Caisse nationale des prestations familiales v Fjola Hliddal (C‑216/12) and Pierre-Louis Bornand (C‑217/12).
Date: 2013-09-19
41. Under Article 157(2) TFEU, ‘pay’ means ‘the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer’. It is settled case-law that that concept covers any consideration, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment, from his employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis (see Case C‑262/88 Barber  [1990] ECR I‑1889, paragraph 12; Case C‑66/96 Høj Pedersen and Others  [1998] ECR I‑7327, paragraph 32; Case C‑236/98 JämO  [2000] ECR I‑2189, paragraph 39; and Case C‑147/02 Alabaster  [2004] ECR I‑3101, paragraph 42).
42. The Court has held that a worker who exercises a statutory right to parenting leave which carries with it a parenting allowance paid by the State is in a specific situation which cannot be assimilated to that of a man or woman who works, since such leave is characterised by the suspension of the employment contract and, accordingly, of the respective obligations of the employer and the worker (see Case C‑333/97 Lewen  [1999] ECR I‑7243, paragraph 37, and Case C‑537/07 Gómez-Limón Sánchez‑Camacho  [2009] ECR I‑6525, paragraph 57).
46. It should be stressed at the outset that the fact that the Luxembourg Government has not made a declaration under Article 5 of Regulation No 1408/71 specifying the parental leave allowance provided for under Article 306 of the Code de la Sécurité Sociale as being a scheme as referred to in Article 4(1) and (2) of Regulation No 1408/71 is not proof in itself that the allowance does not fall within the scope of that regulation (see, inter alia, Case 35/77 Beerens  [1977] ECR 2249, paragraph 9, and Case C‑85/99 Offermanns [1999] ECR I‑2261, paragraph 26).
47. Furthermore, the way in which a benefit is classified under domestic law is not decisive for the purposes of determining whether or not that benefit falls within the material scope of Regulation No 1408/71 (see Case C‑78/91 Hughes  [1992] ECR I‑4839, paragraph 14; Joined Cases C‑245/94 and C‑312/94 Hoever and Zachow  [1996] ECR I‑4895, paragraph 17; and Offermanns , paragraph 37).
48. According to settled case-law, a benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Hughes , paragraph 15; Case C‑286/03 Hosse  [2006] ECR I‑1771, paragraph 37; Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt and Others  [2007] ECR I‑11895, paragraph 63; and Case C‑228/07 Petersen  [2008] ECR I‑6989, paragraph 19).
52. A benefit such as the parental leave allowance at issue in the main proceedings does not constitute an unemployment benefit. The Court has held that, in order to distinguish between the various categories of social security benefit, ‘the risk covered’ by each benefit must be taken into consideration. Thus, an unemployment benefit covers the risk associated with the loss of revenue suffered by a worker following the loss of his employment although he is still able to work. A benefit granted if that risk, namely loss of employment, materialises and which is no longer payable if that situation ceases to exist as a result of the claimant’s engaging in paid employment must be regarded as constituting an unemployment benefit (see Case C‑406/04 De Cuyper  [2006] ECR I‑6947, paragraph 27).
53. However, that is not the position in the case of a person receiving a parental leave allowance such as the allowance at issue in the main proceedings. That person has not lost his employment, but has merely decided to suspend the employment relationship.
54. It should also be borne in mind that, under Article 1(u)(i) of Regulation No 1408/71, ‘the term family benefits  means all benefits in kind or in cash intended to meet family expenses’. In this regard, the Court has held that family benefits are intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses (see Case 104/84 Kromhout  [1985] ECR 2205, paragraph 14, and Offermanns , paragraph 38).
55. The phrase ‘to meet family expenses’ which is used in that provision is to be interpreted as referring, in particular, to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children ( Offermanns , paragraph 41, and Case C‑333/00 Maaheimo  [2002] ECR I‑10087, paragraph 25).
56. The Court has also held that the purpose underlying a parenting allowance which is designed to enable one of the parents to devote himself or herself to the raising of a young child and which is intended, specifically, as remuneration for bringing up that child, and to meet other costs involved in caring for and raising a child and, as the case may be, to mitigate the financial disadvantages entailed in giving up income from full-time employment is ‘to meet family expenses’ within the meaning of Article 1(u)(i) of Regulation No 1408/71 (see, to that effect, Hoever and Zachow , paragraphs 23 and 25).
57. It follows from paragraph 27 of the judgment in Hoever and Zachow  that such a benefit must be treated as a ‘family benefit’ within the meaning of Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71 (see Case C‑275/96 Kuusijärvi  [1998] ECR I‑3419, paragraph 60).