EN Official Journal of the European Union C 346/8

Judgment of the Court (Second Chamber) of 14 October 2010 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Gudrun Schwemmer v Agentur für Arbeit Villingen-Schwenningen — Familienkasse

(Case C-16/09) (1)

(Social security - Regulations (EEC) Nos 1408/71 and 574/72 - Family benefits - ‘Anti-overlap’ rules - Article 76(2) of Regulation No 1408/71 - Article 10(1)(a) of Regulation No 574/72 - Children residing in a Member State with their mother who fulfils the conditions for drawing family benefits there, and the father of whom, working in Switzerland and fulfilling, at first sight, the conditions for drawing family benefits of the same type under Swiss legislation, refrains from applying for the grant of those benefits)

2010/C 346/13

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Applicant: Gudrun Schwemmer

Defendant: Agentur für Arbeit Villingen-Schwenningen — Familienkasse

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Article 76(2) of Regulation (EEC) 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 (OJ English Special Edition 1971 (II), p. 416), as amended, and of Article 10(1)(a) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ English Special Edition 1972 (I), p. 159), as amended — Determination of the State required to grant family benefits — Rules against overlapping — Children residing in one Member State with their mother, who satisfies the conditions governing entitlement to family allowances, and whose father, resident in Switzerland and satisfying the conditions governing receipt of similar family allowances under Swiss law, intentionally refrains from seeking payment of those allowances in order to adversely affect his divorced wife — Kindergeld

Operative part of the judgment

On a proper interpretation of Article 76 of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, and Article 10 of Council Regulation (EEC) No. 574/72 laying down the procedure for implementing Regulation No. 1408/71, in the versions of those regulations as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by European Parliament and Council Regulation (EC) No 647/2005 of 13 April 2005, a right, which is not subject to conditions of insurance, employment or self-employment, to benefits under the legislation of a Member State in which one parent resides with the children in favour of which those benefits are granted cannot be partially suspended in a situation, such as that at issue in the main proceedings, in which the former spouse, who is the other parent of the children concerned, would in principle be entitled to family benefits under the legislation of the State in which he is employed, either simply by virtue of the national legislation of that State, or in application of Article 73 of the said Regulation No 1408/71, but does not actually draw those benefits because he has not made an application for them.

(1) OJ C 90, 18.4.2009.