposed on the child’s parents, irrespective
–        of whether the amount of the maintenance claim is fixed by judicial or conventional means;
–        of the amount at which that maintenance claim was fixed;
–        of whether the debtor actually pays that maintenance debt;
–        of whether the frontier worker’s contribution remedies the failure to pay of one of the child’s parents;
–        merely by reason of the fact that the child lives periodically, in the context of exercising visiting and accommodation rights or alternate residence or another arrangement, with the other parent?’
18.      Written observations were submitted by the applicants in the main proceedings in each of the joined cases, the CAE, the Czech Government and the European Commission. The Court decided not to hold a hearing in the present cases.
IV.    Analysis
19.      By its two questions referred for a preliminary ruling, which should in my view be examined together, the referring court invites the Court to clarify, in essence, the interpretation of the concept relating to the act of ‘providing for the upkeep’ of a child, as formulated in the case-law of the Court concerning the interpretation of Article 45 TFEU, Article 1(i) and Article 67 of Regulation No 883/2004 and Article 7(2) of Regulation No 492/2011 and, in particular, in the judgment in Caisse pour l’avenir des enfants.
20.      In this Opinion, I will begin by setting out some general considerations concerning the legal aspects forming the basis of the doubts expressed by the referring court (Section
A), before turning to the origin, development (Section B) and then scope of that concept, as established in the case-law of the Court (Section
C). Finally, in order to ensure that that concept is applied uniformly, I will propose establishing a presumption based on the joint household shared by the frontier worker and the child of his or her spouse or registered partner (Section
D).
A.      General considerations concerning the legal aspects forming the basis of the doubts expressed by the referring court
21.      It is clear from reading the present requests for a preliminary ruling that the referring court relies on the related case-law of the Court and, in particular, that stemming from the judgment in Caisse pour l’avenir des enfants. As I mentioned in the introduction to this Opinion, the cases at issue here follow in the wake of the case which gave rise to that judgment, a case also concerned with the reform of the system for the award of family benefits in Luxembourg. Entering into force on 1 August 2016, that reform had amended the Social Security Code by excluding, inter alia, the children of a spouse or partner from the concept of ‘members of the family’, as defined in Article 270 of that code. (17) In that case, the Court had to determine whether the family allowance at issue had to be paid to the frontier worker for his spouse’s child, a child with whom he did not have a child-parent relationship. (18)
22.      In that regard, as the referring court itself notes, in the judgment in Caisse pour l’avenir des enfants, the Court clarified, first, that a family allowance linked to the pursuit, by a frontier worker, of activity as an employed person in a Member State constitutes a social advantage, (19) within the meaning of Article 45 TFEU and Article 7(2) of Regulation No 492/2011. (20) Second, the Court held that Article 1(i) and Article 67 of Regulation No 883/2004, read in conjunction with Article 7(2) of Regulation No 492/2011 and with Article 2(2) of Directive 2004/38, must be interpreted as precluding provisions of a Member State according to which frontier workers are entitled to receive a family allowance, on the basis of the fact that they pursue an activity as employed persons in that Member State, solely for their own children, and not for a spouse’s children with whom those workers have no child-parent relationship, but whom those workers support, whereas any child residing in that Member State is entitled to receive that allowance. (21)
23.      With regard to the present cases, I consider it important to point out that, by the questions which it refers for a preliminary ruling, the referring court does not call into question the guidance provided in the judgment in Caisse pour l’avenir des enfants or the case-law upon which the Court relied in that judgment. (22) More specifically, it is apparent from the orders for reference that that court appears to be in doubt that the distinction based on residence established by the provisions at issue in the main proceedings constitutes indirect discrimination on the ground of nationality. (23) On the contrary, taking that premiss as a starting point, that court appears to take the view that, in that judgment, the Court made the frontier worker’s right to the grant of the family allowance in respect of his spouse’s or partner’s child, with whom he does not have a child-parent relationship, subject to proof that he satisfies the condition of providing for the upkeep of that child. (24)
24.      The referring court’s doubts appear to stem from the fact that, as is apparent from the orders for reference and from the written observations of the parties, following the judgment in Caisse pour l’avenir des enfants, the CAE can no longer automatically refuse to grant the family allowance at issue to non-resident frontier workers for the children of their spouse or registered partner. Nevertheless, it refuses to grant that allowance based on a strict application of the concept relating to the act of ‘providing support’ arising from that judgment. Thus, since the referring court regards that concept as an autonomous concept of EU law, the doubts expressed by that court relate exclusively to the correct interpretation of the concept.
25.      Before offering the Court proposals vis-à-vis the clarifications sought by the referring court as to the scope of the interpretation of that concept, I consider it important, for the sake of clarity, to set out the origin of the concept and the development that it has undergone in the case-law of the Court.
B.      The origin and the development of the Court’s interpretation of the concept relating to the act of ‘providing for the upkeep’ of the child
26.      As is well established, it is in the context of the case-law on financial aid for the higher education studies of the children of migrant workers that the Court first used the expression ‘support’. The requirement to continue to ‘support’ a student allowed the necessary connection to be established between the worker and the child.
1.      From the judgment in Bernini to the judgment in Depesme and Others:the requirement to ‘support’ a child as a necessary link between the worker and the child
27.      Although the Court ruled as early as in the 1980s on grants awarded for the maintenance and training of students, (25) it is only since the judgment in Bernini, given in the course of 1992, that it established the requirement relating to the need to continue to ‘support’ a child in the context of studies undertaken outside the host Member State. In that judgment, the Court recalled that a migrant worker may rely on Article 7(2) of Regulation (EEC)
No 1612/68 (26) in order to obtain social benefits provided for in the legislation of that host Member State in favour of the children of national workers. It did, however, clarify, relying on the judgment in Lebon, (27) that that benefit constitutes for that worker a social advantage within the meaning of that provision ‘only where the worker continues to support his descendant’. (28)
28.      The Court thus ruled that, where the worker continues to support the child, that child may rely on that provision to obtain study finance under the same conditions as are applicable to the children of national workers, and no additional requirement relating to residence on the territory of the Member State concerned may be imposed upon the child. (29)
29.      Subsequently, in the judgments in Meeusen, (30)Commission v Netherlands (31) or Giersch and Others, (32) the Court recalls that dependent family members of a migrant worker are indirect beneficiaries of the equal treatment afforded to that worker and, therefore, the benefits at issue in those cases, namely higher education grants, may be granted to that worker only where he or she continues to support the child.
30.      However, in those judgments, the Court does not define the concept relating to the act of ‘supporting’ a child. Nevertheless, those judgments do provide an understanding of the context in which that concept exists. The Court had to determine whether the receipt of the state benefits at issue, that is, study grants, constituted a social advantage for the migrant worker within the meaning of Article 7(2) of Regulation No 1612/68. The Court’s answer in the affirmative to that question was, however, subject to one condition, namely that ‘the worker continues to support the child’. (33) Thus, since the members of a migrant worker’s family were indirect beneficiaries of the equal treatment afforded to that worker by that provision, that condition satisfied the need to establish a connection between the child and that worker in order to determine, in view of the requirements of the equal treatment of workers and the coordination of social security systems, whether the Member State concerned was obliged to pay the benefit in question.
31.      In that jurisprudential context, a decisive step in the development of that line of case-law was taken with the judgment in Depesme and Others. (34) In the cases which gave rise to that judgment, the referring court, with reference to the judgment in Giersch and Others, wanted, first, to ascertain whether the words ‘child of a frontier worker’ included the children of that worker’s spouse or recognised partner under national law. The Court ruled, whilst relying on the concept of a ‘member of the family’ provided for by  Article 2(2)(c) of Directive 2004/38, (35) that a ‘child of a frontier worker, who is able to benefit indirectly from the social advantages referred to in Article 7(2) of Regulation No 492/2011, such as higher education study finance granted by a Member State to the children of workers pursuing or who have pursued an activity in that Member State’, means not only a child who has a child-parent relationship with that worker, but also a child of the spouse or registered partner of that worker, where that worker supports that child. (36)
32.      In those cases, the referring court asked, secondly, about the impact of the extent of the contribution by the frontier worker to the maintenance of the child of his or her spouse on that child’s right to receive financial aid to pursue studies, such as the aid at issue in those same cases. (37) To address those doubts, the Court explained that the status of dependent member of the family of the frontier worker is the result of a factual situation. The Court continued its reasoning, first, by clarifying that the person having that status is a member of the family who is supported by the worker and that there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. Next, the Court took the view, relying on the judgment in Lebon, (38) that that interpretation is dictated by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the European Union, must be construed broadly. (39)
33.      More specifically, I should point out that, as regards the status of a family member of a frontier worker who is dependent on that worker, the Court has held – and this must be borne in mind – that that status may, when it relates to the case of a child of a spouse or recognised partner of that worker, be evidenced by objective factors, such as a joint household shared by that worker and the student. (40) The Court thus ruled that the requirement to ‘support’ a child is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts to assess, and it is not necessary for them to determine the reasons for that contribution or to make a precise estimation of its amount. (41)
34.      I would observe that, the lack of a precise definition notwithstanding, the Court did provide, in paragraphs 58, 60 and 64 of the judgment in Depesme and Others, (42) criteria outlining the parameters of the concept at issue, to which I will return when examining its scope. (43)
2.      The judgment in Caisse pour l’avenir des enfants: the unique nature of the concept of ‘members of the family’ in EU law
35.      In the judgment in Caisse pour l’avenir des enfants, the operative part of which is restated above, (44) the Court transposed to family allowances in respect of the children of frontier workers the case-law set out in the preceding points. (45) Unlike the cases which gave rise to that case-law, that case concerned a child who, at the time of the relevant facts, was a minor. (46) That said, in the judgment in Caisse pour l’avenir des enfants, the Court continues to use the broader term ‘support’, a concept developed in its case-law on grants for higher education studies set out above, which also includes children over 21 years of age, despite the fact that, as the Court has found, the EU legislature takes the view that children are, in any case, presumed to be ‘dependent’ until the age of 21 years, as is apparent, in particular, from Article 2(2)(c) of Directive 2004/38. (47) I will return to this point later as it strikes me as being significant in the context of the present cases. (48)
36.      In particular, with regard to that concept, the Court, relying inter alia on the judgment in Depesme and Others, used it as the main test for determining whether the national authority in question was required to pay the family allowance at issue to the frontier worker for the child of his or her spouse with whom that worker did not have a child-parent relationship. Accordingly, referring to paragraph 64 of that judgment, the Court stated that the requirement that the frontier worker supports that child is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts to assess, on the basis of evidence provided by the person concerned, and that it is not necessary for them to determine the reasons for that contribution or to make a precise estimation of its amount. (49)
C.      The scope of the concept of ‘support’: the importance of uniform application
37.      It should be stated that the expression ‘providing for the upkeep of a child’ is a concept used as a common thread in all case-law relating, on the one hand, to financial aid for the higher education studies of the children of migrant and frontier workers and, on the other hand, the family allowances for the children of those frontier workers. (50) In its case-law, the Court has sought to ensure a uniform interpretation of that concept by specifying the criteria used by it on every occasion that it has had recourse to the concept, all whilst taking as a basis the principle that the provisions establishing the free movement of workers, which constitute one of the foundations of the European Union, must be construed broadly. (51)
1.      The consequences to be drawn for the present cases from the criteria established in case-law for the purpose of interpreting the concept at issue
38.      A few key criteria for interpreting the concept of relating to the act of ‘providing for the upkeep’ of a child can be identified by reading the relevant case-law.
39.      In the first place, the Court has recalled that children are, in any case, presumed to be dependent until the age of 21 years, as is apparent, in particular, from Article 2(2)(c) of Directive 2004/38. (52) In that regard, the Court has taken the view that the status as a family member of a child of the spouse or recognised partner of a frontier worker who is dependent on that worker may stem objectively from the existence of a joint household shared by that worker and the child. (53)
40.      In the second place, although the Court has clarified that the requirement that the frontier worker provides for the upkeep of the child is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts to assess, on the basis of evidence provided by the person concerned, it has also made clear on several occasions that, in making that assessment, it is not necessary for them to determine the reasons for that contribution or to make a precise estimation of its amount. (54)
41.      In the present case, there appears to me to be scarcely any doubt, first, that a strict application by a national authority of the concept at issue, as described by the referring court, which led to the refusal to grant the family allowances at issue, disregards the criteria for interpretation established by the Court in its case-law. Accordingly, that strict application of that concept represents a failure to ensure the equal treatment of frontier workers which is incompatible both with Article 45 TFEU and with Article 7(2) of Regulation No 492/2011, thus infringing the principle of the broad interpretation of such provisions, a principle established by the Court. (55)
42.      Secondly, although that concept must be interpreted in the context of a factual situation, which it is for the national authorities and, if appropriate, the national courts to assess, it should be observed that a lack of clarity in the criteria for assessment would, first, be liable to give rise to doubts incompatible with the principle of legal certainty, since such a lack of clarity in the criteria for assessment would make it more difficult for potential beneficiaries to comprehend the scope of their rights. Second, the workers concerned would be kept in a state of uncertainty vis-à-vis the options at their disposal of relying on Article 45 TFEU, as implemented by Article 7(2) of Regulation No 492/2011, even though they are necessarily subject to the legislation of the Member State of employment. (56)
43.      Thirdly, it should be stated that, despite the judgments already given by the Court, the CAE continues to experience difficulties when it has to define what is covered by that same concept, as used by the Court in its case-law.
44.      I therefore consider it relevant to examine briefly the origin of those difficulties with a view to clarifying this line of case-law.
2.      The difficulties experienced by national authorities in grasping the extent of the concept at issue
45.      I should point out that, notwithstanding the clarifications provided by the Court as guidance for the national authorities and, if appropriate, the national courts, it is clear that the case-law remains, to some extent, case-specific when it comes to providing a precise definition of the concept of relating to the act of ‘providing for the upkeep’ of a child, in general, given the diversification of family structures and, in particular, in the context of blended families, such as those concerned in the main proceedings. (57) As the twelve requests for a preliminary ruling made by the referring court demonstrate, it seems difficult for national authorities, such as the CAE in the present case, to grasp the scope of such a concept when it comes to determining whether, in a specific case, a worker provides for the upkeep of a child of his or her spouse or registered partner.
46.      More precisely put, I would point out that, in the present case, one example of that difficulty stems from the fact that, according to the CAE, it is necessary, in the light of the case-law of the Court, to take into account various factors, such as the time lived together, the quality of the relationship, the direct support given to the child, the question of official residence or the actual and continuous place of residence, the custody arrangements or the investment by the biological or adoptive parents.
47.      In that regard, I must confess to having some difficulty in identifying from amongst those criteria the clarifications provided by the Court pertaining to the scope of that concept. (58) This is the case in particular when that national authority argues that it is apparent from paragraph 52 of the judgment in Caisse pour l’avenir des enfants that the fact that a biological parent pays maintenance to the child can have an impact on the concept.
48.      I do not share that view.
49.      It is true that the content of
paragraph 52 of that judgment is an important factor in understanding the scope of that concept, but the interpretation adopted by the CAE cannot be followed. In that same judgment, it was apparent from the order for reference that the child’s biological father did not pay maintenance to the child’s mother. The Court pointed to that fact to assist the referring court in its assessment, subject to the determinations which fell to that court to make, by concluding that the frontier worker, who was the spouse of the child’s mother, provided for the upkeep of that child. Those findings by the Court cannot therefore be regarded, first, as intended to establish the existence of the biological or adoptive parent’s obligation to pay maintenance as a relevant criterion in the assessment of the factual circumstances to determine whether the child of the frontier worker’s spouse or registered partner is dependent on that worker. Secondly, nor can those findings be regarded as a criterion for ruling out the fact that that worker provided for the upkeep of that same child. Consequently, paragraph 52 of the judgment in Caisse pour l’avenir des enfants must not be construed as an indication that the concept at issue should be interpreted narrowly. (59)
50.      In that regard, I note that the Court has already held that the status of dependent family member does not presuppose a right to maintenance obligations. It explained that, if that were the case, the composition of the family would depend on national legislation, which varies from one State to another, which would lead to the application of EU law in a manner that is not uniform. (60) In addition, I would further point out that the Court has observed, on several occasions, that it is not necessary for the national authorities and national courts to determine the reasons for that contribution or to make a precise estimation of its amount in order to assess whether the frontier worker ‘provides for the upkeep’ of the child. (61)
51.      That being established, it is my view that that concept must be interpreted consistently in all the Member States. Therefore, having regard to the origin of the concept and its development in case-law and to ensure that it is applied in a uniform manner, it is necessary to determine whether an objective connecting factor, based on the case-law of the Court, could lead to the establishment of a simple presumption, thus contributing to observance of the principle of legal certainty.
52.      I will therefore examine the relevance of such a presumption in the context of the present cases.
D.      The presumption as to the scope of the concept relating to the act of ‘providing for the upkeep’ of a child
1.      Preliminary remarks on the origins of a simple presumption, based on an objective connecting factor
53.      In the judgment in Depesme and Others, the Court sketches out the parameters of a presumption vis-à-vis the concept relating to the act of ‘providing for the upkeep’ of a child.
54.      In the first place, it is apparent from that case-law that such a concept must be interpreted broadly. Thus, the Court observes that, when assessing whether, in a particular case, the frontier worker supports the child of his or her spouse or registered partner, it is for the national authorities and, if appropriate, the national courts to take into account the principle that the provisions establishing the free movement of workers, which constitutes one of the foundations of the European Union, must be construed broadly. (62)
55.      In the second place, that concept must take into account the definition of a ‘member of the family’ provided for in Article 2(2) of Directive 2004/38. Thus, it follows from the case-law cited above that the concept of a ‘member of the family’ of the frontier worker who is able to benefit indirectly from equal treatment under Article 7(2) of Regulation No 492/2011 corresponds to that of a ‘member of the family’ within the meaning of Article 2(2)(c) of Directive 2004/38, which includes the spouse or partner with whom the EU citizen has contracted a registered partnership, the direct descendants who are under the age of 21 or are dependents and the direct descendants of the spouse or partner. (63) In that regard, the Court observes that the EU legislature takes the view that the children are, in any case, presumed to be dependent until the age of 21 years, as is apparent, in particular, from the latter provision. (64)
56.      In the third and final place, it follows from that same case-law that, first, the status as a family member of a child of the spouse or recognised partner of a frontier worker who is ‘dependent’ on that worker may objectively stem from the existence of a joint household shared by that worker and the child (65) and, secondly, in order to assess whether the frontier worker provides for the upkeep of that child, there is no need whatsoever to determine the reasons for the frontier worker’s contribution to the child’s upkeep or to make a precise estimation of its amount. (66)
2.      The simple presumption based on the joint household shared by the worker and the child in question
57.      In the light of those three elements, it appears to me entirely relevant to consider, applying mutatis mutandis the judgment in Depesme and Others to the present cases, the existence of a simple presumption based on a joint household shared by the frontier worker and the child of the spouse or registered partner. As the Commission notes, they are evidence of stability pointing to the existence of a family unit which is capable of establishing that the frontier provides for the upkeep of the child of his or her spouse or registered partner who lives under his or her roof. In other words, that child is legitimately presumed to benefit indirectly from the family allowances at issue since he or she resides in the joint household and, therefore, lives in a family unit with that worker. That joint household is sufficient to confer entitlement to those family allowances under the same conditions as those applied to children with a child-parent relationship with that worker or children in a comparable situation to children residing in the Member State of employment. (67)
58.      That being said, and in view of the day-to-day life of blended families, I consider it important to add three additional elements.
59.      In the first place, that presumption should encompass both fully (68) and partially (69) joint households shared by the frontier worker and the child of the spouse or registered partner.
60.      In the second place, the presumption must apply in relation to children who are minors but also to young adults who are under 21 years of age, do not have their own income, live in the frontier worker’s household and otherwise meet the criteria laid down in the legislation of the Member State of employment (here: Luxembourg legislation), which governs the grant of the family allowance at issue. (70) If not interpreted in that way, there would be a risk of significant legal uncertainty in this type of situation.
61.      In the third and final place, if the frontier worker does not contribute, in reality, in any way to the costs associated with the upkeep of the child of his or her spouse or registered partner, despite the fact that that worker and that child live in a joint household, the authorities of the Member State in which the worker pursues an activity as an employed person should have the option to refuse to grant the family allowance at issue. (71)
3.      The compatibility of the presumption based on a joint household with the priority rules in the event of overlapping under Regulation No 883/2004
62.      The presumption based on a joint household should be held to be compatible with the priority rules in the event of overlapping provided for in Regulation No 883/2004. Under Article 2(1) of that regulation, frontier workers who are employed in Luxembourg, such as the applicants in the disputes in the main proceedings, as well as their families come under the scope ratione personae of the regulation. (72) On that basis, they are, as has been established, subject to the Luxembourg social security scheme.
63.      Thus, in view of the specific nature of the family benefits and of a possible overlapping of the rights to such benefits originating from two Member States, Article 68 of Regulation No 883/2004 provides for priority rules in the event of overlapping, the purpose of which is to prevent benefits from overlapping in respect of the same child for the same periods. (73) Pursuant to Article 2(1) of Regulation No 883/2004, the applicants in the main proceedings are therefore subject to the Luxembourg legislation in relation to family allowances solely in relation to the difference between the amount of the family allowances payable in Luxembourg and that paid in their Member State of residence. This is known as the ‘differential supplement’ arrangement, which corresponds, within the meaning of Article 68(1)(b)(i) of that regulation, (74) to the payment of the ‘highest amount of the benefits provided for by the conflicting legislations’.
64.      Accordingly, where benefits are provided for under the legislation of two Member States on the same basis, the existence of a joint household shared by the frontier worker and the child of that worker’s spouse or registered partner would establish a sufficient connecting link between that child and the worker to take the view that it is for the Member State in which the worker pursues an activity as an employed person (here: Luxembourg) to pay the family allowance at issue.
65.      It follows from all the foregoing considerations that the concept relating to the act of ‘providing for the upkeep’ of a child of the spouse or registered partner of a frontier worker, as used by the Court in the case-law on the interpretation of Article 45 TFEU, Article 1(i) and Article 67 of Regulation No 883/2004 and Article 7(2) of Regulation No 492/2011, must be understood as meaning that that child is legitimately presumed to benefit indirectly from the family allowances at issue, where the child resides in the worker’s household and lives in a family unit with that worker. The existence of such a joint household confers entitlement to a family allowance provided for in the Member State in which that worker pursues an activity as an employed person under the same conditions as those applied to children with a child-parent relationship with the worker.
V.      Conclusion
66.      In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Cour de Cassation (Court of Cassation, Luxembourg) as follows:
The concept relating to the act of ‘providing for the upkeep’ of a child of the spouse or registered partner of a frontier worker, as used by the Court in the case-law on the interpretation of Article 45 TFEU, Article 1(i) and Article 67 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 and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, must be understood as meaning that a child of the spouse or registered partner of a frontier worker is legitimately presumed to benefit indirectly from the family allowances at issue where the child resides in the joint household and, therefore, lives in a family unit with that worker. The existence of such a joint household confers entitlement to a family allowance provided for in the Member State in which the worker pursues an activity as an employed person under the same conditions as those applied to children with a child-parent relationship with the worker.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      By order of 17 December 2018.
3      Judgment of 2 April 2020 (C‑802/18, EU:C:2020:269; ‘the judgment in Caisse pour l’avenir des enfants’). On a different set of facts, see judgment of 16 May 2024, Hocinx (C‑27/23, ‘the judgment in Hocinx’, EU:C:2024:404).
4      Regulation of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1).
5      Regulation of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).
6      Directive 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 (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34).
7      Directive of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers (OJ 2014 L 128, p. 8).
8      In the version thereof applicable since
1 August 2016, the date of entry into force of the loi du 23
juillet 2016, portant modification du code de la sécurité sociale et de la loi modifiée du 4
décembre 1967, concernant l’impôt sur le revenu, et abrogeant la loi modifiée du 21
décembre 2007 concernant le boni pour enfant (Law of 23 July 2016 amending the Social Security Code and the Law of 4 December 1967 on income tax, as amended, and repealing the Law of 21 December 2007 on the ‘boni pour enfant’ (child bonus), as amended) (Mémorial A 2016, p. 2348) (‘the Social Security Code’).
9      In Cases C‑296/24 (Jouxy), C‑300/24 (Meyervibert), C‑304/24 (Barloup) and C‑305/24 (Choinquand), the CAE withdrew from SM, MY, LH and TB, who reside in France and work in Luxembourg, with effect from 1 August 2016, the family allowance received for the child of their respective spouses PX, IX and MV,
born of a previous marriage. In Case C‑297/24 (Broslon), the CAE withdrew from CY, who resides in France and works in Luxembourg, the family allowance received for the child of his spouse, born of a previous marriage. In Case C‑301/24 (Pailvier), the CAE withdrew from AH, who resides in France and works in Luxembourg, the family allowance received for the two children of his registered partner CJ, born of an earlier relationship. In Cases C‑303/24 (Vochal) and C‑306/24 (Gonre), the CAE withdrew from BF and KN, who reside in France and work in Luxembourg, with effect from 1 August 2016, the family allowance received for the children of their respective spouses CG and PE, born of a previous relationship. In Case C‑299/24 (Hicindt), the CAE withdrew from OP, who resides in Belgium and works in Luxembourg, the family allowance received for the child of his spouse TD, born of a previous marriage. In Cases C‑298/24 (Caraneux) and C‑307/24 (Momeut), the CAE withdrew from LK and NB, who reside in Belgium and work in Luxembourg, with effect from 1 August 2016, the family allowance received for the two children of their respective partner (MF) or spouse, born of a previous marriage. In Case C‑302/24 (Prudnez), the CAE withdrew from AE, who resides in Germany and works in Luxembourg, with effect from 1 August 2016, the family allowance received for the child of his spouse, born of a previous marriage.
10      See judgment of 26 February 1992 (C‑3/90, ‘the judgment in
Bernini’, EU:C:1992:89, paragraphs 25 and 29).
11      See judgment of 8 June 1999 (C‑337/97, EU:C:1999:284, paragraph 19).
12      See judgment of 14 June 2012 (C‑542/09, EU:C:2012:346, paragraph 35).
13      See judgment of 20 June 2013 (C‑20/12, ‘the judgment in Giersch and Others’, EU:C:2013:411, paragraph 39).
14      See judgment of 15 December 2016 (C‑401/15 to C‑403/15, ‘the judgment in Depesme and Others’, EU:C:2016:955, paragraphs 58 to 60).
15      Paragraphs 50 and 51 of that judgment.
16      Paragraph 58 of that judgment.
17      It should be remembered that a family allowance, such as that referred to in Article 269(1) of the Social Security Code, falls within the scope ratione materiae of EU law as a family benefit, within the meaning of Article 3(1)(j) of Regulation No 883/2004, and as a social advantage within the meaning of Article 7(2) of Regulation No 492/2011. It follows from settled case-law that a benefit can simultaneously come under the scope of Regulation No 883/2004 and of Regulation No 492/2011. See, in that regard, judgment in Caisse pour l’avenir des enfants (paragraphs 42 to 46 and the case-law cited). On the applicability of Article 3(1)(j) and Article 67 of Regulation No 883/2004 and of Article 7(2) of Regulation No 492/2011 to facts such as those at issue in the main proceedings, see judgment in Caisse pour l’avenir des enfants
(paragraphs 33 to 47 and 65 to 69 and the case-law cited). On the relationship between those regulations, see also Opinion of Advocate General Richard de la Tour in Commission v Austria (Indexation of family benefits) (C‑328/20, EU:C:2022:45, point 127). See, inter alia, Fuchs, M., and Cornelissen, R., (ed.), EU Social Security Law – A Commentary on EU Regulations 883/2004 and 987/2009, C.H. Beck-Hart-Nomos, 2015, p. 28, paragraph 21, and Morsa, M., Sécurité sociale, libre circulation et citoyenneté européennes, Anthemis, 2012, p. 344 et seq..
18      By way of reminder, Article 1(f) of Regulation No 883/2004 provides that ‘“frontier worker” means any person pursuing an activity as an employed or self-employed person in a Member State and who resides in another Member State to which he returns as a rule daily or at least once a week’. Article 1(z) of that regulation provides that ‘“family benefit” means all benefits in kind or in cash intended to meet family expenses, excluding advances of maintenance payments and special childbirth and adoption allowances mentioned in Annex I’. Pursuant to Article 2(1) of the regulation, that regulation ‘applies to nationals of a Member State … residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors’. Therefore, in accordance with that provision, workers such as the applicants in the main proceedings come under the scope ratione personae of Regulation No 883/2004.
19      On the concept of a ‘social advantage’, see, inter alia, judgments of 31 May 1979, Even and ONPTS (207/78, EU:C:1979:144, paragraph 22); of 12 May 1998, Martínez Sala (C‑85/96, EU:C:1998:217, paragraph 25); and of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others (C‑447/18, EU:C:2019:1098, paragraph 47 and the case-law cited).
20      Judgment in Caisse pour l’avenir des enfants (paragraph 32 and point 1 of the operative part). As a reminder, under Article 7(1) of Regulation No 492/2011, ‘a worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work’. Paragraph 2 of that article provides that ‘he shall enjoy the same social and tax advantages as national workers’. In relation to that provision, see judgments in Caisse pour l’avenir des enfants
(paragraph 26) and in
Hocinx (paragraph 26).
21      Judgment in Caisse pour l’avenir des enfants (paragraph 71 and point 2 of the operative part). It is an established fact that freedom of movement for workers within the European Union, as secured by Article 45 TFEU, is one of the foundations of the European Union. More specifically, paragraph 2 of that article provides that freedom of movement for workers ‘shall entail 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’. In that regard, the Court observed, in paragraph 70 of the judgment in Caisse pour l’avenir des enfants, that Article 7(2) of Regulation No 492/2011 is the particular expression, in the specific area of the grant of social advantages, of the principle of equal treatment enshrined in Article 45(2) TFEU and must be accorded the same interpretation as that provision. See also judgment in Depesme and Others (paragraph 35) and that of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others (C‑447/18, EU:C:2019:1098, paragraph 39).
22      See, inter alia, judgment in
Depesme and Others and the case-law cited in that judgment.
23      In that regard, see judgment in Caisse pour l’avenir des enfants
(paragraphs 54 to 64 and the case-law cited). In particular, with regard to
Article 7(2) of Regulation No 492/2011, the Court recalled, in paragraph 56 of that judgment, that such a distinction based on residence, which is liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreign nationals, constitutes indirect discrimination on the ground of nationality which is permissible only if it is objectively justified. See also judgments in Giersch and Others (paragraph 44); of 14 December 2016, Bragança Linares Verruga and Others (C‑238/15, EU:C:2016:949, paragraph 43); and of 10 July 2019, Aubriet (C‑410/18, EU:C:2019:582, paragraph 28).
24      See point 12 of this Opinion.
25      With regard to the aid
to pursue university studies for vocational purposes for persons who have engaged in an occupational activity, see judgment of 21 June 1988, Lair (39/86, EU:C:1988:322, paragraphs 21 to 24). As for secondary-level studies or advanced training undertaken at a technical college, see judgment of 15 March 1989, Echternach and Moritz (389/87 and 390/87, EU:C:1989:130, paragraphs 31 to 36).
26      Council Regulation of 15 October 1968 on freedom of movement for workers within the Community (OJ 1968 L 257, p. 2). As a reminder, the wording of Article 7(2) of that regulation was reproduced in Article 7(2) of Regulation No 492/2011. In addition, the second paragraph of Article 41 of that latter regulation provides that references to Regulation No 1612/68 are to be construed as referring to Regulation No 492/2011.
27      Judgment of 18 June 1987 (316/85, ‘the judgment in Lebon’, EU:C:1987:302, paragraph 13). Paragraph 13 of the judgment in Lebon is, in my view, crucial to a proper understanding of the origin of the concept at issue. The Court held that, ‘where a worker who is a national of one Member State was employed within the territory of another Member State and exercised the right to remain there, his descendants who have reached the age of 21 and are no longer dependent on him may not rely on the right to equal treatment guaranteed by [EU] law in order to claim a social benefit provided for by the legislation of the host Member State … In the circumstances, that benefit does not constitute for the worker a social advantage within the meaning of Article 7(2) of Regulation No 1612/68, inasmuch as he is no longer supporting his descendant’ (emphasis added). I note that the child in the case which gave rise to the judgment in Lebon was over the age of 21 at the time of the facts. As a reminder, Article 10(1)(a) of that regulation provided that the worker’s descendants had to be under the age of 21 years or dependent on him.
28      Judgment in Bernini (paragraph 25). Emphasis added.
29      See judgment in Bernini (paragraphs 23, 25, 27 and 29).
30      Judgment of 8 June 1999 (C‑337/97, EU:C:1999:284, paragraph 19). The case which gave rise to that judgment concerned the child of a frontier worker. In that regard, it should be noted that, in paragraph 21 of that judgment, the Court observed that ‘it [was] expressly stated in the fourth recital in the preamble to [Regulation No 1612/68] that the right of free movement [had to] be enjoyed “without discrimination by permanent, seasonal and frontier workers and by those who pursue their activities for the purpose of providing services” [and]
Article 7 of that
regulation [referred], without reservation, to a “worker who is a national of a Member State”’. The Court inferred from the foregoing and ruled, in the judgment [of 27 November 1997, Meints (C‑57/96, EU:C:1997:564, paragraph 51)], ‘that a Member State may not make payment of a social advantage within the meaning of Article 7(2) [of that regulation] dependent on the condition that recipients be resident within its territory’. Emphasis added. See, in that regard, O’Leary, S., ‘The curious case of frontier workers and study finance: Giersch’, Common Market Law Review, No 51, 2014, pp. 601 to 622, in particular, p. 609, and Turmo, A., ‘The pernicious influence of citizenship rights on workers’ rights in the EU – The case of student finance’, Social Justice, Brexit and Other Challenges, Cambien, N., Kochenov, D., and Muir, E., (eds.), Brill/Nijhoff, 2020, pp. 305 to 334.
31      Judgment of 14 June 2012 (C‑542/09, EU:C:2012:346, paragraphs 34 and 35).
32      Paragraphs 38 and 39 of that judgment.
33      See, inter alia, judgment in
Giersch and Others (paragraphs 38
and 39 and the case-law cited). In particular, in the judgment in
Bernini (paragraph 25), the Court used an equivalent form of words: namely, ‘the worker continues to support his descendant’.
34      As a reminder, the requests for a preliminary ruling submitted in the context of the cases which gave rise to the judgment in Depesme and Others
arose in the context of the amendments made to the Luxembourg legislation further to the judgment in
Giersch and Others (paragraphs 12
to 16).
35      By way of a reminder, the EU legislature takes the view that ‘direct descendants [of an
EU citizen] who are under the age of 21 or are dependants and those of the spouse or [registered] partner’ are to be regarded as being ‘family members’ within the meaning of Article 2(2)(c) of Directive 2004/38. See judgment in Depesme and Others (paragraphs 51
and 57).
36      See judgment in
Depesme and Others (paragraphs 57
and 64 and the operative part). With regard to the unique nature of the concept of ‘family member’ under the EU law referred to in the previous footnote to this Opinion, the Court took into consideration, first, the development of EU legislation and the fact that Article 7(2) of Regulation No 492/2011 simply reproduced the wording of Article 7(2) of Regulation No 1612/68 without amendment and, second, recital 1, Article 1 and Article 2(2) of Directive 2014/54. The latter provisions are proof of the EU legislature’s intention to reproduce in Article 2 of Directive 2004/38 the concept of a ‘family member’ as defined in the case-law of the Court in relation to Regulation No 1612/68, which was repealed and replaced by Regulation No 492/2011. See, in that regard, judgment in Depesme and Others (paragraphs 46
and 47) and the Opinion of Advocate General Wathelet in those joined cases (C‑401/15 to
C‑403/15, EU:C:2016:430, points 39
to 43).
37      See judgment in
Depesme and Others (paragraph 33).
38      Paragraphs 21
to 23 of that judgment.
39      See judgment in
Depesme and Others (paragraph 58). Such a broad interpretation reflects the fact that the term ‘worker’ – and the concept of ‘activity as an employed person’ – is central to defining the scope of one of the fundamental freedoms guaranteed by the Treaty. See judgments of 3 June 1986, Kempf (139/85, EU:C:1986:223, paragraph 13), and of 3 July 1986, Lawrie-Blum (66/85, EU:C:1986:284, paragraph 16).
40      See judgment in
Depesme and Others
(paragraphs 59
and 60). See, in that regard, Opinion of Advocate General Wathelet in those joined cases (C‑401/15 to
C‑403/15, EU:C:2016:430, point 67).
41      Judgment in Depesme and Others (paragraph 64
and the operative part).
42      See points 32 and
33 of this Opinion.
43      See, in this regard, points 37 to
40 and
53 to
56 of this Opinion. See, in relation to that concept, Jacqueson, C., ‘Any news from Luxembourg? On student aid, frontier workers and stepchildren: Bragança Linares Verruga and Depesme’, Common Market Law Review, No 55, 2018, pp. 901
to 922, in particular
p. 917.
44      See point 22 of this Opinion. In that judgment, the Court observed that a family allowance, such as that provided for by Article 269(1) of the Social Security Code, is paid for all children residing in Luxembourg and for all children of non-resident workers who have a child-parent relationship with those workers. That allowance is, in consequence, granted without any individual and discretionary assessment of personal needs, on the basis of a legally defined situation. See, in that regard, Article 1(z) of Regulation No 883/2004. As the Court noted, that benefit represents a public contribution to a family’s budget intended to alleviate the financial burdens involved in caring for children. See judgment in Caisse pour l’avenir des enfants (paragraphs 37 to 39). See also judgments of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436, paragraph 60), and of 21 June 2017, Martinez Silva (C‑449/16, EU:C:2017:485, paragraphs 22
and 23 and the case-law cited).
45      See points 27 to
34 of this Opinion. Such transposition comes as no big surprise: as Advocate General La Pergola observed in his Opinion in
Meeusen (C‑337/97, EU:C:1999:38, point 19), study grants and family allowances are both financial aid to support the upbringing, maintenance and education of children.
46      See judgment in Caisse pour l’avenir des enfants (paragraph 18). In that regard, I consider it appropriate to point out that the family allowance at issue in that case and in the present cases is payable until the month in which the child has his or her 18th birthday. However, an extension of the payment of the allowance is possible up to the age of 25 years if the child pursues studies satisfying the criteria laid down in the relevant Luxembourg legislation. See, in that regard, https://cae.public.lu/fr/allocations/majorite-de-l-enfant/que-devez-vous-savoir-/prolongement-jusqu-a-l-age-de-25-ans.html.
47      See judgment in
Depesme and Others (paragraph 62).
48      See footnote
68 to and point 60 of this Opinion.
49      See judgment in Caisse pour l’avenir des enfants (paragraphs 50 and 71).
50      See footnote
45 to this Opinion.
51      See, in this regard, points 32 and
37 of this Opinion.
52      See judgment in
Depesme and Others (paragraph 62).
53      See judgment in
Depesme and Others (paragraphs 59
and 60).
54      Judgments in
Depesme and Others (paragraph 64
and the operative part) and Caisse pour l’avenir des enfants (paragraphs 50
and 71).
55      In that regard, I note that the Court has, it is true, held that, in line with the objective of Regulation No 883/2004, which is to coordinate different national social security schemes without setting up a common scheme of social security, while the persons entitled to family benefits are to be determined in accordance with national law, it nevertheless remains true that Member States must comply with EU law, in this case the provisions relating to the free movement of workers; see judgment in Caisse pour l’avenir des enfants (paragraphs 68
and 69).
56      See, in this regard, footnote
18 to this Opinion. It goes without saying that, in addition to this incompatibility, a strict interpretation of the concept at issue would create situations in which, within the same household, the frontier worker, that is, the stepfather or stepmother of the child of his or her spouse or registered partner, would receive family allowances for that child’s half-siblings but not for that child. This point had already been raised by Advocate General Wathelet in his Opinion in Depesme and Others (C‑401/15 to
C‑403/15, EU:C:2016:430, points 59
to 61).
57      See, in this regard, judgment in
Hocinx.
58      See points 27 to
35 of this Opinion.
59      See point 37 of this Opinion.
60      See judgment in
Lebon (paragraph 21).
61      See judgments in
Depesme and Others (paragraph 64
and the operative part) and in
Caisse pour l’avenir des enfants (paragraphs 50
and 71).
62      See judgments in
Lebon (paragraphs 21
to 23) and in
Depesme and Others (paragraph 58).
63      See, in that regard, judgments in
Depesme and Others (paragraph 51) and in
Caisse pour l’avenir des enfants (paragraph 51
and the case-law cited). See also footnote
36 to this Opinion.
64      See judgment in
Depesme and Others (paragraph 62).
65      See, to that effect, judgment in
Depesme and Others (paragraphs 59
and 60).
66      Judgments in
Depesme and Others (paragraph 64
and the operative part) and in
Caisse pour l’avenir des enfants (paragraphs 50
and 71).
67      I do not propose that the Court establish a presumption based on the definition of a ‘member of the family’ laid down in Article 2(2) of Directive 2004/38, according to which the children of a spouse or registered partner who are under the age of 21 are dependent on the frontier worker, for the following reasons. First, it appears to me, as I have already mentioned in point 35 of this Opinion, that, although under that provision a child is presumed to be dependent until the age of 21 years, the Court has preferred using the broader expression ‘support’ in its case-law (see case-law cited in points 13 and
28 to
31 of this Opinion). Second, for the reasons set out in points 62 to
64 of this Opinion, it is my view that, contrary to that presumption, the presumption based on the joint household is compatible with the priority rules in the event of overlapping provided for by Regulation No 883/2004.
68      That is to say, the situation in which the child is permanently resident with the frontier worker with whom that child does not have a child-parent relationship.
69      A partially joint household exists, inter alia, in cases where custody is shared between the child’s biological or adoptive parents. In such situations, the child lives primarily in the home formed by the frontier worker and one of his or her biological or adoptive parents, whilst residing periodically with the other biological or adoptive parent for a more limited period of time or for shorter stays in the context of rights of access and accommodation (such as alternate weekends or certain school holidays), an alternating living situation or any other arrangement. Furthermore, some children may have lost or never known one of their parents.
70      In this regard, I consider it important to point out that, in the specific case of young adults under the age of 21 years, that presumption cannot alter the conditions laid down in the legislation of the Member State of employment for the grant of family allowances. Specifically, the family allowance at issue is payable, in principle, until the child turns 18 with the possibility of an extension to the age of 25 years if that child pursues studies satisfying the criteria laid down in the relevant Luxembourg legislation. See, in this regard, footnote
46 to this Opinion. Thus, if the adult child under the age of 21 years in question is no longer resident with the frontier worker because he or she is pursuing ‘secondary-level or equivalent studies’ in another town or city, that worker should be able to prove on the basis of other objective factors that, despite there not being a joint household, he or she continues to provide for the upkeep of the child.
71      This situation could arise in the exceptional circumstances in which it is clear from the file that, despite there being a joint household, the child does not live in a family unit with that worker. For example, in unusual situations in which (1) that worker does not contribute to paying the rent or does not own the house or apartment which he or she shares with his or her spouse or registered partner and the child, and (2) he or she does not cover any of the household’s joint expenses, either because he or she uses his or her entire salary for private purposes, or because under the agreements reached by the child’s biological or adoptive parents all the child’s needs are completely covered.
72      See judgment in Caisse pour l’avenir des enfants (paragraph 41). See also footnote
18 to this Opinion.
73      As a reminder, Article 68(1)(b)(i) of Regulation No 883/2004, which concerns the priority rules in the event of overlapping, provides that ‘where, during the same period and for the same family members, benefits are provided for under the legislation of more than one Member State the …
priority rules shall apply’. Thus, ‘in the case of benefits payable by more than one Member State on the same basis, the order of priority shall be established by referring to the following subsidiary criteria: (i) in the case of rights available on the basis of an activity as an employed or self-employed person: the place of residence of the children, provided that there is such activity, and additionally, where appropriate, the highest amount of the benefits provided for by the conflicting legislations’.
Emphasis added. It follows from the foregoing, inter alia, as the Commission explains, that if a frontier worker working in Luxembourg lives with his spouse and that spouse’s child in Belgium, the competent Belgian authority pays a family allowance in respect of the child to his or her mother. In that situation, Luxembourg becomes involved only if the family allowance which it pays is higher than that granted by Belgium and solely in relation to the difference.
74      As a reminder, Article 68(2) of Regulation No 883/2004 provides that, ‘in the case of overlapping entitlements, family benefits shall be provided in accordance with the legislation designated as having priority in accordance with paragraph 1. Entitlements to family benefits by virtue of other conflicting legislation or legislations shall be suspended up to the amount provided for by the first legislation and a differential supplement shall be provided, if necessary, for the sum which exceeds this amount’.
See, inter alia, Morsa, M., op. cit, p. 352 et seq..