Keywords

Summary



Keywords

1. Social security for migrant workers - Community rules - Scope ratione materiae - Benefit paid in the form of an advance on maintenance payments for minor children - Included

(Council Regulation No 1408/71, Art. 4(1)(h))

2. Social security for migrant workers - Community rules - Scope ratione personae - Members of a worker's family - Person one or both of whose parents is an employed person or is out of work - Included

(Council Regulation No 1408/71, Arts 1(f)(i) and 2(1))

3. Social security for migrant workers - Family benefits - Minor child residing with one parent in a Member State other than the Member State providing the benefit - Other parent working or unemployed in the Member State providing the benefit - Right of the child to claim the advance on maintenance payments

(Council Regulation No 1408/71, Arts 73 and 74)

Summary

1. A benefit such as the advance on maintenance payments provided for by the Österreichische Bundesgesetz über die Gewährung von Vorschüssen auf den Unterhalt von Kindern (Unterhaltsvorschussgesetz) (Austrian Federal Law on the Grant of Advances for the Maintenance of Children) is a family benefit within the meaning of Article 4(1)(h) of Regulation No 1408/71.

( see paras 33, 54, operative part 1 )

2. A person, one or other of whose parents is an employed person or is out of work, comes within the scope ratione personae of Regulation No 1408/71 as a member of the family of a worker within the meaning of Article 2(1) of Regulation No 1408/71, read in the light of Article 1(f)(i) thereof.

( see paras 36, 37, 54, operative part 2 )

3. While it is true that Regulation No 1408/71 does not expressly cover family situations following a divorce, there is nothing to justify the exclusion of such situations from the scope of that regulation.

Articles 73 and 74 of Regulation No 1408/71, which are intended to guarantee members of the family residing in a Member State other than the competent State the grant of the family benefits provided for by the applicable legislation and to prevent Member States from making entitlement to and the amount of family benefits dependent on residence of the members of the worker's family in the Member State providing the benefits, so that Community workers are not deterred from exercising their right to freedom of movement, must be construed as meaning that a minor child residing with the parent having custody in a Member State other than the Member State providing the benefit and whose other parent, who is under an obligation to pay maintenance, works or is unemployed in the Member State providing the benefit is entitled to receive a family benefit such as the advance on maintenance payments provided for by the Austrian Bundesgesetz über die Gewährung von Vorschüssen auf den Unterhalt von Kindern (Unterhaltsvorschussgesetz) (Austrian Federal Law on the Grant of Advances for the Maintenance of Children).

It follows that a member of the family of a worker, including a minor child, may directly invoke Articles 73 and 74 of Regulation No 1408/71 in order to apply, without the intervention of the worker himself, for the grant of a family benefit in circumstances where the conditions governing application of those articles are otherwise satisfied.

( see paras 39-40, 42, 52, 54, operative part 3 )