61980CJ0104_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 104/80
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FIRST CHAMBER OF THE SOZIALGERICHT ( SOCIAL COURT ) SCHLESWIG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
KURT BEECK
AND
BUNDESANSTALT FUR ARBEIT ( FEDERAL EMPLOYMENT OFFICE )
Subject of the case
ON THE INTERPRETATION OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ) AND IN PARTICULAR THE PROVISIONS OF THOSE REGULATIONS WHICH DEAL WITH THE ENTITLEMENT OF FRONTIER WORKERS TO FAMILY ALLOWANCES,
Grounds
1 BY AN ORDER DATED 19 NOVEMBER 1979 WHICH WAS RECEIVED AT THE COURT ON 25 MARCH 1980 THE SOZIALGERICHT ( SOCIAL COURT ) SCHLESWIG REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF VARIOUS PROVISIONS OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 LAYING DOWN THE PROCEDURE OF IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ).
2 THOSE QUESTIONS HAVE BEEN PUT TO THE COURT IN THE CONTEXT OF A DISPUTE BETWEEN A FRONTIER WORKER OF GERMAN NATIONALITY AND THE BUNDESANSTALT FUR ARBEIT ( FEDERAL EMPLOYMENT OFFICE ). THE FRONTIER WORKER RESIDES IN DENMARK WITH HIS WIFE AND TWO CHILDREN BUT WORKS AS AN EMPLOYED PERSON IN FLENSBURG IN THE FEDERAL REPUBLIC OF GERMANY . HE TRAVELS EACH DAY FROM HIS DANISH RESIDENCE TO HIS PLACE OF WORK, WHERE HE HAS NO LIVING ACCOMMODATION . HIS WIFE IS EMPLOYED IN DENMARK AND RECEIVES FAMILY ALLOWANCES ( BOERNETILSKUD ) IN THAT COUNTRY IN RESPECT OF THEIR TWO CHILDREN . ACTING ON BEHALF OF THE BUNDESANSTALT FUR ARBEIT, THE ARBEITSAMT ( EMPLOYMENT OFFICE ) FLENSBURG REFUSED HIS APPLICATION FOR THE PAYMENT IN THE FEDERAL REPUBLIC OF HALF THE AMOUNT OF GERMAN ALLOWANCES PAYABLE IN RESPECT OF HIS SECOND CHILD UNDER ARTICLE 8 ( 2 ) OF THE FEDERAL GERMAN LAW ON FAMILY ALLOWANCES ( THE BUNDESKINDERGELDGESETZ, HEREINAFTER REFERRED TO AS ' ' THE FEDERAL LAW ' ' ). ACCORDING TO THAT PROVISION, HALF THE AMOUNT OF THE
ALLOWANCE PROVIDED FOR MAY BE GRANTED IN RESPECT OF A DEPENDENT CHILD WHEN THE BENEFIT PROVIDED BY ANOTHER MEMBER STATE DOES NOT EXCEED 75% OF THE ' ' KINDERGELD ' '
( FAMILY ALLOWANCE ).
3 ACTING FOR THE BUNDESANSTALT FUR ARBEIT, THE LANDESARBEITSAMT ( REGIONAL EMPLOYMENT OFFICE ) SCHLESWIG-HOLSTEIN DISMISSED THE OBJECTION LODGED AGAINST THAT REFUSAL ON THE GROUND THAT HIS ENTITLEMENT TO FAMILY ALLOWANCES MUST BE SUSPENDED IN ACCORDANCE WITH THE COMMUNITY RULE ON OVERLAPPING BENEFITS CONTAINED IN ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 OF THE COUNCIL . THE PLAINTIFF IN THE MAIN ACTION THEREUPON BROUGHT PROCEEDINGS IN WHICH HE RELIED ON A JUDGMENT GIVEN BY THE BUNDESSOZIALGERICHT ( FEDERAL SOCIAL COURT ) ON 25 OCTOBER 1977 IN A SIMILAR CASE AND WHICH HELD IN EFFECT THAT, IN VIEW OF THE GERMAN DEFINITION OF RESIDENCE FOR TAX PURPOSES AND THE CLOSE LINKS EXISTING BETWEEN THE LEGISLATION ON FAMILY ALLOWANCES AND PROVISIONS ON TAXATION, A GERMAN NATIONAL MUST BE ABLE TO RECEIVE FAMILY ALLOWANCES IN THE SAME WAY AS A RESIDENT .
4 IN VIEW OF THE ARGUMENTS SUBMITTED TO IT THE SOZIALGERICHT SCHLESWIG STAYED THE PROCEEDINGS AND REFERRED THREE QUESTIONS TO THE COURT, THE FIRST TWO OF WHICH ARE AS FOLLOWS :
' ' 1 . IS A GERMAN NATIONAL WHO RESIDES WITH HIS WIFE AND CHILDREN IN DENMARK AND IS EMPLOYED IN THE FEDERAL REPUBLIC BUT RETURNS DAILY FROM HIS PLACE OF WORK TO HIS RESIDENCE IN DENMARK, AND WHOSE WIFE IS EMPLOYED ALSO IN DENMARK, ENTITLED TO RECEIVE FAMILY ALLOWANCE UNDER THE NATIONAL LAWS OF THE FEDERAL REPUBLIC OF GERMANY PURSUANT TO ARTICLE 20 IN CONJUNCTION WITH ARTICLE 4 AND ARTICLE 1 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 AS A ' FRONTIER WORKER '
WITHIN THE MEANING OF THOSE OVERRIDING PROVISIONS OF EUROPEAN LAW?
2.IS SUCH AN EMPLOYED PERSON ALSO SO ENTITLED IF, INDEPENDENTLY OF EUROPEAN LAW, HE IS ALREADY TREATED UNDER NATIONAL LAW AS IF HE HAD HIS RESIDENCE IN THE FEDERAL REPUBLIC OF GERMANY?
' '
5 BY THOSE QUESTIONS THE NATIONAL COURT IS ASKING WHETHER A FRONTIER WORKER WITHIN THE MEANING OF ARTICLE 1 ( B ) OF REGULATION NO 1408/71 ACQUIRES A RIGHT TO FAMILY ALLOWANCES PURSUANT TO THE PROVISIONS OF THAT COMMUNITY
REGULATION . IT SHOULD FIRST BE NOTED THAT ARTICLE 20 OF REGULATION NO 1408/71, WHICH IS REFERRED TO IN THE FIRST QUESTION, IS NOT RELEVANT TO THE CASE IN HAND SINCE UNDER THE SCHEME OF THE REGULATION THAT ARTICLE IS CONCERNED WITH BENEFITS FOR FRONTIER WORKERS IN THE EVENT OF SICKNESS OR MATERNITY ; ON THE OTHER HAND, THE PROVISIONS ON FAMILY BENEFITS, OF WHICH FAMILY ALLOWANCES WITHIN THE MEANING OF ARTICLE 4 ( 1 ) ( H ) FORMS PART, ARE APPLICABLE TO WORKERS AS A WHOLE AND ARE THOSE CONTAINED IN ARTICLES 73 ( 1 ) AND 13 ( 2 ) ( A ).
6 ARTICLE 73 ( 1 ) OF REGULATION NO 1408/71 AFFORDS A WORKER SUBJECT TO THE LEGISLATION OF A MEMBER STATE ENTITLEMENT, IN RESPECT OF THE MEMBERS OF HIS FAMILY RESIDING ON THE TERRITORY OF ANOTHER MEMBER STATE, TO THE FAMILY BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE FIRST-MENTIONED STATE AS IF THEY RESIDED ON THE TERRITORY OF THAT STATE .
7 THEREFORE, FOR ARTICLE 73 ( 1 ) TO APPLY, IT IS SUFFICIENT FOR THE WORKER TO BE EMPLOYED ON THE TERRITORY OF A MEMBER STATE WHILST THE MEMBERS OF THE WORKER ' S FAMILY RESIDE ON THE TERRITORY OF ANOTHER MEMBER STATE . THAT PROVISION GOES TOGETHER WITH THE RULE LAID DOWN IN ARTICLE 13 ( 2 ) ( A ) OF THE SAME REGULATION WHICH STATES THAT A WORKER EMPLOYED IN THE TERRITORY OF ONE MEMBER STATE SHALL BE SUBJECT TO THE LEGISLATION OF THAT STATE EVEN IF HE RESIDES IN THE TERRITORY OF ANOTHER MEMBER STATE . THAT ARRANGEMENT STEMS FROM THE OBJECTIVE OF REGULATION NO 1408/71, WHICH IS TO GUARANTEE ALL WORKERS WHO ARE NATIONALS OF THE MEMBER STATES AND WHO MOVE WITHIN THE COMMUNITY EQUALITY OF TREATMENT IN REGARD TO THE DIFFERENT NATIONAL LAWS AND THE ENJOYMENT OF SOCIAL SECURITY BENEFITS IRRESPECTIVE OF THE PLACE OF THEIR EMPLOYMENT OR OF THEIR RESIDENCE, AND IT MUST BE INTERPRETED UNIFORMLY IN ALL MEMBER STATES REGARDLESS OF THE ARRANGEMENTS MADE BY NATIONAL LAWS ON THE ACQUISITION OF ENTITLEMENT TO FAMILY BENEFITS .
8 THE ANSWER TO THE FIRST TWO QUESTIONS FROM THE SOZIALGERICHT SCHLESWIG SHOULD THEREFORE BE THAT BY VIRTUE OF ARTICLES 73 AND 13 ( 2 ) ( A ) OF REGULATION NO 1408/71 TAKEN TOGETHER A FRONTIER WORKER RESIDING WITH HIS WIFE AND CHILDREN IN A MEMBER STATE OTHER THAN THE STATE OF EMPLOYMENT ACQUIRES AN ENTITLEMENT UNDER COMMUNITY LAW TO FAMILY ALLOWANCES IN THE LATTER STATE .
9 IN ADDITION THE SOZIALGERICHT SCHLESWIG HAS PUT THE FOLLOWING THIRD QUESTION TO THE COURT :
' ' IS AN ENTITLEMENT TO FAMILY ALLOWANCE CONFERRED ON A WORKER RESIDING IN DENMARK BY GERMAN NATIONAL LEGISLATION TOTALLY SUSPENDED UNDER ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 ON THE IMPLEMENTATION OF REGULATION NO 1408/71 ( AS AMENDED BY ARTICLE 1 ( 5 ) OF REGULATION NO 878/73 ) IF HIS WIFE RECEIVES THE DANISH FAMILY ALLOWANCE ( BOERNETILSKUD ) FOR THOSE CHILDREN IN DENMARK, EVEN THOUGH ARTICLE 8 ( 2 ) OF THE GERMAN BUNDESKINDERGELDGESETZ PROVIDES FOR PAYMENT OF A FAMILY ALLOWANCE TO THE EXTENT OF THE DIFFERENCE BETWEEN THE DANISH AND THE GERMAN FAMILY ALLOWANCES?
' '
10 BY THAT QUESTION THE NATIONAL COURT REQUESTS THE COURT TO PROVIDE IT WITH GUIDANCE IN INTERPRETING THE RULE ON OVERLAPPING BENEFITS STATED IN ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 WHERE THE WIFE OF A WORKER ACQUIRES A PARALLEL ENTITLEMENT TO FAMILY ALLOWANCES IN THE STATE OF RESIDENCE WHICH OVERLAPS WITH THE WORKER ' S ENTITLEMENT IN THE STATE OF EMPLOYMENT .
11 THE AFOREMENTIONED ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 AS AMENDED BY REGULATION NO 878/73 OF THE COUNCIL OF 26 MARCH 1973 ( OFFICIAL JOURNAL L 86, P . 1 ), AMENDED IN TURN BY COUNCIL REGULATION NO 1209/76 OF 30 APRIL 1976 ( OFFICIAL JOURNAL L 138, P . 1 ), PROVIDES THAT :
' ' ENTITLEMENT TO FAMILY BENEFITS OR FAMILY ALLOWANCES DUE UNDER THE LEGISLATION OF A MEMBER STATE, ACCORDING TO WHICH ACQUISITION OF THE RIGHT TO THOSE BENEFITS OR ALLOWANCES IS NOT SUBJECT TO CONDITIONS OF INSURANCE OR EMPLOYMENT, SHALL BE SUSPENDED WHEN, DURING THE SAME PERIOD AND FOR THE SAME MEMBER OF THE FAMILY :
( A ) BENEFITS ARE DUE IN PURSUANCE OF ARTICLE 73 OR 74 OF THE REGULATION . IF, HOWEVER, THE SPOUSE OF THE WORKER OR UNEMPLOYED WORKER REFERRED TO IN THOSE ARTICLES EXERCISES A PROFESSIONAL OR TRADE ACTIVITY IN THE TERRITORY OF THE SAID MEMBER STATE, THE RIGHT TO FAMILY BENEFITS OR FAMILY ALLOWANCES DUE IN PURSUANCE OF THE SAID ARTICLES SHALL BE SUSPENDED ; AND ONLY THOSE
FAMILY BENEFITS OR FAMILY ALLOWANCES OF THE MEMBER STATE IN WHOSE TERRITORY THE MEMBER OF THE FAMILY IS RESIDING SHALL BE PAID, THE COST TO BE BORNE BY THAT MEMBER STATE . ' '
12 THAT RULE AGAINST OVERLAPPING BENEFITS, UNDER WHICH PRIORITY IS GIVEN TO ENTITLEMENT TO BENEFITS PAYABLE IN THE COUNTRY OF RESIDENCE OF THE CHILD, APPLIES IN A CASE SUCH AS THE ONE DESCRIBED BY THE NATIONAL COURT IN WHICH THERE IS AN OVERLAPPING OF COMPARABLE BENEFITS . THE CONCLUSION MUST THEREFORE BE DRAWN THAT ENTITLEMENT TO FAMILY ALLOWANCES PAYABLE BY VIRTUE OF ARTICLE 73 IS SUSPENDED IN THE STATE OF EMPLOYMENT OF THE FRONTIER WORKER IN VIEW OF THE ENTITLEMENT ACQUIRED BY HIS SPOUSE IN THE STATE OF RESIDENCE THE COST OF WHICH IS BORNE BY THAT STATE . HOWEVER, UNDER WELL-ESTABLISHED CASE-LAW BASED ON THE FUNDAMENTAL PRINCIPLE OF FREEDOM OF MOVEMENT FOR WORKERS AND THE OBJECTIVE OF ARTICLE 51 OF THE EEC TREATY, A RULE DESIGNED TO PREVENT THE OVERLAPPING OF FAMILY ALLOWANCES IS APPLICABLE ONLY TO THE EXTENT TO WHICH IT DOES NOT, WITHOUT CAUSE, DEPRIVE THOSE CONCERNED OF AN ENTITLEMENT TO BENEFITS CONFERRED ON THEM BY THE LEGISLATION OF A MEMBER STATE . ACCORDINGLY, WHERE THE AMOUNT OF THE ALLOWANCES THE PAYMENT OF WHICH IS SUSPENDED EXCEEDS THAT OF THE ALLOWANCES RECEIVED BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY THE RULE ON OVERLAPPING BENEFITS CONTAINED IN ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 AS AMENDED SHOULD BE APPLIED ONLY IN PART AND THE DIFFERENCE BETWEEN THOSE AMOUNTS SHOULD BE GRANTED AS A SUPPLEMENT .
13 CONSEQUENTLY THE ANSWER TO THE THIRD QUESTION SHOULD BE THAT ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 AS AMENDED SUSPENDS PAYMENT OF FAMILY BENEFITS OR FAMILY ALLOWANCES PAYABLE UNDER THE LEGISLATION OF THE STATE OF EMPLOYMENT ONLY UP TO THE AMOUNT RECEIVED, IN RESPECT OF THE SAME PERIOD AND THE SAME MEMBER OF THE FAMILY, IN THE STATE OF RESIDENCE BY THE SPOUSE PURSUING A PROFESSIONAL OR TRADE ACTIVITY WITHIN THE TERRITORY OF THAT STATE .
Decision on costs
14 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE GOVERNMENT OF THE ITALIAN REPUBLIC, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE SOZIALGERICHT SCHLESWIG BY AN ORDER OF 19 NOVEMBER 1979, HEREBY RULES :
1 . BY VIRTUE OF ARTICLES 73 AND 13 ( 2 ) ( A ) OF REGULATION NO 1408/71 TAKEN TOGETHER A FRONTIER WORKER RESIDING WITH HIS WIFE AND CHILDREN IN A MEMBER STATE OTHER THAN THE STATE OF EMPLOYMENT ACQUIRES AN ENTITLEMENT UNDER COMMUNITY LAW TO FAMILY ALLOWANCES IN THE LATTER STATE .
2.ARTICLE 10 ( 1 ) ( A ) OF REGULATION NO 574/72 AS AMENDED SUSPENDS PAYMENT OF FAMILY BENEFITS OR FAMILY ALLOWANCES PAYABLE UNDER THE LEGISLATION OF THE STATE OF EMPLOYMENT ONLY UP TO THE AMOUNT RECEIVED, IN RESPECT OF THE SAME PERIOD AND THE SAME MEMBER OF THE FAMILY, IN THE STATE OF RESIDENCE BY THE SPOUSE PURSUING A PROFESSIONAL OR TRADE ACTIVITY WITHIN THE TERRITORY OF THAT STATE .