JUDGMENT OF THE COURT (Sixth Chamber)
2 April 2020 (*)
(Reference for a preliminary ruling – Article 45 TFEU – Social security for migrant workers – Regulation (EC) No 883/2004 – Article 1(i) – Freedom of movement for workers – Equal treatment – Social advantages – Directive 2004/38 – Article 2(2) – Regulation (EU) No 492/2011 – Article 7(2) – Family allowance – Concept of ‘members of the family’ – Exclusion of the children of the spouses of non-resident workers – Difference in treatment in comparison with the children of the spouses of resident workers – Justification)
In Case C‑802/18,
REQUEST for a preliminary ruling under Article 267 TFEU from the conseil supérieur de la sécurité sociale (Higher Social Security Board, Luxembourg), made by decision of 17 December 2018, received at the Court on 19 December 2018, in the proceedings
Caisse pour l’avenir des enfants
v
FV,
GW,
THE COURT (Sixth Chamber),
composed of M. Safjan, President of the Chamber, C. Toader and N. Jääskinen (Rapporteur), Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        the Caisse pour l’avenir des enfants, by R. Jazbinsek and A. Rodesch, avocats,
–        FV and GW, by P. Peuvrel, avocat,
–        the European Commission, by B.-R. Killmann and C. Valero, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        The present request for a preliminary ruling concerns the interpretation of Article 45 TFEU, of Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), of Article 1(i) 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 (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), and of 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 (OJ 2011 L 141, p. 1).
2        The request has been made in proceedings between the Caisse pour l’avenir des enfants (Children’s Future Fund, Luxembourg; ‘the CAE’), on the one hand, and FV, a frontier worker, and GW, his wife, on the other, concerning the CAE’s refusal to grant family allowances for the child of GW’s first marriage, who has no child-parent relationship with FV.
Legal context
EU law
Directive 2004/38
3        Article 2 of Directive 2004/38 provides:
‘For the purposes of this Directive:
1.      “Union citizen” means any person having the nationality of a Member State;
2.      “family member” means:
(a)      the spouse;
(b)      the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c)      the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
…’
Regulation No 883/2004
4        Article 1 of Regulation No 883/2004 provides as follows:
‘For the purposes of this Regulation:
…
(i)      “member of the family” means:
1.      (i)      any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided;
(ii)      with regard to benefits in kind pursuant to Title III, Chapter 1 on sickness, maternity and equivalent paternity benefits, any person defined or recognised as a member of the family or designated as a member of the household by the legislation of the Member State in which he/she resides;
2.      if the legislation of a Member State which is applicable under subparagraph 1 does not make a distinction between the members of the family and other persons to whom it is applicable, the spouse, minor children, and dependent children who have reached the age of majority shall be considered members of the family;
3.      if, under the legislation which is applicable under subparagraphs 1 and 2, a person is considered a member of the family or member of the household only if he/she lives in the same household as the insured person or pensioner, this condition shall be considered satisfied if the person in question is mainly dependent on the insured person or pensioner;
…
(z)      “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.’
5        Article 2(1) of that regulation states:
‘This Regulation shall apply to nationals of a Member State, stateless persons and refugees 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.’
6        Article 3(1) of that regulation provides:
‘This Regulation shall apply to all legislation concerning the following branches of social security:
…
(j)      family benefits.’
7        Article 67 of Regulation No 883/2004, entitled ‘Members of the family residing in another Member State’, reads as follows:
‘A person shall be entitled to family benefits in accordance with the legislation of the competent Member State, including for his/her 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.’
Regulation No 492/2011
8        Article 7(1) and (2) of Regulation No 492/2011 provides:
‘1.      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, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.
2.      He shall enjoy the same social and tax advantages as national workers.’
Directive 2014/54/EU
9        Recital 1 of Directive 2014/54/EU 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) is worded as follows:
‘The free movement of workers is a fundamental freedom of Union citizens and one of the pillars of the internal market in the Union enshrined in Article 45 [TFEU]. Its implementation is further developed by Union law aiming to guarantee the full exercise of rights conferred on Union citizens and the members of their family. “Members of their family” should be understood as having the same meaning as the term defined in point (2) of Article 2 of Directive [2004/38], which applies also to family members of frontier workers.’
10      Article 1 of Directive 2014/54 provides:
‘This Directive lays down provisions which facilitate the uniform application and enforcement in practice of the rights conferred by Article 45 TFEU and by Articles 1 to 10 of Regulation [No 492/2011]. This Directive applies to Union citizens exercising those rights and to members of their family …’
11      According to Article 2 of that directive:
‘1.      This Directive applies to the following matters, as referred to in Articles 1 to 10 of Regulation [No 492/2011], in the area of freedom of movement for workers:
…
(c)      access to social and tax advantages;
…
2.      The scope of this Directive is identical to that of Regulation [No 492/2011].’
Luxembourg law
12      The relevant provisions are Articles 269 and 270 of the code de la sécurité sociale (Social Security Code, ‘the Code’), as worded 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, 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 Law of 23 July 2016’).
13      Article 269(1) of the Code, in the version applicable since 1 August 2016, provides:
‘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 referred to in this provision must reside in one of the countries to which the regulations or instruments in question apply.’
14      According to Article 270 of the Code, in the version applicable since 1 August 2016, ‘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’.
15      According to the first sentence of Article 272(1) of the Code, in the version applicable since 1 August 2016, ‘the family allowance is EUR 265 per child per month’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
16      FV works in Luxembourg and lives in France with his wife, GW, and their three children, one of whom, HY, is from a previous relationship of GW. GW has exclusive parental authority in relation to HY. Until the Law of 23 July 2016 came into force, the household received family allowances for those three children on the basis of FV’s status as a frontier worker.
17      With effect from the date of entry into force of the Law of 23 July 2016, which amended the Code by, inter alia, excluding the children of a spouse or registered partner from the definition of ‘members of a person’s family’ in Article 270, the household ceased to be entitled to those allowances for HY.
18      By a decision of 8 November 2016, on the basis of, inter alia, Article 67 of Regulation No 883/2004 and Articles 269 and 270 of the Code, in the version applicable from the date on which the Law of 23 July 2016 came into force, the CAE found that, as from 1 August 2016, FV was no longer entitled to family allowance for HY, who had been born on 5 December 2000 and had been raised in his joint household with GW since July 2008. As he was from a previous relationship of GW and had no child-parent relationship with FV, the CAE took the view that HY was not a ‘family member’ within the meaning of those provisions, and that therefore there was no entitlement to Luxembourg family allowance for that child.
19      Hearing an action brought by FV against that decision, the conseil arbitral de la sécurité sociale (Social Security Arbitration Board, Luxembourg) held, by decision of 17 November 2017, that that action was founded in respect of the claim that family allowance for HY should continue to be payable after 31 July 2016. According to the conseil arbitral de la sécurité sociale (Social Security Arbitration Board):
–        Luxembourg family benefits constitute a social advantage within the meaning of Article 7(2) of Regulation No 492/2011; they relate to the pursuit of activity as an employed person since, in order to be eligible for them, FV must be a worker subject to Luxembourg law; no distinction should be drawn according to whether that social advantage takes the form, as in the case of family benefits, of the child having an entitlement to the benefits in his own right or of entitlement to those benefits lying with FV, who has responsibility for the child and is subject to Luxembourg social legislation, whether or not he is a national worker;
–        the scheme established by Articles 269 and 270 of the Code, in the version applicable from 1 August 2016, introduces a difference in treatment depending on where the child concerned resides, since there is a difference in treatment in the recognition of social advantages for the recipient of the family allowances depending on whether that person is a national worker with responsibility for a child of his or her spouse who lives in Luxembourg or a frontier worker who assumes responsibility for a spouse’s child who lives in the frontier worker’s Member State of origin rather than in Luxembourg; that situation is contrary to Article 7(2) of Regulation No 492/2011; and
–        even though Article 1(i) of Regulation No 883/2004 refers back to the national legislation of the Member State concerned for the definition of ‘member of the family’, the national law at issue, namely Article 270 of the Code, in the version applicable since 1 August 2016, is incompatible with Article 7(2) of Regulation No 492/2011.
20      By an application filed on 29 December 2017 with the conseil supérieur de la sécurité sociale (Higher Social Security Board, Luxembourg), the CAE appealed against the decision of 17 November 2017 of the conseil arbitral de la sécurité sociale (Social Security Arbitration Board). It disputed that family allowances should be treated as a social advantage and claimed that the Arbitration Board had failed to take into consideration the objective elements capable of justifying an alleged difference in treatment.
21      FV countered that the principle of equal treatment means that EU citizens who reside in one Member State and go to another Member State in order to work there are entitled to the social benefits, social and tax advantages and social assistance available in the host Member State for its own nationals. According to FV, the reasoning upheld in the judgment of 15 December 2016, Depesme and Others (C‑401/15 to C‑403/15, EU:C:2016:955), should be followed by analogy in relation to his household. In that judgment, the Court held that the children of the spouse or partner recognised by the host Member State of a frontier worker may also be considered to be the children of that frontier worker for the purposes of qualifying for the right to receive financial aid in order to pursue higher education studies, which is considered to be a social advantage within the meaning of Article 7(2) of Regulation No 492/2011.
22      In those circumstances, the conseil supérieur de la sécurité sociale (Higher Social Security Board) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must Luxembourg family allowances awarded pursuant to Articles 269 and 270 of the [Social Security Code, in the version applicable from 1 August 2016,] be treated as a social advantage within the meaning of Article 45 TFEU and Article 7(2) of Regulation [No 492/2011]?
(2)      If they are so treated, the definition of “member of the family” applicable under Article 1(i) of Regulation No 883/2004 is at odds with the broader definition of “member of the family” in Article 2(2) of Directive [2004/38] when the latter excludes, contrary to what is established by the Coordination Regulation, all autonomy of the Member State in defining a “member of the family”, and excludes any, subsidiary, concept of a person who is mainly dependent. Must the definition of “member of the family” under Article 1(i) of Regulation No 883/2004 prevail, given its specificity in the context of the coordination of social security systems and, above all, does the Member State retain competence to define members of the family who are entitled to family allowances?
(3)      If Article 2(2) of Directive [2004/38] is applicable to family benefits and more precisely to Luxembourg family allowances, can the exclusion of the child of a spouse from the definition of a member of the family be considered indirect discrimination that is justified in view of the domestic objective of the Member State of safeguarding the personal right of the child and the need to protect the authorities of the Member State of employment when extension of the personal field of application amounts to an unreasonable burden for the Luxembourg family benefits system, which, in particular, exports almost 48% of its family benefits?’
The questions referred for a preliminary ruling
The first question
23      By its first question, the referring court is asking, in essence, whether Article 45 TFEU and Article 7(2) of Regulation No 492/2011 must be interpreted as meaning that a family allowance based on the fact that a frontier worker pursues an activity as an employed person in a Member State is a social advantage within the meaning of those provisions.
24      Article 45(2) TFEU states that freedom of movement for workers entails 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. That provision is given specific expression in Article 7(2) of Regulation No 492/2011, which states that a worker who is a national of a Member State is to enjoy, in the territory of the other Member States, the same social and tax advantages as national workers (judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 32).
25      The purpose of Article 7(2) of Regulation No 492/2011 is to achieve equal treatment, and therefore the concept of a ‘social advantage’, extended by that provision to workers who are nationals of other Member States, must include all advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory and the extension of which to workers who are nationals of other Member States therefore seems suitable to facilitate their mobility within the European Union and, consequently, their integration into the host Member State (judgment 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).
26      The Court has held that Article 7(2) of Regulation No 492/2011 benefits equally both migrant workers resident in a host Member State and frontier workers employed in that Member State while residing in another Member State (judgments of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraph 37, and of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others, C‑447/18, EU:C:2019:1098, paragraph 41).
27      Article 7(2) of Regulation No 492/2011 thus benefits a worker, such as FV, who, although he works in Luxembourg, lives in France.
28      It is therefore necessary to determine whether an allowance such as the family allowance at issue in the main proceedings comes within the concept of a ‘social advantage’ within the meaning of Article 7(2) of Regulation No 492/2011.
29      In this regard, the reference made by that provision to ‘social advantages’ cannot be interpreted restrictively (judgment of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others, C‑447/18, EU:C:2019:1098, paragraph 46 and the case-law cited).
30      In the present case it is apparent from the case file available to the Court that, for a frontier worker such as FV, the family allowance at issue in the main proceedings, which constitutes an advantage, is based on the fact that he pursues an activity as an employed person in Luxembourg. It was originally granted to FV only inasmuch as he was a frontier worker subject to Luxembourg law.
31      An allowance of that nature is therefore a social advantage within the meaning of Article 7(2) of Regulation No 492/2011.
32      In the light of the foregoing, the reply to the first question is that Article 45 TFEU and Article 7(2) of Regulation No 492/2011 must be interpreted as meaning that a family allowance based on the fact that a frontier worker pursues an activity as an employed person in a Member State constitutes a social advantage within the meaning of those provisions.
The second and third questions
33      By its second and third questions, which can appropriately be examined together, the referring court asks, in essence, whether Article 1(i) 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 an employed person in a Member State only for their own children, and not for their spouse’s children with whom they have no child-parent relationship, whereas entitlement to that allowance arises for all children residing in that Member State.
34      In order to determine whether Regulation No 883/2004 applies to facts such as those in the main proceedings, it is necessary to ascertain whether an allowance, such as the family allowance at issue in the main proceedings, comes within the material scope of that regulation.
35      In that regard, it should be borne in mind that, according to the settled case-law of the Court, the distinction between benefits coming within the scope of Regulation No 883/2004 and those which fall outside that scope is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether it is classified as a social security benefit by national legislation (judgment of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others, C‑447/18, EU:C:2019:1098, paragraph 22 and the case-law cited).
36      A benefit may therefore be regarded as a social security benefit in so far as it is granted, without any individual and discretionary assessment of personal needs, to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 3(1) of Regulation No 883/2004 (judgment of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others, C‑447/18, EU:C:2019:1098, paragraph 23 and the case-law cited).
37      According to the Court’s case-law, benefits that are granted automatically to families meeting objective criteria relating in particular to their size, income and capital resources, without any individual and discretionary assessment of personal needs, and that are intended to meet family expenses, must be regarded as social security benefits (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, paragraph 22).
38      With regard to whether a particular benefit is one of the family benefits referred to in Article 3(1)(j) of Regulation No 883/2004, it must be noted that, in accordance with Article 1(z) of that regulation, the term ‘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 to that regulation. The Court has held that the phrase ‘to meet family expenses’ is to be interpreted as referring in particular to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children (judgment of 21 June 2017, Martinez Silva, C‑449/16, EU:C:2017:485, paragraph 23 and the case-law cited).
39      It is apparent from the case file available to the Court, first, that the allowance at issue in the main proceedings 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 benefit is, in consequence, granted without any individual and discretionary assessment of personal needs, on the basis of a legally defined situation. Secondly, that allowance appears to represent a public contribution to a family’s budget intended to alleviate the financial burdens involved in caring for children.
40      It follows that an allowance such as the family allowance at issue in the main proceedings is a social security benefit among the family benefits covered by Article 3(1)(j) of Regulation No 883/2004.
41      In addition, a worker such as FV comes within the scope ratione personae of Regulation No 883/2004, which, according to Article 2(1) thereof, 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.
42      In the light of the foregoing, Regulation No 883/2004 is applicable to facts such as those at issue in the main proceedings.
43      Furthermore, it is not inconceivable that Regulation No 883/2004 can apply in conjunction with Article 7(2) of Regulation No 492/2011.
44      The Court has held that, although Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) and Council Regulation (EEC) No 1408/71 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) (‘Regulation No 1408/71’), which were repealed and replaced by Regulation No 492/2011 and by Regulation No 883/2004 respectively, do not have the same scope of application ratione personae, the fact nonetheless remains that, since Regulation No 1612/68 is of general application as regards the free movement of workers, Article 7(2) thereof may apply to social advantages which, at the same time, come specifically within the scope of Regulation No 1408/71 (judgment of 5 May 2011, Commission v Germany, C‑206/10, EU:C:2011:283, paragraph 39; see also, to that effect, judgment of 12 May 1998, Martínez Sala, C‑85/96, EU:C:1998:217, paragraph 27).
45      The Court has found, for example, that a benefit such as a child-raising allowance which is intended to meet family expenses comes within the scope ratione materiae of EU law as a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71 and as a social advantage within the meaning of Article 7(2) of Regulation No 1612/68 (see, to that effect, judgment of 12 May 1998, Martínez Sala, C‑85/96, EU:C:1998:217, paragraphs 27 and 28).
46      Those considerations apply, mutatis mutandis, in regard to Regulation No 883/2004 and Regulation No 492/2011.
47      The second and third questions should therefore be answered on the basis of Article 7(2) of both Regulation No 492/2011 and Regulation No 883/2004.
48      As regards, first, Article 7(2) of Regulation No 492/2011, as follows from paragraph 32 of this judgment, an allowance such as the family allowance at issue in the main proceedings is a social advantage within the meaning of that provision.
49      Moreover, according to the Court’s case-law, the members of a migrant worker’s family are the indirect beneficiaries of the equal treatment granted to that worker under Article 7(2) of Regulation No 492/2011 (see, by analogy, judgment of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraph 40).
50      The Court has also held that Article 45 TFEU and Article 7(2) of Regulation No 492/2011 must be interpreted as meaning that a child of a frontier worker, who is able to benefit indirectly from the social advantages referred to in the latter provision, 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, in the case where that worker provides for the upkeep of that child. According to the Court, that latter requirement 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 applicant, and it is not necessary for them to determine the reasons for that contribution or to make a precise estimation of its amount (see, by analogy, judgment of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraph 64).
51      The Court has found that the concept of a ‘member of the family’ of a frontier worker able to benefit indirectly from equal treatment under Article 7(2) of Regulation No 492/2011 is the same as that of a ‘family member’ for the purposes of Article 2(2) 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 dependants, and the direct descendants of the spouse or partner. The Court has had particular regard, in this respect, to recital 1, Article 1 and Article 2(2) of Directive 2014/54 (see, to that effect, judgment of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraphs 52 to 54).
52      In the case in the main proceedings, it is apparent from the order for reference that the biological father of the child does not pay any maintenance to the child’s mother. It appears therefore that FV, the spouse of HY’s mother, supports that child, a matter which it is nevertheless for the referring court to verify.
53      It is thus necessary to determine whether the rule prohibiting discrimination based on nationality in relation to social advantages, set out in Article 7 of Regulation No 492/2011, precludes provisions of a Member State that prevent a frontier worker from receiving an allowance such as the family allowance at issue in the main proceedings for the child of that worker’s spouse with whom the worker has no child-parent relationship.
54      In this regard, the principle of equal treatment laid down in both Article 45 TFEU and Article 7 of Regulation No 492/2011 prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (judgments of 13 April 2010, Bressol and Others, C‑73/08, EU:C:2010:181, paragraph 40, and of 10 July 2019, Aubriet, C‑410/18, EU:C:2019:582, paragraph 26; see also, by analogy, judgment of 14 December 2016, Bragança Linares Verruga and Others, C‑238/15, EU:C:2016:949, paragraph 41).
55      In the present case, it is apparent from the case file available to the Court that, under the national legislation at issue in the main proceedings, all children residing in Luxembourg can claim the family allowance in question, which implies that any child forming part of the household of a worker residing in Luxembourg can claim the same allowance, including the children of that worker’s spouse. By contrast, non-resident workers can claim that allowance solely for their own children, to the exclusion of a spouse’s children with whom they have no child-parent relationship.
56      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, to that effect, judgment of 10 July 2019, Aubriet, C‑410/18, EU:C:2019:582, paragraph 28 and the case-law cited).
57      The fact that, under the national legislation at issue in the main proceedings, entitlement to the family allowance at issue in those proceedings is conferred directly on the child residing in Luxembourg whereas, for non-resident workers, the entitlement is conferred on the worker, for the members of that person’s family as defined by that legislation, is irrelevant for that purpose. It is apparent from the case-law that family benefits, by their very nature, cannot be regarded as payable to an individual in isolation from his or her family circumstances (see, to that effect, judgments of 5 February 2002, Humer, C‑255/99, EU:C:2002:73, paragraph 50, and of 26 November 2009, Slanina, C‑363/08, EU:C:2009:732, paragraph 31).
58      In order to be justified, that indirect discrimination must be appropriate for securing the attainment of a legitimate objective and must not go beyond what is necessary to attain that objective (see to that effect, judgment of 10 July 2019, Aubriet, C‑410/18, EU:C:2019:582, paragraph 29).
59      In that connection, the referring court mentions, first, ‘the domestic objective … of safeguarding the personal right of the child’ and, secondly, ‘the need to protect the authorities of the Member State of employment when extension of the personal field of application amounts to an unreasonable burden for the Luxembourg family benefits system, which, in particular, exports almost 48% of its family benefits’.
60      The domestic objective of safeguarding the personal right of the child does not appear to be capable of justifying the indirect discrimination at issue in the main proceedings.
61      Indeed, as the European Commission noted in its written observations, although the national legislation at issue in the main proceedings confers entitlement to the family allowance at issue in those proceedings directly on a child residing in Luxembourg, it appears that, for non-resident workers, that entitlement is conferred on the worker, for the members of that person’s family as defined by that legislation, that is to say, children who have a child-parent relationship with that worker, but not for a spouse’s children who have no such relationship with the worker. It would appear therefore that the national legislation at issue in the main proceedings does not confer any personal right on the children of non-resident workers.
62      As regards the objective of protecting the authorities of the Member State of employment when extension of the personal field of application might amount to an ‘unreasonable burden for the Luxembourg family benefits system’, even assuming that this objective can be regarded as legitimate, the indirect discrimination at issue in the main proceedings does not, in any event, appear to be either appropriate or necessary in order to resolve the alleged problem of exported Luxembourg family allowances.
63      In fact, first, by granting the family allowance at issue in the main proceedings to all children with a child-parent relationship with frontier workers, with no requirement to prove the existence of a joint household or that the child is mainly dependent on the worker, the Luxembourg legislature itself construed the circle of beneficiaries of that allowance broadly. Secondly, that objective could be pursued using measures which affect resident and frontier workers without distinction.
64      Accordingly, Article 7(2) of Regulation No 492/2011 does preclude provisions of a Member State according to which non-resident workers are entitled to receive an allowance, such as the family allowance at issue in the main proceedings, solely for their own children, and not for a spouse’s children with whom they have no child-parent relationship, whereas any child residing in that Member State is entitled to receive that allowance.
65      Secondly, with regard to Regulation No 883/2004, Article 67 of that regulation provides that a person is to be entitled to family benefits in accordance with the legislation of the competent Member State, including for the members of his family residing in another Member State, as if they were residing in the former Member State.
66      In accordance with Article 1(i) of Regulation No 883/2004, for the purposes of that regulation, the term ‘member of the family’ means any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided.
67      Relying on that definition and on the judgment of 22 October 2015, Trapkowski (C‑378/14, EU:C:2015:720), the CAE contends that it is for the competent Member State to define the family members who are entitled to the family allowance. In its view, the national legislature is, therefore, empowered to limit the payment of family benefits solely to those children who have a child-parent relationship with the worker.
68      In that regard, in line with the objective of Regulation No 883/2004, which is to coordinate different national social security schemes although without setting up a common scheme of social security, the Court has, it is true, held that the persons entitled to family benefits are to be determined in accordance with national law (judgment of 22 October 2015, Trapkowski, C‑378/14, EU:C:2015:720, paragraph 44).
69      It nevertheless remains true that, when exercising those powers, Member States must comply with EU law, in this case the provisions relating to the free movement of workers (see, by analogy, judgment of 7 December 2017, Zaniewicz-Dybeck, C‑189/16, EU:C:2017:946, paragraph 40).
70      Article 7(2) of Regulation No 492/2011, which 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 (judgments of 15 December 2016, Depesme and Others, C‑401/15 to C‑403/15, EU:C:2016:955, paragraph 35, and of 18 December 2019, Generálny riaditeľ Sociálnej poisťovne Bratislava and Others, C‑447/18, EU:C:2019:1098, paragraph 39), as found in paragraph 64 of this judgment, precludes provisions of a Member State according to which non-resident workers are entitled to receive an allowance such as the family allowance at issue in the main proceedings solely for their own children, and not for a spouse’s children with whom the worker has no child-parent relationship, whereas any child residing in that Member State is entitled to receive that allowance.
71      In the light of the foregoing, the second and third questions must be answered to the effect that Article 1(i) and Article 67 of Regulation No 883/2004, both 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.
Costs
72      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Sixth Chamber) hereby rules:
1.      Article 45 TFEU 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 interpreted as meaning that a family allowance based on the fact that a frontier worker pursues an activity as an employed person in a Member State constitutes a social advantage within the meaning of those provisions.
2.      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, both read in conjunction with Article 7(2) of Regulation No 492/2011 and with Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, 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.
[Signatures]
*      Language of the case: French.