Gudrun Schwemmer v Agentur für Arbeit Villingen-Schwenningen - Familienkasse.
Date: 2010-10-14
33. It is undisputed that the child benefits provided for by the German legislation at issue in the main proceedings meet the necessary conditions for being regarded as ‘family benefits’ within the meaning of Article 4(1)(u) of Regulation No 1408/71 (see also, in relation to the benefits provided for by Paragraph 62 of the EStG, Case C‑352/06 Bosmann  [2008] ECR I‑3827, paragraphs 10 and 27).
34. As regards the personal scope of Regulation No 1408/71, it is indeed apparent from the the case-law of the Court of Justice that, where it is a German institution that is competent to grant family benefits in accordance with Title III, Chapter 7, of Regulation No 1408/71, the definition appearing in Article 1(a) of that regulation is ousted by that contained in Annex I, point I, D (‘Germany’), of that regulation (see Case C‑194/96 Kulzer  [1998] ECR I‑895, paragraph 35), so that only persons who, unlike Mrs Schwemmer, are compulsorily insured under one of the schemes mentioned in Annex I, point I, D, of Regulation No 1408/71 may be regarded as ‘employed persons’ or ‘self-employed persons’ within the meaning of Article 1(a)(ii) of that regulation (see to that effect, in particular, Joined Cases C‑4/95 and C‑5/95 Stöber and Piosa Pereira  [1997] ECR I‑511, paragraphs 29 to 36; Case C‑266/95 Merino García  [1997] ECR I‑3279, paragraphs 24 to 26; Case C‑85/96 Martínez Sala  [1998] ECR I‑2691, paragraphs 42 and 43; and Case C‑262/96 Sürül  [1999] ECR I‑2685, paragraph 89).
37. Furthermore, it can be seen from the case-law of the Court of Justice that, although 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 (see Case 149/82 Robards  [1983] ECR p. 171, paragraph 15; Kulzer , paragraph 32; Case C‑255/99 Humer  [2002] ECR I‑1205, paragraph 42; and Case C‑363/08 Slanina  [2009] ECR I-0000, paragraph 30).
38. In those circumstances, the provisions of Regulations Nos 1408/71 and 574/72 on family benefits must be interpreted as being capable of being applied to situations such as that giving rise to the dispute in the main proceedings. In the first place, a situation such as that at issue in the main proceedings is, as is apparent from the order for reference, likely to give rise to the creation, in respect of one and the same period, of parallel rights to family benefits, some enjoyed by the mother, in favour of the children concerned, and others enjoyed by the father. Moreover, those children fall within the personal scope of Regulation No 1408/71, as members of the family of the parent having the status of employed person, it being immaterial whether or not the other parent forms part of the family of the former (see, by analogy, Case 104/84 Kromhout  [1985] ECR 2205, paragraph 15).
40. It should be recalled that the aim of the provisions of Regulation No 1408/71 which determine the legislation applicable to workers moving within the Community is in particular to ensure that the persons concerned shall, in principle, be subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and to avoid the complications which may result from that situation. That principle is expressed in particular in Article 13(1) of Regulation No 1408/71 (see to that effect, inter alia, Case 302/84 Ten Holder  [1986] ECR 1821, paragraphs 19 and 20, and Bosmann , paragraph 16).
41. With respect to family benefits, Article 73 of Regulation No 1408/71 provides that a worker 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 (see Case C-153/03 Weide  [2005] ECR I-6017, paragraph 20, and Bosmann , paragraph 17). That provision is designed 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 (see Case C‑117/89 Kracht  [1990] ECR I‑2781, paragraph 15) and in particular to prevent a Member State from being able to make the grant or the amount of family benefits dependent on members of the worker’s family being resident in the Member State paying the benefit (see to that effect, in particular, Case C-543/03 Dodl and Oberhollenzer  [2005] ECR I‑5049, paragraph 46, and case-law cited).
42. However, whilst that Article 73 constitutes a general rule in the matter of family benefits, it is not an absolute rule (see Dodl and Oberhollenzer , paragraph 49).
43. Thus, where there is a risk of overlap between rights under the legislation of the State of residence and rights under the legislation of the State of employment, provisions such as Articles 13 and 73 of Regulation No 1408/71 must be compared with the ‘anti-overlap’ rules appearing in the latter and in Regulation No 574/72 (see, to that effect, Dodl and Oberhollenzer , paragraph 49).
44. The present case must therefore be dealt with in the light of the provisions for preventing overlap, namely Article 76 of Regulation No 1408/71 and Article 10 of Regulation No 574/72, which lay down the rules for ending overlap of the rights provided for by the legislation of the State of residence of the children concerned with those arising from the legislation of the State of employment of one of their parents.
45. As its heading indicates, Article 76 of Regulation No 1408/71 contains ‘[r]ules on priority in cases of overlapping entitlement to family benefits under the legislation of the competent State and under the legislation of the … State of residence of … members of the family’. It follows from the terms of that provision that it is intended to resolve overlapping between, on the one hand, for example, rights to family benefits under Article 73 of that regulation and, on the other, national legislation of the State of residence of family members conferring a right to family benefits by reason of carrying on an occupation (see, to that effect, Dodl and Oberhollenzer , paragraph 53, and Slanina , paragraph 37).
48. As the Court has already, in effect, held, it follows from the anti-overlap rule laid down in Article 10(1)(a) of Regulation No 574/72 that benefits due in a Member State other than that in which the child concerned resides, either simply by virtue of the national legislation of that Member State or by the application, for example, of Article 73 of Regulation No 1408/71, take priority over benefits due under the legislation of the Member State of that child’s residence, which are consequently suspended. However, where an occupation is carried on in that latter State, Article 10(1)(b)(i) of Regulation No 574/72 prescribes the opposite solution, namely that the right to benefits paid by the Member State of the child’s residence prevails over the right to benefits payable by the Member State of employment, which are thus suspended (see to that effect, in particular, Case C‑119/91 McMenamin  [1992] ECR I‑6393, paragraphs 17 and 18, and Weide , paragraph 28).
51. On those points, it should however be remembered that Article 10 of Regulation No 574/72, as both its heading and its wording demonstrate, is intended only to resolve cases of overlapping of rights to family benefits where they are simultaneously due, irrespective of conditions of insurance or employment, in both the relevant child’s Member State of residence and, in application either of the national legislation of another Member State or of Article 73 of Regulation No 1408/71, in the Member State of employment (see, to that effect, Bosmann , paragraph 24).
52. For a finding that such overlapping is present in a given case, it is not enough, for example, for such benefits to be due in the relevant child’s Member State of residence and to be, in parallel, merely capable of being due in another Member State, where one of the parents of that child works (see, by analogy, McMenamin , paragraph 26).
53. Indeed, as is apparent from the case-law of the Court, for it to be possible to regard family benefits as being due under the legislation of a Member State, the law of that State must recognise the right to the payment of benefits in favour of the member of the family who works in that State. It is thus necessary for the person concerned to fulfil all the conditions, as to both form and substance, imposed by the internal legislation of that State in order to be able to exercise that right, which may in some cases include the condition that a prior application must have been made for the payment of such benefits (see, by analogy with a previous version of Article 76 of Regulation No 1408/71, Case 134/77 Ragazzoni  [1978] ECR 963, paragraphs 8 to 11; Case 191/83 Salzano  [1984] ECR 3741, paragraphs 7 and 10; Case 153/84 Ferraioli  [1986] ECR 1401, paragraph 14; and Kracht , paragraph 11).
55. It must therefore be held that suspension, under Article 10(1)(a) of Regulation No 574/72, of the right to family benefits due under the legislation of a Member State according to which the acquisition of the right to those benefits is not subject to conditions of insurance, employment or self-employment, such as the right under Paragraph 62 of the EStG, does not take place if the benefits were not paid in the other Member State concerned, on the ground that not all the conditions required by the legislation of that Member State for those benefits to be actually drawn were met, including the condition that a prior application must have been made (see, by analogy, Ragazzoni , paragraph 12; Salzano , paragraph 11; Ferraioli , paragraph 15; and Kracht , paragraph 11).
56. It is true that, as the Familienkasse points out, after the dates of the facts of the cases which gave rise to the judgments cited in the previous paragraph of this judgment, Article 76 of Regulation No 1408/71, in the version then in force, to which those judgments related, was amended to include a paragraph (2) designed to allow the Member State of employment to suspend the right to family benefits if an application for obtaining those benefits was not made in the Member State of residence and, consequently, the latter made no payment.
57. However, that fact does not deprive the case-law cited in paragraph 55 of this judgment of its usefulness in interpreting Article 10 of Regulation No 574/72, which, unlike the previous version of Article 76 of Regulation No 1408/71, was not supplemented by Council Regulation (EEC) No 3427/89 of 30 October 1989 (OJ 1989 L 331, p. 1), which none the less amended in various respects both the version then in force of Regulation No 1408/71 and that of Regulation No 574/72.
58. Moreover, as is apparent from the case-law of the Court of Justice, the legislation of the Union on the co-ordination of national social security legislation, taking account in particular of the underlying objectives, cannot, save in the case of an express exception in conformity with those objectives, be applied in such a way as to deprive a migrant worker or those claiming under him of the enjoyment of benefits granted simply by virtue of the legislation of a Member State (see, to that effect, Case 100/78 Rossi , [1979] ECR 831, paragraph 14; Case 733/79 Laterza  [1980] ECR 1915, paragraph 8; Case 807/79 Gravina  [1980] ECR 2205, paragraph 7; Case 320/82 D’Amario  [1983] ECR 3811, paragraph 4; and Kromhout , paragraph 21). It follows that it would not be in accordance with the said objectives to interpret a provision for preventing overlap, such as Article 10 of Regulation No 574/72, in such a way as to lead to the actual grant of an amount which is less than either of those benefits taken individually (see in particular, by analogy, Rossi , paragraph 14 et seq .; Case 104/80 Beeck  [1981] ECR 503, paragraph 12; and Kromhout , paragraph 21).