OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 18 July 2013 ( 1 )

Case C‑347/12

Caisse nationale des prestations familiales

v

Markus Wiering

Ulrike Wiering

(Request for a preliminary ruling from the Cour de cassation (Luxembourg))

‛Social security — Regulations (EEC) No 1408/71 and No 574/72 — Family benefits — ‘Anti-overlap’ rules — Articles 12, 73 and 76 of Regulation (EEC) No 1408/71 — Article 10 of Regulation (EEC) No 574/72 — ‘Elterngeld’ — ‘Kindergeld’ — Allowance for bringing up a family — Calculation of the supplementary allowance — Benefits of the same kind’

I – Introduction

1. The present request for a preliminary ruling, lodged at the Court Registry on 20 July 2012, concerns the interpretation of the European Union regulations on the coordination of social security schemes, namely 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, ( 2 ) as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 ( 3 ) (‘Regulation No 1408/71’), in particular, Articles 12, 73 and 76 thereof, and Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71, ( 4 ) in particular Article 10(1) thereof.

2. The request has arisen in the context of a dispute between the Caisse nationale des prestations familiales (National Agency for Family Benefits) (‘CNPF’) and Mr and Mrs Wiering concerning the extent of their entitlement to family benefits in the Grand Duchy of Luxembourg following the birth of their second child.

3. In essence, Mr and Mrs Wiering, who receive family benefits in Germany (‘Kindergeld’ (child allowance) and ‘Elterngeld’ (parental allowance)), where they live, have requested from the Grand Duchy of Luxembourg, where Mr Wiering works, a supplementary allowance equal to the difference between the German and Luxembourg family benefits.

4. The CNPF and Mr and Mrs Wiering are in dispute over which German family benefits may be taken into account in calculating any supplementary allowance. The CNPF claim that German ‘Kindergeld’ and ‘Elterngeld’ should be included in that calculation, whereas Mr and Mrs Wiering consider that ‘Elterngeld’ is a different kind of benefit and must be excluded from the calculation.

II – Legal framework

A – EU legislation

1. Regulation No 1408/71

5. Article 1(u) of Regulation No 1408/71 provides: ‘(i) the term “family benefits” means all benefits in kind or in cash intended to meet family expenses under the legislation provided for in Article 4(1)(h), excluding the special childbirth or adoption allowances …; (ii) “family allowances” means periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members of the family.’

6. Article 4 of Regulation No 1408/71, entitled ‘Matters covered’, provides: ‘1. This Regulation shall apply to all legislation concerning the following branches of social security: … (h) family benefits. …’

7. Article 12 of Regulation No 1408/71, entitled ‘Prevention of overlapping of benefits’, is worded as follows: ‘1. This Regulation can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance. … …’

8. Under Article 73 of Regulation No 1408/71, which concerns employed or self-employed persons the members of whose families reside in a Member State other than the competent State: ‘An employed or self-employed person subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State …’

9. Article 76(1) of the same regulation, entitled ‘Rules of priority in cases of overlapping entitlement to family benefits under the legislation of the competent State and under the legislation of the Member State of residence of the members of the family’, provides: ‘1. Where, during the same period, for the same family member and by reason of carrying on an occupation, family benefits are provided for by the legislation of the Member State in whose territory the members of the family are residing, entitlement to the family benefits due in accordance with the legislation of another Member State, if appropriate under Articles 73 or 74, shall be suspended up to the amount provided for in the legislation of the first Member State.’

2. Regulation No 574/72

10. Articles 7 to 10a of Regulation No 574/72 lay down detailed rules for the implementation of Article 12 of Regulation No 1408/71.

11. Article 10 of Regulation No 574/72 provides: (a) Entitlement to 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, employment or self-employment, shall be suspended when, during the same period and for the same member of the family, benefits are due only in pursuance of the national legislation of another Member State or in application of Articles 73, 74, 77 or 78 of the Regulation, up to the sum of those benefits. (b) However, where a professional or trade activity is carried out in the territory of the first Member State: (i) in the case of benefits due either only under national legislation of another Member State or under Articles 73 or 74 of the Regulation to the person entitled to family benefits or to the person to whom they are to be paid, the right to family benefits due either only under national legislation of that other Member State or under theses Articles shall be suspended up to the sum of family benefits provided for by the legislation of the Member State in whose territory the member of the family is residing. The cost of the benefits paid by the Member State in whose territory the member of the family is residing shall be borne by that Member State; …’

B – Luxembourg national legal framework

12. On 15 March 2013, the Court of Justice sent to the referring court a request for clarification pursuant to Article 101 of the Rules of Procedure. The referring court was asked to provide a more detailed description of Luxembourg family benefits and the conditions for granting them. By letter of 29 April 2013, the referring court stated that the Luxembourg family benefits at issue in the main proceedings were family allowances and the allowance for bringing up a family, adding that the parental leave allowance was not at issue in the dispute pending before it as the complaints raised by Mr and Mrs Wiering in this regard had been declared inadmissible.

1. Family allowances

13. According to the referring court, family allowances are the product of a mechanism for redistributing a proportion of national income for the benefit of children, in accordance with a principle of social solidarity. It goes on to say that the family allowances must not be regarded as a wage supplement for those with dependent children; rather, they serve a purpose of their own, especially since the amount of the allowance was standardised for all children irrespective of the employment status of their parents. In order to ensure that that purpose is achieved, the legislature conferred entitlement to the family allowances on children in a personal capacity.

14. Article 269(1) of the Luxembourg Social Security Code, entitled ‘Conditions of eligibility’, provides: ‘The following persons are entitled to family allowances, subject to the conditions laid down in this chapter: (a) any child, for his or her benefit, actually living in Luxembourg on a continuous basis and officially resident there; …’

15. Pursuant to Article 271(1) of the Social Security Code, the allowance is payable from the month in which the child is born until attainment of the age of eighteen. Under Article 271(3) of the Social Security Code, family allowances continue to be payable, up to a maximum age of 27 in the case of students engaged principally in secondary education or technical secondary education.

2. Allowance for bringing up a family

16. Pursuant to Article 299(1) of the Social Security Code: ‘An allowance for bringing up shall be granted, on the applicant’s request to any person: (a) who is officially resident in the Grand Duchy of Luxembourg and actually lives there or who is insured on compulsory basis under the Luxembourg social security scheme by reason of an occupational activity and to whom Community regulations are applicable; (b) who is bringing up in his or her home one or more children in respect of whom family allowances are paid to the applicant or to his or her spouse from whom the applicant is not permanently separated or his or her partner … and who satisfies with regard to the applicant the requirements laid down in Article 270 [of the Code, relating to the determination of the family unit]; (c) whose principal activity is bringing up the child or children in the family home, and who is not employed or does not receive any equivalent income.’

17. At the hearing, which was held on 6 June 2013, the CNPF indicated that the conditions were cumulative.

18. According to Article 299(2) of the Social Security Code, ‘[b]y way of derogation from the requirement laid down in paragraph (1)(c), the allowance may also be claimed by any person who is engaged in one or more occupational activities or who receives equivalent income and who, irrespective of the number of hours worked, has income together with that of his or her spouse from whom he or she is not permanently separated or the person with whom he or she is cohabiting, which [does not exceed a certain amount]’.

19. Pursuant to Article 299(3) of the Social Security Code: ‘By way of derogation from the requirement … laid down in paragraph 1(c) and paragraph 2, half the allowance for bringing up a family may be claimed by any person, who irrespective of his or her income, (a) is engaged in one or more occupational activities on a part-time basis and is principally engaged in bringing up the children in the family home for a period equivalent to at least half that of the normal weekly working hours … …’

20. Pursuant to Article 304 of the Social Security Code: ‘The allowance for bringing up a family shall be suspended up to the amount of any non-Luxembourg benefit of the same kind payable in respect of the same child or children. …, the allowance shall not be paid where one of the parents receives in respect of the same child or children the parental leave allowance provided for in Chapter VI of this Volume or a non-Luxembourg benefit received by way of parental leave. …’

C – The German national legal framework

21. On 19 March 2013, the Court asked the German Government, pursuant to Article 101 of the Rules of Procedure, to specify the objectives of and conditions for granting ‘Kindergeld’ and ‘Elterngeld’ in Germany. By letter received at the Court Registry on 17 April 2013, the German Government provided the following information on those benefits.

1. Kindergeld

22. ‘Kindergeld’, as provided for in Paragraph 31 of the German Law on Income Tax (Einkommensteuergesetz), (‘EStG’) is intended to cover family expenses and thus to ensure a minimum standard of living for the child.

23. In accordance with Paragraph 62(1) EStG, the person entitled (generally a parent) must be permanently or ordinarily resident in Germany or be liable to tax indefinitely or treated as such in Germany. The child must be permanently or ordinarily resident in a Member State of the European Union, Switzerland, Iceland, Liechtenstein or Norway.

24. Paragraph 32(4) EStG provides that a child is taken into account for the purposes of ‘Kindergeld’, without being required to fulfil any further requirements, until his or her 18th birthday or until his or her 21st birthday provided that he or she is not in employment and is registered as a job seeker with a national employment agency (Agentur für Arbeit im Inland), or until his or her 25th birthday if he or she is undergoing training or performing a recognised form of voluntary service or, finally, without any age limit if, because of a physical or mental disability, he or she is unable to take care of himself or herself.

25. Pursuant to the first sentence of Paragraph 66(1) EStG, ‘Kindergeld’ is currently paid at the rate of EUR 184 per month for each of the first two children, EUR 190 for the third child and EUR 215 for each additional child, irrespective of the income and assets of all the members of the family. The occupational activity of the parents is taken into account only in the case of foreign parents who do not enjoy freedom of movement.

2. Elterngeld

26. Under Paragraph 1(1) of the Federal Law on Parental Allowance and Parental Leave (Bundeselterngeld- und Elternzeitgesetz) (‘BEEG’), any person is entitled to ‘Elterngeld’ who is permanently or ordinarily resident in Germany, lives in the same household as his or her child, looks after the child and is bringing him or her up and is not in employment or is employed only on a part-time basis. ( 5 )‘Elterngeld’ is payable for the first 14 months from the birth of the child. ( 6 )

27. ‘Elterngeld’ is equivalent to 67% of the income earned from employment before the birth of the child. It is paid up to a monthly ceiling of EUR 1 800 for every full month during which the person entitled does not receive any income from employment.

28. Pursuant to the first sentence of Paragraph 2(2) BEEG, where the income from employment before the birth was less than EUR 1 000, the 67% percentage is increased by 0.1% for every two euros by which that income is lower than EUR 1 000, up to a maximum of 100%. Under the second sentence of Paragraph 2(2) BEEG, where the income from employment before the birth was greater than EUR 1 200, the 67% percentage is reduced by 0.1% for every two euros by which that income is higher than EUR 1 200, up to a maximum of 65%. Pursuant to the first sentence of Paragraph 2(4) BEEG, ‘Elterngeld’ must be at least EUR 300 per month even if, in accordance with the second sentence of Paragraph 2(4) of that law, the person entitled did not receive any income from employment before the birth of the child. During the period in which the minimum amount of EUR 300 is paid, the person entitled may not engage in full-time employment. ( 7 )

III – The dispute in the main proceedings and the question referred for a preliminary ruling

29. Subject to verification by the referring court, the facts of the case, as set out in the documents submitted to the Court, are as follows:

30. Mr and Mrs Wiering live in Germany, where Mrs Wiering works, while her husband works in Luxembourg.

31. Following the birth of a second child, born on 12 May 2007, Mrs Wiering took maternity leave from 13 May 2007 until 16 July 2007, followed by parental leave from 17 July 2007 until 11 May 2008. During the period of parental leave, Mrs Wiering received ‘Elterngeld’ in Germany. Mr and Mrs Wiering have received ‘Kindergeld’ for each of their children since they were born.

32. On 12 October 2007, Mr Wiering applied to the CNPF, for the period from 1 July 2007 to 31 May 2008, for a supplementary allowance in respect of the benefits due in relation to his two children, equal to the difference between the family benefits paid in Germany and those provided for under Luxembourg law.

33. By decision of 17 April 2008, the CNPF steering committee refused to pay a supplementary allowance to Mr and Mrs Wiering on the ground that, for the purposes of the period at issue, the benefits received in Germany, that is to say ‘Kindergeld’ and ‘Elterngeld’, exceeded those provided for under Luxembourg law, that is to say the family allowances and the allowance for bringing up a family.

34. I note that, at the hearing, the CNPF representative stated that Mr and Mrs Wiering had not applied for the allowance for bringing up a family, which was therefore included ex officio in the calculation of the supplementary allowance by the CNPF. It seems, moreover — although this must be verified by the referring court — that, pursuant to Article 304 of the Social Security Code, Mr and Mrs Wiering would never have been entitled to that allowance if they had applied for it.

35. On 25 August 2008, Mr and Mrs Wiering appealed against the decision of 17 April 2008 to the Conseil arbitral des assurances sociales (Social Security Arbitration Board) (‘CAAS’), which declared the action unfounded on 31 July 2009.

36. On appeal by Mr and Mrs Wiering, brought on 9 September 2009, the Conseil supérieur de la sécurité sociale (Higher Council for Social Security) (‘CSSS’) reversed the judgment of the CAAS of 31 July 2009 by judgment of 16 March 2011 and held that Mr and Mrs Wiering were entitled to the supplementary allowance for their two children for the period from 1 July 2007 to 31 May 2008.

37. The CSSS considered that ‘only family benefits payable in respect of the same family member’ (in this case, the child, even though the benefit is paid to the parents) could be taken into account for the purposes of calculating the supplementary allowance, which was not the case with ‘Elterngeld’, which is payable only to the family member responsible for bringing up the children and not to the children themselves. According to the CSSS, the CNPF had therefore wrongly taken into account the ‘Elterngeld’ received by Mrs Wiering in refusing to pay the supplementary allowance for the two children.

38. The CNPF brought an appeal in cassation against that judgment on 20 May 2011, relying on four grounds of appeal. The second, third and fourth grounds allege, respectively, infringement of Article 10(1)(a)(i) of Regulation No 574/72, failure to apply Article 10(3) of that regulation and misinterpretation of Article 76(1) of Regulation No 1408/71. The CNPF criticises the judgment of the CSSS for failing, in breach of EU law, to take account of ‘Elterngeld’ in calculating the supplementary allowance, on the ground that that allowance is due and paid to the mother and that, in that calculation, account is to be taken only of allowances due to the children, even though they are in fact paid to the parents.

39. In those circumstances, being uncertain as to which family benefits should be taken into account in determining the supplementary allowance, the Cour de cassation (Court of Cassation) (Luxembourg), decided, on 12 July 2012, to stay the proceedings and to refer the following question to the Court for a preliminary ruling: ‘For the calculation of any supplementary allowance that may be due, in accordance with Articles 1(u)(i), 4(1)(h) and 76 of … Regulation … No 1408/71 … and with Article 10(1)(b)(i) of … Regulation … No 574/72 …, by the competent institution of the State in which the place of work is situated, is it necessary to take into account, as family benefits of the same kind, all the benefits received by the family of the migrant worker in the State of residence — in the present case “Elterngeld” and “Kindergeld”, provided for by German legislation?’

IV – Procedure before the Court

40. Written observations were submitted and oral argument was presented at the hearing by Mr and Mrs Wiering, the CNPF and the European Commission.

41. Mr and Mrs Wiering take the view that only benefits of the same kind are to be taken into account in calculating the supplementary allowance. In their opinion, since ‘Elterngeld’ is not the same kind of benefit as ‘Kindergeld’, ‘Elterngeld’ should not be taken into account in calculating the supplementary allowance. According to Mr and Mrs Wiering, their children were the only persons entitled to receive ‘Kindergeld’, whereas Mrs Wiering was the only person entitled to receive ‘Elterngeld’, which should therefore be classified as replacement remuneration paid to a parent who temporarily gives up working or works only part time, in order to devote him or herself exclusively or primarily to bringing up the child or children.

42. The CNPF considers that Regulation No 1408/71 clearly does not make any distinction between family benefits on the basis of who is the recipient or beneficiary of those benefits. According to the CNPF, it is not possible to argue that ‘Elterngeld’ is a benefit falling within the scope of Regulations No 1408/71 and No 574/72 which does not constitute a special childbirth or adoption allowance ( 8 ) and at the same time to refuse to include it in the calculation of the supplementary allowance because it is intended to benefit only the ‘family member responsible for bringing up the child, in this instance the wife, and not the children themselves or on their behalf’.

43. The Commission points out that the fact that the benefits at issue in this case are by their nature ‘family’ benefits has not at any point been called into question. According to the Commission, which refers to the judgment in Feyerbacher, ( 9 )‘Elterngeld’ is a parental allowance granted to the person who actually cares for and raises his or her child or children and therefore serves a purpose very similar to the allowance for bringing up a family at issue in Hoever and Zachow. ( 10 ) In that case, the Court held that such an allowance is indeed a ‘family benefit’, that its objective is to meet family expenses within the meaning of Article 1(u)(i) of Regulation No 1408/71 and that it is intended, more specifically, to remunerate the service of bringing up a child, to meet other costs of caring for and bringing up a child and, as the case may be, to mitigate the financial disadvantages entailed in giving up income from full-time employment. In the Commission’s view, it is clear from case-law that allowances granted, under certain conditions, to workers who interrupt their career in order to take parental leave must be treated as family benefits within the meaning of Article 1(u)(i) and Article 4(1)(h) of Regulation No 1408/71.

44. At the hearing, the Commission abandoned the line of argument which it had put forward in its written observations, to the effect that, since Mrs Wiering had interrupted her career when she took parental leave, the applicable provision was Article 10(1)(a) of Regulation No 574/72, and that the State with primary responsibility was therefore the Grand Duchy of Luxembourg, not the Federal Republic of Germany, thus removing any question of a supplementary allowance being payable in the Grand Duchy of Luxembourg.

45. Whether or not Mrs Wiering stopped working entirely during her parental leave, a point of dispute between the interveners, is immaterial here. In any event, it is agreed by all the parties concerned that she did not during that period lose her status either as a civil servant with the municipality of Trier or, therefore, as an employed person. As a result, the provision applicable to the situation at issue is Article 10(1)(b) of Regulation No 574/72 and the Member State with primary responsibility is the Federal Republic of Germany. This is also consistent with the premiss on which the question referred for a preliminary ruling is based.

46. I should add that it would be absurd not to regard as an employed person a mother who stops working during her parental leave. ( 11 ) In order to receive ‘Elterngeld’ in Germany, Mrs Wiering must temporarily stop working or work only part time. ( 12 ) If, for example, Mrs Wiering stopped working, Article 10(1)(a) of Regulation No 574/72 would be applicable because she would no longer be an employed person. As a result, the Federal Republic of Germany would cease to be the Member State with primary responsibility and would no longer be required to pay ‘Elterngeld’. Everything would be different again if Mrs Wiering continued to work part time. ( 13 )

V – Analysis

47. The question referred by the national court concerns whether all family benefits received by the family of a migrant worker in his State of residence (in the situation at issue, ‘Kindergeld’ and ‘Elterngeld’ paid to the Wiering family in Germany) must be taken into account as benefits of the same kind for the purpose of calculating any supplementary allowance that may be due from the State of the place in which one of the parents is employed (in this instance, the Grand Duchy of Luxembourg), in accordance with Articles 1(u)(i), 4(1)(h), 12 and 76 of Regulation No 1408/71 and Article 10(1)(b)(i) of Regulation No 574/72.

A – The meaning of ‘overlap’ and ‘supplementary allowance’ in the area of family benefits

48. In the light of the wording of the question referred, it is necessary first of all to specify, in relation to Regulation No 1408/71, what is meant by ‘overlap’ and ‘supplementary allowance’ in the context of family benefits.

49. Article 73 of Regulation No 1408/71 provides that an employed or self-employed person is to be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the State of employment, as if they were residing in that State. That provision is intended to make it easier for migrant workers to draw family allowances in the State where they are employed, in cases where their family has not moved with them. ( 14 )

50. However, where family benefits are provided for, during the same period and for the same family member, both by the legislation of the Member State in which the family members live and by the legislation of the State of employment of the migrant worker, Articles 12 and 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72 lay down precise rules for determining the Member State with primary responsibility for paying family benefits in order to prevent the unjustified overlapping of benefits.

51. In accordance with the objective of preventing the unjustified overlapping of benefits set out in the 27th recital in the preamble to Regulation No 1408/71, Article 12 of that regulation, entitled ‘Prevention of overlapping of benefits’, provides, inter alia in paragraph 1 thereof, that the Regulation ‘can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance’. ( 15 )

52. Given that Article 12 of Regulation No 1408/71 forms part of Title I of that regulation, relating to general provisions, the principles laid down by that provision are applicable to the rules for determining precedence where there is an overlap between the rights to family benefits or allowances laid down in both Article 76 of that regulation ( 16 ) and Article 10 of Regulation No 574/72. ( 17 )

53. However, in its judgment in Ferraioli, ( 18 ) the Court stated that the provisions of Regulation No 1408/71 must be interpreted in the light of the objective laid down in the treaties of establishing freedom of movement for workers and that Article 76 of that regulation cannot be applied in such a way as to deprive the worker of the benefit of the more favourable allowances by substituting the allowances payable in one Member State for the allowances payable in another Member State. According to the Court, the principles underlying Regulation No 1408/71 require that, if the amount of the benefits payable in the State of residence is less than that of the benefits payable in the other State, the worker retains the right to the higher amount and is entitled to a supplement to the benefits from the competent institution of the latter State equal to the difference between the two amounts. ( 19 )

54. The EU legislature has established procedures for implementing the rules on the prevention of overlapping of family benefits, which make provision, in particular, for the institutions of the Member States of residence and employment to exchange information with a view to comparing the benefits in question and the amounts payable so as to determine what, if any, supplementary allowance is due. ( 20 )

B – Benefits ‘of the same kind’

55. Since Article 12 of Regulation No 1408/71 provides that only the right to several benefits of the same kind for one and the same period ( 21 ) constitutes an unjustified duplication of benefits, in order to determine whether a right to the payment of a supplementary allowance exists in this case, it is necessary first of all to ascertain the nature of the benefits at issue.

56. In other words, only family benefits of the same kind may be compared and there can be no overlapping of such benefits. On the other hand, as the recipient is entitled to the higher amount of the two benefits, a supplementary allowance will be paid to him or her if the amount granted by the Member State with primary responsibility is lower than that amount.

57. In my view, it is clear from the settled case-law in this field that an examination of the nature of benefits for the purpose, in particular, of applying Article 12(1) of Regulation No 1408/71, necessarily comprises two elements, the first being to determine the objectives and characteristics of the benefits and the second to identify the recipients of those benefits.

58. The Court held in Knoch ( 22 ) that social security benefits must be regarded, irrespective of the characteristics peculiar to the various national laws, as being of the same kind when their purpose and object, together with the basis on which they are calculated and the conditions for granting them, are the same. On the other hand, characteristics which are purely formal cannot be relevant criteria for the purpose of differentiating one benefit from another.

59. However, the Court goes on to say that, in view of the numerous differences between the national social security schemes, if the basis for the calculation and the conditions for the grant of benefits were required to be exactly the same, the prohibition on overlapping benefits contained in Article 12 of Regulation No 1408/71 would be applied to a considerably lesser extent. Such a result would run counter to the aim of that prohibition, which is to obviate unjustified duplication of social security benefits. ( 23 )

60. Moreover, in Dammer, ( 24 ) the Court took the view that it follows from the wording of Article 12(1) of Regulation No 1408/71 that overlapping occurs when two different persons — in this case two parents — are entitled to family benefits in respect of the same child. The spirit of the provisions of Regulation No 1408/71 governing the overlapping of family benefits and the solutions therein provided for in the event of overlapping also demonstrate that the aim of Article 12 is to prevent not only the direct recipient of a family benefit, namely the worker, but also the indirect recipients thereof, that is to say the members of the worker’s family, from receiving two benefits of the same kind at the same time. ( 25 )

C – Application to the case at issue

1. The Luxembourg family allowances and German ‘Elterngeld’

61. It should be recalled that, in the present case, a supplementary allowance will be payable by the Grand Duchy of Luxembourg only if the family benefits receivable there are higher than those paid in Germany. The crucial question, therefore, is whether ‘Elterngeld’ is a benefit of the same kind as the Luxembourg family allowances, it being common ground that the latter are benefits of the same kind as ‘Kindergeld’.

62. ‘Kindergeld’, which is described in detail in points 22 et seq. above, is intended principally to ‘ensure a minimum standard of living for the child’ but does not take account of the income or assets of the family members or whether or not the parents work. In certain cases, ‘Kindergeld’ is awarded to the child itself.

63. It follows from the foregoing that, while ‘Kindergeld’ is intended to enable parents to cover the costs connected with their child’s needs, its ultimate beneficiary is the child, not the parents. ‘Kindergeld’ is indisputably a benefit of the same kind as the Luxembourg family allowances described in detail in points 13 to 15 above. The grant of that benefit is dependent only on the existence of children, the national legislature having conferred entitlement to that benefit on children in person.

64. With respect to ‘Elterngeld’, it should be noted first of all that, in the present case, neither the parties to the main proceedings nor the Commission call into question the classification of that benefit as a ‘family benefit’ within the meaning of Article 4(1)(h) of Regulation No 1408/71. I share that view. It is apparent from the replies to the requests for clarification sent to the referring court and to the German Government that that benefit is granted automatically to persons who meet certain objective criteria, without any individual and discretionary assessment of personal needs, ( 26 ) and that it clearly relates to one of the risks listed in Article 4(1) of Regulation No 1408/71, since it is intended to assist insured persons with dependent families by having the community contribute towards those costs.

65. Moreover, the Court held in Kuusijärvi ( 27 ) that a benefit intended to enable one of the parents to devote him or herself to the raising of a young child, and designed, more specifically, to remunerate the service of bringing up a child, to meet the other costs of caring for and raising a child and, as the case may be, to mitigate the financial disadvantages entailed in giving up income from an occupational activity, must be treated as a family benefit within the meaning of Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71.

66. I take the view, however, that ‘Elterngeld’ clearly differs from the Luxembourg family allowances in a number of respects, in so far as concerns first, their objectives and characteristics and, secondly, the persons entitled to claim them, and that, while they may both be classified as ‘family benefits’ within the meaning of Article 4(1)(h) of Regulation No 1408/71, they are not ‘of the same kind’ within the meaning of Article 12 of that regulation.

67. It is clear from the German Government’s reply to the request for clarification that ‘Elterngeld’ is intended, first of all, to help families maintain their standard of living in cases where parents make their children their priority and, secondly, to help parents, particularly in the early stages of parenthood, by enabling them to look after their children themselves during that period, which requires them temporarily to give up work or to work fewer hours. Provided that the parent responsible for looking after a child gives up work temporarily or works fewer hours, he or she will receive, depending on that parent’s personal income, compensation for loss of earnings during the child’s first year and assistance intended to maintain the family’s standard of living.

68. According to the German Government, the purpose of ‘Elterngeld’ is also to enable both parents to manage their financial circumstances more effectively on a sustainable basis. It is meant to prevent permanent losses that create a risk of dependence on State benefits, secure freedom of choice between family and work and promote financial independence.

69. It follows from the foregoing that, where a parent, such as Mrs Wiering, a civil servant with the municipality of Trier, looks after his or her child instead of going to work, ‘Elterngeld’ offsets in part the loss of income sustained by that parent, the function of that benefit therefore being to serve as replacement or alternative income.

70. That perception of the benefit as replacement or alternative income is reinforced by the fact that ‘Elterngeld’ is generally equal to 67% of the previous salary, up to a monthly ceiling of EUR 1 800.

71. Moreover, notwithstanding the fact that some of the criteria for granting ‘Elterngeld’ are obviously linked to the child, such as, for example the very existence and age of the child, ( 28 ) I consider that it is quite clear from its objectives and characteristics that the intended beneficiary of ‘Elterngeld’ is the parent who looks after the child, not the child itself. Leaving aside the EUR 300 granted even if the parent has not previously pursued an occupational activity, provided that that parent does not work full time ( 29 ) during the period when that minimum flat-rate benefit is paid, it is therefore clear that the essential linking factor for the purpose of ‘Elterngeld’ is whether or not the parent concerned works and the income derived from such employment. ( 30 )

72. It follows that the ‘Elterngeld’ granted to Mrs Wiering during her parental leave is not a benefit of the same kind as the Luxembourg family allowances and must not be taken into account in the calculation of any supplementary allowance that may be due in respect of Mr and Mrs Wiering’s children if German ‘Kindergeld’ is less than those allowances.

2. The Luxembourg allowance for bringing up a family and German ‘Elterngeld’

73. If the supplementary allowance referred to by the national court is to be understood as a potential supplement in relation to the two family benefits payable in Luxembourg, that is to say the family allowances and allowance for bringing up a family, it remains to be considered whether ‘Elterngeld’ must be regarded as a family benefit of the same kind as the Luxembourg allowance for bringing up a family.

74. I repeat that the allowance for bringing up a family was not claimed by Mr and Mrs Wiering, that it was included ex officio in the calculation by the CNPF and that there are serious doubts as to whether Mr and Mrs Wiering were entitled to it. ( 31 )

75. Subject to verification by the referring court of the points referred to above, the allowance for bringing up a family provided for in Article 299(1) of the Luxembourg Social Security Code is intended, like ‘Elterngeld’, to offset at least in part the loss of income sustained by parents who devote themselves principally to bringing up their children in the family home and do not work or receive equivalent income. It is only where the family income is below a certain amount that, by way of derogation from the principle laid down in paragraph 1, a person who pursues an occupational activity or is in receipt of equivalent income may claim the allowance for bringing up a family. ( 32 ) Furthermore, Article 299(3) of that code provides that a person is eligible for half the allowance for bringing up a family if, essentially, that person works on a part-time basis and devotes himself or herself principally to raising children in the family home for a period equivalent to at least half of that of normal working hours. This confirms that the Luxembourg allowance for bringing up a family is linked to the offsetting of loss of income from employment or equivalent income.

76. It is, therefore, apparent that in terms not only of their objectives and characteristics but also the persons entitled to claim them, the Luxembourg allowance for bringing up a family and ‘Elterngeld’ must be regarded as family benefits of the same kind.

3. Summary

77. On the basis of the foregoing, the calculation of any supplementary allowance that may be due from the Grand Duchy of Luxembourg in connection with the family allowances to which Mr and Mrs Wiering’s children are entitled cannot take account of ‘Elterngeld’.

78. If, on the other hand, the issue is whether a supplementary allowance may be due from the Grand Duchy of Luxembourg in connection with the family allowances and the allowance for bringing up a family, a distinction must be drawn: for the purposes of calculating any supplementary allowance that may be due in connection with the Luxembourg family allowances, the comparison should take account only of German ‘Kindergeld’ and, for the purposes of calculating any supplementary allowance in connection with the allowance for bringing up a family, the comparison should take account only of ‘Elterngeld’.

VI – Conclusion

79. In the light of all the foregoing considerations, I propose that the Court’s answer to the question referred by the Cour de cassation should be as follows: Articles 4(1)(h), 12, 73 and 76 of 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, in version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 and Article 10 of Council Regulation (EEC) No 574/72 of 21 March 1972, fixing the procedures for implementing Regulation No 1408/71 are to be interpreted as meaning that a family benefit such as ‘Elterngeld’, provided for by German legislation, is not a benefit of the same kind as ‘Kindergeld’ provided for by that legislation, or family allowances such as those provided for by Luxembourg legislation, and must not therefore be taken into account in the calculation of the allowance that is supplementary to any family allowances that may be payable in respect of the children of a migrant worker.

( 1 ) Original language: French.

( 2 ) OJ 1997 L 28, p. 1.

( 3 ) OJ 2006 L 392, p. 1.

( 4 ) OJ 1972 L 74, p. 1.

( 5 ) A person is not considered to be in full-time employment if his working time does not average more than 30 hours a week in any given month (Paragraph 1(6) BEEG).

( 6 ) If both parents fulfil the eligibility requirements, they must agree between them how the monthly payments are to be split. Each parent may receive ‘Elterngeld’ for a minimum of two and a maximum of twelve months. A parent enjoys exclusive entitlement to all 14 months of the allowance if, inter alia, he or she has sole parental responsibility or custody.

( 7 ) See footnote 5 to this Opinion.

( 8 ) See Article 1(u)(i) of Regulation No 1408/71.

( 9 ) Case C‑62/11 [2012] ECR.

( 10 ) Joined Cases C-245/94 and C-312/94 [1996] ECR I-4895.

( 11 ) In Case C-543/03 Dodl and Oberhollenzer [2005] ECR I-5049, paragraph 34, the Court held that a person has the status of an ‘employed person’ within the meaning of Regulation No 1408/71 where he is covered, even if only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship.

( 12 ) See point 26 of this Opinion.

( 13 ) See Article 10(1)(b)(i) of Regulation No 574/72.

( 14 ) See, in particular, Case C-16/09 Schwemmer [2010] ECR I-9717, paragraph 41.

( 15 ) See, to that effect, Case 143/79 Walsh [1980] ECR 1639, paragraph 15, relating to maternity benefits.

( 16 ) Article 76 of Regulation No 1408/71 provides for the suspension of entitlement to family benefits in the Member State of employment pursuant to Article 73 of Regulation No 1408/71 if family benefits are payable by the Member State of residence by virtue of the fact that the person concerned is carrying on an occupation. See, to that effect, Case C-153/03 Weide [2005] ECR I-6017, paragraphs 20 to 22.

( 17 ) Paragraph 1(b)(i) of that article, which is applicable to the situation of the Wierings, states that the right to allowances payable by the Member State of residence takes precedence over the right to allowances payable by the Member State of employment, which are therefore suspended. See, to that effect, Weide, cited above (paragraph 28).

( 18 ) Case 153/84 [1983] ECR 1401.

( 19 ) See Ferraioli, cited above, paragraphs 16 to 18. See also Case 24/88 Georges [1989] ECR 1905, paragraphs 11 to 13; Case C-168/88 Dammer [1989] ECR 4553, paragraph 25; and Case C-119/91 McMenamin [1992] ECR I-6393, paragraph 26.

( 20 ) See, in particular, 91/425/EEC: Decision No 147 of 10 October 1990 concerning the application of Article 76 of Regulation (EEC) No 1408/71 (OJ 1991 L 235, p. 21). See also 2006/442/EC: Decision No 207 of 7 April 2006 concerning the interpretation of Article 76 and Article 79(3) of Regulation (EEC) No 1408/71 and of Article 10(1) of Regulation (EEC) No 574/72 relating to the overlapping of family benefits and allowances (OJ 2006 L 175, p. 83).

( 21 ) The period in question in the dispute in the main proceedings is not contested. It runs from 1 July 2007 to 31 May 2008.

( 22 ) Case C-102/91 [1992] ECR I-4341.

( 23 ) Knoch, cited above (paragraphs 40 and 42). In that case, the Court held that unemployment benefits constituted benefits of the same kind, within the meaning of the first sentence of Article 12(1) of Regulation No 1408/71, where they are intended to replace the remuneration which a person has lost by reason of unemployment and thereby provide for the maintenance of that person, and where the differences which exist between those benefits, particularly those relating to the basis of the calculation and the conditions for granting them, are the result of structural differences between the national schemes. See also Case 171/82 Valentini [1983] ECR 2157, paragraph 13, on the overlapping of old-age and early retirement benefits, and Case C-406/04 De Cuyper [2006] ECR I-6947, paragraph 25.

( 24 ) Cited above, paragraph 10.

( 25 ) Dammer, cited above (paragraph 12). I would point out that the need to identify the recipient of the benefits is also apparent from the wording of Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72, which lay down rules for eliminating the overlapping of rights, during the same period, ‘for the same family member’.

( 26 ) I would point out in this regard that it is settled case-law that a benefit may be regarded as a social security benefit only if, on the one hand, it is granted to recipients on the basis of a legally defined position, without any individual and discretionary assessment of personal needs, and, on the other hand, it relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. See, in particular, Case C-78/91 Hughes [1992] ECR I-4839, paragraph 15; Case C-85/99 Offermanns [2001] ECR I-2261, paragraph 28; and Case C-333/00 Maaheimo [2002] ECR I-10087, paragraph 22.

( 27 ) Case C-275/96 [1998] ECR I-3419, paragraph 60.

( 28 ) See point 26 of this Opinion.

( 29 ) See footnote 5 of this Opinion.

( 30 ) I would point out in this regard that BEEG is one of the measures transposing Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by Businesseurope, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC (OJ 2010 L 68, p. 13) in the Federal Republic of Germany. Directive 2010/18/EU and its precursor, Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (OJ 1996 L 145, p. 4), which was in force at the material time in the main proceedings, lay down minimum requirements for parental leave. I consider that, in spite of the fact that there are no provisions in the framework agreement annexed to Directive 96/34 and Directive 2010/18 relating to cases in which the Member States put in place arrangements for the remuneration of parental leave or other benefits in this regard, such arrangements are inextricably linked to parental leave itself. The intended beneficiaries of those remuneration arrangements are therefore necessarily parents who have taken parental leave.

( 31 ) See point 34 of this Opinion.

( 32 ) See Article 299(2) of the Social Security Code and point 18 of this Opinion.