OPINION OF ADVOCATE GENERAL
HOGAN
delivered on 7 March 2019(1)
Case C‑32/18
Tiroler Gebietskrankenkasse
v
Michael Moser
(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))
(Request for a preliminary ruling — Regulation (EC) No 883/2004 — Article 5 — Regulation (EC) No 987/2009 — Article 60 — Social security of migrants workers — Family benefit — Right to the difference between the parental allowance paid in the Member State having primary competence and the childcare allowance of the Member State having secondary competence)
I.      Introduction
1.        The present request for a preliminary ruling concerns in essence the interpretation of Article 60(1), second sentence, of Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems. (2) The Court is also invited to indicate which ‘income’ has to be taken into account when calculating the amount of the family benefit sought.
2.        The request was made in proceedings between Mr Michael Moser and the Tiroler Gebietskrankenkasse (Tyrol Regional Health Insurance Fund, Austria) concerning his application to receive payment of the difference between what is described as Elterngeld (the German parental allowance) and Kinderbetreuungsgeld (the Austrian childcare allowance). Before considering the facts of this case, it is necessary first, however, to set out the details of the relevant legislation.
II.    Legal context
A.      EU law
1.      Regulation (EC) No 883/2004 on the coordination of social security systems (3)
3.        Recitals 9, 10, 11 and 12 of Regulation No 883/2004 state:
‘(9)      The Court of Justice has on several occasions given an opinion on the possibility of equal treatment of benefits, income and facts; this principle should be adopted explicitly and developed, while observing the substance and spirit of legal rulings.
(10)      However, the principle of treating certain facts or events occurring in the territory of another Member State as if they had taken place in the territory of the Member State whose legislation is applicable should not interfere with the principle of aggregating periods of insurance, employment, self-employment or residence completed under the legislation of another Member State with those completed under the legislation of the competent Member State. Periods completed under the legislation of another Member State should therefore be taken into account solely by applying the principle of aggregation of periods.
(11)      The assimilation of facts or events occurring in a Member State can in no way render another Member State competent or its legislation applicable.
(12)      In the light of proportionality, care should be taken to ensure that the principle of assimilation of facts or events does not lead to objectively unjustified results or to the overlapping of benefits of the same kind for the same period.’
4.        Article 4 of Regulation No 883/2004 is entitled ‘Equality of treatment’, and provides: ‘Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.’
5.        Article 5 of Regulation No 883/2004, is entitled ‘Equal treatment of benefits, income, facts or events’ and further provides:
‘Unless otherwise provided for by this Regulation and in the light of the special implementing provisions laid down, the following shall apply:
(a)      where, under the legislation of the competent Member State, the receipt of social security benefits and other income has certain legal effects, the relevant provisions of that legislation shall also apply to the receipt of equivalent benefits acquired under the legislation of another Member State or to income acquired in another Member State;
(b)      where, under the legislation of the competent Member State, legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account of like facts or events occurring in any Member State as though they had taken place in its own territory.’
6.        Article 6 of Regulation No 883/2004 makes it clear that, ‘unless otherwise provided for by this Regulation, the competent institution of a Member State whose legislation makes the acquisition, retention, duration or recovery of the right to benefits, the coverage by legislation, or the access to or the exemption from compulsory, optional continued or voluntary insurance, conditional upon the completion of periods of insurance, employment, self-employment or residence shall, to the extent necessary, take into account periods of insurance, employment, self-employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it applies’.
7.        Chapter 8 of Title III of Regulation No 883/2004 concerns family benefits. According to Article 67 (which is entitled ‘Members of the family residing in another Member State’):
‘A person shall be entitled to family benefits in accordance with the legislation of the competent Member State, including for his family members residing in another Member State, as if they were residing in the former Member State. However, a pensioner shall be entitled to family benefits in accordance with the legislation of the Member State competent for his pension.’
8.         In the same chapter, Article 68 of Regulation No 883/2004 lays down the priority rules in the event of overlapping entitlements:
‘1. 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 following priority rules shall apply:
(a)      in the case of benefits payable by more than one Member State on different bases, the order of priority shall be as follows: firstly, rights available on the basis of an activity as an employed or self-employed person, secondly, rights available on the basis of receipt of a pension and finally, rights obtained on the basis of residence;
(b)      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. In the latter case, the cost of benefits shall be shared in accordance with criteria laid down in the Implementing Regulation;
…
2. 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. …
…’
2.      Regulation No 987/2009
9.        Article 60(1) of Regulation No 987/2009 provides:
‘The application for family benefits shall be addressed to the competent institution. For the purposes of applying Articles 67 and 68 of [Regulation No 883/2004], the situation of the whole family shall be taken into account as if all the persons involved were subject to the legislation of the Member State concerned and residing there, in particular as regards a person’s entitlement to claim such benefits. …’
B.      Austrian law
1.      Law on childcare allowance
10.      According to the referring court, the Kinderbetreuungsgeldgesetz Austrian law on childcare allowance; ‘the KBGG’) (4) originally envisaged that Kinderbetreuungsgeld would be a family benefit. Since then, however, the Kinderbetreuungsgeld has been payable on a flat-rate basis irrespective of any previous gainful activity. The law in question originally provided for three alternative eligibility bands in the form of three flat rates payable for the periods up until the child reaches the ages of 30 or 36 months, 20 or 24 months and 15 or 18 months respectively, the amount of the flat rate being dependent on the alternative selected (benefit period). The law published in BGBl. I 2009/116 not only introduced a fourth flat-rate band (12 plus 2 months) but also created a right to receive Kinderbetreuungsgeld in replacement of earnings, in an amount dependent on previous earnings.
11.      Paragraph 6(3) (in the version published in BGBl. I 116/2009) provides:
‘Entitlement to Kinderbetreuungsgeld shall, in so far as the person concerned is entitled to comparable family benefits in another State, be suspended up to the amount of the benefits payable in the other State. The difference between the comparable family benefits payable in the other State and the Kinderbetreuungsgeld shall be credited to the “Kinderbetreuungsgeld” once the comparable family benefits in the other State have stopped being paid’.
12.      Paragraph 24 (in the version published in BGBl. I 117/2013) provides:
‘(1)      For the purposes of this section, a parent … shall be entitled to Kinderbetreuungsgeld for his or her child …, provided that:
1.      the conditions of entitlement laid down in Paragraph 2(1), points 1, 2, 4 and 5, are met;
2.      for the six months immediately preceding the birth of the child for whom Kinderbetreuungsgeld is to be claimed, that parent has been in continuous gainful activity within the meaning of subparagraph (2) and has not been in receipt of any unemployment benefits during that period, entitlement to the allowance being unaffected by interruptions of no more than 14 calendar days in total.
(2)      For the purposes of this Federal Law, gainful activity shall mean the actual exercise of a gainful activity subject to social security contributions in Austria
…’
13.      Paragraph 24a (in the version published in BGBl. I 139/2011) provides:
‘(1)      Kinderbetreuungsgeld shall be equal, per day:
1.      in the case of a woman in receipt of maternity benefit, to 80% of the maternity benefit provided for under Austrian law, expressed as a per-calendar-day rate, which is payable on the occasion of the birth of any child for whom Kinderbetreuungsgeld is claimed,
...
3.      in the case of a father, to 80% of the maternity benefit, expressed as a per-calendar-day rate and to be calculated notionally, which would be payable to a woman in his position on the occasion of the birth of any child for whom Kinderbetreuungsgeld is claimed.
(2)      Kinderbetreuungsgeld”as provided for in subparagraph (1) shall in any event be at least equal to the daily rate referred to in subparagraph 1, point 5, but shall not exceed EUR 66 per day.’
14.      According to Paragraph 24b (in the version published in BGBl. I 116/2009), ‘Where Kinderbetreuungsgeld is claimed by only one parent, it shall be payable, at most, up until the child reaches the age of 12 months. Where that benefit is claimed by the second parent too, the period of entitlement shall be extended by the period for which the second parent is claiming, but shall not exceed the point at which the child reaches the age of 14 months. Only periods of actual receipt of the benefit shall be regarded as having been claimed for’.
2.      General law on social security
15.      Paragraph 162(3) of the Allgemeines Sozialversicherungsgesetz (Austrian General law on social security) reads:
‘The maternity benefit shall be payable in the amount of the average income, expressed as a per-calendar-day rate, earned in the 13 weeks (…three calendar months) prior to the insurance contingency of maternity, minus statutory deductions …
…’
III. Facts of the main proceedings
16.      Mr and Ms Moser live with their two daughters in Germany. Ms Moser has been employed as a cross-border worker in Austria since 1 July 1996. Mr Moser has been employed in Germany since 1992.
17.      Following the birth of the second daughter on 29 August 2013, Ms Moser arranged with her Austrian employer to take a period of ‘Karenz’ (Austrian parental leave) lasting until 28 May 2015. The defendant, Tiroler Gebietskrankenkasse, paid Ms Moser certain supplementary payments in addition to the Austrian income-dependent Kinderbetreuungsgeld in respect of the second daughter. These additional payments came to EUR 785.84 for the 188-day period from 25 October 2013 to 30 April 2014 and EUR 129.58 for the 31-day period from 1 May 2014 to 31 May 2014.
18.      For his part, in order to care for their second daughter, Mr Moser took Elternzeit (German parental leave) from 29 June to 28 August 2014 and received Elterngeld in the amount of EUR 3 600 in Germany.
19.      In initial proceedings before the Landesgericht Innsbruck (Regional Court, Innsbruck, Austria), acting as an employment and social security court, Ms Moser successfully applied for an additional supplemental sum to the Kinderbetreuungsgeld for the periods from 25 October 2013 to 28 June 2014 and from 29 August to 28 October 2014. In a second set of proceedings before the same court, Mr Moser applied for a supplementary payment additional to the income-dependent Kinderbetreuungsgeld in the amount of EUR 66 per day for the period of his German parental leave from 29 June to 28 August 2014.
20.      Those two cases were joined for the purposes of a common procedure and judgment. The proceedings brought by Ms Moser were concluded by decision of 20 December 2017. Her supplementary claim has been finally settled. In contrast, however, the Landesgericht Innsbruck (Regional Court, Innsbruck), acting as an employment and social security court, dismissed the application made by Mr Moser.
21.      Following an appeal, the court of second instance (Oberlandesgericht Innsbruck; (Higher Regional Court, Innsbruck, Austria) varied the decision of the court of first instance. It ordered the Tiroler Gebietskrankenkasse to pay Mr Moser a supplementary payment to the income-dependent Kinderbetreuungsgeld in the amount of EUR 29.86 per day for the period from 29 June to 28 August 2014, that is to say EUR 1 821.46 in total. It dismissed without challenge the remainder of the application.
22.      The Tiroler Gebietskrankenkasse lodged an appeal on a point of law with the Oberster Gerichtshof (Supreme Court, Austria) against that decision. It claims that the action should be dismissed in its entirety. The issue, accordingly, is whether Mr Moser is entitled to payment of the difference between the German Elterngeld and the Austrian income-dependent Kinderbetreuungsgeld for the period of his German parental leave from 29 June to 28 August 2014.
23.      According to Mr Moser, Austria’s secondary competence follows from his wife’s ongoing employment relationship with an Austrian employer. Paragraph 24(2) of the KBGG would be contrary to EU law if it requires the actual exercise of a gainful activity subject to social security contributions in Austria.
24.      The Tiroler Gebietskrankenkasse disputes its obligation to make a supplementary payment. It contends that the father does not meet the national conditions of entitlement because he was not continuously engaged in a gainful activity subject to social security contributions or an equivalent activity in the six-month period prior to the birth of his second daughter. Regulation No 883/2004 is confined to coordinating situations involving entitlement in more than one State. It contends that the cross-border component provided for in Regulation No 883/2004 would thereby be lacking.
25.      The referring court specifies that the fact that Paragraph 24(1), point 2, in conjunction with Paragraph 24(2) of the KBGG restricts the meaning of gainful activity to an activity subject to social security contributions which is exercised exclusively in Austria was considered by the Oberster Gerichtshof (Supreme Court) to be contrary to EU law.
26.      Furthermore, the referring court assumes that Mr Moser meets the temporal conditions laid down by national law for making a claim, in the form of a two-month minimum benefit period (Paragraph 5(4) of the KBGG) and a minimum of six months’ continuous gainful activity prior to the birth of the child (Paragraph 24(1), point 1, and (2) of the KBGG).
27.      In that context, the Oberster Gerichtshof (Supreme Court) has doubts as to the interpretation to be given to the relevant provisions of Regulation No 883/2004 and Regulation No 987/2009. In particular, in the case of the Moser family, two questions are in dispute.
28.      First, whether the fact that the second sentence of Article 60(1) of Regulation No 987/2009 requires the situation of the whole family to be taken into account confers on a father an EU-law right to the difference in relation to the Austrian income-dependent Kinderbetreuungsgeld, in the case where Austria has secondary competence exclusively on the ground of being the State of employment of the mother and has already paid the mother a top-up to the income-dependent Kinderbetreuungsgeld to which she is entitled. Second, whether the equal treatment of benefits, facts or events prescribed in Article 5 of Regulation No 883/2004 indicates that the income earned by Mr Moser in Germany must form the basis for calculating the income-dependent Kinderbetreuungsgeld and the differential supplement.
IV.    The request for a preliminary ruling and the procedure before the Court
29.      In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Must the second sentence of Article 60(1) of Regulation No 987/2009 … be interpreted as meaning that a Member State having secondary competence (Austria) must pay, as a family benefit, to a parent resident and employed in a Member State having primary competence in accordance with Article 68(1)(b)(i) of Regulation No 883/2004 (Germany) the difference between the Elterngeld (parental allowance) paid in the Member State having primary competence and the income-dependent Kinderbetreuungsgeld (childcare allowance) in the other Member State, in the case where both parents live with their common children in the Member State having primary competence and the second parent alone is employed as a cross-border worker in the Member State having secondary competence?
In the event that the first question is answered in the affirmative:
(2)      Must the income-dependent Kinderbetreuungsgeld be calculated by reference to the income actually earned in the Member State of employment (Germany) or by reference to the income which could hypothetically be earned from a comparable gainful activity in the Member State having secondary competence (Austria)?’
30.      Written observations were submitted by the applicant and the defendant in the main proceedings, the Czech and Austrian Governments and by the European Commission.
31.      The applicant, the Austrian Government and the European Commission further attended the hearing on 30 January 2019 and presented oral arguments to the Court.
V.      Analysis
32.      Without prejudice to any answer that the Court may give to the first question, but, as requested by the Court, I propose in this opinion to confine my observations to the second question asked by the Oberster Gerichtshof (Supreme Court).
33.      The Court examined a similar issue in Bergström. (5) In that case, the Court calculated the amount of a family benefit awarded to a person who has completed in full the employment periods necessary to acquire that right in another Member State by taking into account on a hypothetical basis the income of a person who has comparable experience and qualifications and who is similarly employed in the Member State in which that benefit was sought.
34.      The referring court takes the view, however, that the equal treatment of benefits, facts or events prescribed in Article 5 of Regulation No 883/2004 may indicate that the income earned by Mr Moser in Germany must form the basis for calculating the income-dependent Kinderbetreuungsgeld and the differential supplement. For my part, however, I do not share this interpretation. I consider that the reasoning given in the judgment of 15 December 2011, Bergström
is, in effect, dispositive of this case. Any other conclusion would amount to overruling the effect of that earlier judgment without any legal or factual basis to do so. (6)
A.      The judgment of 15 December 2011, Bergström (C‑257/10, EU:C:2011:839)
35.      As I have just indicated, in the judgment of 15 December 2011, Bergström, the Court refused to assimilate income received in a third country with the domestic income which serves, according to the national law involved, as a basis for calculating the amount of the family benefit sought.
36.      In that case the claimant, a Swedish national, had previously settled in Switzerland and was employed there until the birth of her daughter in 2002. She then moved to Sweden with her husband. He took up employment, but she remained at home in order to care for her daughter. Ms Bergström then applied for parental benefit calculated on the basis of the Swiss income she had previously from her employment in that country.
37.      Under the applicable national law, the family benefit in question equalled in value to those daily benefits which were fixed in accordance with the rules governing sickness insurance. The family benefit in question was linked to the annual income of the socially insured person.
38.      In such circumstances, the Court held that account must therefore be taken of the relevant rules, concerning the ‘sickness’ provision of social security laid down in the regulation applicable at that time, namely Regulation (EEC) No 1408/71, (7) in order to calculate the amount of family benefits for that particular category.
39.      According to Article 23 of Regulation No 1408/71, income is established either by reference to earnings during periods completed under the legislation of the competent institution, or by reference to standard earnings for the periods completed under that legislation (that is to say, in the case of Ms Bergström, under Swedish law).
40.      As Ms Bergström was not in receipt of any income in Sweden during the qualifying period, the Court held that ‘in order for … Article 72 of Regulation No 1408/71 … to be effective, and in order to satisfy the equal treatment requirement under … Article 3(1) of the regulation, Ms Bergström’s qualifying income must be calculated by taking into account the income of a person who is employed, in Sweden, in a situation comparable to her situation and who also has professional experience and qualifications comparable to her professional experience and qualifications’. (8)
41.      The real significance of
Bergström, however, lies in the fact that the Court rejected the argument that Regulation No 1408/71 had the effect of assimilating Ms Bergstrom’s Swiss income with the domestic income which in Sweden served as the basis of calculating the amount of the family benefit sought. As Ms Bergstrom had no relevant Swedish earnings for this purpose, the Court held that in order for the overall provisions of Regulation No 1408/71 to be effective and to satisfy the equal treatment requirement under Article 3(1) of the regulation, that qualifying income fell to be calculated by reference to the notional income of the hypothetical Swedish employee who possessed the same qualifications and experience.
B.      Application to this case
42.      In assessing the significance of the decision in Bergstrom it must be recalled that the rules which the Court took as a basis for its conclusion, that is to say Article 3(1), Article 23 and Article 72 of Regulation No 1408/71, still apply so far as Regulation No 883/2004 (9) is concerned.
43.      The fact that Mr Moser did not move from Germany to Austria — unlike Ms Bergström who had moved from Switzerland to Sweden — does not alter this perspective. The decision in Bergström does not turn on the fact that the claimant in that case had exercised her free movement rights. Rather, what was critical so far as the Court’s reasoning was concerned was that Ms Bergström’s actual Swiss earnings could not be taken into account for the purposes of calculating the family benefit payable to her in Sweden. The legal issue is accordingly similar in both situations: the benefit is fixed in accordance with the rules governing the maternity benefit (as in the main proceedings) or sickness insurance (as in the Bergström case) which are both in turn linked with the income previously earned by the person concerned and are governed by the same provisions in Regulation No 883/2004 (10).
44.      It is true that the referring court takes the view that Article 5 of Regulation No 883/2004 may indicate that the income earned by Mr Moser in Germany — that is to say the ‘real’ income earned by him — must form the basis for calculating the income-dependent Kinderbetreuungsgeld and the differential supplement.
45.      According to Article 5(b) of Regulation No 883/2004, ‘where, under the legislation of the competent Member State, legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account of like facts or events occurring in any Member State as though they had taken place in its own territory’.This rule was admittedly not included in Regulation No 1408/71. Article 5 of Regulation No 883/2004 nonetheless simply amounts to a clarification of the principle of equal treatment laid down in Article 4 of that regulation.
46.      From that perspective, it seems to me that this provision cannot affect the calculation of the amount of family benefits, at least so far as the present case is concerned. Here it must be noted that recital 10 of Regulation No 883/2004 expressly provides that, ‘the principle of treating certain facts or events occurring in the territory of another Member State as if they had taken place in the territory of the Member State whose legislation is applicable should not interfere with the principle of aggregating periods of insurance, employment, self-employment or residence completed under the legislation of another Member State with those completed under the legislation of the competent Member State’. (11) This is precisely the principle laid down in Article 72 of Regulation No 1408/71 employed by the Court in the judgment of 15 December 2011, Bergström (C‑257/10, EU:C:2011:839, paragraph 52), and which is in now contained in Article 6 of Regulation No 883/2004.
47.      Article 67 of Regulation No 883/2204 moreover provides when dealing with the issue of family benefit that, ‘(a) person shall be entitled to family benefits in accordance with the legislation of the competent Member State, including for his family members residing in another Member State, as if they were residing in the former Member State’. (12)
48.      Nor can one overlook the fact that in a case like the one to hand where Article 67 of Regulation No 883/2004 has to be applied, Article 60 of Regulation No 987/2009 provides that ‘the situation of the whole family shall be taken into account as if all the persons involved were subject to the legislation of the Member State concerned and residing there, in particular as regards a person’s entitlement to claim such benefits’. (13)
49.      The use of the words ‘in particular’ in this context clearly indicates that the circumstances enumerated in this provision were not intended to be exhaustive.
50.      Furthermore, this interpretation of Article 5 of Regulation No 883/2004 and Article 60 of Regulation No 987/2004 safeguards the financial balance of the social security system of the Member State involved since highest incomes from other Member States are irrelevant. (14) It is also consistent with recital 12 of Regulation No 883/2004 which provides that the principle of assimilation of facts or events cannot lead to objectively unjustified results.
51.      All of this points to the conclusion that, by direct analogy with the reasoning in Bergström, Mr Moser’s qualifying income for the purposes of calculating the amount of the payment of the Austrian family benefit should be assessed not by reference to what he actually earned in Germany, but rather by reference to the income which could hypothetically have been earned by an employee with similar qualifications and experience in the Member State having secondary competence (in this case, Austria).
VI.    Conclusion
52.      Accordingly, I propose that the Court should answer the second question referred by the Oberster Gerichtshof (Supreme Court, Austria) as follows:
The income-dependent Kinderbetreuungsgeld (Austrian childcare allowance) has to be calculated by reference to the income which could hypothetically be earned from a comparable gainful activity in the Member State having secondary competence.
1      Original language: English.
2      OJ 2009 L 284, p. 1.
3      OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1.
4      Bundesgesetzblatt (‘BGBl.’) I 103/2001.
5      Judgment of 15 December 2011 (C‑257/10, EU:C:2011:839).
6      I also note that none of the parties who lodged observations before this Court raises any claim in respect of the possible difficulties in calculating such amounts.
7      Regulation of the Council, of 14 June 1971, on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416), as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council, of 5 June 2001 (OJ 2001 L 187, p. 1).
8      Judgment of 15 December 2011, Bergström(C‑257/10, EU:C:2011:839, paragraph 52).
9      See, respectively, Article 4, Article 21 and Article 6 of Regulation No 883/2004.
10      See Regulation No 883/2004, Title III, Chapter 1, ‘Sickness, maternity and equivalent paternity benefits’.
11      Emphasis added.
12      Emphasis added.
13      Emphasis added.
14      It might also be observed that there is a no risk of seriously undermining the financial balance of the Austrian social security system since the amount of Kinderbetreuungsgeld is subject to a statutory ceiling.