Tiroler Gebietskrankenkasse v Michael Moser.
Date: 2019-09-18
28


By reference to the case-law of the Court, the referring court recalls that restrictive conditions relating to the grant or the amount of family allowances which prevent or dissuade the worker from exercising his right of free movement are contrary to EU law and must not be applied (judgments of 10 October 1996, Hoever and Zachow, C‑245/94 and C‑312/94, EU:C:1996:379, paragraphs 34 to 36, and of 15 December 2011, Bergström, C‑257/10, EU:C:2011:839, paragraphs 43 and 44). By virtue of the deeming provision included in the second sentence of Article 60(1) of Regulation No 987/2009, the Court has held that the issue as to which parent is regarded under national law as the person entitled to receive such benefits is irrelevant (judgment of 22 October 2015, Trapkowski, C‑378/14, EU:C:2015:720, paragraph 49).
30


In the event that, under EU law, the father would be entitled to the payment of the amount by which the Austrian income-dependent childcare allowance differs, the referring court has doubts as to whether that allowance must be calculated on the basis of the income actually earned in the Member State of employment or whether the income hypothetically earned from a comparable gainful activity in the Member State having secondary competence must be taken into account. Notwithstanding the Court’s judgment of 15 December 2011, Bergström (C‑257/10, EU:C:2011:839, paragraph 53), the referring court considers that the equal treatment of benefits, facts or events as prescribed in Article 5 of Regulation No 883/2004 is conducive to an interpretation that the income actually earned in Germany must form the basis of the calculation.
35


Article 67 of Regulation No 883/2004 establishes the principle that a person may claim family benefits for members of his family who reside in a Member State other than the Member State competent for paying those benefits, as if they resided in the latter Member State (judgment of 22 October 2015, Trapkowski, C‑378/14, EU:C:2015:720, paragraph 35).
36


The Court has clarified, as regards Article 73 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 their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), which was succeeded by Article 67 of Regulation No 883/2004 and the content of which is, in essence, identical to the latter, that that article 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, 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 (judgment of 14 October 2010, Schwemmer, C‑16/09, EU:C:2010:605, paragraph 41 and case law cited).
37


Accordingly, Article 67 of Regulation No 883/2004 is applicable to a worker who, like Mrs Moser in the main proceedings, works in a Member State but lives with her family in a Member State other than the one whose legislation is applicable to her (see, to that effect, judgment of 7 November 2002, Maaheimo, C‑333/00, EU:C:2002:641, paragraph 32).
38


In such a case, the spouse of the worker is also entitled to rely on that article (judgment of 7 November 2002, Maaheimo, C‑333/00, EU:C:2002:641, paragraph 33), in accordance with the deeming provision included in Article 67 of Regulation No 883/2004, under which the whole family is to be taken into account as if all the persons involved were subject to the legislation of the Member State concerned and residing there.
40


However, the principle of equal treatment established by Article 67 of Regulation No 883/2004 is not absolute, in the sense that, where several entitlements are payable under different laws, the rules against overlapping benefits laid down in Article 68 of Regulation No 883/2004 apply (see, as regards Article 73 of Regulation No 1408/71, judgment of 14 October 2010, Schwemmer, C‑16/09, EU:C:2010:605, paragraphs 42 and 43 and the case-law cited).
42


The Court has held that such a rule against overlapping seeks to ensure that the person entitled to benefits paid by several Member States receives a total amount of benefits which is equal to the amount of the most favourable benefit to which he is entitled under the legislation of a single Member State (judgment of 30 April 2014, Wagener, C‑250/13, EU:C:2014:278, paragraph 46 and the case-law cited).
44


As regards Article 60(1) of Regulation No 987/2009, it must be noted that the parents of the child for whom family benefits are claimed fall within the definition of ‘persons involved’ and are therefore authorised to claim payment of those benefits. The Court has previously stated that the deeming provision included in the second sentence of that article leads to the grant of entitlement to family benefits to a person who does not reside in the Member State competent for paying those benefits, where all the other conditions for the grant of those benefits laid down by national law are met (see, to that effect, judgment of 22 October 2015, Trapkowski, C‑378/14, EU:C:2015:720, paragraphs 39 and 41).
50


In connection with that question, the referring court made reference to the Court’s judgment of 15 December 2011, Bergström (C‑257/10, EU:C:2011:839, paragraph 53), while suggesting that, on account of the equal treatment of benefits, facts or events prescribed in Article 5 of Regulation No 883/2004, the income actually earned in Germany could form the basis for calculating the differential supplement.